Keep the Money, and Run!

This is an odd little fact situation that resulted in a divorced spouse receiving what many would consider a windfall when all was said and done. (Emond v. Office of Personnel Management (CAFC No. 2016-1227 (nonprecedential), 4/8/16) The facts are pulled from the appeals court decision.

Elizabeth Emond and Bobby Burns divorced in 1989. Mr. Burns was a federal employee with the Internal Revenue Service when he died. In 2009, Emond sent paperwork to the Office of Personnel Management (OPM) to begin receiving a survivor annuity based on Burns’ service. Supporting her application was a 3/24/89 Virginia divorce decree that awarded Elizabeth Emond a survivor annuity. Based on this decree, OPM awarded her a survivor annuity and began paying her. A few years later, Bobby Burns’ mother, Leona Burns, submitted to OPM a different version of that same divorce decree to support her application to receive her son’s retirement contributions. Only the new version did not provide that Ms. Emond was entitled to receive a survivor annuity.

Oops!

OPM withdrew approval of Emond’s annuity and billed her for $62,739.96, the amount it had paid out to her. (p. 2)

Ms. Emond asked OPM to reconsider or to waive the overpayment. OPM said no to both requests and Emond went to the Merit Systems Protection Board to argue her case. The Board required OPM to go to the VA court and get the final say as to which version of the decree was the correct one. Virginia held that the second version submitted by Mr. Burns’ mom was indeed the “true and correct copy.” (p. 3)

The Board then found that Ms. Emond would not receive an annuity. Oddly enough, the Board went on to rule that since she was “not at fault for the overpayment” she was entitled to a waiver. (p. 3)

Emond appealed only one aspect of the Board’s ruling—you guessed it, she appealed the finding that she was not entitled to an annuity. OPM surprisingly did not appeal the other part of the ruling concerning the waiver. Here is how the court’s opinion addresses that decision: “OPM curiously does not seek review of the determination that Ms. Emond is entitled to a waiver for the overpayment.” (3)

So, the court only addresses—in relatively short shrift—the annuity argument. Since the Virginia court held that Ms. Emond’s version of the divorce decree “is not a true and accurate copy…” then she is not entitled to the annuity. If you are wondering what she could have possibly argued to the appeals court to try to persuade it to award her an annuity, it was that the Virginia court did not actually “invalidate” the decree she had submitted to support her application to OPM. Calling this argument “more semantic than substantive,” the court agrees with MSPB’s ruling on the annuity. (p. 4)

It would not seem to be a good day at OPM when a federal appeals court opinion refers to its decision not to seek review of the granting of a waiver of almost $63,000 in erroneous annuity payments as “curious..” Of course, how MSPB came up with “through no fault of her own” to order up the waiver is also “curious.”

Emond v. OPM (2016-1227)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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