N OTE : This disposition is nonprecedential.



# United States **Court of Appeals**  **for the Federal Circuit**

______________________

RICHARD JOSEPH SOROK A, Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT, Respondent.

______________________

2013

- 3173

______________________

Petition for review of the Merit Systems Protection
Board in No. CH0843110788 -I- 1.

______________________

Decided: March 6, 2014

______________________

R ICHARD J OSEPH S OROKA , of Warren, Michigan, pro

se.

V ERONICA N. O NYEMA , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Depar tment of Justice, of Washington, DC, for respondent. With
her on the brief were S TUART F. D ELERY , Assistant Atto rne y General, B RYANT G. S NEE , Acting Director, and
C LAUDIA B URKE , Assistant Director.

______________________SOROKA v. OPM 2

Before P ROST

, M AYER

, and C HEN

, Circuit Judges.

P ER C URIAM

. Richard J. Soroka (“Mr. Soroka”) appeals a final order of the Merit Systems Protection Board (“board”) uphol ding the denial of his application for a Federal Employees Retirement System (“FERS”) lump sum death benefit following the death of his son, Jeffrey L. Soroka. See Soroka v. Offic e of Pers. Mgmt. , No. CH0843110788 -I- 1, 2013 MSPB LEXIS 4351 (MSPB Aug. 21, 2013) (“ Board
Decision ”). Because we conclude that the board correctly determined that the Office of Personnel Management (“OPM”) was required to distribute the lump sum death
ben efit to Jeffrey Soroka’s former wife, Jamie Hoffman,
we affirm.

B ACKGROUND

On December 13, 1999, Jeffrey Soroka, a federal go vernment employee who was eligible to participate in the FERS program, executed a n SF- 3102 designation of beneficiary form. This document, which was signed by two witnesses, listed Jeffrey Soroka’s wife, Hoffman, as the sole beneficiary of any FERS death benefits. Jeffrey Soroka and his wife divorced in 2002. The default jud gment of divorce granted Jeffrey Soroka “all interest in his retirement and TSP plans with his current employer, TACOM, as well as any benefits that he may accrue through these plans in the future[.]” He was further awarded his “accumulated contributions in any pension, annuity, or retirement system[.]” Jeffr ey Soroka died on May 15, 2010.

Following his son’s death, Mr. Soroka filed an applic ation seeking his son’s FERS death benefits. On July 19, 2011, OPM sent Mr. Soroka and his wife a letter stating that they were “not eligible to receive a lump sum death benefit under [FERS] based on Jeffrey L. Soroka’s death.” Citing to 5 U.S.C. § 8342(c), OPM explained that Mr.SOROKA v. OPM 3

Soroka and his wife were not entitled to the lump sum benefit “because Jeffrey L. Soroka completed a design ation of beneficiary form in 19 99” which did not list them
as his beneficiaries. * OPM subsequently sent Mr. Soroka and his wife two invoices stating that they were required to repay a total of $855.45 for the previously disbursed death benefits which they had received.

On August 12, 20 11, Mr. Soroka filed an appeal with the board. He alleged that OPM erred in denying his application for his son’s lump sum death benefit, asser ting that the agency had failed to consider the provisions in his son’s divorce decree and a “change of benefici aries”
form. On October 28, 2011, following a hearing, an a dministrative judge of the board issued an initial decision affirming OPM’s denial of Mr. Soroka’s claim for his son’s lump sum death benefit. The administrative judge stated that “[t]he order of precedence for receipt of the lump

- sum

* Both OPM and the board cited to 5 U.S.C. § 8342(c) as the provision governing the award of Jeffrey Soroka’s lump sum death benefit s . Section 8342(c), however, applies to the designation of beneficiaries in the
civil service retirement program. The provision applic able to participants in the FERS program, such as Jeffrey Soroka, is 5 U.S.C. § 8424(d). Both statutes, however, contain substantively identical language regarding the order of precedence for the payment of benefits. Compare 5 U.S.C. § 8424(d) (stating that OPM must make payment “[f]irst, to the beneficiary or beneficiaries designated by the employee or Member in a signed and witnessed wri ting received in the Office before the death of such emplo yee or Member”) with 5 U.S.C. § 8342(c) (stating that OPM must make payment “[f]irst, to the beneficiary or beneficiaries designated by the employee or Member in a signed and witnessed writing received in the Office before his death”).SOROKA v. OPM 4

death benefit under FERS specifies that any such benefit must go first to the beneficiary designated by a signed and witnessed writing received by OPM prior to the death of the employee.” Because Hoffman was listed as the designated beneficiary on the “one form signed by Jeffrey, witnessed, and properly filed with OPM pr ior to Jeffrey’s death,” she was entitled to receive her former husband’s lump sum death benefit. The admini strative judge acknowledged that Mr. Sor oka had alleged that he, his wife, and his son had “completed all necessary

. . . forms” to change the designated beneficiary prior to
his son’s death. Mr. Soroka, however, “did not produce a copy of the form necessary for designation of the lump

sum death benefit” and did not “have any specific recolle ction of completing that particular form and sending it to

. . . OPM.”

The full board affirmed the administrative judge’s in itial decision on August 21, 2013. The board stated that the award of “lump sum benefits must be made in order of precedence; first, to the beneficiary designated by the employee in a signed and witnessed writing received by
OPM before his death.” Board Decision , 2013 MSPB LEXIS 4351, at *4. The board further noted that there was “no evidence that [Jeffrey Soroka] ever submitted a new designation form to OPM before his death.” Id. at *5 (footnote omitted). While Mr. Soroka recalled signing some forms after his son’s divorce, he “was uncert ain as to which forms were purportedly submitted.” Id. at *6. Finally, the board stated that if Mr. Soroka wanted to challenge OPM’s efforts to recoup the death benefit pa yments that had previously been disbursed, he should file a separate appeal pursuan t to 5 C.F.R. § 845.204.

Mr. Soroka then filed a timely appeal with this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9).SOROKA v. OPM 5

D ISCUSSION

Our review of a board decision is circumscribed by statute. We can set aside such a decision only if it is: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without proc edures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c); see Nguyen v. Dep’t of Homeland
Sec.

, 737 F.3d 711, 715 (Fed. Cir. 2013).

As the board correctly determined, Mr. Soroka was not entitled to receive his son’s FERS lump sum death
benefit. “[I]t is a bedrock canon of statutory construction that our judicial inquiry ends where statutory language is plain and unambiguous.” White v. United States

, 543 F.3d 1330, 1337 (Fed. Cir. 2008); see Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253

- 54 (1992 ) (“We have stated time and again that courts must presume that a legisl ature says in a statute what it means and means in a statute what it says there.”). Section 8424(d) unambig uously provides that OPM must “[f]irst” pay FERS lump
sum death benefits “to the beneficiary or beneficiaries designated by the employee or Member in a signed and witnessed writing received [by OPM] before the death of such employee or Member.” In 1999, Jeffrey Soroka filed a signed and witnessed SF

- 3102 designation of beneficiar y form with OPM which listed Hoffman as the sole beneficiary of his FERS death benefits. No updated beneficiary designation form has been produced. Al though Mr. Soroka recalled that he, his wife, and his son completed some forms after his son’s divorce, he did not “have any specific recollection of completing [an updated
SF- 3102 form] and sending it to . . . OPM.” Because the record contains only one SF

- 3102 designation of beneficiary form

— and that form lists Hoffman as Jeffrey S oroka’s designated benefi ciary

— the board correctly determined that OPM was required to distribute the lump sum death benefit to Hoffman. The plain language ofSOROKA v. OPM 6

section 8424(d) “does not afford OPM or the Board any
discretion to award” benefits to an individual other than the “person designated as beneficiary in a form properly
filed with OPM.” Landsberger v. Office of Pers. Mgmt. , 50 M.S.P.R. 13, 16

- 17 (1991), aff’d, 956 F.2d 1174 (Fed. Cir. 1992); see also Ferguson v. Long

, 885 F. Supp. 2d 294, 297 (D.D.C. 2012) (concluding that the proceeds from a dec edent’s Federal Thrift Savings Plan (“TSP”) retirement account were required to be distributed to the decedent’s father, rather than her husband, because the only “‘signed and witnessed writing’” that had been submitted listed
her fa ther as her beneficiary (quoting 5 U.S.C. § 8424(d));
Alston v. Alston

, No. JFM

- 12

- 74, 2012 U.S. Dist. LEXIS 40621, at *3

- 5 (D. Md. Mar. 19, 2012) (concluding that a
decedent’s children were entitled to the funds in his TSP account because the only valid d esignation of beneficiary
form submitted listed them as the decedent’s beneficia ries).

Jeffrey Soroka’s default judgment of divorce stated
that he was to receive “all interest in his retirement and TSP plans” and “any accumulated contributions in any

pe n sion, annuity, or retirement system[.]” Section 8424(d) specifically provides, however, that “a design ation, change, or cancellation of beneficiary in a will or other document” which is not signed, witnessed and filed with OPM will have “no force or effect” on an employee’s
bene ficiary designation. Thus, notwithstanding the provisions in Jeffrey Soroka’s divorce decree regarding the dispos i tion of his retirement benefits, neither this court nor the board has the authority to require OPM to award lump s um death benefits in a manner contrary to the unequiv o cal dictates of section 8424(d). OPM is prohibi ted from granting benefits not authorized by law regar dless of the equities involved. Office of Pers. Mgmt. v.
Richmond , 496 U.S. 414, 424

- 34 (1990). “[ P]ublic funds [must] be spent according to the letter of the difficult judgments reached by Congress as to the common goodSOROKA v. OPM 7

and not according to the individual favor of Government agents or the indivi d ual pleas of litigants.” Id. at 428.

The record also sh ows that in 1987 Jeffrey Soroka signed and submitted an SF

- 1152 designation of beneficiary form which indicated that upon his death any “u npaid compensation” would be paid to his parents, Richard
and Arlene Soroka. Form SF

- 1152, however, is used solely to designate the beneficiary of any unpaid compe nsation

— such as unpaid salary or accrued leave

— not to designate the beneficiary of an employee’s lump sum
death benefit. Form SF

- 1152 specifically states that it has no effect on the disposition of any retirement benefits to which an employee might be entitled. See Board Dec ision , 2013 MSPB LEXIS 4351, at *6 n.4.

C ONCLUSION

Accordingly, the final order of the Merit Systems Pr otection Board is affirmed.

C OSTS

No costs.

AFFIRMED