Cook v. Office of Personnel Management

60 F. App'x 300
CourtCourt of Appeals for the Federal Circuit
DecidedMarch 10, 2003
DocketNo. 03-3025
StatusPublished

This text of 60 F. App'x 300 (Cook v. Office of Personnel Management) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. Office of Personnel Management, 60 F. App'x 300 (Fed. Cir. 2003).

Opinion

DECISION

PER CURIAM.

William K. Cook (“Cook”) petitions for review of the final decision of the Merit Systems Protection Board (“Board”), af[301]*301firming the decision of the Office of Personnel Management (“OPM”) to increase Cook’s former spouse’s Civil Service Retirement System (“CSRS”) survivor annuity benefits based on his re-employed federal service. Cook v. Office of Pers. Mgmt., Docket No. DA-0831-02-0042-I-1, 2002 WL 31126661 (Sept. 25, 2002) (petition for review denied Sep. 25, 2002). Even though the Board analyzed the case under the incorrect model language in the Code of Federal Regulations (“Regulations”), the result from our analysis does not change the outcome. Therefore, this court affirms.

BACKGROUND

Cook retired from federal employment on April 1, 1993. One day before his retirement, he and his wife, Rebecca M. Raybin (“Raybin”), were divorced. A divorce decree and a Qualified Domestic Relations Order (“QDRO”) were issued by the District Court of Harris County, Texas. The QDRO granted to Raybin, an intervenor in this action, an interest in Cook’s annuity benefits and entitled her to receive a former spouse survivor annuity benefit. Specifically, Paragraph 8 of the QDRO reads:

Under section 8341(h)(1) of Title 5, United States Code, Rebecca M. Raybin is awarded a former spouse survivor annuity under the Civil Service Retirement System. The amount of the former spouse survivor annuity under the Civil Service Retirement System will be equal to 100 percent of the maximum possible survivor annuity.

Cook was subsequently re-employed (his “supplemental service”) by the federal government from January 1, 1996 through December 30, 1999. On January 12, 2001, OPM found that Cook was eligible for supplemental annuity. At the same time, OPM adjusted Raybin’s apportionment of Cook’s annuity and her survivor annuity based on calculations that included Cook’s supplemental service. On May 8, 2001, OPM reversed this initial decision, instead calculating the apportionment based solely on his service at retirement on April 1, 1993. In a separate letter dated the same day, OPM awarded Raybin a spouse survivor annuity based on Cook’s service at retirement and his supplemental service. On September 27, 2001, OPM, in its final decision, found that Raybin was entitled to a full survivor annuity equal to fifty-five percent of Cook’s annuity as computed at the time of his retirement, plus any future increases. OPM based this finding on language in Item 7.01.C of the Final Decree of Divorce, which reads:

The Court further finds that under section 8341(h)(1) of title 5, United States Code, Rebecca M. Cook is awarded a former spouse survivor annuity under the Civil Service Retirement System. The amount of the former spouse surviv- or annuity will be equal to 100 percent of the maximum possible survivor annuity-

This language is nearly identical to Paragraph 8 of the QDRO. OPM noted that since the court order (the Final Divorce Decree and the QDRO) did not restrict the survivor annuity to a portion based on the date of divorce, a “full” survivor annuity for Raybin must be computed based on Cook’s service at the time of retirement plus any increases due to the supplemental service. Cook appealed to the Board.

The Administrative Judge (“AJ”) in his initial decision dated December 26, 2001, affirmed the OPM decision that Raybin be provided a full survivor annuity as computed at the time of Cook’s retirement, plus the supplemental service. Specifically, the AJ found that the QDRO adopted regulatory language that indicated that Raybin [302]*302should receive the maximum survivor annuity, equal to what she would have received had the parties not divorced.

Additionally, the AJ cited model language present in the Regulations used for drafting awards of former spouse survivor annuities. The cited paragraph, entitled “Award that continues the pre-divorce survivor annuity benefits,” reads:

Using the following paragraph will award a former spouse survivor annuity equal to the amount that the former spouse would have received if the marriage were never terminated by divorce.
“Under section 8341(h)(1) of title 5, United States Code, [former spouse] is awarded a former spouse survivor annuity under the Civil Service Retirement System in the same amount to which [former spouse] would have been entitled if the divorce had not occurred.”

5 C.F.R. § 838, Subpt. I, App. A, ¶ 702 (2002) (hereinafter “Paragraph 702”). The initial decision was made final on September 25, 2002, when the Board denied Cook’s petition for review. Cook timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2000).

DISCUSSION

This court must affirm the Board’s decision unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (2000); Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 140 (Fed.Cir.1986).

Survivor annuity benefits may be available to the former spouse of a federal employee “if and to the extent expressly provided for ... in the terms of ... any court order or court-approved property settlement.” 5 U.S.C. § 8341(h)(1) (2000). The language in the court order providing this survivor annuity must be “clear, definitive, explicit, plain, direct, and unmistakable, not dubious or ambiguous.” Rose v. Office of Pers. Mgmt, 84 M.S.P.R. 284, 287 (1999); see also Holzman v. Office of Pers. Mgmt., 62 M.S.P.R. 254, 257 (1994), aff'd, 48 F.3d 1237 (Fed.Cir.1995) (Table). The maximum spousal survivor annuity is fifty-five percent of a retiree’s self-only annuity. See 5 C.F.R. § 831.641 (2002). Title 5 of the Regulations provides model language for use in court orders awarding former spouse survivor annuities. See 5 C.F.R. § 838, Subpt. I, App. A (2002). This language ensures that a court order will have the effect that is described, thereby guaranteeing proper survivor annuity calculations and distributions. See id.

A close reading of Paragraph 702 of the Regulations and Paragraph 8 of the QDRO reveals the two paragraphs to be dissimilar. Nevertheless, this does not warrant a different result than that found by the AJ. Although his reliance on Paragraph 702 was misplaced, the AJ’s analysis of that paragraph was correct. Had Paragraph 8 of the QDRO recited language similar to that contained in Paragraph 702, there would be no question that Raybin would be entitled to a survivor annuity that was based on Cook’s service at retirement and his supplemental service.

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60 F. App'x 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-office-of-personnel-management-cafc-2003.