Muwwakkil v. Office of Personnel Management

• Decision Date: 08 March 1994
• Docket Number: No. 93-3490,93-3490
• Citation: 18 F.3d 921
• Parties: 17 Employee Benefits Cas. 2763 Melanie L. MUWWAKKIL, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 921

18 F.3d 921

17 Employee Benefits Cas. 2763

Melanie L. MUWWAKKIL, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

No. 93-3490.

United States Court of Appeals, Federal Circuit.

March 8, 1994.

Melanie L. Muwwakkil, submitted Pro Se.

Carol L. Wallack, Attorney, Commercial Litigation Branch, Department of Justice, of Washington, D.C., submitted for respondent. With him on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director and Jeanne E. Davidson, Assistant Director. Also on the brief were Before ARCHER, PLAGER, and SCHALL, Circuit Judges.

Lorraine Lewis, General Counsel and Murray H. Meeker, Attorney, Office of General Counsel, Office of Personnel Management, of counsel.

PLAGER, Circuit Judge.

This case, which comes to us from a pro se litigant, raises an important question regarding the duty of OPM under the statutes requiring former-spouse notification. On reconsideration of its initial decision, the Office of Personnel Management (OPM) denied Melanie L. Muwwakkil's (Muwwakkil) application for benefits, based on the employment of her former spouse, James A. Lee (Lee), under the Civil Service Retirement Act (CSRA). The Merit Systems Protection Board (Board), Dkt. No. DC0831930263-I-1, affirmed the decision of OPM. ¹ She appealed. We vacate and remand.

BACKGROUND

Muwwakkil was married to Lee; they had two sons, now teenagers. Muwwakkil and Lee were divorced on December 2, 1988. The divorce decree provided, inter alia, that (i) Muwwakkil was granted custody of the minor children, Jelani A. Lee and Jawara A. Lee; (ii) Lee was to contribute $400 per month child support; and (iii) there were no property rights to be adjudicated. At the time, Lee had been an employee of the government of the District of Columbia for almost twenty years, and a participant in the federal Civil Service Retirement System. ² In August of 1991, Lee resigned from his job with the District, and applied for a lump-sum payment of the retirement contributions that had been withheld from his salary.

On the CSRS form "Application for Refund of Retirement Deductions" which Lee completed there were two questions dealing with marital status. Question 14 asked Lee whether he was then married. In response, Lee stated that he was not, which was correct. Question 15 on the form then asked Lee whether he had been divorced "on or after May 7, 1985." Lee responded in the negative, which was not correct. If Lee had answered Question 15 correctly, the form then required him to identify Muwwakkil as a living former spouse from whom he was divorced. On October 11, 1991, OPM approved Lee's application for lump sum payment, and made the requested payment to Lee in the amount of about $25,000. No notification was given to Muwwakkil beforehand, as required by statute. ³

On July 8, 1992, Lee died. Upon learning of Lee's death, Muwwakkil applied to OPM for death benefits on behalf of herself and her two children based on Lee's period of employment with the District of Columbia. On October 27, 1992, OPM sent Muwwakkil a form letter noting that "All retirement deductions were refunded to the deceased. No benefits are payable." A penned marginal note said, "All deductions were refunded on 10-11-91."

By letter dated November 9, 1992, Muwwakkil asked OPM to reconsider its decision to the extent it related to her application on behalf of her children, setting out in some detail the history of the case. On January 15, 1993, OPM by letter affirmed the initial decision. In its letter, OPM informed Muwwakkil that no annuity benefits were payable to her children because they did not meet the eligibility requirements of 5 U.S.C. Sec. 8341(e)(2) (1988). That statute provides, in pertinent part, that if an employee ... dies after completing at least 18 months of civilian service, or an employee ... dies after retiring under this subchapter, and is survived by a spouse or a former spouse who is the natural or adoptive parent of a surviving child of the employee ..., that surviving child is entitled to an annuity....

OPM explained that no such benefits were payable to her children because at the time of his death James Lee was not an "employee" and, having resigned rather than having retired from employment with the D.C. government, Lee did not die after retiring. OPM pointed out that annuity benefits would only be payable to his children "if Mr. Lee had continued his employment to the date of death, or if he was separated for Civil Service retirement."

With regard to the failure to give the required statutory notice, OPM explained that, although Lee "incorrectly stated on his Application for Refund of Retirement Deductions that he had not been divorced, this would not apparently have effected (sic) payment of the refund." OPM then added, "his Civil Service retirement contributions were refunded to him prior to his death, so there is no lump sum amount payable to the children." With regard to Muwwakkil herself, OPM noted that the divorce decree did not provide her with any portion of Lee's retirement contributions--"the decree states that there are no property rights to be adjudicated."

Muwwakkil then appealed to the Board. On her appeal form, Muwwakkil stated that she was appealing OPM's "[d]enial of survival benefits for the sons of James A. Lee." Before the Board, Muwwakkil argued that she was entitled to the relief which she sought because she had not been notified of Lee's application for refund of his retirement deductions. She wrote,

The Office of Personnel Management did not properly check the records of Mr. Lee before refunding him his retirement. Mr. Lee falsified the application by stating that he had never been married. Mr. Lee's reluctance to state the truth should have been challenged by OPM and a discussion held with Mr. Lee prior to the release of his retirement funds ... What is the purpose of requiring the applicant to answer the question "Have you ever been married?" if the applicant does not have to report the truth and if the question is irrelevant to applicants (sic) applying for retirement refund.

Addressing OPM's observation that the divorce decree failed to state that she was to receive any portion of his retirement contributions, Muwwakkil wrote,

At the time of filing for my divorce I received advice from staff and employees of the Family Division-Domestic Relations Branch of DC Superior Court. I was not informed at the time that an attachment of [retirement funds] could be made. With knowledge of Mr. Lee's payment history I definitely would have included such a clause in the divorce decree.

In the decision that gave rise to this appeal, the Board affirmed OPM's reconsideration decision. In so doing, the Board agreed with OPM that receipt of retirement deductions voids all rights to an annuity based on the service upon which the refund is based. In addition because the deceased's retirement deductions were refunded to him, they were not available as a lump-sum credit for payment to his surviving children.

The Board acknowledged that Muwwakkil should have been notified prior to the refund of the retirement contributions made by Lee, as required by statute, but "the responsibility for making that notification, in the first instance, was her former husband's," citing OPM regulation Sec. 831.2007(b)(2), (c). The Board further considered that she had failed to prove that she or her children were entitled to any statutory or regulatory relief as a result of not being notified.

DISCUSSION

I.

Our task is to determine whether the Board's decision is

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law (2) obtained without procedures required by law, rule, or regulation having been followed; or

(3) unsupported by substantial evidence

....

5 U.S.C. Sec. 7703(c) (1988).

On appeal, Muwwakkil argues that the disbursement to her former husband, James Lee, was improper because she was not provided with prior notice as required by Sec. 2(5)(B) of the Civil Service Retirement Spouse Equity Act of 1984 (codified at 5 U.S.C. Sec. 8342(j) (1988)), and thus the Board erred. She claims that OPM is "responsible to provide relief to Mr. Lee's surviving dependents," and that we should award "at least half of Mr. Lee's retirement benefits to his dependant children...."

The plain language of the statute requires that notice be given to a former spouse prior to disbursement of a lump-sum payment of the retirement contributions of the other:

(j)(1) Payment of the lump-sum credit under subsection (a) of this section--

(A) may be made only if any current spouse and any former spouse of the employee or Member are notified of the employee or Member's application.... (Emphasis added).

Pub.L. No. 98-615, Sec. 2(5)(B), 98 Stat. 3201, 3202 (1984). When statutory interpretation is at issue, the plain and unambiguous meaning of a statute prevails. See VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1579, 16 USPQ2d 1614, 1618 (Fed.Cir.1990).

The Board acknowledged that Muwwakkil was correct in claiming that, by statute and regulation, she should have been notified prior to the refund of the retirement deductions to Lee. See 5 C.F.R. Sec. 831.2007 (1993). The Board also determined, however, that responsibility for making that notification was, in the first instance, her former husband's.

The Spouse Equity Act provides, in pertinent part, that "[n]otification of a spouse or former spouse ... shall be made in accordance with such requirements as [OPM] shall by regulation prescribe." 5 U.S.C. Sec. 8342(j)(2) (1988). OPM has prescribed notification requirements in 5 C.F.R. Sec. 831.2007(b)(2), (c) (1993). Pursuant to that regulation, a person who is applying for the refund of retirement deductions has the obligation of certifying whether he or she has a current or former spouse who is subject to the notification requirement, 5 C.F.R. Sec. 831.2007(b)(2). Such a person...