Director of the Office of Personnel Management v. Ronald L. Moulton, Jill Moulton, Merit Systems Protection Board

N OTE: This order is nonprecedential.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, L INN, and HUGHES , Circuit Judges.
P ER CURIAM .
O R D E R
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: 1 Filed: 05/03/2024

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OPM v. MOULTON 2
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,
I T I S O RDERED T HAT :
(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: 2 Filed: 05/03/2024

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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.
May 3, 2024
Date
F OR THE COURT
Case: 24-109 Document: 10 Page: 3 Filed: 05/03/2024

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