U.S. Merit Systems Protection Board
Case Report for May 23, 2014

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Appellant:  Nancy Holly  
Agency:  Office of Personnel Management
Decision Number:  2014 MSPB 35
Docket Number:  DC-0843-13-0329-I-1
Issuance Date:  May 19, 2014
Appeal Type:  Retirement 
Action Type:  Spouse Survivor Annuity

Revocability of Waiver of Former Spouse Survivor Annuity

    In 2001, the Howard County Circuit Court issued an Order carrying out the provisions of the Appellant's divorce decree, which entitled her to a portion of her former husband's federal retirement annuity. The Order included an award of former spouse survival benefits for the appellant, provided that she bore the costs associated with providing the future survivor annuity.  After her husband's 2010 retirement, the appellant learned of the reduction in her "former spouse" annuity based on the costs of survivor benefits.  In response, she submitted a written request to OPM to waive her survivor benefits and increase her annuity accordingly.  OPM replied to his request by advising the appellant to obtain a court order stating that she was irrevocably waiving all rights to survivor benefits.  In February 2011, the Howard County Circuit Court issued such an Order. OPM rejected the court order because it constituted a post-retirement modification prohibited by 5 C.F.R. 838.806. OPM then issued a final reconsideration decision stating that the appellant was only permitted to receive a portion of her former husband's retirement annuity and that she would be required to have certain monthly amounts withheld to pay the cost of the survivor annuity. In an initial decision, the AJ reversed OPM's reconsideration decision and granted the request for waiver pursuant to 5 U.S.C.  8465(a).  The AJ based his finding on an interpretation of the statutory waiver provision and relied on a line of Board cases that he interpreted to mean that the appellant was eligible to decline to accept all or any part of the annuity by a waiver, provided that the waiver expressly states that it is irrevocable and is done before the claim for a survivor annuity is filed.     

Holding:   The Board affirmed the AJ's determination that the appellant may waive her entitlement to a former spouse survivor annuity, and thereby eliminate the reduction in the annuity she was receiving, but modified the legal reasoning justifying that result.  

1.   Although the AJ reached the correct result in granting the appellant's request for a waiver, the AJ erred in relying on a statutory interpretation of 5 U.S.C. 8465(d), 5 U.S.C. 8465(a), and a line of Board precedent to stand for the proposition that a waiver of retirement benefits must be irrevocable to be valid. The correct analysis requires an interpretation of this statutory provision to permit a revocable waiver of the entitlement to a former spouse survivor annuity in order to generate greater present income for the annuitant's proportionate share granted through a divorce decree.   

2.  The Board distinguished Clark v. Office of Personnel Management, 120 MSPR 440 (2013) regarding the revocability issue and noted that Clark specifically overruled contrary analysis set forth in Davis v. Office of Personnel Management, 109 MSPR 499 (2008); Mulroy v. Office of Personnel Management, 92 MSPR 404 (2002); Shelley v. Office of Personnel Management, 88 MSPR 224 (2001); and Worley v. Office of Personnel Management, 86 MSPR 237 (2000).  The underlying reasoning in Clark was based on a 1952 statute that addressed a situation in which a veteran's receipt of an annuity based on civilian federal service could decrease his total income because he could be denied his non-service-connected disability military pension as a result of exceeding a monetary cap.   In order to avoid this situation, Congress wanted to protect a veteran's right to a maximum pension and disability benefits by permitting an annuitant to revoke an earlier waiver and resume receipt of the full annuity to which he was entitled.  In applying this reasoning to the present case, the appellant, pursuant to a divorce decree, is entitled to exercise her right to prevent a reduction in her total present income by a revocable decision to forego a future former spouse survivor annuity.     

The U.S. Court of Appeals for the Federal Circuit did not issue and precedential or nonprecedential decisions this week.

The U.S. Supreme Court Granted Certiorari in the following Case:

Appellant:  Robert J. MacLean   
Agency:  Department of Homeland Security
Supreme Court:   13-894 
Federal Circuit:  11-3231, 714 F.3d 1301 (Fed. Cir. 2013)
MSPB Docket Number:  SF-0752-06-0611-I-2
Cert. Granted:  May 19, 2014
Appeal Type:  Adverse Action
Action Type:  Removal.

The Supreme Court granted certiorari in MacLean v. Department of Homeland Security for the October, 2014 Term.  In its final decision, the Board made the following findings:  that the appellant, a Civil Aviation Security Specialist, was correctly removed from his position based on the sustained charges of Unauthorized Disclosure of Sensitive Security Information (SSI); that the appellant's disclosure to an MSNBC reporter was not protected whistleblowing because it was "specifically prohibited by law;" that the appellant's removal based on his SSI disclosure did not violate his First Amendment right to free speech; that the appellant did not prove his prohibited personnel practice claim under 5 U.S.C. 2302(b)(10); that the appellant's retaliation claim need not be considered because it was raised for the first time in the appellant's petition for review; and that the Board was not required to consider certain other new evidence submitted by the appellant; and that the penalty of removal was within the bounds of reasonableness.

The appellant petitioned the U.S. Court of Appeals for the Federal Circuit and the Court found that the Board incorrectly interpreted the Whistleblower Protection Act, vacated the Board's final decision, and remanded the case for further proceedings on the issue of whether the appellant's disclosure qualifies for protection under the WPA, and specific findings on whether the appellant reasonably believed that the content of his disclosure evidenced a substantial and specific danger to public health and safety.

The Supreme Court then granted the petition for a writ of certiorari brought by the Department of Homeland Security.      


The question presented is whether certain statutory protections codified at 5 U.S.C. 2302(b)(8)(A), which are inapplicable when an employee makes a disclosure "specifically prohibited by law," can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information.

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