[00:00:07] Speaker 02:
Mr. Beckerich?

[00:00:10] Speaker 04:
Good morning.

[00:00:10] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:00:13] Speaker 04:
Kyle Beckerich on behalf of OPM.

[00:00:15] Speaker 04:
The Court should reverse the decision of the MSPB because under basic rules of statutory interpretation, Section 8421C requires OPM to apportion an annuity supplement.

[00:00:27] Speaker 02:
Are you suggesting there's no ambiguity and it's a clear up, only one way to construe it?

[00:00:32] Speaker 04:
That is what we're suggesting when the statutory scheme is considered as a whole.

[00:00:37] Speaker 04:
So in light of the directive in section 8467, that payments under this chapter be subject to the express.

[00:00:50] Speaker 05:
How long did OPM have its prior interpretation?

[00:00:54] Speaker 04:
So I want to sort of clear up that point.

[00:00:58] Speaker 02:
Will you answer the question?

[00:01:00] Speaker 04:
Sure.

[00:01:02] Speaker 04:
there what what how it came up was for i think approximately thirty years uh... had prior interpretation ever been challenged the the prior interpretation i don't i i don't want your activity against today i i i don't believe that it had uh... but i i do want to be clear that i don't think was an interpretation i think there was a operational air and i think we we we can see that by looking at the regulations because the regulations

[00:01:31] Speaker 04:
are consistent with the position that we are advocating for today.

[00:01:37] Speaker 04:
So there was an operational error that was taking place.

[00:01:42] Speaker 04:
I think what the OPM

[00:01:45] Speaker 04:
analysts found was that there was inconsistent application of the rules.

[00:01:50] Speaker 02:
But I don't think... I'm completely dumb.

[00:01:51] Speaker 02:
Did you refer to this?

[00:01:52] Speaker 02:
Because I couldn't find anything in your brief which talked about the historic application of this provision.

[00:01:59] Speaker 02:
So is what you're telling us now somewhere in your brief?

[00:02:02] Speaker 04:
I think we addressed in our brief that in 2016, OPM started issuing reconsideration decisions because it realized that there was this, again, operational... Where is all that information in the record, the decision-making and so on?

[00:02:26] Speaker 04:
With respect to the reconsideration decision?

[00:02:32] Speaker 06:
I think what I'm getting at is the clerk of the board ordered OPM to submit certain documents to the board.

[00:02:44] Speaker 06:
What were those documents?

[00:02:49] Speaker 04:
With regard to what, Your Honor?

[00:02:52] Speaker 06:
The process that was undergone to make the change, as I recall.

[00:03:00] Speaker 04:
So I believe that the

[00:03:03] Speaker 04:
that the reconsideration decisions can be found in the record at APPX appendix page 61, for example.

[00:03:29] Speaker 02:
This is between OPM and Mr. Melton, I thought.

[00:03:32] Speaker 06:
OPM's internal instructions.

[00:03:37] Speaker 06:
Here's what the board says.

[00:03:40] Speaker 06:
OPM's internal instructions, which OPM chose not to submit into the record even after being ordered to do so by the acting clerk of the board.

[00:03:53] Speaker 06:
You say those are in the record?

[00:03:55] Speaker 04:
Oh, sorry.

[00:03:55] Speaker 04:
I thought you were asking for the reconsideration decision.

[00:04:00] Speaker 04:
I'm not aware of those being specifically in the record, though.

[00:04:04] Speaker 04:
Again, I would point the court to the regulations, which I think the OPM's regulations are entirely consistent with the position that we're advocating for.

[00:04:12] Speaker 06:
Why weren't those submitted into the record?

[00:04:15] Speaker 04:
The OPM's instructions to its analysts with respect to, I'm not sure, Your Honor.

[00:04:24] Speaker 06:
Does the OPM have a policy of not following orders from the board?

[00:04:29] Speaker 06:
No, Your Honor.

[00:04:32] Speaker 06:
OK.

[00:04:35] Speaker 06:
Let me ask you about the divorce decree.

[00:04:47] Speaker 06:
Your basic position seems to me to be that OPM is faced with this terrible conundrum where a divorce decree isn't

[00:04:59] Speaker 06:
clear on what's to be done.

[00:05:02] Speaker 06:
And so you've established a bright line.

[00:05:05] Speaker 06:
But if the parties to a divorce are unhappy with the results later on, they say there are changed circumstances, isn't it normal practice that they can simply go into the district court that ordered the decree and which, in my understanding, always retains jurisdiction?

[00:05:28] Speaker 06:
goes to Harvard and they need more money or whatever.

[00:05:31] Speaker 06:
Why can't it be resolved that way rather than with your hard and fast rule?

[00:05:37] Speaker 04:
Well, Your Honor, I think that's exactly right.

[00:05:39] Speaker 04:
So I think a couple of responses to that.

[00:05:43] Speaker 04:
First, I don't think that the former spouse would necessarily be in a position to know that the former employee, the now retired, the annuitant,

[00:05:54] Speaker 04:
is receiving this annuity supplement.

[00:05:59] Speaker 04:
So I think that's part of it, is there's an information problem.

[00:06:04] Speaker 04:
But the other point I would make is that if a former employer retires early, they get the annuity supplement,

[00:06:13] Speaker 04:
And that annuity supplement is divided.

[00:06:15] Speaker 04:
And they're unhappy.

[00:06:17] Speaker 04:
I think that your Honor's solution would likewise apply to that situation, where if they're saying, hey, more is being divided here than I think should have been, then they could also go back to the state.

[00:06:29] Speaker 02:
So I don't understand.

[00:06:30] Speaker 02:
You said there's an information problem.

[00:06:31] Speaker 02:
So how does it work?

[00:06:33] Speaker 02:
Does OPM keep track?

[00:06:35] Speaker 02:
of every annuity payment in the system, and when they see there's a supplemental annuity, they contact a spouse to see if they have a divorce decree and what the impact is.

[00:06:47] Speaker 02:
I mean, you say it's a vacuum of information, but how does it get done?

[00:06:51] Speaker 02:
What is OPM doing?

[00:06:52] Speaker 04:
So OPM responds whenever, for example, a former spouse submits a divorce decree.

[00:06:58] Speaker 01:
Right.

[00:06:59] Speaker 04:
So OPM then looks at that divorce decree, performs a ministerial role of saying,

[00:07:04] Speaker 04:
does that divorce decree contain the express language apportioning... Okay, I get that.

[00:07:12] Speaker 02:
What does that have to do?

[00:07:13] Speaker 02:
I'm talking about supplemental annuity.

[00:07:14] Speaker 04:
Right, right.

[00:07:15] Speaker 04:
So if under the MSPB's interpretation, the annuity supplement is not expressly divided, then OPM

[00:07:25] Speaker 04:
Cannot divide it, right?

[00:07:27] Speaker 02:
OK.

[00:07:28] Speaker 02:
So what were you doing before 2016, and what are you doing now?

[00:07:34] Speaker 04:
So before 2016, again, there was this operational error where if the divorce decree did not expressly mention the annuity supplement, then it would not be divided.

[00:07:47] Speaker 02:
And you're calling that an operational error?

[00:07:49] Speaker 02:
How many times was that operational error committed?

[00:07:53] Speaker 04:
I'm not sure the exact number.

[00:07:55] Speaker 04:
I think there were something like 70 appeals of the reconsideration decision.

[00:08:00] Speaker 04:
So at least 70.

[00:08:05] Speaker 02:
OK, so tell me what's happening after 2016.

[00:08:07] Speaker 04:
So after 2016, now if, like in Mr. Moulton's case where the divorce order says that the former employee's gross annuity is to be divided,

[00:08:20] Speaker 04:
OPM is following the direction of section 8421C and is applying that division both to the basic annuity and to the annuity supplement.

[00:08:30] Speaker 02:
Well, under your interpretation of the statutory provisions of the issue, they have to be treated the same, right?

[00:08:35] Speaker 04:
Correct.

[00:08:36] Speaker 02:
OK.

[00:08:37] Speaker 02:
So let's assume I have a divorce decree.

[00:08:40] Speaker 02:
And because of the circumstances, we've decided the basic annuity, everybody's just keeping their own annuity.

[00:08:46] Speaker 02:
But with respect to the supplemental, because I happen to know my ex-spouse is an air traffic controller or a firefighter, I get 80% of that.

[00:08:56] Speaker 02:
So I get nothing, 0% of the basic annuity, or it's a 50-50 split, and 80%.

[00:09:03] Speaker 02:
So you've got two inconsistent splits here.

[00:09:06] Speaker 02:
So does that mean they're both null and void?

[00:09:09] Speaker 02:
Because they don't satisfy the regulation, your construction of the regulation.

[00:09:14] Speaker 02:
So what happens to those splits?

[00:09:17] Speaker 02:
You pick one number out of the year or another and say, well, we're going to treat them all together.

[00:09:21] Speaker 02:
Do you average it out?

[00:09:22] Speaker 02:
What do you do with splits?

[00:09:23] Speaker 04:
No.

[00:09:23] Speaker 04:
So under 8421C, you would have to treat the annuity supplement

[00:09:29] Speaker 02:
in the same way that the basic annuity... Even though the parties have negotiated for good reason, I mean maybe I gave up a beach house so that I could get 75% of my firefighter husbands earlier annuity, supplemental annuity, but OPM comes along and says, no, you're not getting the 75% that you negotiated for explicitly in the divorce decree.

[00:09:51] Speaker 02:
we're going to apply the different split that you, for other reasons, negotiated your two basic annuities under.

[00:09:58] Speaker 02:
Really?

[00:09:59] Speaker 02:
Has OPM ever been in the business of rewriting divorce decrees?

[00:10:05] Speaker 04:
No, Your Honor, but OPM does have to follow the statutory mandate.

[00:10:08] Speaker 02:
And I would just say, though, if that- And they never did that before 2016.

[00:10:10] Speaker 02:
So they were in violation of following the statutory mandate for however many years before 2016.

[00:10:20] Speaker 02:
the statutory mandate requires that OPM swoop in and rewrite divorce settlements.

[00:10:26] Speaker 02:
You appreciate that there's a lot of give and take in these divorce settlements.

[00:10:31] Speaker 02:
Even they could be explicit as to both, but they may come up with different percentages because that's what they want.

[00:10:36] Speaker 02:
That's what they agreed to.

[00:10:38] Speaker 02:
And OPM says, no, those are no avoids.

[00:10:41] Speaker 02:
So tell me again, which one do you pick?

[00:10:43] Speaker 02:
How do you decide which one you pick?

[00:10:44] Speaker 04:
It's the basic annuity.

[00:10:45] Speaker 04:
It would be the basic annuity under section 8421C.

[00:10:48] Speaker 02:
The only- OK, so you are rewriting my ability to get 75% of the supplemental annuity because we reasonably, I think in a lot of divorce decrees, both parties have a similar or comparable basic annuity.

[00:11:03] Speaker 02:
So that maybe it's 50-50 split of everything.

[00:11:06] Speaker 02:
Maybe they just say everybody keeps their own.

[00:11:09] Speaker 02:
So that necessarily dictates that you're rewriting a divorce agreement?

[00:11:15] Speaker 04:
I think I wouldn't frame it that way, Your Honor.

[00:11:17] Speaker 04:
I would say that OPM is following, again, Congress's mandate that they be treated the same way.

[00:11:23] Speaker 02:
But you would agree that there's another interpretation.

[00:11:25] Speaker 02:
You think yours is the better, but there's another interpretation which would obviate the need for the federal government to get involved in rewriting divorce decrees 30 years after the fact.

[00:11:36] Speaker 02:
There's another way to interpret the statute.

[00:11:39] Speaker 04:
There is, but I do not think there's another way of interpreting the statute that doesn't impose a superfluidity problem.

[00:11:45] Speaker 02:
OK, so you do.

[00:11:47] Speaker 02:
And doing that for 20 years beforehand was just a mistake.

[00:11:50] Speaker 02:
So that didn't oppose that.

[00:11:53] Speaker 06:
Go ahead.

[00:11:54] Speaker 06:
Where in the congressional record is the report that OPM made to Congress that it had been in error for the past 30 years?

[00:12:03] Speaker 04:
I'm not aware of that being in the record, Your Honor.

[00:12:07] Speaker 02:
So isn't there a problem with kind of notice to the folks?

[00:12:11] Speaker 02:
I mean, I've had a few survivor annuity cases.

[00:12:13] Speaker 02:
So I'm generally familiar with how the divorce decree has to be explicit with respect to annuity.

[00:12:20] Speaker 02:
But people know that, right?

[00:12:22] Speaker 02:
I mean, does OPA tell people that?

[00:12:26] Speaker 02:
Or people are just assumed to have read the statute and know that if you get a divorce decree and you want to split up the annuity, you've got to explicitly do it in the divorce decree?

[00:12:36] Speaker 04:
Well, that's the rule under either.

[00:12:39] Speaker 04:
I understand.

[00:12:41] Speaker 02:
I'm just wondering how people are aware of the rule when they get divorced.

[00:12:46] Speaker 04:
Yeah, I mean, I think it's in the statute.

[00:12:48] Speaker 04:
It's also in OPM's regulations, Your Honor.

[00:12:52] Speaker 06:
OK.

[00:12:53] Speaker 06:
The state court sure looks like it followed the CFR form when it drafted the decree.

[00:13:04] Speaker 06:
It uses the same language from the form, except it says employee's gross monthly annuity.

[00:13:12] Speaker 06:
What does that mean?

[00:13:14] Speaker 04:
So the gross monthly annuity, Your Honor, well, one, again, it's referring to the employee annuity, which under the regulations, there's any recurring payment made to an annuitant.

[00:13:27] Speaker 04:
So that is both the annuity supplement and the basic annuity.

[00:13:30] Speaker 04:
But then the gross amount, I believe, is the full amount of the annuity, less payments for the survivor benefit annuity.

[00:13:41] Speaker 04:
So that's specifically what the gross amount is referring to versus a net amount or self-only amount.

[00:13:48] Speaker 02:
Can I ask you about retroactivity?

[00:13:50] Speaker 02:
Your time's running out, but let me be quick on it.

[00:13:52] Speaker 02:
What happened to Mr. Walton?

[00:13:53] Speaker 02:
At first, when they came to him and started reducing his annuity, they were getting back pay for all the earlier years.

[00:14:02] Speaker 02:
And then what happened?

[00:14:05] Speaker 04:
So OPM made the decision to waive the overpayment from 2010 to 2016.

[00:14:12] Speaker 04:
So OPM had to pay his former spouse

[00:14:18] Speaker 04:
what she would do under the statute, so the apportionment of the annuity supplement, which meant that Mr. Moulton was overpaid by that equivalent amount, but OPM elected to waive that overpayment amount.

[00:14:34] Speaker 02:
So it's coming out of the U.S.

[00:14:35] Speaker 02:
Treasury and not out of Mr. Moulton's annuity, the back pay amount.

[00:14:39] Speaker 02:
OPM is compensating

[00:14:42] Speaker 04:
Essentially, for the period of 2010 to 2016, both Mr. Moulton and his former spouse received the benefit of the annuity supplement.

[00:14:55] Speaker 06:
Is that the point at which she was deceased?

[00:14:59] Speaker 06:
Is that the point?

[00:14:59] Speaker 06:
The former spouse is deceased.

[00:15:01] Speaker 06:
Correct.

[00:15:03] Speaker 06:
Is that the point at which she was deceased?

[00:15:05] Speaker 04:
No.

[00:15:05] Speaker 04:
It was after.

[00:15:06] Speaker 04:
She passed away, I believe, in late 2023.

[00:15:10] Speaker 06:
OK.

[00:15:12] Speaker 06:
What's the status?

[00:15:13] Speaker 06:
Is her estate a party to this action?

[00:15:16] Speaker 04:
It is not.

[00:15:18] Speaker 04:
And I see I'm out of time.

[00:15:19] Speaker 01:
No, please, we're asking questions.

[00:15:21] Speaker 04:
No, so the estate is not a party to the action.

[00:15:24] Speaker 04:
And Mr. Moulton has now reached age 62.

[00:15:27] Speaker 04:
So he's no longer receiving the annuity supplement either.

[00:15:30] Speaker 04:
So the relevant time period in terms of his pay would be from 2016 until the end of 2023 when Ms.

[00:15:39] Speaker 04:
Moulton passed away.

[00:15:39] Speaker 04:
Because after that point, he was receiving the full annuity supplement again.

[00:15:43] Speaker 06:
Do you have any reason to doubt the accuracy of the examples given in the amicus break?

[00:15:52] Speaker 04:
No, I don't have any reason to doubt that.

[00:15:55] Speaker 04:
But I would just say that every time that an amount is paid to a former employee, that's an amount not being paid to the former spouse.

[00:16:04] Speaker 04:
I think that's an important point.

[00:16:06] Speaker 02:
But OPM is compensating.

[00:16:07] Speaker 02:
So is this just a one-off, or if you think

[00:16:11] Speaker 02:
You initially thought this should apply retroactively, and that's why you started recouping the money from 2020 to 2016.

[00:16:17] Speaker 02:
But apparently, somebody made a decision.

[00:16:19] Speaker 02:
Was that a decision made for everyone, or was that just based on the facts of this case?

[00:16:25] Speaker 04:
There has not been that decision made for everyone, Your Honor.

[00:16:28] Speaker 04:
There has not been a decision with that regard made at all.

[00:16:31] Speaker 02:
Well, if you say, and this is your footnote too, you say,

[00:16:35] Speaker 02:
OPM determined that he was not at fault and that it would be against equity and good conscience.

[00:16:42] Speaker 02:
So why?

[00:16:46] Speaker 02:
Wouldn't that be applicable to any person that was similarly situated?

[00:16:50] Speaker 04:
So that may turn out to be the case, but what OPM decided is that it was going to wait for basically this case to be resolved before making the decision, because again, OPM did make the payments to the former spouses.

[00:17:04] Speaker 04:
And so there's either going to be an overpayment to the former spouses,

[00:17:07] Speaker 04:
or an overpayment to the annuitants and OPM said we're going to wait until we have a decision so that we know which party was overpaid and then it will make a decision as to whether or not the overpayments should be waived or not.

[00:17:25] Speaker 06:
Have those Doge folks at OPM looked at you?

[00:17:30] Speaker 04:
No.

[00:17:31] Speaker 04:
No, you're off.

[00:17:31] Speaker 02:
So there could be other circumstances that would differ enough so that the OPM, what is the authority for OPM?

[00:17:40] Speaker 02:
Where is the pocket of money?

[00:17:42] Speaker 02:
I mean, OPM has the authority.

[00:17:45] Speaker 02:
Is this true in other circumstances?

[00:17:48] Speaker 02:
Is it because you concede that you're the ones that messed up and that you were responsible for not coming to Mr. Moulton soon enough so that, in fairness, you're going to eat the difference?

[00:18:02] Speaker 02:
This is taxpayer funds we're talking about.

[00:18:04] Speaker 02:
There's got to be some basis for allocating those funds for a certain purpose.

[00:18:10] Speaker 04:
Right.

[00:18:10] Speaker 04:
I think that was largely the case, that what OPM determined is that the overpayment was not a result of any wrongdoing on the part of Mr. Moulton.

[00:18:21] Speaker 04:
And under the statute, I believe it's 5 USC, section 8470, OPM does have the authority to waive overpayment in those circumstances.

[00:18:31] Speaker 02:
OK.

[00:18:32] Speaker 02:
And so if, hypothetically, we were to affirm the MSPB in this case,

[00:18:37] Speaker 02:
then there would be no need for an overpayment, because we would be saying that the OPM's construction, or what you say, error, for 30 years was not that an error.

[00:18:51] Speaker 04:
That's correct, except that in that situation, Ms.

[00:18:55] Speaker 04:
Moulton would have been overpaid.

[00:18:57] Speaker 04:
Because again, OPM did pay the former spouses.

[00:19:02] Speaker 02:
The spouse is in plural.

[00:19:04] Speaker 02:
Are there other cases around that we've done the same thing that you did with Mr. Moulton's case?

[00:19:08] Speaker 04:
Again, Your Honor, that's what I was referring to, the, I think, 70 appeals of reconsideration decisions where this sort of same back pattern occurred.

[00:19:19] Speaker 02:
So you've paid it out.

[00:19:21] Speaker 02:
There's no holding.

[00:19:22] Speaker 02:
Are there cases being held pending the outcome of this appeal?

[00:19:25] Speaker 04:
There are.

[00:19:26] Speaker 02:
There are.

[00:19:27] Speaker 02:
So you've done some, but you've held some?

[00:19:29] Speaker 04:
Sorry.

[00:19:30] Speaker 04:
What I'm saying by that is that there have not been overpayment.

[00:19:33] Speaker 04:
Whether or not the overpayment will be waived, that decision has not been made.

[00:19:37] Speaker 04:
And that decision is pending this appeal.

[00:19:39] Speaker 04:
But the reconsideration decisions have been made.

[00:19:44] Speaker 04:
And again, those reconsideration decisions have said that the former spouse should be getting paid under Section 8421C.

[00:19:51] Speaker 06:
If there are other persons who are not among those 70,

[00:19:56] Speaker 06:
whose annuities have been treated as wrongfully paid to them and are being recollected, and they haven't appealed, are you going to pay them back if we determine that what you did was erroneous?

[00:20:14] Speaker 04:
I don't think that situation exists, John.

[00:20:15] Speaker 04:
I think everybody who has received a reconsideration decision, OPM said, we are not going to mess with overpayment until we know

[00:20:23] Speaker 04:
until we have an answer on the statutory construction question.

[00:20:27] Speaker 02:
I have one more question.

[00:20:30] Speaker 02:
And if you've already answered this, I apologize.

[00:20:32] Speaker 02:
I think Judge Wallach started to get into this.

[00:20:37] Speaker 02:
Somebody figured something out in 2016.

[00:20:41] Speaker 02:
Where's the paper trail for that?

[00:20:43] Speaker 02:
I mean, you have memos in the file, a record of somebody saying, hey,

[00:20:49] Speaker 02:
We messed up.

[00:20:50] Speaker 02:
Hey, we're not doing this right.

[00:20:52] Speaker 02:
Hey, for all the policy reasons that you mentioned in your brief, we should change course.

[00:20:57] Speaker 02:
What's the paper trail for this change in 2016?

[00:21:00] Speaker 04:
So I think Your Honor could look to the OIG report.

[00:21:06] Speaker 04:
I think that gets into it a little bit.

[00:21:10] Speaker 02:
Yeah, where was that?

[00:21:11] Speaker 02:
I was just looking for that in the appendix.

[00:21:15] Speaker 02:
They talk about the history, but I thought you were distancing yourself from the history they outline, which is simply that you had interpreted the statutes on way for 30 years.

[00:21:24] Speaker 04:
That's right.

[00:21:26] Speaker 04:
I am distancing myself from that.

[00:21:27] Speaker 02:
But just in terms of- Well, do you have something in the record that shows us some other reason for having done it?

[00:21:32] Speaker 02:
I mean, you're right.

[00:21:33] Speaker 02:
I mean, all I could find in the record was this OID report.

[00:21:37] Speaker 02:
Well, there's got to be- we're in a bureaucracy.

[00:21:39] Speaker 02:
I worked for one for 15 years.

[00:21:41] Speaker 02:
There's got to be a paper trail, right?

[00:21:43] Speaker 02:
The OIG does a report, OPM disagrees with it, and nothing is said publicly or in email traffic or in putting up memos?

[00:21:55] Speaker 04:
I don't think we have that in the record before us.

[00:22:00] Speaker 04:
My understanding is that there were discussions internally about how this was supposed to apply, and then that came to the realization that it was not being applied consistently.

[00:22:12] Speaker 02:
Well, is there anything back in 2016, before 2016, that indicates that OPM had the same view that you're espousing today as to what the statute says, and therefore it was just a misapplication or an error?

[00:22:27] Speaker 02:
that occurred in 30 years prior to 2016?

[00:22:30] Speaker 04:
I think the best evidence of that would be the regulations, Your Honor.

[00:22:32] Speaker 04:
That OPM's regulations are consistent with the view of the statute that we're advocating for today.

[00:22:40] Speaker 04:
And the regulations haven't changed.

[00:22:43] Speaker 06:
What was the basis for OPM ignoring the IG report?

[00:22:47] Speaker 04:
Ignoring it.

[00:22:48] Speaker 06:
No, I shouldn't say that.

[00:22:50] Speaker 06:
Rejecting the IG report.

[00:22:52] Speaker 04:
Again, because OPM, in its view, did not change its interpretation.

[00:22:57] Speaker 04:
That its interpretation is reflected in the regulations.

[00:23:00] Speaker 04:
And so this wasn't a new interpretation.

[00:23:04] Speaker 04:
This was just applying the law correctly.

[00:23:07] Speaker 04:
And unfortunately, there was this error before.

[00:23:12] Speaker 04:
It was an unfortunate mistake.

[00:23:14] Speaker 04:
In the case of Mr. Moulton, that's why OPM made the waiver of overpayment decision.

[00:23:20] Speaker 06:
That's an interesting approach.

[00:23:22] Speaker 06:
We haven't changed our position, so we don't need notice and comment is basically what you're saying.

[00:23:29] Speaker 04:
I think that's right.

[00:23:30] Speaker 04:
The regulations have stayed the same, and the regulations are clear that an annuity supplement is a part of the employee annuity, which can be divided.

[00:23:42] Speaker 05:
So did I hear you correctly earlier saying that the phrase term gross monthly annuity in Mr. Moulton's divorce decree

[00:23:52] Speaker 05:
necessarily encompasses both a basic annuity and an annuity supplement?

[00:23:59] Speaker 05:
Or do you think it only is directed to a basic annuity?

[00:24:07] Speaker 04:
I think it's deficient that

[00:24:11] Speaker 04:
that it only encompasses the basic annuity.

[00:24:15] Speaker 04:
But gross annuity, I think, does encompass what the regulations define as employee annuity, which is recurring payments to an annuitant.

[00:24:23] Speaker 04:
And the annuity supplement is one of those recurring payments.

[00:24:26] Speaker 05:
So then it would be OPM's read that this term in the divorce decree refers to both, then?

[00:24:34] Speaker 05:
It is expressly providing for the division of both the

[00:24:39] Speaker 05:
Mr. Melton's basic annuity and his annuity supplement?

[00:24:43] Speaker 04:
Well, I think I see the point of your honor's questions.

[00:24:48] Speaker 04:
We're not contending that it says annuity supplement, of course, because the platelets.

[00:24:53] Speaker 05:
It doesn't say annuity supplement, but it says something else, gross monthly annuity.

[00:24:58] Speaker 05:
So I'm trying to understand OPM's view of that term.

[00:25:02] Speaker 04:
Right.

[00:25:02] Speaker 04:
So OPM's view?

[00:25:03] Speaker 05:
Because it's not expressly saying basic annuity, nor is it expressly saying annuity supplement.

[00:25:09] Speaker 05:
So is it referring to just one of them, or is it referring to both of them?

[00:25:13] Speaker 04:
I think it's referring to the employee annuity, which under the regulations would encompass both of them.

[00:25:19] Speaker 05:
OK.

[00:25:19] Speaker 05:
My second question is, putting aside your technical reading of 8421C, I just want to know OPM's view as to why it thinks Congress would choose to treat

[00:25:36] Speaker 05:
annuity supplements differently, in that they don't need to be expressly provided for, that somehow annuity supplements will just rise or fall based on how basic annuities get expressedly provided for in a divorce decree.

[00:25:53] Speaker 05:
Why would Conquest do that?

[00:25:54] Speaker 05:
It seems a little strange that it would select this form of payment and treat it differently from all other payments under Chapter 84.

[00:26:04] Speaker 04:
Well, a couple of responses, Your Honor.

[00:26:07] Speaker 04:
First, we know that Congress has chosen to do that, because with respect to CIA employees, there are rules.

[00:26:16] Speaker 04:
And Congress was, I think, particularly explicit there that the apportionment of the first special annuity with respect to CIA or the former spouses of CIA employees shall extend to the annuity supplement.

[00:26:30] Speaker 02:
Yeah, but that does not cut against you.

[00:26:32] Speaker 02:
Congress knows how to say what Judge Chen is suggesting, how are we dividing this from what Congress thought.

[00:26:40] Speaker 02:
Congress has shown us that they know exactly when they want something to happen, how they would say it, and they feel to do it in this context.

[00:26:46] Speaker 04:
So I think Congress was explaining how the first special annuity applies to the annuity supplement.

[00:26:53] Speaker 04:
In 8421C, Congress was explaining how the annuity supplement relates to the basic annuity.

[00:26:59] Speaker 04:
So yes, different languages used, but I think it's a slightly different context.

[00:27:04] Speaker 04:
But my point is that Congress hasn't

[00:27:07] Speaker 04:
At least in that situation, Congress was not hesitant to tie the annuity supplement to the basic annuity in a way that Your Honor suggested.

[00:27:17] Speaker 04:
Why would they do that?

[00:27:18] Speaker 04:
Well, we know that they're willing to do that because we see it there.

[00:27:21] Speaker 04:
And the second point I'd make is that, again,

[00:27:25] Speaker 04:
Although it disproportionately affects people like air traffic controllers or law enforcement officers, it's not just those employees that can retire early.

[00:27:37] Speaker 04:
If you meet the time and service and age requirements, I think any federal employee would have the option to retire early.

[00:27:43] Speaker 04:
And so by including the annuity supplement within the basic annuity, which is, again, the annuity supplement is under the sub-chapter, under basic annuity that Congress enacted,

[00:27:55] Speaker 04:
Congress is offering protections to former spouses who, at the time of a divorce, may not have any idea that their former federal employee spouse is going to retire early and obtain an annuity supplement.

[00:28:12] Speaker 04:
And so treating the first annuity as one sort of

[00:28:18] Speaker 04:
One employee annuity for the purposes of court division would make sense and offer protection to former spouses.

[00:28:27] Speaker 02:
Well, except that it cuts both ways.

[00:28:30] Speaker 02:
Because if former spouses know that there might be an annuity, they may include that in the divorce decree.

[00:28:38] Speaker 02:
And that may cut against them if we're nullifying they are getting a large chunk of that special annuity.

[00:28:45] Speaker 02:
If with respect to the basic annuity, they were going to get a much smaller chunk.

[00:28:50] Speaker 02:
So you're saying we ignore what they were able to negotiate as their fair share

[00:28:55] Speaker 02:
of the supplemental unit, doesn't that cut against at least those spouses in the bucket I'm articulating?

[00:29:04] Speaker 04:
I think it would, Your Honor.

[00:29:06] Speaker 04:
I mean, candidly, I'm not sure how big of a bucket that actually is.

[00:29:10] Speaker 01:
I'm not sure how big your bucket is either.

[00:29:12] Speaker 01:
Do you have any idea how big your bucket is?

[00:29:14] Speaker 04:
I don't, Your Honor.

[00:29:15] Speaker 04:
I know that my bucket is the one in this, is Mr. Moulton's case.

[00:29:21] Speaker 02:
Yeah, but going back to sort of the predicate of Judge Chen's question, how would we divine that Congress would think, if Congress knew what it was doing in directing its attention, so it would pick an advantage to people in one bucket, the presumption being they had no idea this was going to happen, but were going to arguably penalize significantly a portion of annuity spouses in the other bucket.

[00:29:46] Speaker 02:
Think Congress thought that through?

[00:29:49] Speaker 04:
Well, Your Honor, I think we would fall back on our statutory construction argument that Congress must have intended that by Section 8421C if that section is going to have any meaning, because, again, Section 8467 does all of the work that the MSPB assigns to Section 8421C.

[00:30:14] Speaker 04:
I hear the concern, but I don't think that concern can be squared with the statutory language.

[00:30:21] Speaker 02:
Judge, I'm sorry I interrupted.

[00:30:25] Speaker 06:
Done?

[00:30:25] Speaker 06:
Yeah.

[00:30:25] Speaker 04:
I have one more.

[00:30:26] Speaker 04:
Thank you, Your Honors.

[00:30:28] Speaker 04:
Oh, I'm sorry.

[00:30:30] Speaker 06:
Are you familiar with 5 CFR.838, subpart F, appendix A?

[00:30:36] Speaker 06:
That's the form that state courts can look to, or to which they can look.

[00:30:43] Speaker 06:
And it appears to be the form upon which the Colorado Court based the language in its decree.

[00:30:53] Speaker 06:
But the discussion in the form itself doesn't seem to have anything about supplemental benefits.

[00:31:02] Speaker 06:
So how do you deal with that?

[00:31:04] Speaker 04:
Your Honor, I don't have the form in front of me.

[00:31:07] Speaker 04:
But I think we deal with that.

[00:31:09] Speaker 04:
Again, that would be consistent with what we're articulating, that whenever the basic annuity is apportioned, that is capturing the annuity supplement as well.

[00:31:20] Speaker 04:
So there wouldn't be a need for the annuity supplement to be suspended.

[00:31:24] Speaker 06:
Well, but there's a lot of detailed discussion about other things.

[00:31:27] Speaker 06:
You better take a look at it.

[00:31:30] Speaker 04:
I'll do that, Your Honor.

[00:31:32] Speaker 06:
If I may, could you provide a story?

[00:31:37] Speaker 06:
Yes.

[00:31:38] Speaker 06:
5 CFR, 838, subpart F, appendix A. Recommended language for court orders dividing employee annuities.

[00:31:47] Speaker 06:
Thank you, Your Honor.

[00:31:48] Speaker 06:
Yeah, sure.

[00:32:10] Speaker 03:
May it please the court.

[00:32:12] Speaker 03:
I believe your honors refer to this as a conundrum.

[00:32:14] Speaker 03:
And I believe the best way out is through the text.

[00:32:19] Speaker 03:
And we believe that we have the better reading of section 8421 and that that reading requires that a court order expressly divide the supplemental annuity.

[00:32:27] Speaker 03:
That is so because 8421 directs that the supplemental annuity shall be treated in the same way as the main annuity for purposes of section 8467.

[00:32:38] Speaker 03:
That language I just quoted, for purposes of 8467, provides critical context that directs OPM to apply 8467's procedural requirements.

[00:32:47] Speaker 03:
And 8467, in turn, requires an express division.

[00:32:52] Speaker 03:
Nevertheless, if this court believes that the statute can be fairly read either way, several background principles conclusively show that our reading is better.

[00:33:01] Speaker 03:
For a first, domestic relations issues such as this one are preeminently questions of state law, because your honor is recognized.

[00:33:08] Speaker 03:
And Congress rarely seeks to displace state law on these issues.

[00:33:13] Speaker 03:
OPM's interpretation is.

[00:33:14] Speaker 05:
Do you agree with OPM that you could strike 8421C from the statute?

[00:33:22] Speaker 05:
And the entire statutory scheme would operate in the exact same way that you want it to operate with 8421C?

[00:33:33] Speaker 03:
It might literally provide the same function, Your Honor, but 8421C provides critical clarifying effect.

[00:33:39] Speaker 03:
And the Supreme Court is held in numerous cases.

[00:33:41] Speaker 05:
I guess I'm wondering, why does it provide clarity when 8467 straight up says, payments under this chapter?

[00:33:54] Speaker 05:
Annuity supplements are, in fact, payments under this chapter, just like basic annuities are payments under this chapter.

[00:34:00] Speaker 03:
They are, Your Honor.

[00:34:01] Speaker 03:
But annuity supplements are, is very clear from the record of known disputes, are meant to replace social security payments.

[00:34:09] Speaker 03:
And social security payments by law are not assignable and are not divisible.

[00:34:13] Speaker 03:
So by making clear, expressly clear, that annuity supplements, for purposes of 8467, are like basic annuities,

[00:34:24] Speaker 03:
then Congress is clarifying what type of thing the annuity supplement is.

[00:34:28] Speaker 03:
And it is, in fact, the type of thing that can be divided pursuant to court order.

[00:34:35] Speaker 06:
Are you familiar with the CFR Section 9 form?

[00:34:38] Speaker 03:
I've read it, Your Honor.

[00:34:39] Speaker 06:
What's your take on the whole thing?

[00:34:43] Speaker 06:
The judge clearly went through it.

[00:34:45] Speaker 03:
Yes.

[00:34:46] Speaker 03:
I think as Your Honor recognizes, that section does not refer anywhere to the supplemental annuity.

[00:34:51] Speaker 03:
I don't believe any portion of Part 838 refers to the supplemental annuity.

[00:34:55] Speaker 03:
My understanding is that the gross annuity, in fact, does not refer to the supplemental annuity.

[00:35:02] Speaker 03:
And I think this can be seen from OPM's own treatment of the issue and, in fact, its own language.

[00:35:08] Speaker 03:
If you look at, I believe it is

[00:35:12] Speaker 03:
Appendix 80, there is a letter from OPM to Mr. Moulton that describes his supplemental annuity to him.

[00:35:18] Speaker 03:
And in describing the supplemental annuity to Mr. Moulton, again, this is at the top of page Appendix 80, it says that the supplement is an amount paid in addition to your monthly gross annuity benefit.

[00:35:32] Speaker 03:
That language, I think, clearly shows that OPM

[00:35:35] Speaker 03:
when Mr. Moulton was attiring, understood that the gross annuity and his annuity supplement were two different things.

[00:35:41] Speaker 03:
That's a good point.

[00:35:44] Speaker 05:
Are you aware of any court decisions where courts have basically forgiven redundancy in a statute and said, well,

[00:35:53] Speaker 05:
We'll still choose to interpret a particular provision in a particular way, even though it makes it redundant, because on the whole, it makes more sense to do that.

[00:36:07] Speaker 03:
Yeah, of course, Your Honor.

[00:36:08] Speaker 03:
One is the Supreme Court's recent decision in Bufkin, which it affirmed a decision of this court.

[00:36:13] Speaker 03:
And that had to do with appeals from the Veterans Court.

[00:36:17] Speaker 03:
And there was a provision that Congress specifically added to the statute in that case, saying you need to take due care of the presumption in favor of veterans.

[00:36:27] Speaker 03:
And the court, with respect to that language, I'll just, with the court's indulgence, I'll quote from the Supreme Court, Section 7261B1 makes explicit the Veterans Court's previously implicit duty to review the VA's application of the benefit of the doubt rule pursuant to the standards set forth in subsection A. Of course, this duty predated Congress's enactment of Section 7261B1.

[00:36:49] Speaker 03:
Subsection A always required the Veterans Court to review all relevant findings of fact and conclusions of law, including the benefit of the doubt and determinations.

[00:36:59] Speaker 03:
So the Court has, in fact, said that sometimes redundant readings are, in fact, the best reading in the statute.

[00:37:04] Speaker 03:
And in the redundancy and expansive provisions like this, Congress is no stranger to redundancy.

[00:37:11] Speaker 03:
And if your honor is interested, other provisions in 8442 include further redundancies.

[00:37:19] Speaker 03:
We pointed to F6, which describes the survivor annuity supplement.

[00:37:25] Speaker 03:
And there, Congress provided that you know.

[00:37:27] Speaker 05:
So statute sounds like Michigan.

[00:37:29] Speaker 03:
Yes.

[00:37:29] Speaker 03:
But for an 8442 F6, Congress provided that the survivor annuity supplement will be adjusted under 8462 and otherwise treated under this chapter in the same way as an amount payable under subsection A. But by its very terms, section 8462 already applies to this provision.

[00:37:48] Speaker 03:
And so Congress is no stranger to using redundancy in this particular statute.

[00:37:52] Speaker 06:
For those of us who previously worked on the Hill, we find that impossible to believe.

[00:38:02] Speaker 02:
So are you aware of a paper trail in 2016?

[00:38:10] Speaker 02:
Or anything that existed before 2016?

[00:38:13] Speaker 02:
I mean, your friend described it.

[00:38:15] Speaker 02:
I forget the word he used.

[00:38:16] Speaker 02:
Operational air, I think.

[00:38:17] Speaker 02:
Yeah.

[00:38:19] Speaker 02:
Are you aware of what the history is?

[00:38:21] Speaker 02:
I know we've got the OIG report, which gives some information.

[00:38:26] Speaker 03:
I am not, Your Honor.

[00:38:27] Speaker 03:
I am only familiar with what's contained in the record, which is essentially the Inspector General's report and not much else with regards to the history.

[00:38:35] Speaker 05:
The DC District Court went the other way, right?

[00:38:39] Speaker 03:
It did, Your Honor.

[00:38:40] Speaker 05:
I understand it's vacated, but that's a federal court that ruled in favor of the OPM's interpretation.

[00:38:49] Speaker 03:
I think the primary basis that the district court relied on there was the fact that the supplemental annuity section was within the relevant sub-chapter of the basic annuity.

[00:39:01] Speaker 03:
I think that is sparse.

[00:39:03] Speaker 05:
Congress is no stranger to redundancy.

[00:39:05] Speaker 05:
It was dented it up all the time.

[00:39:07] Speaker 03:
Yeah.

[00:39:08] Speaker 03:
And the headings under which statutes fall is not just positive as to what their meaning is.

[00:39:13] Speaker 03:
And of course, nothing else in the statute indicates that the supplemental annuity is part of the basic annuity.

[00:39:19] Speaker 03:
In fact, many provisions in the statute contemplate just the opposite, that they are two separate things.

[00:39:25] Speaker 02:
And do you have any more insight into the retroactivity or non-retroactivity?

[00:39:29] Speaker 02:
I mean, you yourself in your brief recognize that your client has been reimbursed for the retroactive application of this, is that correct?

[00:39:39] Speaker 03:
It depends how your honor understands retroactive.

[00:39:42] Speaker 03:
So he was forgiven the payments that he was given from 2010 to 2016 that were given to him that OPM contends should have been paid to his former spouse.

[00:39:52] Speaker 03:
However, starting in 2016, it did begin

[00:39:55] Speaker 03:
dividing the supplemental annuity, which under the statute we believe should have gone fully to Mr. Moulton, began dividing that annuity in 2016.

[00:40:03] Speaker 03:
And so in 2016 through 2024, I believe, it paid a portion of Mr. Moulton's annuity to his former spouse.

[00:40:11] Speaker 03:
That money is not his.

[00:40:13] Speaker 03:
And that is the money that we are seeking in this appeal and that the board ordered this OPM award to Mr. Moulton.

[00:40:24] Speaker 03:
If the court has no further questions, I'll yield to Mr. Moulton.

[00:40:27] Speaker 06:
Do you know if they continued paying any money to an estate?

[00:40:33] Speaker 03:
I don't know.

[00:40:34] Speaker 03:
I know that the death of Mr. Moulton's former spouse occurred very closely in time to when he turned 62.

[00:40:39] Speaker 03:
So the amount of money that would have been paid to a state would have been slight.

[00:40:43] Speaker 03:
Ms.

[00:40:43] Speaker 03:
Moulton and the estate were parties to the board proceeding below, or interveners in the proceeding below.

[00:40:51] Speaker 03:
And neither Ms.

[00:40:52] Speaker 03:
Moulton nor her estate

[00:40:55] Speaker 03:
disputed Mr. Moulton's take of events and disputed that he should have received a full supplement.

[00:41:00] Speaker 03:
Thank you.

[00:41:25] Speaker 00:
Good morning, Your Honors, or good afternoon.

[00:41:28] Speaker 00:
I'm Deanna Schaubacher.

[00:41:29] Speaker 00:
I represent MSPB.

[00:41:32] Speaker 00:
I agree with everything that counsel from Mr. Moulton has expressed to you.

[00:41:36] Speaker 00:
MSPB's reading is clearly the correct reading under the statutory language.

[00:41:43] Speaker 00:
Section 8421C says that the annuity supplement shall be treated the same way as the basic annuity.

[00:41:51] Speaker 00:
So how is the basic annuity treated?

[00:41:53] Speaker 00:
It's divided as expressly provided for by a court order and subject to the procedural rules and the definitions set forth in 8467.

[00:42:01] Speaker 00:
So an annuity supplement should be also treated that way, divided pursuant to if expressly provided for by a court order, subject to the procedural rules and the definitions.

[00:42:14] Speaker 00:
OPM's interpretation requires us to kind of skip those steps, just go look at the court order, see how the basic annuity is divided,

[00:42:23] Speaker 00:
and then divide it the same way.

[00:42:24] Speaker 00:
That's not the statutory language.

[00:42:27] Speaker 00:
And as Your Honors have recognized, OPM's interpretation needlessly infringes significantly on the authorities of state courts to divide assets in a divorce proceeding.

[00:42:39] Speaker 00:
And as you recognized, Your Honor, that's a careful negotiation.

[00:42:43] Speaker 00:
And this is taking away their authority to divide assets as part of that negotiation.

[00:42:51] Speaker 02:
provided for a split, 50-50, 70-25, of the supplemental annuity and was silent with respect to any other annuity.

[00:43:01] Speaker 02:
What's your understanding of, would OPM let that one go?

[00:43:06] Speaker 02:
Or would they say, even though the regular annuity isn't mentioned, we've got to do something with that too?

[00:43:13] Speaker 00:
I think that under OPM's interpretation, they would not be able to honor that.

[00:43:20] Speaker 00:
court order at all, because the basic annuity is not divided.

[00:43:23] Speaker 00:
It's 0% paid to the former spouse.

[00:43:26] Speaker 00:
So they would also have to divide 0% of the supplemental annuity.

[00:43:31] Speaker 00:
So I think that's a great example of a way that it's rendering all of 8467 inoperable as to the annuity supplement.

[00:43:41] Speaker 00:
Similarly, pursuant to OPM's interpretation, the parties could never

[00:43:46] Speaker 00:
exclude the annuity supplement from consideration.

[00:43:50] Speaker 00:
Even if they used express terms, that's what they want.

[00:43:53] Speaker 00:
We don't want this to be part of the agreement.

[00:43:54] Speaker 00:
OPM would necessarily divide it pursuant to this erroneous interpretation.

[00:44:00] Speaker 00:
And OPM relies heavily on their regulations.

[00:44:05] Speaker 00:
But as the board acknowledged, nothing in the regulations mentions an annuity supplement.

[00:44:10] Speaker 00:
The Federal Register of Notices didn't mention an annuity supplement.

[00:44:15] Speaker 00:
The IG report says that for 30 years, they presumed it was non-allocable, just like the Social Security benefit that it's standing in for.

[00:44:23] Speaker 00:
So I don't think that we can look to what the regulations say and, oh, look, the annuity supplement fits under this broad term of annuity.

[00:44:35] Speaker 00:
OPM did not contemplate that annuity supplements were part of a basic annuity at that time.

[00:44:40] Speaker 00:
So it's to retroactively plug it into the regulations.

[00:44:43] Speaker 00:
I don't think works.

[00:44:45] Speaker 02:
I know the board has an enormous backlog for many other reasons other than this, but do you happen to know if there are pending cases that are being held?

[00:44:54] Speaker 00:
Yes, Your Honor.

[00:44:55] Speaker 00:
We have quite a few cases that are on hold pending this decision.

[00:44:59] Speaker 00:
I believe it's over 100 at this point.

[00:45:03] Speaker 00:
But don't quote me on that.

[00:45:04] Speaker 00:
Somewhere between 50 and 150.

[00:45:06] Speaker 00:
But yes, this is a significant issue.

[00:45:08] Speaker 00:
OPM revised their approach in 2016, and every one that had been

[00:45:13] Speaker 00:
affected would have received an adjustment to their annuity.

[00:45:18] Speaker 05:
Do you think 8467 by its terms is even slightly ambiguous as to whether, on its own terms, it would encompass annuity supplements?

[00:45:34] Speaker 05:
Or would you concede that it's clear on its face that, of course, just that provision, it covers

[00:45:44] Speaker 05:
any and all payments under Chapter 84.

[00:45:47] Speaker 00:
I think it covers any and all payments under Chapter 84 unless they accept it elsewhere.

[00:45:52] Speaker 05:
So therefore, technically, 8421C is not really doing anything extra.

[00:46:02] Speaker 00:
It's not doing maybe anything extra, but as Mr. Moulton's counsel mentioned,

[00:46:08] Speaker 00:
critical, clarifying purpose.

[00:46:11] Speaker 05:
And I think... Would you say OPM's interpretation of 81 force 8421C is at least reasonable and plausible?

[00:46:20] Speaker 00:
I don't personally think so, because as I discussed earlier, I think it skips.

[00:46:24] Speaker 05:
Treating the same way is, for purposes of this case, a little bit vague.

[00:46:30] Speaker 05:
It could mean what they say it means, but what the MSPB concluded also, obviously, is a reasonable way to think of it.

[00:46:39] Speaker 00:
I think that treated the same way as the basic annuity under 8467 requires the board's interpretation.

[00:46:47] Speaker 00:
They're interpreting it as treated the same way

[00:46:50] Speaker 00:
as in the court order.

[00:46:53] Speaker 00:
But of course, it's a tricky language.

[00:46:56] Speaker 00:
Obviously, it's created a lot of confusion.

[00:46:58] Speaker 00:
So it could be that they're both reasonable readings.

[00:47:02] Speaker 00:
But the board's reading is significantly better for this.

[00:47:06] Speaker 00:
It doesn't permit this impermissible intrusion into the state court matters.

[00:47:11] Speaker 00:
It gives more meaning to all of 8467, where OPM's interpretation would render it completely inoperable as to the annuity supplement.

[00:47:20] Speaker 06:
Well, there's already plenty of intrusion from the Code of Federal Regulations, if it's just guidance, but it appears to be followed in Colorado.

[00:47:30] Speaker 00:
Yes, but to the extent that Congress has expressly permitted that intrusion.

[00:47:35] Speaker 00:
And Your Honor, I am aware of the appendix you mentioned with the language.

[00:47:40] Speaker 00:
And it did require them to use the term gross annuity

[00:47:44] Speaker 00:
As you noted well it has other phrases, but could be net or soul or self only But you know none of those have anything to do with including or excluding a supplement What fascinates me about that is is the language discussing military pensions and other things but in the silence Yes, yes, I agree.

[00:48:08] Speaker 00:
There's extensive regulations that have been promulgated by OPM on

[00:48:14] Speaker 00:
providing guidance to the state courts, like you have to use this particular language if you want to award a survivor annuity.

[00:48:21] Speaker 00:
But you're right, completely silent as to the supplement.

[00:48:25] Speaker 02:
Thank you.

[00:48:26] Speaker 00:
Thank you.

[00:48:27] Speaker 00:
We ask that you affirm.

[00:48:32] Speaker 02:
We'll restore two minutes of rebuttal if you need it.

[00:48:41] Speaker 04:
I'll just address a couple of points on rebuttal.

[00:48:45] Speaker 04:
And so I looked at the appendix, and I agree that a supplemental or annuity supplement, that term is not found in there.

[00:48:52] Speaker 04:
And I would just kind of go back to my earlier point, though, that that would be expected in the sense that the basic annuity, whether that's in terms of gross annuity, self-only, or net annuity, is referring to the employee annuity, which already covers the annuity supplement.

[00:49:11] Speaker 04:
Interpretations under its regulation There wouldn't be the need to specifically address it Yeah, although as your friend noted and as I was alluding to There's plenty of other specific discussion on other circumstances I agree your honor, which I think again shows that that the the annuity supplement doesn't specifically have to be

[00:49:37] Speaker 04:
expressed under the regulations.

[00:49:39] Speaker 04:
The only other point I want to address is this idea that 8421C is offering a clarifying rule, and what it's clarifying is that the rules from 8467 apply to the annuity supplement.

[00:49:53] Speaker 04:
And I think if that was Congress's intent was simply to clarify that Section 8467 applies to the annuity supplement, then Congress chose a very odd way of stating that.

[00:50:04] Speaker 04:
I mean, Congress could have just stated that amount under this section is a payment under Chapter 84 for the purposes of Section 8467, or could have simply stated that Section 8467 applies to the amount under this section.

[00:50:16] Speaker 05:
It's also a peculiar way to

[00:50:18] Speaker 05:
pulled annuity supplements out of the rules required under 8467.

[00:50:25] Speaker 05:
They could have just said what they said for the CIA agent statutory scheme.

[00:50:31] Speaker 04:
They could have, Your Honor, but it's not as if Section 8467 says that a basic annuity can only be apportioned if expressly provided for in a court order.

[00:50:39] Speaker 04:
It says a payment.

[00:50:40] Speaker 04:
So the fact that Congress was tying, in the amount of time if I just finish this thought, the fact that Congress was tying the annuity supplement in section 8421C to the basic annuity, rather than just tying it to section 8467 itself, suggests that Congress wanted the treatment of the annuity supplement to be the same treatment as the basic annuity.

[00:51:07] Speaker 04:
And so when one is apportioned,

[00:51:09] Speaker 04:
the other is a portion as well.

[00:51:10] Speaker 04:
And specifically, when the basic annuity is a portion, the annuity supplements us.

[00:51:17] Speaker 06:
With your permission, I have a question for both sides, if I can.

[00:51:21] Speaker 06:
That is, was there any alleged history?

[00:51:23] Speaker 06:
I couldn't find anything of any import.

[00:51:28] Speaker 04:
About this specific question?

[00:51:29] Speaker 04:
Yeah.

[00:51:30] Speaker 04:
I couldn't find an answer to it in the legislative history either, Your Honor.

[00:51:37] Speaker 06:
Is a similar result.

[00:51:39] Speaker 04:
Yeah.

[00:51:40] Speaker 04:
Thank you.

[00:51:41] Speaker 02:
Thank you very much.