B-247499, Mar 18, 1992, Office of General Counsel

B-247499, Mar 18, 1992, Office of General Counsel

DIGEST: In response to retired employee's concern with the Office of Personnel Management's (OPM) handling of his election of a survivor annuity for his wife, Senator is advised that jurisdiction for such claims has been delegated to OPM. Also, since retired employee's claim has been dismissed by Merit Systems Protection Board this Office would be precluded from hearing his claim under the doctrine of res judicata. We agree, however, with OPM's determination that the applicable provisions of law and regulations as to annuity require retired employee to make a deposit to cover all periods since retirement in which the survivor reduction was not in effect, plus interest.

Honorable Phil Gramm United States Senator:

This is in response to your memorandum of January 6, 1992, in which you request that we review correspondence from your constituent, Horace T. Cardenas, concerning his dissatisfaction with the Office of Personnel Management's (OPM) handling of his election of a survivor annuity for his wife.

Mr. Cardenas retired from federal service on January 19, 1968, and at that time he elected a survivor annuity for his spouse with a subsequent reduction in his annuity. Mr. Cardenas was divorced in 1977, remarried in 1983, divorced in 1987, and subsequently remarried on May 12, 1989. Mr. Cardenas requested a survivor annuity benefit for his spouse on July 22, 1989, and was advised by OPM that, under current law, 5 U.S.C. Secs. 8339(j)(5)(C)(i) & (ii) (1988), his annuity must be reduced for all periods in which the survivor reduction was not in effect, and since he so elected, setoff from his current annuity was mandatory. Therefore, he must deposit $5,187.20 in the Civil Service Retirement Fund in order to be eligible for the survivor annuity benefit.

Mr. Cardenas states that the current law does not apply to him since he retired in 1968, prior to the effective date of the current law which he alleges is May 7, 1985. He also alleges that OPM has charged him excessive interest in its computation of the amount he must redeposit into the civil service retirement fund.

The General Accounting Office does not adjudicate civil service retirement claims because jurisdiction over them has been specifically delegated to the Office of Personnel Management under the provisions of 5 U.S.C. Sec. 8347 (1988). See 30 Comp.Gen. 50 (1951); Lucio R. Gallardo, B-226020, Oct. 23, 1987. Further, Mr Cardenas appealed the OPM denial of his claim to the Merit Systems Protection Board and his appeal was dismissed on February 27, 1991. 47 MSPB Rep. 413 (1991). Therefore, this Office would also be precluded from hearing his claim under the principle of res judicata, which bars subsequent action on the same claim where a determination has been reached by an authority of competent jurisdiction. William C. Ragland, 62 Comp.Gen. 399 (1983); Carl A. Macmurdo, B-234257.2, Nov. 20, 1989.

We agree, however, with OPM's determination that the applicable provisions in 5 U.S.C. Sec. 8339(j)(5)(C) apply to Mr. Cardenas. The effective date of various 1984 statutory amendments amending section 8339 is set out as a note under the provisions of 5 U.S.C.A. Sec. 8341 which states that it applies:

"(i) to an employee or Member who retires before, on, or after May 7, 1985; and

"(ii) in the case of a marriage occurring on or after May 7, 1985."

Since Mr. Cardenas retired from federal service before May 7, 1985, and was remarried on May 12, 1989, the plain language of the statute shows that it applies to him.

The explanation in the note to 5 U.S.C.A. Sec. 8341 further explains when the amendments do not apply as follows:

"(B) The amendments referred to in subparagraph (A) shall not apply in the case of a marriage of an employee or Member retiring before May 7, 1985, if the marriage occurred after May 6, 1985, and before the date of the enactment of the Federal Employees Benefits Improvement Act of 1985. (Probably means Feb. 27, 1986, the date of approval of the Federal Employees Benefits Improvement Act of 1986.)

Mr. Cardenas was remarried on May 12, 1989, subsequent to the passage of the Federal Employees Benefits Improvement Act of 1986, Pub. L. No. 99-251, 100 Stat. 14, February 27, 1986. Therefore, the explanatory note quoted above is further evidence that the 1984 amendments apply to his case.

Mr. Cardenas has also referred to the assessment of interest as usurious in his case without any further explanation. Again, interest computation is within OPM's jurisdiction and not this Office. The statutory language in 5 U.S.C. Sec. 8339(j)(5)(C)(ii) clearly states that the retired employee shall deposit in the Fund an amount determined by OPM, as nearly as may be administratively feasible, at 6 percent interest. OPM has been computing interest for years on amounts that employees are required to pay back into the civil service retirement fund and has provided instructions detailing the methodology used to compute such interest on deposits to the fund in its regulations at 5 C.F.R. Sec. 831.105 (1991). We presume that such methodology was used in Mr. Cardenas' case.

We hope that the above information is of assistance to your constituent.