Carpisassi v. Office of Personnel Management, 94-3532
| Decision Date | 27 January 1995 |
| Docket Number | No. 94-3532,94-3532 |
| Citation | 46 F.3d 1094 |
| Parties | Andrew H. CARPISASSI, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent. |
| Court | U.S. Court of Appeals — Federal Circuit |
Andrew H. Carpisassi, submitted pro se.
Mark A. Melnick, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, DC, submitted for respondent. With him on the brief were Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director and Jeanne E. Davidson, Asst. Director. Of counsel were Lorraine Lewis, Gen. Counsel, James S. Green, Associate Gen. Counsel and Timothy C. Watkins, Atty., Office of Personnel Management.
Before PLAGER, CLEVENGER, and RADER, Circuit Judges.
This case involves the efforts by a federal employee, appealing pro se, to obtain the benefits of one of the retirement options provided by Congress, and illustrates the difficulties an employee can have trying to find his way, with no help from the Office of Personnel Management (OPM), through the maze that constitutes the federal retirement system statutes and rules.
Andrew Carpisassi, after many years as a federal employee paying his monthly contribution into the retirement system, retired. Under the law, such an employee is entitled to an annuity which would pay him a monthly retirement income for life. See generally 5 U.S.C. Secs. 8333, 8334 (1988 & Supp. V 1993). If the employee is married at the date of retirement, as was Mr. Carpisassi, the amount of the employee's monthly payment is reduced by a factor actuarially computed to fund a survivor annuity for the life of the spouse, should the spouse survive the employee. Id. Secs. 8339(j)(1), 8341(b). The statutes provide that the employee and spouse may together waive the spouse's right to the survivor annuity by executing the appropriate written form, thereby giving them a larger current income but leaving the spouse without any survivor annuity should he or she survive the annuitant. Id. Sec. 8339(j)(1).
Congress later engrafted onto this basic annuity scheme an "alternative annuity" election. During the time frame relevant to this case, one of an employee's options upon retirement was to elect to receive (in addition to a monthly income and, if married, the surviving spouse annuity), an up-front cash payment called the "lump-sum credit," which basically comprises the contributions paid into the system by the employee plus interest. Id. Secs. 8331, 8343a(b). 1 If this "lump sum" option were elected, OPM reduced the employee's monthly retirement payment by an amount actuarially equivalent to the lump-sum payout. Id. Sec. 8343a(c); 5 C.F.R. Secs. 831.2204, 831.2205 (1994). It appears that the amount of the spouse's survivor annuity initially "elected" (that is, not waived) upon retirement, under Sec. 8339(j)(1), remains fixed; 2 it is only the employee's monthly annuity which is decreased by the payment of the lump-sum credit. 5 C.F.R. Secs. 831.2204, 831.2205 (1994).
In Mr. Carpissasi's case, OPM calculated that under the basic annuity program (no lump-sum payout), he would get $783.00 per month for life, and his widow would get $465.00 per month for her remaining life. Under the alternative annuity, Mr. Carpisassi would get a $27,224.17 lump-sum payment and $597.00 per month; his widow would get $469.00 per month should she survive him. The impact of the cash payout was to reduce Mr. Carpisassi's lifetime income, but actually to increase (by a small amount) the surviving spouse's income. 3
Congress specified that, in the case of a married employee such as Mr. Carpisassi, an alternative annuity could be elected only with the written consent of the spouse: "An employee or Member who, at the time of retiring under this subchapter ... is married, shall be ineligible to make an election under this section unless a waiver is made under section 8339(j)(1) of this title." 5 U.S.C. Sec. 8343a(d)(1) (1988). The Sec. 8339(j)(1) waiver referred to is a joint waiver of the employee and spouse of the spouse's right to a survivor annuity under the basic annuity provisions. Id. Sec. 8339(j)(1). As noted above, however, the election of a lump-sum payout option is intended not to reduce that annuity. 4 Thus the requirement for spousal consent in Sec. 8343a is not predicated on the election of an option that would waive or reduce the surviving spouse's annuity. Rather, Congress for whatever reason required spousal consent whenever the alternative annuity with lump-sum payout is elected.
There is a further wrinkle. A special exemption is provided in Sec. 8339(j)(1) relating to spousal consent. That special exemption provides that, in accordance with OPM regulations, a married employee can, without the spouse's consent, waive the survivor annuity if either (1) the spouse's whereabouts cannot be determined, or (2) due to "exceptional circumstances, requiring the employee or Member to seek the spouse's consent would otherwise be inappropriate." Id. 5
With that background--one that a casual familiarity with the statutes may not impart--we can turn to the problem Mr. Carpisassi faced. In the course of making his retirement election, OPM advised him of his options and the amounts each option would provide. He desired the alternative annuity that provided both a lump-sum payment and a retirement income for himself and his surviving spouse. OPM advised him that he needed written spousal consent for that option, and that under OPM's rules the alternative annuity election, including the spousal consent, must be filed within a specified short period of time. Mr. Carpisassi realized that would not be easy--he was experiencing marital difficulties, which it appears may have ended in divorce. Consequently, his attorney wrote to OPM requesting additional time to obtain the spouse's consent. OPM did not respond to the letter.
Several months later, OPM informed Mr. Carpisassi that, since a spousal consent had not been timely filed, his requested lump-sum option was denied, and OPM processed his annuity as a regular monthly annuity by default. Mr. Carpisassi acknowledged receipt of OPM's notice and again requested an extension of time to obtain his spouse's consent. Over one month later, OPM responded to this letter by confirming that Mr. Carpisassi had failed to file any spousal consent and that OPM therefore had given him a regular annuity. OPM did not address either of Mr. Carpisassi's extension requests.
Mr. Carpisassi sought reconsideration of OPM's decision, and again requested additional time to obtain and file the spousal consent form. Again OPM did not respond to the request for extension, and two years later issued a denial of the reconsideration request. Mr. Carpisassi appealed OPM's denial to the Merit Systems Protection Board (MSPB or Board). 6
By now, several years had gone by. Mr. Carpisassi did eventually obtain his spouse's signature on the consent form, and filed it with OPM. The Board was unimpressed by Mr. Carpisassi's success. The Board noted that Mr. Carpisassi waited nine days after finally obtaining the spouse's signature before filing the consent form with OPM--a fact which seems to us unremarkable alongside OPM's failure over several years to respond to Mr. Carpisassi's requests for relief. The Board found that Mr. Carpisassi's circumstances did not come within any of the justifications previously recognized by the Board for waiving a filing deadline; the Board deemed Mr. Carpisassi not diligent or prudent in providing the waiver or contacting OPM when he consistently failed to hear anything on his requests.
Mr. Carpisassi is now, over four years after retiring, still seeking his lump-sum payment. It is unclear from the record whether he is now divorced--the case was submitted on informal (pro se ) briefs and that fact was not disclosed. Of course, if he is now divorced, his former spouse (absent a post-divorce election by Mr. Carpisassi or a property settlement provision on point) would be neither sharing the use of his own monthly annuity nor entitled to any survivor annuity, and thus his election of a lump-sum cash payout would seem to be no one's concern but his. 7
Mr. Carpisassi has appealed for help to this court. OPM could have helped him by responding to his letters requesting additional time to file the spousal consent. They might then have explained why additional time might or might not be available, and that in any case he could, pursuant to statute, request a complete waiver of the requirement for spousal consent.
His attorney could have helped him by determining that a waiver of the consent requirement might have been available, and by establishing a record in pursuit of that remedy. But for...
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Kievenaar v. Office of Personnel Management, 05-3048.
...current income but leaving the spouse without any survivor annuity should he or she survive the annuitant. Carpisassi v. Office of Pers. Mgmt., 46 F.3d 1094, 1094 (Fed.Cir.1995). Kievenaar signed the required "Spouse's Consent to Survivor Election," acknowledging that she freely consented t......