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Rosato v. Office of Personnel Management

January 25, 1999

BEATRICE M. ROSATO, PETITIONER,
v.
OFFICE OF PERSONNEL MANAGEMENT, RESPONDENT.



Before Newman, Plager, and Clevenger, Circuit Judges.

The opinion of the court was delivered by: Per Curiam.

Appealed from: Merits Systems Protection Board

Beatrice M. Rosato petitions for review of the decision of the Merit Systems Protection Board ("Board"), No. BN0831960205-I-1, affirming the reconsideration decision of the Office of Personnel Management ("OPM") denying her any share of the current annuity being paid to her former husband. We affirm.

I.

Beatrice and Mario Rosato were divorced in Connecticut on July 11, 1988. As a federal employee, Mr. Rosato was entitled to certain benefits, including an annuity payable in his lifetime on his retirement. Federal law contemplates that a federal employee may yield such benefits to a spouse in divorce proceedings. In particular, the law provides that:

"[p]ayments under this subchapter which would otherwise be made to an employee, Member, or annuitant based on service of that individual shall be paid (in whole or in part) by the Office to another person if and to the extent expressly provided for in the terms of -

(A) any court decree of divorce, annulment, or legal separation, or the terms of any court order or court- approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation." 5 U.S.C. § 8345(j)(1) (1994).

It is well-settled that section 8345(j)(1) "authorizes [OPM] to comply with an appropriate court decree of divorce or property settlement of an employee who is entitled to payments pursuant to the Civil Service Retirement System." Donlan v. Office of Personnel Management, 907 F.2d 1132, 1133 (Fed. Cir. 1990). To implement this statute, OPM has promulgated regulations that define when an order of divorce or property settlement is a "court order acceptable for processing." See 5 C.F.R. §§ 838.101(b)(1); 838.103; 838.301-838.306 (1997). The pertinent regulations specify that, to qualify for processing by OPM, the court order must identify the retirement system under which the annuity exists and expressly state the portion to which the former spouse is entitled under the court order. See 5 C.F.R. § 838.303; see also 5 C.F.R. § 838.305 (portion must be stated as a fixed amount, percentage, or fraction, or formula calculable solely from face of court order). In the event OPM receives an application from a former spouse for benefits pursuant to a divorce decree, and the application fails to comply with the regulations defining an order acceptable for processing, OPM notifies the applicant of the specific reasons for disapproving the application. See 5 C.F.R. § 838.424 (1997). The applicant then has an opportunity to cure any error in the application and to reapply for benefits.

The pertinent regulations also state that "OPM must comply with court orders, decrees, or court-approved property settlement agreements . . . ." 5 C.F.R. § 838.101(a)(1). Moreover, OPM's regulations direct that:

"In executing court orders under this part, OPM must honor the clear instructions of the court. Instructions must be specific and unambiguous. OPM will not supply missing provisions, interpret ambiguous language, or clarify the court's intent by researching individual State laws. In carrying out the court's instructions, OPM performs purely ministerial actions in accordance with these regulations. Disagreement between the parties concerning the validity or the provisions of any court order must be resolved by the court." 5 C.F.R. § 838.101(a)(2) (emphasis supplied).

Federal law thus provides the method whereby divorcing spouses may divide their entitlements to federal employee benefits. The statute and rules are clear: OPM will not look behind a state court divorce decree or property settlement order to ascertain the intent of the parties. So long as the decree or order complies with the specificity requirements of the regulations, which implement the statutory requirement that the decree or order "expressly" direct payment to another than the employee, OPM will follow its prescriptions. An order lacking the requisite specificity will be rejected by OPM, with an opportunity for the applicant to cure any indicated error.

II.

The Rosato marriage was dissolved on July 11, 1988, by judgment of the Superior Court, Judicial District of Waterbury, Connecticut, entered by Judge Thelma Santos. With regard to Mr. Rosato's federal employee benefits, the judgment states: "And that the wife is to retain any benefits in the husbands pension plan which he currently has, as his spouse."

Mr. Rosato retired from Federal service on January 2, 1992. Thereafter, Mrs. Rosato requested that OPM provide her with a portion of her husband's lifetime annuity. OPM denied Mrs. Rosato's request on the ground that the divorce decree, inter alia, did not satisfy the specificity requirements to make it acceptable for processing. Mrs. Rosato's counsel filed a Motion for Clarification in the Connecticut Superior Court on December 21, 1994. The motion requested that the court "clarify its decision and set forth the exact percentage interest of the plaintiff's [Mr. Rosato's] pension which is due to the defendant [Mrs. Rosato]." In response, the Superior Court held a hearing on March 25, 1995. At the hearing, Judge Santos identified the property interest at stake in the original divorce decree as Mr. Rosato's lifetime annuity, by reference to the fact that the benefits to Mrs. Rosato would not begin to flow until Mr. Rosato "retired and the benefits began to run." Rosato v. Rosato, No. FA-86-0076997S (Conn. Sup. Ct. Mar. 29, 1995). This language does not refer to a surviving spouse annuity, another form of benefit that the Rosatos could have apportioned in their divorce proceedings. According to Judge Santos, Mrs. Rosato was entitled to a share of Mr. Rosato's lifetime annuity to make up for the short ...


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