United States Merit Systems Protection Board

Case Report for February 5, 2010

These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.



Appellant: Patrick Ryan

Agency: Department of Homeland Security

Decision Number: 2010 MSPB 25

Docket Number: CB-7121-09-0014-V-2

Issuance Date: January 29, 2010

Action Type: Arbritration

Board Procedures/Authorities
- Dismissals – With/Without Prejudice

This case was before the Board on the appellant’s request to review an arbitration decision that affirmed the agency’s action placing him on enforced leave because of his medical conditions.

Holding: The Board dismissed the request for review with prejudice according to the terms of a settlement agreement, which provided for dismissal should the Office of Personnel Management approve the appellant’s application for disability retirement.

Appellant: Susan R. Brakefield

Agency: Department of Commerce

Decision Number: 2010 MSPB 26

Docket Number: SF-0752-09-0903-I-1

Issuance Date: February 2, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Board Procedures/Authorities
- Dismissals – With/Without Prejudice

The appellant petitioned for review of an initial decision that dismissed her appeal without prejudice to refiling. The appellant had requested a 90-day dismissal to allow her time to retain counsel. The administrative judge dismissed the appeal for 36 days, subject to automatic refiling.

Holdings: The Board denied the appellant’s PFR, deemed the appeal to be timely refiled, and forwarded the case to the regional office for docketing and adjudication as a refiled appeal.

Appellant: Linda I. McKenzie

Intervenor: Leonard W. McKenzie

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 27

Docket Number: SF-0831-09-0421-I-1

Issuance Date: February 4, 2010

Action Type: Retirement/Benefit Matter

- Former Spouse Survivor Annuity

OPM and the intervenor (Mr. McKenzie) petitioned for review of an initial decision that reversed OPM’s reconsideration decision and determined that the appellant (Mr. McKenzie’s former spouse) was eligible for a former spouse survivor annuity. When Mr. McKenzie retired from the federal service in 1998, he elected the maximum survivor benefit for the appellant, to whom he was then married. When they divorced in March 2006, the Marital Settlement Agreement divided the marital property, but did not award the appellant a former spouse survivor annuity. Shortly thereafter, Mr. McKenzie’s attorney realized that the Marital Settlement Agreement inadvertently omitted the provision of a survivor annuity for the appellant, which had been intended. The attorney prepared a Retirement Benefits Order to correct the oversight, an unsigned copy of which the attorney submitted to OPM in March and April, and which the court approved on July 6, 2006. The court issued an additional order on October 25, 2007, which also provided for a former spouse survivor annuity for the appellant. OPM denied the appellant’s request for a former spouse annuity, finding that the court’s July 2006 order was unacceptable for processing because it was not the first order issued by the court in the divorce. The administrative judge determined that the appellant was entitled to receive a former spouse survivor annuity because OPM should have considered the court’s October 2007 order to be a valid election by Mr. McKenzie for such an annuity, made within 2 years of the divorce.

Holdings: The Board affirmed the decision as modified, still awarding the appellant a former spouse annuity:

1. Under the statute, 5 U.S.C.  8341(h)(4), and OPM’s regulation, 5 C.F.R.  838.806, only the first court order that divides a couple’s marital property is acceptable for processing to award a former spouse survivor annuity. Accordingly, the July 6, 2006 Retirement Benefits Order could not be processed to provide an annuity for the appellant.

2. Even when the first order dividing marital property fails to award a former spouse survivor annuity, a subsequent court order can constitute a valid election of such an annuity under 5 U.S.C.  8339(j)(3), which allows for such elections within 2 years of a divorce, where the record shows that the retired employee endorsed the order and his other subsequent signed statements establish that his intention and desire was for the appellant to receive a former spouse survivor annuity.

3. Mr. McKenzie, through his attorney’s actions, communicated to OPM a voluntary election, in writing, to provide a former spouse survivor annuity for the appellant. In particular, the attorney’s correspondence with OPM in March, April and July 2006, her preparation of the court’s July 6, Retirement Benefits Order, and her signature approving the court’s October 25, 2007 amended judgment, all indicate Mr. McKenzie’s clear intent to elect a former spouse survivor annuity.

4. Although Mr. McKenzie contends that he changed his mind by October 2007 and the provision of a survivor annuity was no longer his choice at that time, there is no indication that he ever communicated this change of mind to anyone prior to the filing of this appeal.


The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:

Skaggs v. Merit Systems Protection Board, No. 2009-3018 (Feb. 3, 2010) (MSPB Docket No. AT-0752-06-0796-M-1) (affirming the Board’s decision, which dismissed as untimely the appeal of a removal action)

Thomas v. Office of Personnel Management, No. 2009-3107 (Feb. 4, 2010) (MSPB Docket No. AT-831E-08-0086-I-2) (affirming the Board’s decision, which affirmed OPM’s denial of disability retirement benefits)

Olmos v. Department of Homeland Security, No. 2010-3009 (Feb. 4, 2010) (MSPB Docket No. NY-0752-09-0095-I-1) (affirming the Board’s decision, which affirmed the agency’s action terminating the appellant’s employment because of her association with an illegal alien)

Morgan v. Department of Energy, No. 2009-3006 (Feb. 4, 2010) (MSPB Docket No. SF-1221-08-0135-W-1) (Rule 36 affirmance of the Board’s decision dismissing this IRA appeal for lack of jurisdiction)