1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
FEDERAL LAW ENFORCEMENT OFFICERS ASSOCIATION, Plaintiff
v. KIRAN AHUJA 1 , 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 Defend ants, the Director of the United States Office of Personnel Management and the United St ate Office of Personnel Management (“OPM”), to implement a policy which resu lted in the reduction of annuitysupplement payments for many retired law enforcement officers who are divorced. Plaintiff, the Federal Law Enforcement Officers Association, represents 27,000 current a nd retired federal law enforcement officers and brings claims against Defendants under the Admi nistrative Procedure Act (“APA”), contending that Defendants’ policy is arbitrary and capricio us and that Defendants exceeded their statutory authority by applying the policy retroactively. Presently before the Court are Plaintif f’s [39] Motion for Summary Judgment and Defendants’ [42] Cross-Motion for Summary Judgm ent. 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 Retir ement System (“FERS”), 5 U.S.C. § 8401, et seq ., federal government civilian employees may receiv e certain retirement benefits, including annuities and Social Security. Federal civilian employe es who reach retirement age with the required number of service years are en titled to an annuity. §§ 8412, 8415. 3 Federal retirees also become eligible for Social Security benefits at ag e 62. § 8403; 42 U.S.C. § 402. Certain employees, including federal law enforcement officers, are elig ible to retire at a younger age with fewer service years. §§ 8412(d), (e), 8415(e), 8421. These em ployees may be entitled to an “annuity supplement” until the retiree reaches the minimum ag e 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 e xpressly provided for in the terms of – (1) any court decree of divorce, annulment, or legal sepa ration, or the terms of any court order or court-approved property settlement agreement incident to a ny court decree of divorce, annulment, or legal separation . . . [.]” § 8467(a). The associated regulations require that the court order “must contain language identifying the re tirement system to be affect ed.” 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 Su mmary 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,” “mus t 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 comput ation of basic annuity . § 8421(c) (emphasis added). The dispute in this case invol ves 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 ot her 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 di vision 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 wh ere 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 Retir ement 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 annu ity 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 administrat ors 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 dedu cting the amounts owed in monthly installments from their annuity payments. See OPM001, 035. Plaintiff contends that OPM had previouslyinterpreted §§ 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 Sect ion 8421(c) as requiring it to apportion a retiree’s Annuity Supplement any time5 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 Cro ss-Mot. & Opp’n at 4. Plaintiff filed its Complaint in this ac tion 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 th e 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 Federa l Rules of Civil Procedure, “[ t]he court shall grant summary judgment if the movant shows that there is no ge nuine 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, EC F 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 comm ent rulemaking. Mem. Op. at 6, 12–13 ECF No. 35. The Court further concluded, however, that Defendan ts’ 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 admi nistrative 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 unlawfu l and set aside agency action, fi ndings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or ot herwise 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 supplem ent “be treated the same way” is arbitrary and capricious, and contrary to the plain meaning of the statute. Plaintiff conte nds 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 ex ceeded 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 in terpretation and implement ation of sections 84677 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 Cour t concludes that Defendants’ position is consistent with the unambiguous st atutory directive that annuity s upplements be “treated in the same way” as basic annuity. The Court furthe r concludes that Defendants have appropriately implemented the statute by deducting overpayments made to annuitants whose payments had been calculated under an incorrect interpretation of th e statute. Accordingly, summary judgment in Defendants’ favor is warranted.
A. Defendants’ Interpretation of Section 8421(c) is Consis tent with the Unambiguous Language of the Statute. Plaintiff first contends that Defendants’ “int erpretation” of § 8412(c), as set forth in the 2014 Memorandum and 2016 RIL is arbitr ary, 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 in tent 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 ambi guous 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 pe rmissible 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 o mitted). “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 the8 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 onl y address the first step: each party contends that the phrase “be treated in the same wa y” 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 re quires 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 th at 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 provi sions unambiguously direct OPM to divide the annuity supplement pursuant to a court order so long as the court order requires the divi sion of basic annuity. In other words, to “treat[ ]” the annuity supplement “in the same way” as ba sic 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 stat utory 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 contex t 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 or9 separation order—to treat an annuity supplemen t “in the same way” as an “amount computed under section 8415,” the section addressing how to compute ba sic 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 a nnuity, consistent with the requi rements of 5 C.F.R. § 838.611(a) (“For example, ‘CSRS,’ ‘FERS,’ ‘OPM,’ or ‘Feder al 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 di recting that the annuity “supplement” be divided. The structure and context of the statutory sc heme support this conclusion. Notably, the section providing for the annuity supplement is located within the subc hapter entitled “Basic Annuity,” subchapter II, chapter 84, of Title 5 of the United States Code. This same subchapter contains the section regardi ng “computation of basic annu ity,” § 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 pa id . . . to another person if and to the extent expressly provided for in the term s of – any court decree of divor ce, 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 “annu ity 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 A nnuity (encompassing §§ 8410–8425); see also 5 C.F.R. § 838.103 (defining “employee annuity” as the “recurring pa yments under CSRS or FE RS made to a retiree . . .”). Accordingly, it is logical that if a cour t order directs division of basic annuity, that order10 would also encompass division of the annuity supp lement “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 th at 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 be nefit 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 subc hapter III of chapter 84, entitle d “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 th at a divorce order must address the “specific” annuity benefit at issue in or der for OPM to divide it. See Pl.’s Mot. at 9–10. As applied to the annuity supplement, that would require a cour t order to explicitly refer to the annuity supplement , as opposed to simply FERS annu ity. 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 regulation11 provides that “[t]he cour t 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 intend ed that OPM require a court order “expressly” dividing the annuity supplement, it could have incl uded 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 th e context of the provision providing for the annuity supplement, the Court concludes that th is language unambiguously directs OPM to include the annuity supplement in the amount to be divi ded pursuant to a cour t order that expressly provides for payment of basic a nnuity to a retiree’s former spouse. §§ 8421(c); 8467(b). Because Defendants’ interpretation of these provisions adhere s to the statute’s unambiguous directive, it is not “arbitrary and capricious,” and so the Cour t shall grant summary judgment in Defendants’ favor as to Count I of the Complaint.12 B. Defendants Have Appropriately Implemen ted 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 none theless “retroactively applied its interpretation of Section 8421(c) as implemented in 2016 to claw back Annuity Supplement payments to affected retirees who were then receivi ng that benefit dating back to when the retiree’s Basic Annuity was fi rst apportioned.” Id. at 17. According to Plaintiff, therefore, “even if the Court were to find OPM’s interp retation of Section 8421(c) permi ssible, 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 stat utes 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 OP M receives written notice’ of such order,” and affords OPM “no discretion to enforce th ese 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 under13 the mistaken interpretati on 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’ “ret roactive” 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 res ponse, argue that by providing an “effective date,” the FERS Act “implicitly” aut horizes 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 “inter pretive, non-legislative” rule at issue implicates funds incorrectly paid out from the Federal Treasury. Defendants analyze their “corrective” effort s 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 sought14 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 bene fits 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 we re “not ‘provided by’ th e relevant provision of the subchapter; rather, they were specifically denie d. It follows that Congress has appropriated no money for the payment of the bene fits 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 annu ity 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 exis ting regulations,” not did it “im pose new obligation,” but rather “issued internal guidance to certain of its empl oyees concluding the plain text of Section 8421(c) requires them to divide annuity supplements wh en processing court orders requiring the division of employee annuities[.]” Id. at 6 (internal quotation marks omitted). Plaintiff’s requested order “invalidat[ing] OP M’s retroactive impleme ntation” 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 overpayment s it has previously made to federal annuitants; and (2) paying annuitants’ former spouse the appropriate portion of the annuity15 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 quotati on 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, fo r to do so would disregard “the duty of all courts to observe the conditions defined by Congr ess 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, wh en 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 Su mmary Judgment. An appropriate Order accompanies this Memorandum Opinion.
Date: September 28, 2021 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge