Laura Grande v. Office of Personnel Management

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3207
LAURA GRANDE,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
____________________________
DECIDED: December 9, 2005
____________________________
Before NEWMAN, MAYER, and GAJARSA, Circuit Judges.
PER CURIAM.
DECISION
Laura Grande appeals from a final decision of the Merit Systems Protection
Board (“Board”) affirming the Office of Personnel Management’s (“OPM”) denial of her
application for death benefits. Grande v. Office of Pers. Mgmt., No. PH-0831-05-0218-I-
1 (M.S.P.B. April 15, 2005) (“Initial Decision”). We affirm.
I
Laura Grande and Philip Grande, Jr. were married on November 12, 1987. They
divorced pursuant to a judgment of divorce entered on December 5, 2002. The
judgment incorporated a previously agreed upon “Stipulation of Settlement” of property.

-- 1 of 6 --

The Stipulation of Settlement at paragraph 14 contains a brief section captioned
“Pension” which states:
Husband is employed by the U.S. Postal Service and is entitled to a
pension as retirement benefits. The parties agree that the Wife shall
receive her share of the pension benefits pursuant to Majauskas formula
wherein the commencement date is the date of marriage, to wit,
November 12, 1987, and the ending date is June 12, 1993.
No children were born of the marriage. Philip Grande, however, had a daughter by a
previous relationship, Marlo Grande, who was born in 1975.
On May 17, 2004, Philip Grande died while he was still a federal employee. He
never filed with OPM a designation of beneficiary to receive a lump-sum credit of his
retirement funds upon his death. Following his death, Laura Grande, Marlo Grande,
and Philip Grande’s mother submitted applications for death benefits with OPM. Laura
Grande sought death benefits in the form of a survivor annuity or a lump-sum credit of
Philip Grande’s retirement funds. On July 14, 2004, in an initial decision, OPM denied
her application for a survivor annuity because the Stipulation of Settlement did not
expressly provide for the annuity. Moreover, according to OPM, she was not eligible to
receive a lump-sum credit of Philip Grande’s retirement funds because she was not a
widow. Because of this, Marlo Grande received the lump-sum credit, pursuant to the
statutory order of precedence in 5 U.S.C. § 8342(c) (2000).
Laura Grande filed a request for reconsideration and OPM affirmed. In its
reconsideration decision, OPM further clarified that the Stipulation of Settlement did not
explicitly provide for a method to compute a survivor annuity to be paid to Laura
Grande. Moreover, OPM stated that the lump-sum credit paid to Marlo Grande was not
a payment for which Laura Grande was eligible.
05-3207 2

-- 2 of 6 --

Laura Grande appealed OPM’s reconsideration decision to the Board. An
administrative judge (“AJ”) affirmed OPM’s denial of her application for death benefits.
The AJ agreed with OPM that the applicable statutes and regulations require a divorce
decree to explicitly provide for survivor benefits, which the Stipulation of Settlement
failed to do. The AJ also affirmed that she was not eligible to receive the lump-sum
credit. Because Laura Grande did not petition for review of the Initial Decision with the
Board, the Initial Decision became final. She timely appealed to this court. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2000).
II
This court must affirm the decision of the Board unless the decision was:
“(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. § 7703(c) (2000); see
Hokanson v. Office of Pers. Mgmt., 122 F.3d 1043, 1045 (Fed. Cir. 1997).
III
A
Laura Grande argues that the AJ erred in affirming OPM’s decision to deny her
application for death benefits. Specifically, she contends that her ex-husband agreed to
pay her the benefits according to the Stipulation of Settlement. She further contends
that the Stipulation of Settlement provides a method to compute the benefits.
The pertinent statute, 5 U.S.C. § 8341(h), states in part:
[A] former spouse of a deceased employee, Member, annuitant, or former
Member who was separated from the service with title to a deferred
annuity under section 8338(b) of this title is entitled to a survivor annuity
under this subsection, if and to the extent expressly provided for in an
05-3207 3

-- 3 of 6 --

election under section 8339(j)(3) of this title, or in the terms of any decree
of divorce or annulment or any court order or court-approved property
settlement agreement incident to such decree.
(emphasis added).
The implementing regulations under 5 U.S.C. § 8341(h) emphasize that a court order
must explicitly reference a former spouse survivor annuity. See, e.g., 5 C.F.R.
§ 838.804 (2005). This court has required an explicit statement of “survivor annuity” or
“survivor benefits” in some form. See, e.g., Warren v. Office of Pers. Mgmt., 407 F.3d
1309, 1313-14 (Fed. Cir. 2005). Magic words are not necessary, but the divorce decree
must be sufficient to be fairly read to award a survivor annuity, by, for example, using
the phrase “survivor’s benefit plan.” Fox v. Office of Pers. Mgmt., 100 F.3d 141, 145-46
(Fed. Cir. 1996) (allowing the examination of extrinsic evidence, such as the parties’
intent and circumstances surrounding the execution of the document to determine
whether a term could be fairly read to award a survivor annuity).
The AJ determined that the Stipulation of Settlement did not expressly provide for
a survivor annuity or survivor benefits. We agree with the AJ that “pension benefits” –
the applicable phrase in the divorce decree – is not an express provision for a survivor
annuity and cannot be fairly read to dictate that Laura Grande is to receive a survivor
annuity. Substantial evidence supports the Board’s finding that there was no express
provision for a survivor annuity in the Stipulation of Settlement. Consequently, we need
not and do not reach the issue of whether the Stipulation of Settlement contains
sufficient and specific instructions as to how to compute the annuity.
Finally, the AJ determined that Philip Grande died while he was employed, and
thus, never became an annuitant. Therefore, we agree with the AJ that the provisions
05-3207 4

-- 4 of 6 --

providing former spouse survivor annuity benefits by a retiring Federal employee,
pursuant to 5 U.S.C. § 8339(j)(3), are not applicable to Laura Grande.
B
Although the Stipulation of Settlement did not expressly provide for a survivor
annuity, the AJ addressed whether she was entitled to a lump-sum credit of Philip
Grande’s retirement funds. Unfortunately, Philip Grande had failed to designate a
beneficiary, under 5 U.S.C. § 8342(b), to receive a lump-sum credit for his retirement
funds upon his death.
According to 5 U.S.C. § 8342(c), the relevant order of precedence to dispense
the lump-sum credit is: a designated beneficiary filed by the deceased employee or
annuitant; a widow or widower; a child or children of the deceased employee or
annuitant; and the surviving parents of the deceased employee or annuitant. The AJ
determined that she was not eligible for the lump-sum credit because Philip Grande
never filed a designation of beneficiary with OPM and Laura Grande was not the widow
of Philip Grande when he died because they were divorced. Therefore, according to the
statutory order of precedence, the lump-sum credit was paid to Marlo Grande because
she was a child of Philip Grande. Substantial evidence supports the AJ’s conclusion
that Laura Grande could not be paid the lump-sum credit.
Finally, the AJ determined that the lump-sum credit was not subject to the
Stipulation of Settlement. In regards to payment of retirement benefits, 5 U.S.C.
§ 8345(j)(1) states in part:
Payments under this subchapter which would otherwise be made to an
employee, Member, or annuitant based on the service of that individual
shall be paid (in whole or in part) by [OPM] to another person if and to the
extent expressly provided for in the terms of –
05-3207 5

-- 5 of 6 --

(A) any court decree of divorce . . . or court-approved settlement
agreement incident to any court decree of divorce . . . .
(emphasis added). Philip Grande was not eligible to receive the lump-sum credit
payment, pursuant to 5 U.S.C. § 8345(j)(1), because he never separated from service.
According to the AJ, for the Stipulation of Settlement to apply, Philip Grande would have
had to separate from employment before being eligible for retirement and apply for a
refund of the lump-sum credit. Therefore, the AJ concluded that if the lump-sum credit
could not be paid to Philip Grande then the divorce decree could not compel OPM to
pay the lump-sum credit to his former spouse. We agree.
C
Laura Grande also asserts that she should receive her husband’s death benefits
because she paid into Philip Grande’s pension. Although this assertion was apparently
not before the AJ, Laura Grande has not presented any evidence to support this
assertion and we find no support in the record. Laura Grande’s contention is insufficient
to reverse the AJ’s decision to deny her application for death benefits.
IV
As the AJ pointed out, Laura Grande’s case is indeed a compelling case. The
Stipulation of Settlement, however, is insufficient to provide her death benefits from
Philip Grande’s retirement funds according to the applicable statutes and regulations.
Because substantial evidence supports the Board’s conclusions that the Stipulation of
Settlement is not an order acceptable for processing and dispensing a former spouse
survivor annuity and that Laura Grande was not eligible to receive a lump-sum credit of
Philip Grande’s retirement funds, we affirm. Each side shall bear its own costs.
05-3207 6

-- 6 of 6 --