*1 MUWWAKKIL, Petitioner, Melanie L.
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Respondent.
No. 93-3490. Appeals, Court of
United States
Federal Circuit.
March Muwwakkil,
Melanie L. submitted Pro Se. Wallaek, Attorney, Carol L. Commercial Branch, Justice, Litigation Department of D.C., Washington, respondent. submitted for him on the Frank Hun- With brief were W. General, ger, Attorney Assistant David M. Cohen, Davidson, Director and Jeanne E. were Assistant Director. Also on the brief *2 Lewis, “Application form for Re- Counsel and Mur- On the CSRS General Lorraine Meeker, which Lee Attorney, Office of General fund of Retirement Deductions” ray H. Counsel, Management, completed questions dealing Personnel there were two Office of Question marital status. 14 asked Lee counsel. response, married. whether he was then PLAGER, not, ARCHER, cor- and Lee stated he was was Before SCHALL, Question Judges. rect. 15 on the form then asked Circuit
Lee he had been divorced “on or 7,May responded 1985.” Lee in the after PLAGER, Judge. Circuit negative, which was not correct. If Lee had pro case, se which comes to us from This Question correctly, the form answered regard- litigant, important question raises identify him as then Muwwakkil duty ing the of OPM under the statutes living was from whom he former-spouse notification. On re- requiring 11, 1991, divorced. On October decision, of its initial the Office consideration proved application lump pay- for sum (OPM) Management Me- of Personnel denied ment, requested payment to and made the (Muwwakkil) applica- L. MuwwakMl’s lanie $25,000. No Lee the amount of about employment on the tion for based notification was to Muwwakkil before- (Lee), un- James A. Lee hand, required by statute.3 Service Retirement Act der the Civil (CSRA). Systems Merit Protection 8, 1992, July Upon learning On Lee died. (Board), DC0831930263-I-1, Dkt. No. Board death, applied of Lee’s Muwwakkil to OPM appeal- the decision of OPM.1 She affirmed for death benefits on behalf of herself and and remand. ed. vacate We period her two on children based
employment with the District of Columbia. 27,1992, On October OPM sent Muwwakkil a BACKGROUND noting form that “All retirement de- letter Lee; they was married to had Muwwakkil ductions were refunded to the deceased. No sons, teenagers. two now Muwwakkil and payable.” penned marginal benefits A are 2, Lee were divorced on December 1988. said, “All note deductions were refunded on alia, provided, inter The divorce decree 10-11-91.” (i) custody granted was of the 9, 1992, By letter Mu- dated November children, A. Lee and Jawara A. minor Jelani wwakkil asked OPM to reconsider its deci- (ii) Lee; per Lee was to contribute $400 sion to extent it (iii) related to her support; month child and there were no children, setting on behalf of her out in some adjudicated. property rights At the history January detail the of the case. time, employee gov- had been an of the 15, 1993, initial OPM letter affirmed the ernment of the District of Columbia for al- letter, decision. In its Mu- OPM informed twenty years, participant and a most pay- wwakkil that no benefits were System.2 federal Civil Service Retirement 1991, job they able to her children August resigned from his because District, eligibility requirements meet the of 5 applied lump-sum with the and for a U.S.C. 8341(e)(2)(1988). provides, That of the retirement contributions statute salary. pertinent part, that if had been withheld from his (AJ) 2(5)(B) Judge 3.§ 1. rendered an ini- of the Civil Retirement The Administrative Service 21, May (codified tial decision on 1993. Pursuant to 5 Act of 1984 at 5 U.S.C. (1993), (1988)): 1201.113 that decision became 8342(j)(l) decision of June the final Payment credit under subsec- petition failed to file a for when Muwwakkil (a) tion of this section— review. (A) may only any be made current if employee eligible Employees par- of the District are employee ticipation system. are or Mem- Member notified of in the federal retirement 8331(1)(G) application.... ber's pur- ... after at his retirement funds ... employee completing dies What is the service, pose requiring applicant or an 18 months of civilian to answer least retiring under this you ... dies after “Have ever been mar- by spouse subehapter, applicant and is survived ried?” does not have to *3 is the natural or report a former who the truth and if the is (sic) surviving child of adoptive parent of a applicants applying irrelevant to for ..., surviving that child is enti- refund. annuity- tled to an Addressing OPM’s observation that the di- explained that no such benefits were OPM vorce decree failed to state that she was to payable because at the time to her children any portion receive of his retirement contri- “employ- not an of his death James was butions, wrote, Muwwakkil and, having resigned having ee” rather than filing my At the time of for divorce I employment gov- retired from with the D.C. employees received advice from staff and ernment, retiring. Lee did not die after Family Division-Domestic Relations pointed annuity out that OPM benefits would Branch Superior of DC Court. I was not “if payable to his children Mr. Lee informed at the time that an attachment of employment had continued his to the date of [retirement could be funds] made. With death, separated or if he was for Civil Ser- knowledge payment history of Mr. Lee’s I vice retirement.” definitely would have included such a regard to With to failure clause in the divorce decree. notice, required statutory explained OPM gave the decision that rise to this that, although “incorrectly stated on his peal, the Board affirmed OPM’s reconsidera- Application for Refund of Retirement Deduc- doing, agreed tion decision. so the Board divorced, tions that he had not been this receipt with OPM that of retirement deduc- (sic) apparently pay- would not have effected tions voids all to an based on added, ment of the refund.” then “his OPM the service which the refund is based. retirement contributions were Civil Service In addition because the deceased’s retire- death, prior refunded to him to his so there him, they ment deductions were refunded to lump payable no sum amount to the chil- is were not available as a credit for herself, regard dren.” With Muwwakkil surviving to his children. noted that the divorce decree did not OPM provide any portion her retire- with acknowledged The Board that Muwwakkil ment contributions —“the decree states that prior should the refund been adjudicat- property rights there are no by Lee, of the retirement contributions made ed.” statute, required by responsibility but “the appealed notification,
Muwwakkil then to the Board. making that in the first in- form, appeal stance, husband’s,” Muwwakkil stated that citing On was her former “[djenial (c). appealing 831.2007(b)(2), she was of surviv- regulation § OPM’s The al for the sons of James A. benefits Lee.” that Board further considered she had faded Board, argued Before the Muwwakkil prove or her children were enti- any statutory regulatory she was entitled to the relief which she tled to relief as a sought because she had not been notified of being result of not notified. for refund of his retirement wrote,
deductions. She DISCUSSION Management of Personnel did Office check the records of Mr. Lee I. refunding before him his retirement. Mr. task is to determine whether Our application by stating Lee falsified the Board’s decision is he had never been married. Mr. Lee’s (1) arbitrary, capricious, reluctance to state the truth should have an abuse of dis- cretion, challenged by been OPM and a discussion or otherwise not in accordance law; prior held with Mr. Lee to the release of regulation prescribe.” 5 U.S.C. by (2) procedures re- without obtained (1988). 8342©(2) prescribed no- OPM has rule, having law, regulation by quired requirements 5 C.F.R. 831- tification followed; or
been 2007(b)(2), (c) regu- Pursuant to that (3) evidence unsupported substantial lation, person applying is for the re- who the obli- of retirement deductions has fund 7703(c) (1988). 5 U.S.C. certifying he or she has a gation of dis- argues that the appeal, current or former who husband, James to her former requirement, 5 831.- bursement the notification pro- Lee, 2007(b)(2). she was not improper because was also has the obli- Such prior notice as *4 presenting proof with of notification to gation vided of 2(5)(B) Retirement a spouse § of the Civil Service or former in the form of current (codified at 5 Act of 1984 for- Spouse Equity statement the current or witnessed (1988)), and thus the Board informed spouse that he or she has been mer 8342© “responsible application and of the that OPM is for a refund claims of erred. She surviving current or consequences Lee’s de- of the refund on the provide relief to Mr. to annuity, an 5 spouse’s award “at entitlement to and that we should pendents,” 831.2007(c). retirement benefits to C.F.R. of Mr. Lee’s least half dependant children-” his regulation, upon OPM’s the Board Based that, apparently concluded once James language the statute plain of The Questions 14 and 15 on the had answered given to a former that notice be requires application negative, form in the OPM refund lump-sum prior to disbursement of spouse obligation inquire had no to further contributions of payment of the retirement compliance matter in order to assure with the other: requirement the notification of the statute. credit un- (j)(l) Payment of way, apparently Put another the Board con- (a) of this section— subsection der that to look cluded OPM was (A) current may be made negative applica- behind Lee’s answers spouse and tion form order to determine whether employee Member are notified of the or spouse. had a current or former That con- application_ employee or Member’s clusion was error. added). (Emphasis discharge responsi its OPM 98-615, 2(5)(B), 98 Stat. Pub.L. No. respect bilities with to the notification re (1984). statutory interpretation When Spouse Equity quirement of the Act. The issue, unambiguous plain and mean is at plainly gives authority pre to statute Holding prevails. See VE of a statute scribe the manner which notice is to be Co., Appliance Corp. Gas v. Johnson dispense given, authority to but not the 1574, 1579,16 USPQ2d F.2d requirement. regulation that The OPM (Fed.Cir.1990). requires applicant certify wheth acknowledged that Mu- The er he or she has current or former that, by claiming was correct subject requirement wwakkil to the notification who is regulation, have been and she should way statute appropriate is a reasonable and for OPM to the refund of the retirement prior inquiry which must be under to initiate the 5 C.F.R. 831.2007 to Lee. See requirement. deductions taken in connection with that determined, also howev The Board require, it reasonable to when an And making er, responsibility for that notifi acknowledges is such a applicant there instance, was, in the first cation applicant notify spouse, that the husband’s. of the intended withdrawal and its conse quences. perti- provides, Act “[njotification here, However, when, applicant for a of a part, nent negative questions gives answers spouse ... be made in accor- shall asking applicant has a current whether the requirements as shall [OPM] dance with such Congress to the is a matter that spouse who is statu- decided when it or former requirement, Second, however, OPM cannot tory notification wrote the statute. we do minimum, there. At a OPM has simply rest not believe that is a serious concern under verify duty those answers a check simple circumstances of this A case. records, in this case Lee’s appropriate application cross-check between Lee’s and at the District of Columbia. personnel file agency personnel his file would have uncov- that, a check would have revealed -as of Such identity ered the existence and of Muwwak- application, there were the date kil. We assume that some number of outstanding attaching orders several employees will wish to withdraw their contri- purpose satisfying salary for the delin- butions rather than take a retirement annui- quent support payments child to Muwwakkil. ty, but even so it is not an undue burden to Thus, a check would have revealed that such require employee’s person- OPM to check an Question his answer to 15 on the refund verify accuracy nel file to negative incomplete, proba- form was Questions answers to 14 and 15 on the refund bly untruthful. application form allowing employ- before ee to withdraw her retirement contri-
In order for us to hold that OPM butions. It is difficult imagine how the discharged Spouse Equi- its duties under the *5 statute could be honored with less. More- case, ty Act in this we would have to con- over, while there could be in which cases Congress the clude that intended to allow inquiry further required, would be we ex- spouse financial of one former pect deciding other, the issue—that such subject caprice of to the whim and —without typically a record check will serve to dis- an inconceivable result the acrimonious charge responsibilities OPM’s under the stat- relationship that often exists former between ute. spouses, and the economic motivation the one
might misrepresent have to the existence and identity holding of the other. Such also II. very purpose would eviscerate the of the Having held that OPM failed to dis protect spouses statute —to of federal charge responsibilities its under the employees unwittingly being from denied Act, and that in Board erred support they may to which law be enti- otherwise, concluding we are confronted with 98-1054, H.R.Rep. Cong., tled. See No. 98th whether the failure of OPM to 10, 12, (1984), reprinted 2d Sess. 13 in 1984 provide notice Muwwakkil was harmful. 5540, 5540, 5542, U.S.C.C.A.N. the record before us we are unable to appeal argues Government on question. answer that that Muwwakkil “asks the to create Court discussed, already Spouse Eq As protection and relief for her because uity provides Act that retirement contribu regulations may do not do so.” It well be any if tions be refunded so, regulations that the do not it is do but application. is notified of the refund agen clear that the statute does. When an provides any The statute also refund cy’s interpretation of a statute it is entrusted which is made contrary to administer is to the intent of shall be to the terms of a court Congress, as divined from statute and its divorce, annulment, legal sep- decree of or legislative history, we owe it no deference. any aration or court order or court U.S.A., See Inc. v. Natural Re Chevron proved property agreement in- Council, Inc., 837, settlement sources 467 U.S. Defense cident to if— 845, 2783, such decree 104 S.Ct. 81 L.Ed.2d 694 (1984) Shimer, (quoting United States v. 367 (i) decree, order, agreement or ex- 374, 382-83, 1554, 1560, U.S. 81 S.Ct. pressly any portion lump- relates to of the (1961)). L.Ed.2d 908 involved; sum credit (ii)
Perhaps the Board was concerned with the credit would compliance extinguish burden that notice re- entitlement of the or First, quirement place would or to a OPM. Member’s 8341(h) being annuity prejudiced under section of wwakkil was any portion pending of an to Lee. Such or a deter- this title 8345(j) of this title. necessarily inquiry section mination will involve an under whether, standpoint into from the the facts 8342(j)(1)(B). pertinent part, 5 U.S.C. they and law existed Muwwakkii 8341(h) provides for survivor annui section sought would a modification of the di- expressly provided ... ty extent “to the had, if whether vorce decree and such a any ... decree divorce or the terms modification could have been obtained under court-approved property any court order District of law. Columbia de agreement incident to such settlement 8341(h)(1). part, For its cree.” 5 U.S.C. above, Additionally, as seen before OPM annuity pay provides section and the also Board Muwwakkii asserted a ment, paid would to ah otherwise be remand, claim on children. On behalf of her government employee based determining the failure whether (in service, paid part) whole or “shall statutory Muwwakkii the notification was if and to the extent ... another harmful, take the Board also should this fact provided for terms of expressly Specifically, into account. Board should ... divorce or the terms of court decree ascertain in 1991 Muwwakkii had court-approved property order or court standing a claim on behalf to assert of her agreement incident to court settlement children if such a claim and so whether divorce_” 8345(j)(l). decree have had at that time. merit the event this, that a we conclude From the Board determines that Muwwakkii inwas applica received notification of who has prejudiced, fact then the also should refund, rely upon must the relevant tion for a what, any, instance determine the first *6 pursu or court order issued divorce decree relief is available to Muwwakkii. to bar ant that decree refund. CONCLUSION undisputed that Muwwakkil’s divorce
It is give any her either did not decree Board, We vacate the decision of the any rights any annuity rights or to all or proceedings remand the case for further con- portion any annuity payments that of would opinion.4 sistent with this made to her former husband. have been right any the give Nor it her to receive did VACATED AND REMANDED. portion of Lee’s retirement contributions application for refund of COSTS above, however, such. noted before the As that, Board, stated at the time of Muwwakkii Costs to be awarded to Muwwakkii. divorce, had not been “that an her aware could be [retirement funds] attachment ARCHER, Judge, dissenting. Circuit that, also stated knowl- “[w]ith made.” She payment history edge I definite- of Mr. agree majority I with the OPM im- ly in have included such a clause notify Ms. failed to Muwwakkii of Assuming that Muwwakkii divorce decree.” (her husband) Mr. proposed timely given proposed notice of the had been withdrawal of his retirement deductions. it is not known whether at given Where to a former notice is sought, have and could that time she would required pay benefits to a obtained, a modification of the decree though fully even it has dis- respect her that would have tributed an retirement deductions to Lee’s retirement contributions. employee. to the That would be in a true time, grant- is not at this case such as this if the divorce decree This before us Rather, an interest in however. it is for the Board ed the em- ployee’s first instance to determine whether Mu- retirement benefits. We, course, questions directing express no view we are the Board to address. however, this when that elects to withdraw agree, ease re-
I do not remanded. The Ad- tirement deductions. vacated and should be (AJ) already fully Judge has ministrative decision, This court reviews the AJ’s Ms. Mu- the issue of whether considered board, became the final decision of the under children of Ms. Mu- or the minor wwakkil record, a narrow standard of review. On this Lee were entitled to wwakkil and Mr. determination that AJ’s Ms. Muwwakkil benefits and in Mr. Lee’s retirement interest prove entitlement to interest in correctly that she did not has determined her former husband’s retirement benefits establishing carry entitlement. her burden arbitrary, capricious, was not an abuse of to succeed this For Ms. Muwwakkil discretion, unsupported by substantial evi- action, prove by pre- she was dence or otherwise not in accordance with ponderance of the evidence that she or the 7703(c). the law. 5 U.S.C. OPM’s failure entitled to an interest children were notice, although improper, has not husband’s retirement benefits. prejudicial been shown to be to either Ms. 1201.56(a)(2) (“In appeals from re- under the facts of this case nor involv- [OPM] consideration decisions Accordingly, to the children. the board’s benefits, appellant if the filed decision should be affirmed. application, appellant has the burden preponderance of the proving, evi- benefits.”). dence, to the After entitlement record, including
reviewing the divorce
decree, the AJ found that Ms. Muwwakkil to show that either she or the children
failed entitled to an interest
would have been proper even notification had been paid provided to her before OPM the benefits USA, INC., INTERSPIRO n.k.a. Pharos Thus, the AJ consid- to her former husband. USA, Inc. and Tech Protection Pharos all the issues for which the ered and decided USA, Inc., Plaintiffs-Appellees, majority this case. now remands v. *7 Muwwakkil, As to Ms. the AJ found that INC., INTERNATIONAL FIGGIE provision no the divorce decree there was Defendant-Appellant. granting her an interest her former hus- benefits, by way either of a band’s No. 93-1445. or a death benefit. Absent Appeals, Court of United States provision type of this the divorce decree Federal Circuit. showing other basis for and absent a claiming an interest these AJ March correctly determined Ms. Muwwakkil was prejudiced by notify not OPM’s failure
her.
The AJ also determined that the minor prejudiced
children as a result of were notify Ms. Muwwakkil
OPM’s failure be- that the notifica-
cause she “has not shown provision apply ... to her chil-
tion Clearly, provision notice
dren.” de-
signed protect spouses, not the Thus,
children, employee. children rely statutory
cannot on Ms. Muwwakkü’s Further,
right to be notified. Ms. Muwwak- statutory pointed provision requir-
kil to no notify OPM to children