## United States Court of Appeals for the Federal Circuit

05-3347

GAYLE J. SNYDER, Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT, Respondent.

Randall J. Andersen , Kay & Andersen, S.C., of M adison, Wisconsin, argued for petitioner. Thomas D. Dinackus , Attorney, Commercial Litigat ion Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With him on the brief were Peter D. Keisler , Assistant Attorney General, David M. Cohen , Director, and Bryant G. Snee , Assistant Director. Of counsel on the brief was Wade Plunkett , Attorney, Office of Personnel Management, of Washington, DC. Appealed from: United States Merit Systems Protection Board

## United States Court of Appeals for the Federal Circuit

05-3347

GAYLE J. SNYDER, Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT, Respondent.

__________________________ DECIDED: September 13, 2006

__________________________ Before RADER, Circuit Judge , PLAGER, Senior Circuit Judge , and PROST, Circuit Judge

. Opinion for the court filed by Circuit Judge PROST. Concurring opinion filed by Senior Circuit Judge PLAGER. PROST, Circuit Judge

. Gayle J. Snyder petitions for review of the final order of the Merit Systems Protection Board (“Board”). The Board affirm ed the decision of the Office of Personnel Management (“OPM”) denying the pet itioner’s claim for survivor annuity benefits under the Civil Service Retirement System (“CSRS ”) as the former spouse of Robert L. Ruff. Snyder v. Office of Pers. Mgmt. , No. CH0842040399-I-1 (M.S.P.B. July 27, 2005). We vacate and remand.BACKGROUND Gayle Snyder and Robert Ruff divorced in 1993 after over thirty years of marriage. The Wisconsin divorce court ent ered an order entitled “Addendum to Marital Settlement Agreement for Qualified Domest ic Relations Order-Federal (CSRS) Plan” (“Court Order”). The Court Order was submitted to OPM whic h notified Snyder that the order was suitable for processing and woul d provide her with (1) an apportionment benefit payable on Ruff’s retirement, and (2) a survivor annuity payable upon his death. Ruff was an employee of both federal and state governments during the entire marriage. Several years after the divorce, in July 2001, he retired from federal government service. Although OPM had previously notified Sn yder that the Court Order was sufficient to provide her with a surv ivor annuity, it changed its determination. Between 2001 and 2004, Snyder and OPM exc hanged several letters in which OPM made various determinations about the order’s suitability. Finally, in a letter she received March 15, 2004, OPM stated that the order di d not comply with OPM’s regulations for the awarding of a former spouse survivor annuity. Snyder appealed OPM’s finding to the Board. While Ruff lives, the Court Order provides no payments to Snyder prior to Ruff’s retirement. After his retire ment, the Court Order provides Snyder with 43.11% of the actuarial equivalent value of Ruff’s pension benefit which accrued during the period of their marriage. In providing for Snyder after Ruff’s deat h, the Court Order contains the following provision: VI. DEATH OF PARTICIPANT AND SURVIVOR BENEFITS - PROVISIONS FOR TREATMENT OF FORMER SPOUSE OF

05-3347 2PARTICIPANT AS SURVIVING SPO USE OF PARTICIPANT FOR PURPOSES OF PRE-RETIREMENT SURVIVING SPOUSE PENSION BENEFIT, (AND/OR) OTHER SURVIVOR BENEFITS. The assignment of benefits to the Al ternate Payee shall not be reduced, abated or terminated as a result of the death of the participant. Pursuant to Section 414(p) (5) of the Code, the former spouse of the Participant, namely Gayle S. Ruff, shall be treated as the surviving spouse of the Participant for purposes of Pre-retire ment Survivor ben efits accrued during the period described in Section II C about [sic] 4 in accordance with Sections 401(a) (ii) and 417 of the Code. Snyder argued to the Board that this prov ision provides her with a post-retirement survivor annuity. The Board’s administrativ e judge found that “[t]he only permissible interpretation of the agreement is . . . that Appellant is to be treated as surviving spouse only for Preretirement survivor benefits.” Snyder v. Office of Pers. Mgmt. , No. CH0842040399-I-1, slip op. at 4 (M.S.P.B. S ept. 7, 2004). The administrat ive judge rejected Snyder’s argument that the first sentence of Section VI must provide for post-retirement survivor benefits. Rather, he f ound that it meant that “any Pr e-retirement lump sum payment shall not be reduced, abated or terminated as a re sult of the death of the Participant.” Id. , slip op. at 5. The administrative judge also noted that Snyder argued t hat it was the parties’ intent to provide her with a lifetime benefit, but held that because the Court Order is clear and unambiguous on its face , the use of parol evidence would be inappropriate. Id. Nevertheless, the administrative judge not ed that Ruff’s testimony was credible and consistent with his interpretation of the order. Id. The administrative judge’s in itial decision became the fi nal decision of the Board after the Board denied the petition for re view. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

05-3347 3DISCUSSION Board decisions may be set of aside if they are “(1) arbitrary, capricious, an abuse of discretion, or other wise not in accordance with t he law; (2) obtained without procedures required by law, rule, or regul ation having been followed; or (3) unsupported by substantial evidence . . . .” 5 U.S.C. § 7703(c) (2000). Within the CSRS, a post-retirement surviv or annuity provides t he survivors of an employee with recurring payments. A former s pouse may participate as a survivor to an employee’s survivor annuity pursuant to statute: a former spouse of a deceased employee . . . is entitled to a survivor annuity . . . if and to the extent expressly provided for . . . in terms of any decree of divorce or annulment or any court order or court-approved property settlement agreement incident to such decree. 5 U.S.C. § 8341(h)(1) (2000) (emphasis added) . OPM’s regulations provide further guidance regarding how a survivor annuity must be described in a co urt order in order to properly provide the former spouse with a survivor annuity. 5 C.F.R. §§ 838.801-807. On appeal, Snyder argues, as she did to t he Board, that Secti on VI of the Court Order entered at her divorce pr ovides her with a post-retirem ent survivor annuity. She asserts that the Board erred in its determination that the fi rst sentence of the section provided only a pre-retirement benefit. Rather, she argues that the in tent of the parties and the clear language of the agr eement evince the meaning of the order—to provide her with a lifetime benefi t. She argues that the adminis trative judge erred in permitting Ruff’s testimony regarding the intent of t he agreement while excludi ng hers. She also argues that because OPM waited until after her former spouse’s retirement to rescind its initial decision, it should be estopped from doing so.
A.

05-3347 4First, we address the administrative j udge’s finding regarding the meaning of Section VI of the Court Order. Snyder conc edes that the second s entence of Section VI means only that she will be treated as the survivor for purposes of a pre -retirement survivor benefit. However, she disagrees with the administrative judge ’s finding that the first sentence of the section al so refers to a pre-retirement survivor benefit. The first sentence states, “The assignment of benefits to the Alternate Payee shall not be reduced, abated or terminated as a result of the death of the participant.” Since the only benefits to which she was entitled under the agreement were a portion of Ruff’s pension, Snyder argues that th is was the benefit that should not be reduced as a result of his death. Snyder also states that the administrative judge may have reached an erroneous conclusion based on a finding that Snyder’s benefits would necessarily decrease if they were converted from being a portion of Ruff’s pension to a postretirement survivor annuity. She states that this was erroneous because a postretirement survivor annuity is not nece ssarily less than her apportionment of Ruff’s pension. OPM agrees with Snyder t hat the administrative judge erred in finding that the first sentence of Section VI refers to a pr e-retirement survivor benefit. Agreeing with Snyder’s contentions, OPM states, “[i]t woul d make no sense to st ate that survivor benefits cannot be reduced or terminated by the very event that would trigger entitlement to those benefits. ” Therefore, OPM agrees wit h Snyder that “the first sentence of Section VI must address benefits that Snyder wa s already receiving at the time of Mr. Ruff’s death.” That is, the first sentence must be referring to the “portion of

05-3347 5Mr. Ruff’s retirement benefits [Snyder would be receiving post-retirement] pursuant to Section II.C . . . .” OPM therefore repudiates the administr ative judge’s analysis and both parties agree that the administrative judge erred in his rationale fo r finding that the first sentence of Section VI did not provide fo r a post-retirement survivor annuity. We therefore proceed to the alte rnative basis that OPM pres ents on appeal as to why the first sentence of Section VI is deficient to provide the benefit.
B. OPM argues that Section VI of the Cour t Order is deficient for purposes of providing Snyder with a post-retirement surv ivor annuity because it does not satisfy 5 C.F.R. § 838.803(b). The regulation cit ed by OPM contains two requirements: Any court order that provides [1] t hat the former spouse’s portion of the employee annuity shall continue after t he death of the empl oyee or retiree, by using language such as “will cont inue to receive benefits after the death of” the employee, that the fo rmer spouse “will continue to receive benefits for his (or her) lifetime,” or “that benefits will c ontinue after the death of” the employee, but does not [2] use terms such as “survivor annuity,” “death benefits,” “former spouse annuity,” or similar terms is not a court order acceptable for processing. 5 C.F.R. § 838.803(b) (2006). Here, Section VI of the Court Order includes the sentence, “The assignment of benefits to the Alternate Payee shall not be reduced, abated or terminated as a result of the death of the participant.” OPM states that this language is “equivalent to the insufficient language described in the first part of [the OPM regulation],” so that the second condition must be met in order fo r the clause to be sufficient under the regulation. But, OPM argues, the second conditi on of its regulation is not met—that is,

05-3347 6the court order does not “use terms such as ‘survivor annuity,’ ‘deat h benefits,’ ‘former spouse annuity,’ or similar terms.” 5 C.F.R. § 838.803(b) (2006). Snyder responds that several sections of the Court Order refer to a survivor annuity. First, the title of Se ction VI states that the se ction covers “PRE-RETIREMENT SURVIVING SPOUSE PENSION BENEF IT, (AND/OR) OTHER SURVIVOR BENEFITS.” The regulation permits use of the term “death benefit s” to satisfy its second requirement and the court order uses t he term “survivor benefit s” in the title to the very section which meets the first prong of the regulation’s test. The government does not argue that the language “ot her survivor benefits” is not sufficient to satisfy the regulation’s second condition. Rather, duri ng oral argument, OPM argued solely that this section’s reference to “OTHER SURVIVOR BENEFITS” did not meet the requirements of the regulation because it is preceded by the conjunctive term “and/or.” It argued that if benefits other than pre-retirement benefits we re expressly intended in the title, the title would not have used the te rm “and/or.” This court cannot agree that a reference to “survivor benefits” that w ould otherwise satisfy the OPM regulation becomes insufficient because it is preceded by the term “and/or.” 1 We therefore turn to this court’s precedent as to the requirement s for “expressly providing” for a survivor annuity. C. This court has previously discussed the requirements of how a court order must expressly provide for the award of a su rvivor annuity as required by 5 U.S.C.

1 Furthermore, we see no problem with the “and/or” language. The title may provide for pre-retirement “and” post-retire ment benefits. However, obviously, Snyder would only actually receive pre-retirement “or” post-retirement survivor benefits.

05-3347 7§ 8341(h)(1). When words such as “CSRS survivor annuity” are used, obviously, a court order will provide for the benefit. Howeve r, such “‘magic words’ are not required to assign a CSRS survivor annuity in favor of a former spouse.” Fox v. Office of Pers. Mgmt. , 100 F.3d 141, 146 (Fed. Cir. 1996). W hen the magic words are not used, Fox provides the analysis a tribunal must undertake to determine whether a court order provides for the survivor benefit. Id. Specifically, to determine that a c ourt order without any magic words does provide the survivor annuity benefit, the tribunal must first determine whether the order contains a pertinent clause r egarding a survivor annuity. Id. If so, then it must inquire whether the operative terms in that clause c an “fairly be read as awarding” the annuity. Id. If so, then it must “examine any ev idence introduced concerning the marriage parties’ intent and the circumstances surr ounding the execution of the document” to interpret the clause. Id. If the evidence only dictates that the “clause refers to a CSRS survivor annuity—then it is legal error to c onclude that the document has not ‘expressly provided for’ the award of a survivor annuity ” as required by 5 U.S.C. § 8341(h)(1). Id. Here, there is no dispute that Section VI of the Court Order is a pertinent clause which can fairly be read as providing for a post-retirement survivor annuity. Indeed, the government concedes that the first sentence can only be read to mean that Snyder’s post-retirement benefits would not be reduced due to Ruff’s death. This is clearly contemplated by resort to a post-re tirement survivor annuity. Under Fox , the Board is thus required to examine evi dence, to the extent such evidence exists, to determine whether it dictates another po ssible meaning for the clause.

05-3347 8CONCLUSION Because the first sentence of Section VI of the Court Order can fairly be read to refer to a post-retirement survivor annuity, we vacate the Board’s decision and remand for a determination of the meaning of the clause. VACATE AND REMAND

.

05-3347 9

## United States Court of Appeals for the Federal Circuit

05-3347

GAYLE J. SNYDER, Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

PLAGER, Senior Circuit Judge , concurring. I concur in the decision to remand this case to the Board for further consideration, as that at least is a first step to correcting what I perceive to be an egregious error by the Governm ent. I would have gone further and decided the case in Ms. Snyder’s favor without a remand. In the first place, I think the Wisconsin court order, filed with OPM in 1993, can be read as it obviously was intended—to grant Ms. Snyder, in addition to a percentage of her ex-husband’s retirement allocation, two types of death benefits: a relatively insignificant benefit (the lump sum) should her ex-spouse predecease her before he retires, and a lifetime benefit should her ex-spouse predecease her after he retires (when her share of his retirement allocation would terminate as a result of his death). The two-part heading and the two distinctive sentences contai ned in paragraph VI of the court order can readily be under stood to so provide. And indeed that is the way the Government expressly read the order for the eight years betwe en its filing with OPMand the ex-husband’s retirement from federal service in 2001. The Government’s argument in this court, t hat the only death benef it the Wisconsin court order was intended t o grant her was the de minimis lump sum benefit if he died between the divorce and retirement, is wholly unpersuasiv e and indeed, in light of the record before us, borders on the frivolous. That record shows that OPM advised Ms. Sny der in writing in 1 9 94 that the court order was acceptable under it s regulations for former spouse benefits, and that “[b]enefits are not pay able until the employ ee separat es from the Federal service and applies for benefits.” Though this letter did not spec ifically address the lifetime benefit following the employee’s death, it clearly did not consider a pre-retirement death benefit to be the only survivor benefit av ailable. Fu rthermore, in a subs equent letter that same year, intended to be a “clarification of the benefits awarded to you by the court,” Ms. Snyder was advised t hat “the court awarde d you two types of benefits—apportionment and surviv or annuity. . . . In survivor annuit y, the benefit become [sic] payable after day after [sic] Mr. Ruff’s death.” This letter left little doubt about OPM’s understanding that the court order included a survivor benefit applicable after the ex-husband’s death. That understanding was confirmed in Augu st 2001, now seven years after the earlier letters, and following t he ex -husband’s (Mr. Ruff’s) retirement from federal service tha t July. At that time OPM wrote a letter to Ms. Snyder stating that OPM “will honor a court order we have rec e ived awar di ng you a survivor annuity as t h e former spouse of Robert L. Ruff.” Si nce her ex -husband was now retir ed, that letter could only refer to the post-retirement lifetime surviv or annuity and not the pre-retirement lumpsum benefit. This letter was followed a week later with another letter. This second

05-3347 2letter acknowledged Ms. Ruff’s applic ation for her apportioned share of Mr. Ruff’s current reti rement allocation, and specifically reconfirmed her entitle ment to the survivor annuity as well. Suddenly, within weeks of these two letters, OPM advised Ms. Snyder that, based on a new reading of th e language of the cour t or der, “we have det ermined th at your [sic] are not entitled to a former spouse su rvivor annuity.” Adding ins u lt to injury , because Mr. Ruff had now retired it was the case that, pursuant to OPM regulations, Ms. Snyder was barred from obtaining any co rrection to or amendm ent of the original Wisconsin court order. For policy reasons, estoppel against t he United States Go vernment generally requires something more than the circumst ances whic h would support estoppel against a private party. See Heckler v. Cmty. Health Servs. , 467 U.S. 5 1 , 60 ( 1984). Although the Supreme Court has not been precise as to what it is, ‘something more’ has bee n described by this court as “some form of affirmative misconduct.” Zacharin v. United States , 213 F.3d 1366, 1371 (Fed. Cir. 2000); see also United Pac. Ins. Co. v. Roche , 401 F.3d 1362, 136 6 (Fed. Cir. 2005). 1 I n Zacharin , finding no affirmative misconduct by the Government, we noted that “[t]here is no evidence that any representative of the government gave Mr. Zacharin in correct legal adv ice . . . , [and] there is no evidenc e that [government representat ives ] made any misrepresentati ons to Mr. Zacharin with regard to [the contract in dispute].” 213 F.3d at 1371.

1 Further, an estoppel against the Gove rnment cannot result in the payment of money not otherwise provided for by law, an issue not relevant here since survivor annuities are specifically authoriz ed. See Office of Per s . Mgm t . v. Richmond , 496 U.S. 414, 423-24 (1990).

05-3347 3In the cas e before us, the record is replete with legal representations by government representatives with regard to the scope and meaning of the Wisconsin court order. For more than seven years, until after no correction was possible, OPM represented that Ms. Snyder wa s entitled to a post-retirement survivor benef i t; only then did OPM without warning rescind its previous assuranc es that the Wisconsin court order was in full complianc e. These representat ions whe n first issued and later confirmed were either correct, and their subsequent rescissi on was in error, or they were clear misrepresentations on their face. The statute of limitations for m any civ il wrongs is th ree years, and even civil actions inv o lving the Government itself ar e barred after six years. Basic fairness dictates that the Government, after giving repeated assurances that all is well, canno t wait years, until after no re medy is possible, before s uddenly perc eiving a documentary glitch that could have been seen, and co rrected, anytime during those years. At a minimum the Government owes Ms. Snyder the value of t he opportunity costs foregone during those eight years when she could hav e been making other arrangements for her well-be ing should Mr. Ruff predeceas e her. The simplest measure of those opportunity costs is the s u rvivor annuity the Government had alread y promised. On the egregious fa cts of this case, I would es top OPM from decreeing that the court order is som ehow def icient, and I would mandate that Ms. Snyder is entitled t o the survivor benefit ordered by the Wisconsin court and originally promised by OPM.

05-3347 4