UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FEDERAL LAW ENFORCEMENT OFFICERS ASSOCIATION, Plaintiff v. Civil Action No. 19-735 (CKK) KIRAN AHUJA 1, Director, United States Office of Personnel Management, et al., Defendants

MEMORANDUM OPINION (September 28, 2021)

This case concerns the 2016 decision of Defendants, the Director of the United States

Office of Personnel Management and the United State Office of Personnel Management (“OPM”),

to implement a policy which resulted in the reduction of annuity supplement payments for many

retired law enforcement officers who are divorced. Plaintiff, the Federal Law Enforcement

Officers Association, represents 27,000 current and retired federal law enforcement officers and

brings claims against Defendants under the Administrative Procedure Act (“APA”), contending

that Defendants’ policy is arbitrary and capricious and that Defendants exceeded their statutory

authority by applying the policy retroactively.

Presently before the Court are Plaintiff’s [39] Motion for Summary Judgment and

Defendants’ [42] Cross-Motion for Summary Judgment. 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;

1 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 Retirement System (“FERS”),

, et seq.,

federal government civilian employees may receive certain retirement benefits, including annuities

and Social Security. Federal civilian employees who reach retirement age with the required

number of service years are entitled to an annuity. §§ 8412, 8415.3 Federal retirees also become

eligible for Social Security benefits at age 62. § 8403;

. Certain employees,

including federal law enforcement officers, are eligible to retire at a younger age with fewer service

years. §§ 8412(d), (e), 8415(e), 8421. These employees may be entitled to an “annuity

supplement” until the retiree reaches the minimum age 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 expressly provided for in the terms of – (1)

any court decree of divorce, annulment, or legal separation, or the terms of any court order or

court-approved property settlement agreement incident to any court decree of divorce, annulment,

or legal separation . . . [.]” § 8467(a). The associated regulations require that the court order “must

contain language identifying the retirement system to be affected.”

(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 Summary 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. 2 “based on service with the U.S. Department of Agriculture,” etc., are sufficient identification of

the retirement system.

In interpreting court orders under this section, Defendants “perform[]

purely ministerial actions,” “must 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.”

(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 computation of basic annuity. § 8421(c) (emphasis

added).

The dispute in this case involves 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 other 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 division 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

(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. 3 court order that expressly divide a FERS annuity supplement, this provision also requires OPM to

divide an annuity supplement in circumstances where 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 Retirement 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 annuity 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 administrators 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 deducting the amounts owed in monthly installments

from their annuity payments. See OPM001, 035.

Plaintiff contends that OPM had previously interpreted §§ 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 Section 8421(c) as requiring it to apportion a retiree’s Annuity Supplement any time

4 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 Cross-Mot. & Opp’n at 4.

Plaintiff filed its Complaint in this action 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 the 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 Federal Rules of Civil Procedure, “[t]he court shall grant summary

judgment if the movant shows that there is no genuine 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,

(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, ECF 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 comment rulemaking. Mem. Op. at 6, 12–13 ECF No. 35. The Court further concluded, however, that Defendants’ policy could “be reviewed pursuant to the APA for being arbitrary or capricious or in excess of authority[.]” Id. at 14 (citations omitted). 5 of the limited role of a court in reviewing the administrative 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,

(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.,

(2009). It

requires courts to “hold unlawful and set aside agency action, findings, and conclusions” that are

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

(2)(A). “This is a ‘narrow’ standard of review as courts defer to the agency's expertise.” Ctr.

for Food Safety v. Salazar,

(D.D.C. 2012) (quoting Motor Vehicle Mfrs.

Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

(1983)). The reviewing court

“is not to substitute its judgment for that of the agency.” Dist. Hosp. Partners, L.P. v. Burwell,

(D.C. Cir. 2015).

III. DISCUSSION

Plaintiff seeks summary judgment on the basis that Defendants’ interpretation of § 8467’s

directive that the annuity supplement “be treated the same way” is arbitrary and capricious, and

contrary to the plain meaning of the statute. Plaintiff contends 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 exceeded 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 interpretation and implementation of sections 8467

6 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 Court concludes that Defendants’ position is

consistent with the unambiguous statutory directive that annuity supplements be “treated in the

same way” as basic annuity. The Court further concludes that Defendants have appropriately

implemented the statute by deducting overpayments made to annuitants whose payments had been

calculated under an incorrect interpretation of the statute. Accordingly, summary judgment in

Defendants’ favor is warranted.

A. Defendants’ Interpretation of Section 8421(c) is Consistent with the Unambiguous Language of the Statute.

Plaintiff first contends that Defendants’ “interpretation” of § 8412(c), as set forth in the

2014 Memorandum and 2016 RIL is arbitrary, 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,

(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 intent of Congress.’” City of

Arlington, Tex. v. F.C.C.,

(2013) (quoting Chevron, 467 U.S. at 842–43). But,

if “the statute is silent or ambiguous 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 permissible construction of

the statute.” Noramco of Del., Inc. v. DEA,

, 1152–53 (D.C. Cir. 2004) (internal

citations and quotation marks omitted). “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 the

7 best statutory interpretation.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,

(2005).

Here, both parties argue that the Court need only address the first step: each party contends

that the phrase “be treated in the same way” 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 requires 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 that 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 provisions unambiguously direct OPM to divide the annuity supplement

pursuant to a court order so long as the court order requires the division of basic annuity. In other

words, to “treat[ ]” the annuity supplement “in the same way” as basic 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 statutory 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 context of the statute as a whole.” Validus Reinsurance, Ltd. v. United

States,

(D.C. Cir. 2015) (quoting Robinson v. Shell Oil Co.,

(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 or

8 separation order—to treat an annuity supplement “in the same way” as an “amount computed

under section 8415,” the section addressing how to compute basic 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 annuity, consistent with the requirements of

(a)

(“For example, ‘CSRS,’ ‘FERS,’ ‘OPM,’ or ‘Federal 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 directing that the annuity “supplement” be divided.

The structure and context of the statutory scheme support this conclusion. Notably, the

section providing for the annuity supplement is located within the subchapter entitled “Basic

Annuity,” subchapter II, chapter 84, of Title 5 of the United States Code. This same subchapter

contains the section regarding “computation of basic annuity,” § 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 paid . . . to another person if and to the extent

expressly provided for in the terms of – any court decree of divorce, 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 “annuity 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 Annuity (encompassing §§ 8410–8425); see also

(defining “employee annuity” as the “recurring payments under CSRS or FERS made to a retiree

. . .”). Accordingly, it is logical that if a court order directs division of basic annuity, that order

9 would also encompass division of the annuity supplement “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 that 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,

(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 benefit was not “expressly award[ed]” in the state court divorce

order.”

. 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 subchapter III of chapter 84, entitled “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.

. From this conclusion, Plaintiff extrapolates that a divorce order must address the “specific”

annuity benefit at issue in order for OPM to divide it. See Pl.’s Mot. at 9–10. As applied to the

annuity supplement, that would require a court order to explicitly refer to the annuity supplement,

as opposed to simply FERS annuity. The court’s conclusion in Downing does not stand for such a

sweeping proposition. The applicable statute in Downing,

, 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 regulation

10 provides that “[t]he court order must contain language such as ‘survivor annuity,’ ‘death benefits,’

‘former spouse survivor annuity under

(h)(1),’ etc.”

. 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 intended that OPM require a court order “expressly”

dividing the annuity supplement, it could have included 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 the context of the provision providing for the

annuity supplement, the Court concludes that this language unambiguously directs OPM to include

the annuity supplement in the amount to be divided pursuant to a court order that expressly

provides for payment of basic annuity to a retiree’s former spouse. §§ 8421(c); 8467(b). Because

Defendants’ interpretation of these provisions adheres to the statute’s unambiguous directive, it is

not “arbitrary and capricious,” and so the Court shall grant summary judgment in Defendants’

favor as to Count I of the Complaint.

11 B. Defendants Have Appropriately Implemented 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 nonetheless “retroactively applied its

interpretation of Section 8421(c) as implemented in 2016 to claw back Annuity Supplement

payments to affected retirees who were then receiving that benefit dating back to when the retiree’s

Basic Annuity was first apportioned.” Id. at 17. According to Plaintiff, therefore, “even if the

Court were to find OPM’s interpretation of Section 8421(c) permissible, 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 statutes 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”),

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 OPM receives written notice’ of such order,” and

affords OPM “no discretion to enforce these 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 under

12 the mistaken interpretation 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’ “retroactive” 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.,

(1988)). Plaintiff contends that

“absent express statutory authority, an agency may not give an interpretive rule retroactive effect.”

(citing Health Ins. Ass’n of Am. v. Shalala (“HIAA”),

(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 response, argue that by providing an “effective date,”

the FERS Act “implicitly” authorizes 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 “interpretive, non-legislative” rule at issue implicates

funds incorrectly paid out from the Federal Treasury.

Defendants analyze their “corrective” efforts under the Supreme Court’s discussion in

OPM v. Richmond,

(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 sought

13 advice from a federal employee regarding the statutory limit on earnings that would disqualify

him from receiving a disability benefit.

. He received erroneous advice, and earned

more than permitted by the eligibility requirements.

Based on that erroneous advice, he sought

a court order compelling “payment of the benefits contrary to the statutory terms.”

The

Supreme Court concluded that it lacked authority to authorize payments under a theory of equitable

estoppel because the benefits the plaintiff sought were “not ‘provided by’ the relevant provision of

the subchapter; rather, they were specifically denied. It follows that Congress has appropriated no

money for the payment of the benefits respondent seeks, and the Constitution prohibits that any

money ‘be drawn from the Treasury to pay them.”

.

In this case, it would be inconsistent for the Court to conclude that sections 8467 and

8421(c) require Defendants to apportion the annuity 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 existing regulations,” not did it “impose new obligation,” but rather

“issued internal guidance to certain of its employees concluding the plain text of Section 8421(c)

requires them to divide annuity supplements when processing court orders requiring the division

of employee annuities[.]” Id. at 6 (internal quotation marks omitted).

Plaintiff’s requested order “invalidat[ing] OPM’s retroactive implementation” 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 overpayments it has previously made to

federal annuitants; and (2) paying annuitants’ former spouse the appropriate portion of the annuity

14 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 quotation marks omitted); see also Federal Crop. Ins. Corp. v. Merrill,

,

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, for to do so would disregard “the duty of all courts

to observe the conditions defined by Congress 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, when 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 Summary Judgment. An appropriate

Order accompanies this Memorandum Opinion.

Date: September 28, 2021

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

15