Case: 23-1233 Document: 74 Page: 1 Filed: 05/21/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________ MELISSA M. WILLIAMS, Petitioner v. OFFICE OF PERSONNEL MANAGEMENT, Respondent ______________________ 2023-1233 ______________________ Petition for review of the Merit Systems Protection Board in No. AT-0831-22-0396-I-1. ______________________ Decided: May 21, 2025 ______________________ JOHN J. TORIKASHVILI, Law Office of John J. Torikash- vili, PA, Aventura, FL, argued for petitioner.

ANNE DELMARE, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, argued for respondent. Also represented by REGINALD THOMAS BLADES, JR., PATRICIA M. MCCARTHY, YAAKOV ROTH. ______________________ Case: 23-1233 Document: 74 Page: 2 Filed: 05/21/2025

2 WILLIAMS v. OPM

Before MOORE, Chief Judge, CLEVENGER and CHEN, Circuit Judges.

CLEVENGER, Circuit Judge.

Ms. Melissa Williams seeks to overturn the final deci- sion of the Merit Systems Protection Board (“Board”) which upheld the United States Office of Personnel Manage- ment’s (“OPM”) decision to deny Ms. Williams survivor an- nuity benefits purportedly awarded to her by her deceased former husband, Mr. Haywood Nichols. Williams v. Off. of Pers. Mgmt., No. AT-0831-22-0396-I-1 (M.S.P.B. Aug. 29, 2022) (“Final Order”). 1 For the following reasons, we re- verse the Board’s final decision and remand the case for further proceedings consistent with this opinion.

BACKGROUND After being married in 1978 and later divorced, Ms. Williams and Mr. Nichols remarried in 1987.

Mr. Nichols retired from federal service in 1989, while he and Ms. Williams were married, and as part of his retire- ment, Mr. Nichols elected a survivor annuity for Ms. Wil- liams.

Ms. Williams and Mr. Nichols divorced a second time on June 28, 2006. As part of the divorce process, the two participated in mediation that resulted in a Marital Settle- ment Agreement (“MSA”). See SAppx49–56. 2 The MSA stated, in relevant part: “the husband acknowledges that there are Survivor Benefits in the favor of the wife from his pension plan. The husband agrees that he will not change

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this provision.” SAppx49–50. The Final Judgment of Dis- solution of Marriage, ordered by the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, on June 28, 2006 (“first court order”), “ratified and made part of this final judgment” the MSA. SAppx47–48.

On July 28, 2006, Mr. Nichols notified OPM of his divorce and requested termination of the survivor annuity benefit for Ms. Williams. SAppx2.

Unaware of Mr. Nichols’ July 28, 2006 notification to OPM, Ms. Williams submitted the first court order to OPM seeking acknowledgment of her future right to a survivor annuity benefit. In its January 27, 2009 response, OPM informed her that the first court order was “unacceptable for Federal survivor annuity benefit processing” because “[t]his court order does not use terms that are sufficient to identify this retirement system as explained in section 838.911 of Title 5 of the Code of Federal Regulations.”

SAppx43. OPM also sent letters to Ms. Williams on August 18, 2009, and February 3, 2010, again stating that she was not eligible to receive a former spouse survivor annuity and further adding that it “stopped the reduction in Mr. Nich- ols’ annuity that provides for a survivor benefit effective the first day of the month following [the] divorce.”

SAppx41–42.

In light of OPM’s letters, Ms. Williams returned to the state court which entered the first court order, and on July 1, 2010, that court issued a Court Order Acceptable for Pro- cessing (“second court order”), which specifically awarded Ms. Williams a “former spouse survivor annuity under the Civil Service Retirement System.” SAppx44–46. After re- viewing the second court order, OPM sent Ms. Williams a letter on September 11, 2010, informing her that it “in- tend[ed] to honor the . . . former spouse’s survivor annuity award.” SAppx39. However, less than a month later, on October 7, 2010, in an about-face, OPM stated that it could not honor the “court order” because it did “not use terms that are sufficient to identify [the] retirement system” and Case: 23-1233 Document: 74 Page: 4 Filed: 05/21/2025

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because the “court order [did] not expressly award a former spouse survivor annuity.” SAppx37.

Despite OPM’s earlier rejections, following Mr. Nichols’ death on February 3, 2019, Ms. Williams applied for survi- vor annuity benefits. In contravention of its statements within its 2009 and 2010 letters, OPM provided Ms. Wil- liams survivor annuity benefits from February 4, 2019, through September 30, 2020. However, OPM stopped the payments on October 26, 2020, and sent a letter to Ms. Wil- liams on February 2, 2022, informing her she would need to repay OPM the $31,361.47 in survivor annuity benefits “erroneously paid” to her. SAppx35–36.

Ms. Williams sought reconsideration of OPM’s Febru- ary 2, 2022 initial decision, and in its reconsideration deci- sion, OPM found “that applicable laws and regulations [were] correctly applied” and Ms. Williams was “not eligible to receive a former spouse survivor annuity.” SAppx33.

OPM added that “[w]hile [it] sympathize[s] with the cir- cumstances” in Ms. Williams’ case, “the law is specific on this point, and [OPM] [has] no administrative discretion in this matter.” Id. Ms. Williams timely appealed to the Board but she did not seek a waiver of the overpayment. Rather, she argued that an overpayment did not exist because she was entitled to a survivor annuity benefit.

The Board affirmed OPM’s reconsideration decision.

The Board found that the language used in the first court order was “not sufficient to award [Ms. Williams] a survi- vor annuity as it does not specifically identify the pension plan, using words such as ‘FERS,’ ‘CSRS,’ OPM, or ‘Federal Government.’” Final Order at 6. Because the first court order did not use these words, it was “not a ‘court order acceptable for processing’ under the applicable regula- tions.” Id. Turning to the second court order, the Board found that it was unenforceable under OPM regulations as it modified the first court order but was issued after the Case: 23-1233 Document: 74 Page: 5 Filed: 05/21/2025

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date of Mr. Nichols’ retirement. Id. The Board acknowl- edged that Ms. Williams “bargained for and gave up certain things, including alimony,” to secure the survivor benefits annuity. Id. at 7. However, the Board concluded it was “without authority” to award survivor annuity benefits be- cause Ms. Williams had failed to “strictly meet the statu- tory and regulatory criteria governing the benefits she [sought].” Id. Ms. Williams timely appealed to this court. We have jurisdiction to review the Board’s decision under 28 U.S.C. § 1295(a)(9).

DISCUSSION I A “former spouse of a deceased [federal] em- ployee . . . is entitled to a survivor annuity . . . if and to the extent expressly provided for . . . in the terms of any decree of divorce.” 5 U.S.C. § 8341(h)(1). Further, a “modifica- tion” to a divorce decree “shall not be effective” “if such modification is made after the retirement or death of the employee” and “to the extent that such modification in- volves an annuity.” Id. § 8341(h)(4).

OPM’s regulations state that a “court order awarding a former spouse survivor annuity” is acceptable only if “it ex- pressly awards a former spouse survivor annuity.” 5 C.F.R. 838.804(a). In order to “expressly award” a survivor annu- ity, the court order must first “[i]dentify the retirement sys- tem using terms that are sufficient to identify the retirement system as explained in [5 C.F.R.] § 838.911; and [e]xpressly state that the former spouse is entitled to a for- mer spouse survivor annuity using terms that are suffi- cient to identify the survivor annuity as explained in [5 C.F.R.] § 838.912.” Id. §§ 838.804(b)(1)–(2). 5 C.F.R. § 838.911(a) specifies that a court order “iden- tif[ies] the retirement system affected,” and thus satisfies the requirements of § 838.804(b)(1), by using language that Case: 23-1233 Document: 74 Page: 6 Filed: 05/21/2025

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includes “[f]or example, ‘CSRS,’ ‘FERS,’ ‘OPM,’ or ‘Federal Government’ survivor benefits.” The requirements of § 838.804(b)(1) can alternatively be met with a “court order that requires an employee or retiree to maintain survivor benefits covering the former spouse . . . if the former spouse was covered by a CSRS or FERS survivor annuity . . . at the time of the divorce.” Id. § 838.911(d). 5 C.F.R. § 838.912 specifies that a court order “award[s] a former spouse survivor annuity” in accordance with § 838.804(b)(2) if it uses terms “such as ‘survivor an- nuity,’ ‘death benefits,’ [or] ‘former spouse survivor annuity under 5 U.S.C. 8341(h)(1).’” Id. § 838.912(a). The require- ments of § 838.804(b)(2) can also be satisfied with a “court order that requires an employee or retiree to maintain sur- vivor benefits covering the former spouse . . . if the former spouse was covered by a CSRS or FERS survivor annu- ity . . . at the time of the divorce.” Id. § 838.912(b)(2).

II In upholding OPM’s denial of Ms. Williams’ survivor annuity benefits, the Board examined the requirements of 5 C.F.R. § 838.911 and nothing more to find that the first court order did not “specifically identify the pension plan, using words such as ‘FERS,’ ‘CSRS,’ OPM, or ‘Federal Gov- ernment.’” Final Order at 6. Therefore, according to the Board, “the first court order [was] insufficient to award a survivor annuity benefit because its language [did] not spe- cifically identify the retirement system to which the survi- vor annuity refers, as required by OPM’s regulations.” Id. We set aside a Board’s decision if it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in ac- cordance with law; (2) obtained without procedures re- quired by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c).

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Ms. Williams argues that this court should set aside the Board’s decision because it failed to apply and analyze the three-part framework this court articulated in Down- ing v. Off. of Pers. Mgmt., 619 F.3d 1374 (Fed. Cir. 2010).

See Oral Arg. at 3:26–4:45, 6:27–6:40, Williams v. Off. of Pers. Mgmt., No. 2023-1233 (Fed. Cir. May 5, 2025), https://oralarguments.cafc.uscourts.gov/default.aspx?fl= 23-1233_05052025.mp3 (hereinafter “Oral Arg.”). Accord- ing to Ms. Williams, because the MSA used the term “Sur- vivor Benefits,” Mr. Nichols “explicitly intended to award” Ms. Williams “survivor annuity benefits,” thus obligating the Board to analyze whether the first court order satisfied the three-part framework even if the order failed to use words specified in the OPM regulations. 3 Pet’r’s Opening Br. 11; see also Oral Arg. 5:19–6:20.

This court has repeatedly held that “‘magic words’ are not required to assign a CSRS survivor annuity in favor of a former spouse,” and that failure in a court order to pro- vide specific identification of a survivor annuity plan with words such as FERS, CSRS, and the like is not fatal to an award of survivor benefits. Fox v. Off. of Pers. Mgmt., 100 F.3d 141, 145–46 (Fed. Cir. 1996). When a court order pur- portedly awarding survivor annuity benefits does not con- tain “any magic words,” Fox “set[s] forth the framework for analyzing whether” such a court order “provides the survi- vor annuity benefit under [5 U.S.C.] § 8341(h)(1).” Down- ing, 619 F.3d at 1377. Under the Fox/Downing framework, a “court must first determine whether the order contains a pertinent clause regarding a survivor annuity; second, if such a clause exists, the court ‘must inquire whether the operative terms in that clause can fairly be read as

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awarding the annuity’; and third, if it does, the court must ‘examine any evidence introduced concerning the marriage parties’ intent and the circumstances surrounding the exe- cution of the document to interpret the clause.’” Id. (citing Hayward v. Off. of Pers. Mgmt., 578 F.3d 1337, 1345 (Fed. Cir. 2009) and Fox, 100 F.3d at 146).

Instead of applying the Fox/Downing three-part frame- work, the Board seemingly engaged in a search for “magic words.” The Board’s examination of the first court order limited itself to looking only for words similar to those listed in 5 C.F.R. § 838.911. This was clear legal error.

Our cases hold that a divorce decree which simply men- tions the award of “Survivor Benefits” is sufficient to trig- ger an analysis under the Fox/Downing three-part framework. See Fox, 100 F.3d at 142–45 (holding that “[i]n using the term ‘Survivors Benefit Plan’ . . . [the divorced parties] clearly intended to encompass the CSRS survivor annuity” and further examining the “circumstances sur- rounding” the divorce decree in accordance with the three- part framework); Snyder v. Off. of Pers. Mgmt., 463 F.3d 1338, 1340–43 (Fed. Cir. 2006) (holding that a section of the divorce decree relating to “OTHER SURVIVOR BENEFITS” which discussed “Pre-retirement Survivor benefits” could “fairly be read as providing a post-retire- ment survivor annuity,” thus requiring “the Board . . . to examine evidence . . . to determine whether it dictates an- other possible meaning for the clause”); Hayward, 578 F.3d at 1340, 1346 (holding that a divorce decree that stated “Survivor Benefit Plan,” without identifying the specific plan, could “fairly be read as awarding a CSRS annuity” after analyzing the other circumstances of the divorce in accordance with the three-part framework). Cf. Warren v. Off. of Pers. Mgmt., 407 F.3d 1309, 1314 (Fed. Cir. 2005) (holding that the three-part framework was not applicable to a divorce decree that did not mention survivor benefits and that referenced benefits that had “no sensible applica- tion to a survivor annuity”).

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In Ms. Williams’ case, the MSA states: “The husband acknowledges that there are Survivor Benefits in favor of the wife from his pension plan.” SAppx49 (emphasis added). The mention of “Survivor Benefits” is similar to language in other divorce decrees where we have required analysis under the Fox/Downing three-part framework.

See Fox, 100 F.3d at 142, 145 (“Survivors Benefit Plan”); Snyder, 463 F.3d at 1339–40, 1343 (“SURVIVOR BENEFITS” and “Pre-retirement Survivor benefits”); and Hayward, 578 F.3d at 1346–47 (“Survivor Benefit Plan”).

Our cases demonstrate that the first court order’s use of the term “Survivor Benefits” is a “pertinent clause regard- ing survivor annuity” that required the Board to engage in the other parts of the Fox/Downing three-part framework.

See Downing, 619 F.3d at 1377. Because the Board did not analyze the first court order under the Fox/Downing three- part framework, we must set aside the Board’s decision. 4 CONCLUSION For the reasons explained above, we reverse the Board’s ruling that Ms. Williams was not entitled to survi- vor annuity benefits and remand for the Board to judge Ms. Williams’ survivor annuity benefits under the three-part framework articulated in Fox/Downing.

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REVERSED AND REMANDED COSTS No costs.