Richard Joseph Soroka v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICHARD JOSEPH SOROKA,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2013-3173
______________________
Petition for review of the Merit Systems Protection
Board in No. CH0843110788-I-1.
______________________
Decided: March 6, 2014
______________________
RICHARD J OSEPH SOROKA, of Warren, Michigan, pro
se.
VERONICA N. O NYEMA, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
her on the brief were S TUART F. D ELERY , Assistant Attor-
ney General, BRYANT G. SNEE, Acting Director, and
CLAUDIA BURKE, Assistant Director.
______________________

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SOROKA v. OPM 2
Before P ROST , MAYER , and CHEN, Circuit Judges.
P ER CURIAM .
Richard J. Soroka (“Mr. Soroka”) appeals a final order
of the Merit Systems Protection Board (“board”) uphold-
ing the denial of his application for a Federal Employees
Retirement System (“FERS”) lump sum death benefit
following the death of his son, Jeffrey L. Soroka. See
Soroka v. Office of Pers. Mgmt., No. CH0843110788-I-1,
2013 MSPB LEXIS 4351 (MSPB Aug. 21, 2013) (“Board
Decision”). Because we conclude that the board correctly
determined that the Office of Personnel Management
(“OPM”) was required to distribute the lump sum death
benefit to Jeffrey Soroka’s former wife, Jamie Hoffman,
we affirm.
BACKGROUND
On December 13, 1999, Jeffrey Soroka, a federal gov-
ernment employee who was eligible to participate in the
FERS program, executed an SF-3102 designation of
beneficiary form. This document, which was signed by
two witnesses, listed Jeffrey Soroka’s wife, Hoffman, as
the sole beneficiary of any FERS death benefits. Jeffrey
Soroka and his wife divorced in 2002. The default judg-
ment of divorce granted Jeffrey Soroka “all interest in his
retirement and TSP plans with his current employer,
TACOM, as well as any benefits that he may accrue
through these plans in the future[.]” He was further
awarded his “accumulated contributions in any pension,
annuity, or retirement system[.]” Jeffrey Soroka died on
May 15, 2010.
Following his son’s death, Mr. Soroka filed an applica-
tion seeking his son’s FERS death benefits. On July 19,
2011, OPM sent Mr. Soroka and his wife a letter stating
that they were “not eligible to receive a lump sum death
benefit under [FERS] based on Jeffrey L. Soroka’s death.”
Citing to 5 U.S.C. § 8342(c), OPM explained that Mr.

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SOROKA v. OPM 3
Soroka and his wife were not entitled to the lump sum
benefit “because Jeffrey L. Soroka completed a designa-
tion of beneficiary form in 1999” which did not list them
as his beneficiaries.* OPM subsequently sent Mr. Soroka
and his wife two invoices stating that they were required
to repay a total of $855.45 for the previously disbursed
death benefits which they had received.
On August 12, 2011, Mr. Soroka filed an appeal with
the board. He alleged that OPM erred in denying his
application for his son’s lump sum death benefit, assert-
ing that the agency had failed to consider the provisions
in his son’s divorce decree and a “change of beneficiaries”
form. On October 28, 2011, following a hearing, an ad-
ministrative judge of the board issued an initial decision
affirming OPM’s denial of Mr. Soroka’s claim for his son’s
lump sum death benefit. The administrative judge stated
that “[t]he order of precedence for receipt of the lump-sum
* Both OPM and the board cited to 5 U.S.C.
§ 8342(c) as the provision governing the award of Jeffrey
Soroka’s lump sum death benefits. Section 8342(c),
however, applies to the designation of beneficiaries in the
civil service retirement program. The provision applica-
ble to participants in the FERS program, such as Jeffrey
Soroka, is 5 U.S.C. § 8424(d). Both statutes, however,
contain substantively identical language regarding the
order of precedence for the payment of benefits. Compare
5 U.S.C. § 8424(d) (stating that OPM must make payment
“[f]irst, to the beneficiary or beneficiaries designated by
the employee or Member in a signed and witnessed writ-
ing received in the Office before the death of such employ-
ee or Member”) with 5 U.S.C. § 8342(c) (stating that OPM
must make payment “[f]irst, to the beneficiary or benefi-
ciaries designated by the employee or Member in a signed
and witnessed writing received in the Office before his
death”).

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SOROKA v. OPM 4
death benefit under FERS specifies that any such benefit
must go first to the beneficiary designated by a signed
and witnessed writing received by OPM prior to the death
of the employee.” Because Hoffman was listed as the
designated beneficiary on the “one form signed by Jeffrey,
witnessed, and properly filed with OPM pri-
or to Jeffrey’s death,” she was entitled to receive her
former husband’s lump sum death benefit. The adminis-
trative judge acknowledged that Mr. Soroka had alleged
that he, his wife, and his son had “completed all necessary
. . . forms” to change the designated beneficiary prior to
his son’s death. Mr. Soroka, however, “did not produce a
copy of the form necessary for designation of the lump-
sum death benefit” and did not “have any specific recollec-
tion of completing that particular form and sending it to
. . . OPM.”
The full board affirmed the administrative judge’s ini-
tial decision on August 21, 2013. The board stated that
the award of “lump sum benefits must be made in order of
precedence; first, to the beneficiary designated by the
employee in a signed and witnessed writing received by
OPM before his death.” Board Decision, 2013 MSPB
LEXIS 4351, at *4. The board further noted that there
was “no evidence that [Jeffrey Soroka] ever submitted a
new designation form to OPM before his death.” Id. at *5
(footnote omitted). While Mr. Soroka recalled signing
some forms after his son’s divorce, he “was uncertain as to
which forms were purportedly submitted.” Id. at *6.
Finally, the board stated that if Mr. Soroka wanted to
challenge OPM’s efforts to recoup the death benefit pay-
ments that had previously been disbursed, he should file a
separate appeal pursuant to 5 C.F.R. § 845.204.
Mr. Soroka then filed a timely appeal with this court.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).

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SOROKA v. OPM 5
D ISCUSSION
Our review of a board decision is circumscribed by
statute. We can set aside such a decision only if it is: “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c); see Nguyen v. Dep’t of Homeland
Sec., 737 F.3d 711, 715 (Fed. Cir. 2013).
As the board correctly determined, Mr. Soroka was
not entitled to receive his son’s FERS lump sum death
benefit. “[I]t is a bedrock canon of statutory construction
that our judicial inquiry ends where statutory language is
plain and unambiguous.” White v. United States, 543
F.3d 1330, 1337 (Fed. Cir. 2008); see Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 253-54 (1992) (“We have stated
time and again that courts must presume that a legisla-
ture says in a statute what it means and means in a
statute what it says there.”). Section 8424(d) unambigu-
ously provides that OPM must “[f]irst” pay FERS lump
sum death benefits “to the beneficiary or beneficiaries
designated by the employee or Member in a signed and
witnessed writing received [by OPM] before the death of
such employee or Member.” In 1999, Jeffrey Soroka filed
a signed and witnessed SF-3102 designation of benefi-
ciary form with OPM which listed Hoffman as the sole
beneficiary of his FERS death benefits. No updated
beneficiary designation form has been produced. Alt-
hough Mr. Soroka recalled that he, his wife, and his son
completed some forms after his son’s divorce, he did not
“have any specific recollection of completing [an updated
SF-3102 form] and sending it to . . . OPM.” Because the
record contains only one SF-3102 designation of benefi-
ciary form—and that form lists Hoffman as Jeffrey So-
roka’s designated beneficiary—the board correctly
determined that OPM was required to distribute the lump
sum death benefit to Hoffman. The plain language of

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SOROKA v. OPM 6
section 8424(d) “does not afford OPM or the Board any
discretion to award” benefits to an individual other than
the “person designated as beneficiary in a form properly
filed with OPM.” Landsberger v. Office of Pers. Mgmt., 50
M.S.P.R. 13, 16-17 (1991), aff’d, 956 F.2d 1174 (Fed. Cir.
1992); see also Ferguson v. Long, 885 F. Supp. 2d 294, 297
(D.D.C. 2012) (concluding that the proceeds from a dece-
dent’s Federal Thrift Savings Plan (“TSP”) retirement
account were required to be distributed to the decedent’s
father, rather than her husband, because the only “‘signed
and witnessed writing’” that had been submitted listed
her father as her beneficiary (quoting 5 U.S.C. § 8424(d));
Alston v. Alston, No. JFM-12-74, 2012 U.S. Dist. LEXIS
40621, at *3-5 (D. Md. Mar. 19, 2012) (concluding that a
decedent’s children were entitled to the funds in his TSP
account because the only valid designation of beneficiary
form submitted listed them as the decedent’s beneficiar-
ies).
Jeffrey Soroka’s default judgment of divorce stated
that he was to receive “all interest in his retirement and
TSP plans” and “any accumulated contributions in any
pension, annuity, or retirement system[.]” Section
8424(d) specifically provides, however, that “a designa-
tion, change, or cancellation of beneficiary in a will or
other document” which is not signed, witnessed and filed
with OPM will have “no force or effect” on an employee’s
beneficiary designation. Thus, notwithstanding the
provisions in Jeffrey Soroka’s divorce decree regarding the
disposition of his retirement benefits, neither this court
nor the board has the authority to require OPM to award
lump sum death benefits in a manner contrary to the
unequivocal dictates of section 8424(d). OPM is prohibit-
ed from granting benefits not authorized by law regard-
less of the equities involved. Office of Pers. Mgmt. v.
Richmond, 496 U.S. 414, 424-34 (1990). “[P]ublic funds
[must] be spent according to the letter of the difficult
judgments reached by Congress as to the common good

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SOROKA v. OPM 7
and not according to the individual favor of Government
agents or the individual pleas of litigants.” Id. at 428.
The record also shows that in 1987 Jeffrey Soroka
signed and submitted an SF-1152 designation of benefi-
ciary form which indicated that upon his death any “un-
paid compensation” would be paid to his parents, Richard
and Arlene Soroka. Form SF-1152, however, is used
solely to designate the beneficiary of any unpaid compen-
sation—such as unpaid salary or accrued leave—not to
designate the beneficiary of an employee’s lump sum
death benefit. Form SF-1152 specifically states that it
has no effect on the disposition of any retirement benefits
to which an employee might be entitled. See Board Deci-
sion, 2013 MSPB LEXIS 4351, at *6 n.4.
CONCLUSION
Accordingly, the final order of the Merit Systems Pro-
tection Board is affirmed.
COSTS
No costs.
AFFIRMED

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