Opm v. Moulton

Opinion

Case: 24-109 Document: 10 Page: 1 Filed: 05/03/2024

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

DIRECTOR OF THE OFFICE OF PERSONNEL MANAGEMENT, Petitioner

v.

RONALD L. MOULTON, JILL MOULTON, MERIT SYSTEMS PROTECTION BOARD, Respondents ______________________

2024-109 ______________________

Petition from the Merit Systems Protection Board in No. DE-0841-18-0053-I-1. ______________________

ON PETITION ______________________

Before CHEN, LINN, and HUGHES, Circuit Judges. PER CURIAM. ORDER The Director of the Office of Personnel Management (“OPM”) petitions for review of a final order of the Merit Systems Protection Board pursuant to 5 U.S.C. § 7703(d). Specifically, OPM seeks review of the Board’s decision that Case: 24-109 Document: 10 Page: 2 Filed: 05/03/2024

the governing statute, 5 U.S.C. § 8421(c), authorizes appor- tionment of a retirement annuity supplement only when the terms of a court order expressly provide for division of the supplement. The Board does not oppose the petition. Ronald L. Moulton and Jill Moulton did not respond. Pursuant to 5 U.S.C. § 7703(d), this court has “discre- tion” whether to permit OPM’s petition for review of a Board decision when OPM determines that “the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board’s de- cision will have a substantial impact on a civil service law, rule, regulation, or policy directive.” 1 We conclude that OPM’s petition should be permitted here. We note that Mrs. Moulton passed away after the Board issued its deci- sion. 2 Any personal representative or attorney for Mrs. Moulton’s estate who intends to participate on appeal must file a motion for leave to intervene. Accordingly, IT IS ORDERED THAT: (1) OPM’s petition is granted. This case is transferred to the regular docket. OPM’s opening brief is due within 60 days of the date of entry of this order.

1 While Mr. Moulton appears to have raised a claim of age discrimination before the Board, Appx7 n.7, this is not a “mixed case” subject to review in district court, be- cause this case is brought under § 7703(d) and not § 7703(b), see Kaplan v. Conyers, 733 F.3d 1148, 1154 (Fed. Cir. 2013). 2 OPM and the Board agree that there is a live case or controversy based at least on Mr. Moulton’s cognizable interest in a refund of his previously apportioned supple- ment payments. See Pet. at 5 n.4; Board Resp. at 2–3. Case: 24-109 Document: 10 Page: 3 Filed: 05/03/2024

OPM v. MOULTON 3

(2) Absent objection within 30 days of the date of entry of this order, the official caption will be revised to remove Jill Moulton as a respondent in the case. Any personal rep- resentative or attorney for Mrs. Moulton’s estate intending to participate on appeal must file a motion for leave to in- tervene within that time. FOR THE COURT

May 3, 2024 Date