Constance Berry Newman, Director, Office of Personnelmanagement, Petitioner, v. Lois G. Love and Esther E. Penn, and Merit Systemsprotection Board, Respondents, 935 F.2d 279 (Fed. Cir. 1991)

Constance Berry Newman, Director of the Office of Personnel Management (OPM), petitions for review of the Merit Systems Protection Board's (Board) January 28, 1991 decisions in Love v. OPM and Penn v. OPM. Lois G. Love and Esther E. Penn each oppose the petition. The Board has filed a response stating it has "no objection to the Court's granting petitioner's request for review", however, the Board believes its decisions are "patently correct" and therefore suggests that the court may wish to consider denying the petition or summarily affirming the Board's decisions.

In both the Love and Penn cases, the husbands elected to provide survivor annuities for their wives and thus received reduced annuities. Each couple later divorced. In both cases, the state court divorce orders expressly reserved for later adjudication the division of the couples' marital properties. Each husband began receiving an unreduced lifetime annuity following the divorce decrees. Later, the state courts entered orders governing the division of marital properties that awarded the former spouses survivor annuities.

OPM refused to honor the state court orders relying on 5 C.F.R. Sec. 831.1704(e) (1) and (e) (4), because the orders were not the first orders terminating the marital relationship.¹  The former spouses appealed to the Board. The Board held that OPM's regulation, 5 C.F.R. Sec. 831.1704(e), was inconsistent with the language in 5 U.S.C. § 8341(h). Section 8341(h) entitles a former spouse to a survivor annuity to the extent provided for in a "court approved property settlement agreement incident" to a divorce decree.² 

Pursuant to 5 U.S.C. § 7703(d), OPM may petition for review of a Board decision if it determines, in its discretion, that the Board erred in interpreting a civil service law, rule or regulation and that the Board's decision will have a substantial impact on the administration of the civil service. This court must independently determine whether an exercise of discretionary jurisdiction is warranted. Devine v. Brisco, 773 F.2d 867 (Fed. Cir. 1984).

OPM argues, inter alia, that the decisions will have a substantial impact on the administration of the civil service because the Board's interpretation "will adversely affect the retirement fund, and thus the future financial security of all retirees." We agree that OPM has shown that the decision will have substantial impact on the civil service. Moreover, we have viewed it particularly appropriate to grant OPM petitions for review where OPM and the Board differ in their interpretation of a statute. See e.g., Horner v. Hollander, 895 F.2d 759 (Fed. Cir. 1990); Horner v. Benedetto, 847 F.2d 814 (Fed. Cir. 1988); Horner v. Schuck, 843 F.2d 1369 (Fed. Cir. 1988).

Accordingly,

IT IS ORDERED THAT:

OPM's petition for review is granted.