Many who receive that benefit are federal law enforcement officers, firefighters and air traffic controllers because of mandatory retirement rules that apply to them. Image: Vitalii Vodolazskyi/Shutterstock.com
By: FEDweek StaffThe MSPB has overturned an OPM policy change that made a divorce order awarding a portion of a federal annuity to a former spouse applicable not only to the base annuity but also to any FERS “special retirement supplement” that is payable, unless the order specifically excludes that benefit.
OPM set that policy in 2016 after an internal review led it to reverse its longstanding policy to the opposite — under which divorce awards did not apply to the supplement unless they specifically included that benefit. OPM recomputed annuity benefits to affected retirees retroactive to the date on which the supplement was originally paid and applied the policy to annuities going forward from its decision.
The supplement, which approximates the value of a Social Security benefit earned during years covered by Social Security as a federal employee, is paid to those who retire before age 62 until they reach that age, when regular Social Security benefits begin. Many who receive that benefit are federal law enforcement officers, firefighters and air traffic controllers because of mandatory retirement rules that apply to them.
Case No. 23 MSPB 26, brought by a retired air traffic controller, was the lead case in a number of challenges arguing that to make such a change the OPM was required to go through a formal rulemaking process. An MSPB hearing officer found that the law requires OPM to divide the supplement only if the court order expressly provided for such a division — as had been OPM’s prior policy — and that OPM’s internal reinterpretation of the law was not entitled to deference.
The merit board agreed, citing language in retirement law that benefits may be divided only if the court order “expressly provided for” doing so. Congress could have, but did not, include language stating that the supplement always is automatically affected by an order dividing the basic annuity, it said.
It noted that the law does provide for automatic divisions in the cases of retired CIA employees and said that by not applying such language generally, Congress showed that it meant to apply the policy only to them.
The MSPB agreed with the hearing officer that the divorce order at issue did not specifically divide the supplement and ordered OPM to refund to the retiree the amount that had been paid to the former spouse. The order did not address collection of that amount from the former spouse.
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