Appealed from:Merit Systems Protection Board
Before Newman, Michel, and Plager, Circuit Judges.
The opinion of the court was delivered by: Plager, Circuit Judge.
Petitioner, Warren D. Snyder, a former civil servant, appeals the decision of the Merit Systems Protection Board, DE-0831-94-0401-I-2, dated February 28, 1997, affirming the Office of Personnel Management's ("OPM") final decision to provide his former spouse a pro-rata share of his retirement annuity and a survivor annuity under the Civil Service Retirement System ("CSRS"). On appeal, Mr. Snyder argues that the Board applied the wrong law to this case and that OPM's decision is contrary to the United States Constitution. We hold that the Board applied the correct law and reached the proper Conclusion consistent with existing law.
Warren D. Snyder married Susan M. Rice-Snyder on June 15, 1989, in Florida. According to Mr. Snyder, they separated not long after, with Ms. Rice-Snyder living in Texas and Mr. Snyder in California. On or about January 28, 1994, Mr. Snyder separated from civil service. At the time of this separation, Mr. Snyder held the position of Air Commander with the Air Force Reserves at March Air Force Base in California. Although he remained married at the time of his separation from civil service, Mr. Snyder indicated on his CSRS retirement application that he desired a reduced annuity payable only during his lifetime (plus an up-front lump sum payment), thereby eschewing a survivor benefit for his then-wife, Ms. Rice-Snyder. The application itself, however, noted that "[i]f you are married at retirement, you cannot choose this type of annuity without your spouse's consent." Accordingly, Mr. Snyder submitted a "Spouse's Consent to Survivor Election" form, but without Ms. Rice-Snyder's signature. Apparently realizing this deficiency, Mr. Snyder wrote in the block for his wife's signature*"Not available-Unable to locate."
By letter dated April 26, 1994, OPM denied Mr. Snyder's request for a reduced annuity with a lump-sum payment under CSRS because he failed to provide a signed waiver from his spouse of record. To preserve Ms. Rice-Snyder's rights, and consistent with its practice, OPM instead reduced Mr. Snyder's retirement annuity to provide her with a maximum survivor annuity.
On May 19, 1994, Ms. Rice-Snyder received a Decree of Divorce from the District Court of Travis County in Texas, where she was then living, even though Mr. Snyder had apparently never lived there with her. Despite the fact that Mr. Snyder had not been served and had not entered an appearance in the case, the district court nonetheless exercised personal jurisdiction over him in accordance with the Uniformed Services Former Spouses Protection Act, 10 U.S.C. § 1408 (1994). The Texas divorce decree specifically awarded Ms. Rice-Snyder a pro-rata share of Mr. Snyder's CSRS retirement annuity and 100 percent of the maximum possible survivor annuity.
On May 23, 1994, Mr. Snyder submitted a second request to OPM for his self-only retirement annuity with lump-sum payment claiming that, because Ms. Rice-Snyder could not be located, her waiver was unobtainable. OPM responded by letter dated May 27, 1994, informing Mr. Snyder that Ms. Rice-Snyder's whereabouts were known and reasserted that her consent was required to grant his request. Compare 5 C.F.R. § 838.614 *fn1 * (requiring spousal consent in order to receive self-only annuity) with 5 C.F.R. § 838.618 (permitting spousal consent to be waived if "whereabouts cannot be determined"). Accordingly, on June 24, 1994, OPM issued a reconsideration decision affirming its prior decision.
Three days later, Mr. Snyder was granted a Judgement of Dissolution by the Superior Court of California, County of San Bernardino, effective November 19, 1994. Ms. Rice-Snyder did not enter an appearance, and the decree was entered by default. The decree purported to confirm Mr. Snyder's separate property interest in his military and CSRS benefits, "including survivor benefits." With this decree in hand, Mr. Snyder appealed OPM's reconsideration decision to the Board. Before the Board could decide the case, however, OPM rescinded its decision in order to consider the effect of the California divorce decree, thereby divesting the Board of jurisdiction.
Ms. Rice-Snyder informed OPM, by letter dated July 14, 1994, that she refused to give her consent to Mr. Snyder's request for the self-only annuity with lump-sum payment. She also entered a special appearance before the California Superior Court for the purpose of setting aside the California divorce decree based on the prior Texas decree. Her motion to that effect was granted by the California court on December 21, 1994, thereby setting aside both the default judgment and the dissolution. The California court also found, without providing any basis, that the Texas court lacked personal jurisdiction over Mr. Snyder and for that reason ruled that "any monies that are owed on the Texas Judgement are not enforceable in California."
OPM then determined that it would enforce the Texas divorce decree and grant Ms. Rice-Snyder a survivor annuity along with a pro-rata share of Mr. Snyder's monthly annuity. Mr. Snyder again requested OPM to reconsider its decision in light of the California court's finding that the Texas court lacked personal jurisdiction over him. OPM declined. Mr. Snyder sought review from the Board.
The Board, before reaching the merits, concluded that there was a conflict between two potentially applicable regulations*5 C.F.R. §§ 838.134 and 838.224*dealing with the validity of court orders pertaining to retirement annuities. The Board concluded that in this case § 838.224 controls because it is the more specific and the more recent of the two. Under that regulation, the Board affirmed OPM's decision on the ground that the Texas decree was "a court order acceptable for processing that . . . has not been amended, superseded, or set aside" by the California order. See 5 C.F.R. § 838.224(b). Mr. Snyder now appeals that decision. We have jurisdiction over the final decision of the Board pursuant to 28 U.S.C. § 1295(a)(9) (1994).
Our review of decisions by the Board is tightly circumscribed by statute. The decision of the Board must be ...