1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

FEDERAL LAW ENFORCEMENT 

OFFICERS ASSOCIATION, 

 Plaintiff 

 v. 

KIRAN AHUJA1

, Director, United States 

Office of Personnel Management, et al., 

 Defendants 

Civil Action No. 19-735 (CKK) 

MEMORANDUM OPINION 

(September 28, 2021) 

This case concerns the 2016 decision of Defendants, the Director of the United States 

Office of Personnel Management and the United State Office of Personnel Management (“OPM”), 

to implement a policy which resulted in the reduction of annuity supplement payments for many 

retired law enforcement officers who are divorced. Plaintiff, the Federal Law Enforcement 

Officers Association, represents 27,000 current and retired federal law enforcement officers and 

brings claims against Defendants under the Administrative Procedure Act (“APA”), contending 

that Defendants’ policy is arbitrary and capricious and that Defendants exceeded their statutory 

authority by applying the policy retroactively. 

Presently before the Court are Plaintiff’s [39] Motion for Summary Judgment and 

Defendants’ [42] Cross-Motion for Summary Judgment. Upon consideration of the pleadings,2

1

 Pursuant to Fed. R. Civ. P. 25(d), Kiran Ahuja is substituted in her official capacity as the Director of the 

United States Office of Personnel Management. 

2

 The Court’s consideration has focused on the following documents: 

x Plaintiff’s Memorandum of Points and Authorities in Support of Summary Judgment (“Pl.’s 

Mot.”), ECF No. 39; 

x Defendants’ Cross-Motion for Summary Judgment and Opposition to Plaintiff’s Motion for 

Summary Judgment (“Defs.’ Cross-Mot. & Opp’n”), ECF No. 42; 
2 

the relevant legal authority, and the record as a whole, for the reasons below, the Court DENIES

Plaintiff’s Motion for Summary Judgment and GRANTS Defendants’ Cross Motion for Summary 

Judgment. 

I. BACKGROUND 

Pursuant to the Federal Employees Retirement System (“FERS”), 5 U.S.C. § 8401, et seq., 

federal government civilian employees may receive certain retirement benefits, including annuities 

and Social Security. Federal civilian employees who reach retirement age with the required 

number of service years are entitled to an annuity. §§ 8412, 8415.3

 Federal retirees also become 

eligible for Social Security benefits at age 62. § 8403; 42 U.S.C. § 402. Certain employees, 

including federal law enforcement officers, are eligible to retire at a younger age with fewer service 

years. §§ 8412(d), (e), 8415(e), 8421. These employees may be entitled to an “annuity 

supplement” until the retiree reaches the minimum age to qualify for Social Security. § 8421(a). 

Annuity payments under the FERS “which would otherwise be made to an employee . . . 

shall be paid” to another person “if and to the extent expressly provided for in the terms of – (1) 

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 . . . [.]” § 8467(a). The associated regulations require that the court order “must 

contain language identifying the retirement system to be affected.” 5 CFR § 838.611(a). For 

example, “CSRS,” “FERS,” “OPM,” or “Federal Government” benefits, or benefits payable 

x Plaintiff’s Memorandum of Points & Authorities in Opposition to Defendants’ Cross-Motion for 

Summary Judgment and Reply in Support of its Motion for Summary Judgment (“Pl.’s Reply & 

Opp’n”), ECF No. 44; and 

x Defs.’ Reply in Support of Cross-Motion for Summary Judgment (“Defs.’ Reply”), ECF No. 45. 

3

 Unless otherwise specified, all statutory citations in this Memorandum Opinion refer to sections of Title 

5 of the United States Code. 
3 

“based on service with the U.S. Department of Agriculture,” etc., are sufficient identification of 

the retirement system. Id. In interpreting court orders under this section, Defendants “perform[] 

purely ministerial actions,” “must honor the clear instructions of the court,” and “will not supply 

missing provisions, interpret ambiguous language, or clarify the court’s intent by researching 

individual State laws.” 5 C.F.R. § 838.101(a)(2). 

The provision addressing annuity supplements directs that “[a]n amount under this section 

shall, for purposes of section 8467, be treated in the same way as an amount computed under 

section 8415,” the provision addressing the computation of basic annuity. § 8421(c) (emphasis 

added). 

The dispute in this case involves the statutory requirement that annuity supplements be 

“treated in the same way” as basic annuity when such payments are the subject of a court divorce, 

separation, or annulment order. Plaintiff contends that to treat the annuity supplement “in the same 

way” as basic annuity requires that a court order “expressly” provide for a division of the annuity 

supplement before OPM may pay the annuitant’s former spouse a portion of the annuity 

supplement. See Pl.’s Mot. at 9–11. Defendants, on the other hand, contend that to treat the annuity 

supplement “in the same way” as basic annuity requires that OPM divide the annuity supplement 

in accordance with a court order that directs that any FERS annuity (“basic annuity”) be 

apportioned to the retiree’s former spouse. See Def.’s Cross-Mot. & Opp’n at 9–11. 

The administrative record indicates that OPM specialists charged with administering these 

benefits sought internal guidance regarding the division of annuity supplements pursuant to court 

orders. See, e.g., OPM001, OPM003.4

 In response, OPM clarified in a 2014 memorandum (the 

“2014 Guidance”) that “not only does 5 U.S.C. § 8421(c) obligate OPM to honor provisions in a 

4

 Citations to materials with the “OPM” prefix refer to pages of the parties’ Joint Appendix, filed at ECF 

No. 39-2. 
4 

court order that expressly divide a FERS annuity supplement, this provision also requires OPM to 

divide an annuity supplement in circumstances where a court order simply divides a FERS annuity 

benefit but does not necessarily include a separate and express provision dividing the annuitant’s 

FERS annuity supplement.” OPM004. 

In June 2016, OPM issued a “Retirement and Insurance Letter” entitled “Processing Court 

Ordered Benefits Affecting the Federal Employees Retirement System (FERS) Basic Annuity and 

the FERS Annuity Supplement” (the “2016 RIL”). See OPM009. OPM concluded that it was 

“statutorily obligated” to “divide the FERS annuity supplement in circumstances where the 

provisions of a court order do[ ] not expressly mention the FERS annuity supplement in the same 

way as the division of the FERS annuity benefit.” OPM009 (emphasis in original). In other 

words, if a court order required that basic annuity be divided, then the annuity supplement must 

also be divided and paid to the retiree’s former spouse—even if the court order did not expressly 

mention the annuity supplement. See OPM009–10. 

The 2016 RIL also directed OPM administrators to calculate the annuity supplement 

payment amounts that would have been due to the affected retirees’ former spouses had the annuity 

supplement been paid to former spouses in a manner consistent with the agency’s position 

articulated in the 2014 Guidance and 2016 RIL. See, e.g., OPM009–12. Defendants notified the 

affected retirees of these amounts and began deducting the amounts owed in monthly installments 

from their annuity payments. See OPM001, 035. 

Plaintiff contends that OPM had previously interpreted §§ 8421 and 8467 as “authorizing 

it to apportion an Annuity Supplement only where that specific benefit was expressly divided in a 

divorce court order,” but that, through the 2014 Guidance and 2016 RIL, it “reversed course” and 

“reinterpreted Section 8421(c) as requiring it to apportion a retiree’s Annuity Supplement any time 
5 

it divided his or her Basic Annuity, even where a court order was silent as to the Supplement.” 

Pl.’s Mot. at 1, 4. For example, a court order dividing a retiree’s “gross annuity,” which “would 

have previously resulted only in the division of the Basic Annuity, would now be read as requiring 

division of both the Basic Annuity and the Annuity Supplement.” Pl.’s Mot. at 5 (citing OPM010, 

042–043). Defendants respond that “OPM has not adopted some new and more esoteric 

‘interpretation’ of the language of the statute,” but rather “observed a failure to apply an already 

clear and unambiguous statute as written . . . and made a correction to accomplish that statutory 

obligation.” Def.’s Cross-Mot. & Opp’n at 4. 

Plaintiff filed its Complaint in this action on March 15, 2019, bringing three APA claims 

against Defendants, Compl. ¶¶ 27–44, ECF No. 1—two of which remain pending.5

 Both parties 

have moved for summary judgment as to the two remaining counts (Counts 1 and 3). See Pl.’s 

Mot.; Defs.’ Cross-Mot. & Opp’n. Those motions are now ripe for the Court’s consideration. 

II. LEGAL STANDARD 

Under Rule 56(a) of the Federal Rules of Civil Procedure, “[t]he court shall grant summary 

judgment if the movant shows that there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” However, “when a party seeks review of agency 

action under the APA [before a district court], the district judge sits as an appellate tribunal. The 

‘entire case’ on review is a question of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 

1083 (D.C. Cir. 2001). Accordingly, “the standard set forth in Rule 56[ ] does not apply because 

5

 The Court previously dismissed Count 2, in which Plaintiff contended that the Policy constituted a 

“legislative rule” for which Defendants failed to engage in proper rulemaking under the APA, such as 

notice-and-comment procedures. Compl. ¶¶ 33–39, ECF No. 1. The Court concluded that Defendants’ 

Guidance and RIL amounted to a “non-legislative, interpretive rule,” about which Defendants were not 

required under the APA to engage in notice and comment rulemaking. Mem. Op. at 6, 12–13 ECF No. 35. 

The Court further concluded, however, that Defendants’ policy could “be reviewed pursuant to the APA 

for being arbitrary or capricious or in excess of authority[.]” Id. at 14 (citations omitted). 
6 

of the limited role of a court in reviewing the administrative record. . . . Summary judgment is [ ] 

the mechanism for deciding whether as a matter of law the agency action is supported by the 

administrative record and is otherwise consistent with the APA standard of review.” Southeast 

Conference v. Vilsack, 684 F. Supp. 2d 135, 142 (D.D.C. 2010). 

The APA “sets forth the full extent of judicial authority to review executive agency action 

for procedural correctness.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). It 

requires courts to “hold unlawful and set aside agency action, findings, and conclusions” that are 

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 

706(2)(A). “This is a ‘narrow’ standard of review as courts defer to the agency's expertise.” Ctr. 

for Food Safety v. Salazar, 898 F. Supp. 2d 130, 138 (D.D.C.2012) (quoting Motor Vehicle Mfrs. 

Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). The reviewing court 

“is not to substitute its judgment for that of the agency.” Dist. Hosp. Partners, L.P. v. Burwell, 786 

F.3d 46, 57 (D.C. Cir. 2015). 

III. DISCUSSION 

Plaintiff seeks summary judgment on the basis that Defendants’ interpretation of § 8467’s 

directive that the annuity supplement “be treated the same way” is arbitrary and capricious, and 

contrary to the plain meaning of the statute. Plaintiff contends that §§ 8467 and 8421 authorize 

OPM to pay a portion of the annuity supplement to a retiree’s former spouse only when a court 

order “expressly” orders division of the annuity supplement. Pl.’s Mot. at 9–11. Plaintiff also 

seeks summary judgment on its claim that OPM exceeded its statutory authority by “claw[ing] 

back Annuity Supplement payments” from those retirees whose annuity supplement payments 

were not paid by OPM to their former spouses. Id. at 17. Defendants cross-moves for summary 

judgment as to both claims, contending that its interpretation and implementation of sections 8467 
7 

and 8421(c) are consistent with the clear statutory language. See Defs.’ Cross-Mot & Opp’n at 8–

12, 24–30. 

For the reasons explained below, the Court concludes that Defendants’ position is 

consistent with the unambiguous statutory directive that annuity supplements be “treated in the 

same way” as basic annuity. The Court further concludes that Defendants have appropriately 

implemented the statute by deducting overpayments made to annuitants whose payments had been 

calculated under an incorrect interpretation of the statute. Accordingly, summary judgment in 

Defendants’ favor is warranted. 

A. Defendants’ Interpretation of Section 8421(c) is Consistent with the Unambiguous 

Language of the Statute. 

Plaintiff first contends that Defendants’ “interpretation” of § 8412(c), as set forth in the 

2014 Memorandum and 2016 RIL is arbitrary, capricious, or contrary to law, in violation of the 

APA. To evaluate Plaintiff’s claim that Defendants’ Policy is inconsistent with the statute, the 

Court must first apply the “ordinary tools of statutory construction” to determine “whether 

Congress has directly spoken to the precise question at issue.” Chevron U.S.A., Inc. v. NRDC, 467 

U.S. 837 (1984). “If the intent of Congress is clear, that is the end of the matter; for the court, as 

well as the agency, must give effect to the unambiguously expressed intent of Congress.’” City of 

Arlington, Tex. v. F.C.C., 569 U.S. 290, 296 (2013) (quoting Chevron, 467 U.S. at 842–43). But, 

if “the statute is silent or ambiguous with respect to the specific issue . . . we move to the second 

step and defer to the agency’s interpretation as long as it is based on a permissible construction of 

the statute.” Noramco of Del., Inc. v. DEA, 375 F.3d 1148, 1152–53 (D.C. Cir. 2004) (internal 

citations and quotation marks omitted). “If a statute is ambiguous, and if the implementing 

agency’s construction is reasonable, Chevron requires a federal court to accept the agency’s 

construction of the statute, even if the agency's reading differs from what the court believes is the 
8 

best statutory interpretation.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 

U.S. 967, 980 (2005). 

Here, both parties argue that the Court need only address the first step: each party contends 

that the phrase “be treated in the same way” in section 8421(c) is unambiguous—though for 

different reasons and with different outcomes. In Plaintiff’s view, to “treat[ ]” the annuity 

supplement “in the same way” as basic annuity requires OPM to consider whether there is a court 

order “expressly providing” for the annuity supplement payment to be divided between spouses; 

absent an express reference to the annuity supplement in a court order, that benefit cannot be 

divided. Pl.’s Mot. at 10. Plaintiff argues that these sections unambiguously require that a court 

order “expressly” directs that the retiree’s annuity supplement payments be divided with his or her 

former spouse before OPM can apportion those payments. Id. at 9. In contrast, Defendants argue 

that these same statutory provisions unambiguously direct OPM to divide the annuity supplement 

pursuant to a court order so long as the court order requires the division of basic annuity. In other 

words, to “treat[ ]” the annuity supplement “in the same way” as basic annuity means that if a court 

order directs that FERS annuity must be divided, then the annuity supplement must be divided “in 

the same way.” Def.’s Cross-Mot. & Opp’n at 8–10. 

To determine whether the statutory language is susceptible to more than one reasonable 

interpretation, the Court considers “the language itself, the specific context in which that language 

is used, and the broader context of the statute as a whole.” Validus Reinsurance, Ltd. v. United 

States, 786 F.3d 1039, 1043 (D.C. Cir. 2015) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 

341 (1997)). The language of § 8421(c) requires OPM, for the purposes of § 8467—the provision 

addressing the division of annuity payments when “expressly provided for” in a court divorce or 
9 

separation order—to treat an annuity supplement “in the same way” as an “amount computed 

under section 8415,” the section addressing how to compute basic annuity. § 8421(c). 

The Court agrees with Defendants that §§ 8421(c) and 8467 unambiguously require OPM 

to divide the annuity supplement “in the same way” as basic annuity when a court order directs a 

division of federal retirement annuity, consistent with the requirements of 5 C.F.R. § 838.611(a) 

(“For example, ‘CSRS,’ ‘FERS,’ ‘OPM,’ or ‘Federal Government’ benefits, or benefits payable 

‘based on service with the U.S. Department of Agriculture,’ etc., are sufficient identification of the 

retirement system.”). In other words, to “treat” the annuity supplement “in the same way” means 

to divide it “in the same way” as basic annuity; not, as Plaintiff contends, to require a court order 

expressly and separately directing that the annuity “supplement” be divided. 

The structure and context of the statutory scheme support this conclusion. Notably, the 

section providing for the annuity supplement is located within the subchapter entitled “Basic 

Annuity,” subchapter II, chapter 84, of Title 5 of the United States Code. This same subchapter 

contains the section regarding “computation of basic annuity,” § 8412, and the “annuity 

supplement,” § 8421. Section 8467, then, requires that “payments under this chapter which would 

otherwise be made to an employee . . . shall be paid . . . to another person if and to the extent 

expressly provided for in the terms of – any court decree of divorce, annulment, or legal separation, 

or the terms of any court order[.]” § 8467(a)(1). The subchapter about “basic annuity” 

encompasses the section about the temporary “annuity supplement” available to certain federal 

law enforcement officers who retire before they are eligible for Social Security. See 5 U.S. Code 

Subchapter II – Basic Annuity (encompassing §§ 8410–8425); see also 5 C.F.R. § 838.103 

(defining “employee annuity” as the “recurring payments under CSRS or FERS made to a retiree 

. . .”). Accordingly, it is logical that if a court order directs division of basic annuity, that order 
10 

would also encompass division of the annuity supplement “in the same way,” without the need to 

distinguish between the two. 

Plaintiff’s proposed interpretation treats the annuity supplement as a benefit separate and 

apart from basic annuity. Plaintiff contends that OPM can apportion retiree benefits only to the 

extent the “relevant court order can be interpreted as specifically referring to a particular FERS 

benefit.” Pl.’s Mot. at 9–10. In support of this position, Plaintiff relies on the Federal Circuit’s 

decision in Downing v. Office of Personnel Management, 619 F.3d 1374 (D.C. Cir. 2010), in which 

the court concluded that an annuitant’s former spouse was not entitled to the retiree’s “survivor” 

annuity benefits because this benefit was not “expressly award[ed]” in the state court divorce 

order.” Id. at 1377. But Plaintiff’s reliance on Downing is not persuasive. That case involved the 

“survivor” annuity benefit—not the annuity supplement benefit at issue in this case. “Survivor 

annuity” is addressed in subchapter III of chapter 84, entitled “Civil Service Retirement—a 

different chapter than the one addressing basic annuity (which also contains the section addressing 

the annuity supplement). 

The Federal Circuit in Downing concluded that the divorce decree at issue failed to 

“expressly” award a deceased retiree’s former spouse “survivor annuity” benefits. 619 F.3d at 

1377. From this conclusion, Plaintiff extrapolates that a divorce order must address the “specific” 

annuity benefit at issue in order for OPM to divide it. See Pl.’s Mot. at 9–10. As applied to the 

annuity supplement, that would require a court order to explicitly refer to the annuity supplement, 

as opposed to simply FERS annuity. The court’s conclusion in Downing does not stand for such a 

sweeping proposition. The applicable statute in Downing, 5 U.S.C. § 8341, directs OPM to pay a 

former spouse a “survivor” annuity benefit “if and to the extent expressly provided for . . . in the 

terms of any decree of divorce or annulment or any court order[.]” The associated regulation 
11 

provides that “[t]he court order must contain language such as ‘survivor annuity,’ ‘death benefits,’ 

‘former spouse survivor annuity under 5 U.S.C. § 8341(h)(1),’ etc.” 5 C.F.R. § 838.912. These 

directives parallel the statutory directives pertaining to basic annuity at issue here. See supra

Section I. 

But the statutory section addressing the annuity supplement does not contain any 

qualification that OPM may allocate this benefit to a former spouse only when this specific benefit 

is “expressly provided for” in a court divorce order. Rather, that provision requires that the annuity 

supplement be “treated . . . in the same way as basic annuity” for the purpose of dividing it pursuant 

to a court order. § 8421(c). Had Congress intended that OPM require a court order “expressly” 

dividing the annuity supplement, it could have included that same directive in the specific statute 

addressing the annuity supplement—as it did with respect to survivor annuity, as discussed in 

Downing. Instead, Congress directed that the annuity supplement be “treated in the same way” as 

basic annuity. 

Based on the structure of the statute and the context of the provision providing for the 

annuity supplement, the Court concludes that this language unambiguously directs OPM to include 

the annuity supplement in the amount to be divided pursuant to a court order that expressly 

provides for payment of basic annuity to a retiree’s former spouse. §§ 8421(c); 8467(b). Because 

Defendants’ interpretation of these provisions adheres to the statute’s unambiguous directive, it is 

not “arbitrary and capricious,” and so the Court shall grant summary judgment in Defendants’ 

favor as to Count I of the Complaint. 
12 

B. Defendants Have Appropriately Implemented the Unambiguous Language of the 

Statute. 

Plaintiff next argues that Defendants exceeded their statutory authority by giving their 2104 

Guidance and 2016 RIL “retroactive effect.” Pl.’s Mot. at 17. Plaintiff argues that OPM lacks 

statutory authority to promulgate retroactive rules, but that it nonetheless “retroactively applied its 

interpretation of Section 8421(c) as implemented in 2016 to claw back Annuity Supplement 

payments to affected retirees who were then receiving that benefit dating back to when the retiree’s 

Basic Annuity was first apportioned.” Id. at 17. According to Plaintiff, therefore, “even if the 

Court were to find OPM’s interpretation of Section 8421(c) permissible, it must still invalidate 

OPM’s retroactive implementation of that interpretation as ultra vires” and “arbitrary, capricious, 

and fundamentally unfair to affected retirees.” Id. 

In response, Defendants argue that OPM’s actions amount to “retroactive corrections” 

necessary to administer the correct “temporal reach” of the applicable statutes and regulations. 

Defs.’ Cross-Mot. & Opp’n at 34. Defendants contend that the need to deduct payments from 

annuitants arises from the “effective date” of the Federal Employees’ Retirement System Act 

(“FERS Act”), Pub. L. 99-335, 100 Stat. 514 (1986), which provided that the Act “shall take effect 

on January 1, 1987,” and the directive in § 8467(b) that OPM must divide employee annuity 

payments pursuant to a court order “after the date . . . on which [OPM] receives written notice of 

such [court] decree, order, other legal process, or agreement[.]” Defs.’ Cross-Mot. & Opp’n at 25. 

Taken together, these provisions “direct OPM to pay former spouses court-ordered apportionments 

received after January 1, 1987, ‘after the date OPM receives written notice’ of such order,” and 

affords OPM “no discretion to enforce these provisions as of a later date.” Id. Defendants contend 

that it would be outside of OPM’s statutory authority not to adjust for overpayments made under 
13 

the mistaken interpretation of the annuity supplement statute that had been implemented by some 

OPM personnel prior to the 2014 Guidance and 2016 RIL. See id. at 26–27, 29. 

 Plaintiff contends that Defendants’ “retroactive” corrections amount to impermissible 

retroactive rulemaking, which is foreclosed absent express statutory authorization. See Pl.’s Mot. 

at 17 (citing Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988)). Plaintiff contends that 

“absent express statutory authority, an agency may not give an interpretive rule retroactive effect.” 

Id. (citing Health Ins. Ass’n of Am. v. Shalala (“HIAA”), 23 F.3d 412, 423 (D.C. Cir. 1994) 

(“[I[nterpretive rules, no less than legislative rules, are subject to [Bowen’s] ban on retroactivity.”)). 

According to Plaintiff, therefore, because the FERS Act does not authorize retroactive rulemaking, 

Defendants cannot deduct the annuity supplement payments prospectively to correct for past 

misapplication of the statute. Defendants, in response, argue that by providing an “effective date,” 

the FERS Act “implicitly” authorizes retroactive action. See Defs.’ Cross-Mot. & Opp’n at 35 

(citing Bowen, 488 U.S. at 224–25 (Scalia, J., concurring)). Moreover, as Defendants correctly 

observe, the rules at issue in both Bowen and HIAA “may have caused private entities to pay the 

Government money,” but neither “related to payments made by agencies from the Federal 

Treasury.” Defs.’ Reply at 19. Here, the “interpretive, non-legislative” rule at issue implicates 

funds incorrectly paid out from the Federal Treasury. 

Defendants analyze their “corrective” efforts under the Supreme Court’s discussion in 

OPM v. Richmond, 496 U.S. 414 (1990), contending that the Supreme Court’s decision in that case 

“makes clear” than when an agency issues payments from the United States Treasury “in 

contradiction” to law, agencies must “correct such payments, because they are permitted to pay 

benefits only in accordance with statutory provisions from the effective date of entitlement 

prescribed by Congress.” Defs.’ Reply at 18. In Richmond, a recipient of federal benefits sought 
14 

advice from a federal employee regarding the statutory limit on earnings that would disqualify 

him from receiving a disability benefit. 496 U.S. at 416. He received erroneous advice, and earned 

more than permitted by the eligibility requirements. Id. Based on that erroneous advice, he sought 

a court order compelling “payment of the benefits contrary to the statutory terms.” Id. The 

Supreme Court concluded that it lacked authority to authorize payments under a theory of equitable 

estoppel because the benefits the plaintiff sought were “not ‘provided by’ the relevant provision of 

the subchapter; rather, they were specifically denied. It follows that Congress has appropriated no 

money for the payment of the benefits respondent seeks, and the Constitution prohibits that any 

money ‘be drawn from the Treasury to pay them.” Id. at 424. 

In this case, it would be inconsistent for the Court to conclude that sections 8467 and 

8421(c) require Defendants to apportion the annuity supplement “in the same way” as basic 

annuity pursuant to an express court order, but then to bar Defendants’ corrective measures to 

correctly implement the statute. As the Court previously noted, the obligations imposed on the 

affected retirees are the result of the “statutory directive and not the result of the Policy.” Mem. 

Op. at 5, ECF No. 35 (emphasis added). OPM’s 2014 Guidance and 2016 RIL “did not adopt a 

new position inconsistent with existing regulations,” not did it “impose new obligation,” but rather 

“issued internal guidance to certain of its employees concluding the plain text of Section 8421(c) 

requires them to divide annuity supplements when processing court orders requiring the division 

of employee annuities[.]” Id. at 6 (internal quotation marks omitted). 

Plaintiff’s requested order “invalidat[ing] OPM’s retroactive implementation” of the 2014 

Guidance and 2016 RIL, Pl.’s Mot. at 17, would have the effect of ordering OPM to duplicate 

payments it has already made—by (1) not deducting for overpayments it has previously made to 

federal annuitants; and (2) paying annuitants’ former spouse the appropriate portion of the annuity 
15 

supplement. Doing so would contravene the “straight and explicit command” of the 

Appropriations Clause, as articulated in Richmond: “[N]o money can be paid out of the Treasury 

unless it has been appropriated by an act of Congress.” Richmond, 406 U.S. at 424 (internal 

citations and quotation marks omitted); see also Federal Crop. Ins. Corp. v. Merrill, 332 U.S. 380, 

385–86 (1947) (“[N]ot even the temptations of a hard case” will provide a basis for ordering 

recovery contrary to the terms of the regulation, for to do so would disregard “the duty of all courts 

to observe the conditions defined by Congress for charging the public treasury.”). 

Based on its conclusion that sections 8421(c) and 8467 require OPM to divide annuity 

supplements “in the same way” as basic annuity, when required to do so pursuant to a court order, 

the Court does not find OPM’s efforts to comply with that statutory obligation (including, by 

correcting for past overpayments) to be arbitrary, capricious, or in excess of its statutory authority. 

Accordingly, the Court shall also grant summary judgment in Defendants’ with respect to this 

claim. 

IV. CONCLUSION 

 For the foregoing reasons, the Court DENIES Plaintiff’s [39] Motion for Summary 

Judgement and GRANTS Defendants’ [42] Cross-Motion for Summary Judgment. An appropriate 

Order accompanies this Memorandum Opinion. 

Date: September 28, 2021 

 /s/ 

 COLLEEN KOLLAR-KOTELLY 

 United States District Judge