Appealed from: Merit Systems Protection Board. Docket No. SE-0831-94-0211-I-1.
Before Rich, Lourie, and Bryson, Circuit Judges.
Patricia A. Davenport appeals from a decision of the Merit Systems Protection Board (MSPB), Docket No. SE-0831-94-0211-I-1, which affirmed a decision of the Office of Personnel Management (OPM) awarding her 39.15% of her ex-husband's survivor annuity. Because the MSPB's decision was based on a misreading of the Qualified Domestic Relations Order at issue in this case, we reverse and remand.
Patricia Davenport was married to Richard Davenport from December 2, 1967, until their divorce in June of 1986. The divorce is memorialized by a decree issued by a Washington state court. The decree allocated the marital property between Patricia and Richard Davenport. Pursuant to the decree, the state court subsequently issued a Qualified Domestic Relations Order (QDRO) that specified Patricia Davenport's rights to the retirement and survivorship benefits attributable to Richard Davenport's service as a federal government employee.
On August 11, 1986, Richard Davenport married Jean Gray-Davenport. He was married to her when he died in May of 1992. Richard Davenport was continuously in federal service from 1957 until his death.
The question in this case is what percentage of a full survivor annuity Patricia Davenport should be awarded. The parties agree that this question must be answered by construing the following language in the March 23, 1987, QDRO:
Patricia Davenport shall be entitled to receive from the plan the following benefits:
a. From the pension plan, 50% of Richard Davenport's retirement benefits based on 28 years, 7 months and 1 day, over his total years of service with the Civil Service. The total years of service are to be determined at the time of his retirement or upon his leaving the service of the Civil Service. Furthermore, Patricia Davenport shall be entitled to this same percentage of any lump sum payment from Mr. Davenport's Civil Service Retirement fund.
After Richard Davenport's death, a question arose as to the proper Disposition of the survivor annuity. OPM initially determined that Patricia Davenport was entitled to 71.16% of the total survivor annuity. OPM subsequently recalculated the percentage and determined that Patricia Davenport was entitled to 78.3% of the annuity. After the first reconsideration decision, Jean Gray-Davenport, who will receive the portion of the survivor annuity that does not go to Patricia Davenport, moved to intervene and registered an objection. OPM then issued a second reconsideration decision in which it reinterpreted the QDRO language and reduced Patricia Davenport's share of the survivor annuity to 39.15%.
An MSPB Administrative Judge issued an initial decision affirming the 39.15% figure for Patricia Davenport's share. That decision became final when the MSPB denied Patricia Davenport's request for reconsideration. Patricia Davenport then appealed to this court.
Section 8341(h)(1) of Title 5 of the United States Code provides that "a former spouse of a deceased employee . . . is entitled to a survivor annuity under this subsection, if and to the extent expressly provided for . . . in the terms of any decree of divorce . . . or any court order or court-approved property settlement agreement incident to such decree." 5 U.S.C. § 8341(h)(1). The QDRO at issue ...