Sievers-Greene v. Davis

1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Pia Sievers-Greene, No. CV-22-00742-PHX-DLR 10 Plaintiff, ORDER 11 v. 12 Audrey Davis, et al., 13 Defendants. — 14 — — 15 — 16 Plaintiff Pia Sievers-Greene is the former spouse of deceased Master Sergeant 17 Michael T. Greene (“MSgt Greene”). Plaintiff claims she is entitled to annuity payments 18 through the military’s Survivor Benefit Plan (“SBP”) and now seeks review of Defendant 19 Defense Finance and Accounting Service’s (“DFAS”) decision denying her request for 20 “former spouse” beneficiary status under the SBP. Pending before the Court are cross 21 motions for summary judgment. For the following reasons, the Court grants Defendants’ 22 motion for summary judgment, affirming DFAS’ decision, and denies Plaintiff’s motion 23 for summary judgment. 24 I. BACKGROUND 25 A. Survivor Benefit Plan 26 In 1972, Congress established the SBP to provide income maintenance to the 27 surviving dependents of deceased members of the uniformed services. Pub. L. 92-425, 86 28 Stat. 706 . At issue in this case is the annuity payments to a former spouse. Generally, 1 divorce ends a spouse’s coverage under the SBP. However, a former spouse may keep their 2 SBP coverage in one of two ways: either (1) the retired service member makes a “voluntary 3 election,” notifying the Secretary of Defense in writing of the service member’s decision 4 to provide annuity to their former spouse, see 10 U.S.C. § 1448 (b)(3)(iii), or (2) the former 5 spouse submits a request to the Secretary for a “deemed election,” see 10 U.S.C. 6 § 1450(f)(3)(A). It is undisputed that MSgt Greene did not make a voluntary election prior 7 to his death. Rather, Plaintiff contends she is entitled to annuity payments based on her 8 request for a deemed election. (Doc. 30 at 8–9.) 9 A former spouse may submit a request for a “deemed election” only where the 10 retired service member was required to provide annuity to a former spouse, but the service 11 member failed or refused to make such election. 10 U.S.C. § 1450 (f)(3)(A). A service 12 member is “required to provide annuity for a former spouse” if the service member “enters, 13 incident to a proceeding of divorce . . . , into a written agreement to make such an election 14 and the agreement (I) has been incorporated in or ratified by a court order, or (II) has been 15 filed with the court of appropriate jurisdiction in accordance with applicable State law.” Id. 16 § 1450(f)(3)(B)(i). 17 In such a situation—that is, where a service member was required but fails or refuses 18 to make such an election—the former spouse must comply with the following requirements 19 to be eligible for SBP benefits: First, the former spouse must submit to the Secretary a 20 written request for a “deemed election.” Id. § 1450(f)(3)(A)(i). The written request must 21 be in such a manner as the Secretary prescribes, i.e., by completing and submitting 22 Department of Defense Form 2656-10 (“DD 2656-10”). Id. Second, the Secretary must 23 receive either (1) a copy of the court order requiring such election or incorporating, 24 ratifying, or approving the written agreement between the service member and their former 25 spouse, or (2) a statement from the clerk of the court that such written agreement has been 26 filed with the court in accordance with applicable state law. Id. § 1450(f)(3)(A)(ii). A 27 former spouse must submit their request for a deemed election “within one year of the date 28 of the court order or filing involved.” Id. § 1450(f)(3)(C). 1 B. Factual Background 2 Plaintiff married MSgt Greene in Finland on September 17, 1994. (AR. 2.) At the 3 time of their marriage, MSgt Greene was serving in the United States Armed Forces. (AR. 4 3.) On October 4, 2007, MSgt Greene voluntarily elected SBP coverage for Plaintiff and 5 their two children. (Id.) MSgt Greene retired on December 1, 2007. (Id.) 6 On January 22, 2009, Plaintiff sent her attorney an SBP fact sheet and asked that he 7 submit a request to the Defense Finance and Accounting Service (“DFAS”) that Plaintiff 8 be converted from “spouse” beneficiary to “former spouse” beneficiary under MSgt 9 Greene’s SBP. (AR. 6.) On May 20, 2009, Plaintiff and MSgt Greene divorced in the 10 Cambridge County Court in the United Kingdom. (AR. 10.) As part of the divorce, Plaintiff 11 and MSgt agreed to a “Consent Order,” which provided that Plaintiff would be “solely 12 entitled to the [SBP]” and that Plaintiff would “have the former spouse SBP coverage.” 13 (AR. 12.) The Consent Order bears the seal of the Cambridge County Court, but the 14 document is neither signed by Plaintiff, MSgt Greene, nor a judge. (Id.) 15 On November 5, 2009, Plaintiff’s attorney submitted to DFAS Plaintiff’s 16 Application for Former Spouse Payments from Retired Pay (DD Form 2293),1 a copy of 17 Plaintiff and MSgt’s marriage certificate, the Consent Order, and the Cambridge County 18 Court’s Divorce Decree dated May 20, 2009. (AR. 8–13.) Plaintiff’s attorney also included 19 a brief letter to DFAS, listing the submitted documents and requesting that “in accordance 20 with [DFAS’] rules and procedure, [DFAS] arrange to make payment directly to 21 [Plaintiff’s] bank account.” (AR. 17.) Notably, Plaintiff’s attorney did not submit a deemed 22 election application (DD Form 2656-10) nor did Plaintiff’s attorney request that DFAS 23 convert Plaintiff’s status from spouse to former spouse beneficiary under the SBP. (Id.) 24 On January 7, 2010, DFAS sent a letter to Plaintiff acknowledging its receipt of 25 Plaintiff’s application for payment of portion of MSgt’s Greene’s pay. (AR. 20.) DFAS — 26 — 1 DD Form 2293 states that the authority for the form comes from 10 U.S.C. § 1408 27 and that the principal purpose for the form is “[t]o request direct payment through a Uniformed Service designated agent of court ordered child support, alimony, or division 28 of property to a former spouse from the retired pay of a Uniformed Service member.” (AR. 8.) 1 also noted that if Plaintiff’s divorce decree specifies that she is to be designated as a former 2 spouse beneficiary for the SBP, Plaintiff “must make a ‘deemed election’ for SBP coverage 3 within one year of the date of [Plaintiff’s] divorce directly to the Retired Pay office.” (Id.) 4 On February 4, 2010, DFAS sent a second letter to Plaintiff, stating, 5 In regards to your application for payment of a portion of your former spouse retired pay under . . . 10 U.S.C. [§] 1408, we 6 cannot honor your request and apologize for the [letter] that we sent on January 7, 2010 stating that we would honor your 7 request and that payments would be issued the first of March 2010. We don’t honor foreign court orders. Jurisdiction cannot 8 be met. We only honor any court of competent jurisdiction of any State . . . . — 9 — 10 (AR. 22.) Then, on February 26, 2010, a DFAS attorney sent an email to Plaintiff’s 11 attorney, stating 12 [W]e can not honor the divorce decree because it does not meet the requirements of the Uniformed Services Former Spouse’s 13 Protection Act (USFSPA). The USFSPA statute found at [ 10 U.S.C. § 1408 ] sets forth the directives for payment of retired 14 pay or retainer pay in compliance with court orders. . . . Court order means a final decree of divorce, dissolution, annulment, 15 or legal separation issued by a court . . . . Court order also includes orders . . . that divides military retired pay. Court is 16 more specifically defined at Section 290203 [in the Department of Defense Financial Management Regulation] as 17 “any court of competent jurisdiction of any state (in the United States) . . . and any court of the United States, as defined at [28 18 U.S.C. § 451 ]. 19 Since the parties foreign court order does not comply with the definition of a Court, we can not currently honor the 20 application for payment. However, you may wish to register the foreign decree of divorce . . . within a competent court of 21 jurisdiction within the United States. Therefore, if the balance of the divorce decree meets all the remaining requirements of 22 the USFSPA, we would be able to honor your clients request for payment. — 23 — 24 (AR. 23.) Plaintiff’s attorney sent a letter to DFAS on March 1, 2010, stating “we 25 understand that there is an agreement in place between the United States and United 26 Kingdom which would mean that the Court Order entered into would be upheld 27 yourselves. . . . Given that the serviceman in this [case] acquiesced jurisdiction we trust 28 that you will now process our application, or alternatively, confirm that jurisdiction will 1 not be recognized given all the facts in this case.” (AR. 24.) After this letter, there appears 2 to be no correspondence between Plaintiff or her attorney and DFAS until March 5, 2020, 3 a little over ten years later. (See AR. 24–25.) 4 On March 5, 2020, Plaintiff called DFAS to inquire about the SBP. (AR. 25.) DFAS 5 responded to Plaintiff by email that day, stating: 6 Please be advised, by review of the account for SBP, you are designated as the “spouse” beneficiary for SBP annuity. If you 7 and the member are no longer married and have since divorced, you are no longer considered the “spouse” and are no[t] entitled 8 to SBP annuity as the “spouse” beneficiary. You will need to obtain a court order from a court in the United States awarding 9 SBP annuity as the “former spouse” beneficiary. Garnishment Law Directorate will not accept a court order from another 10 country. — 11 — (Id.) On April 1, 2020, Plaintiff’s attorney filed a Notice of Filing Foreign Judgment in — 12 — Maricopa County Superior Court pursuant to A.R.S. § 12-701 et seq. (AR. 35.) Ten days — 13 — later, on April 11, 2020, MSgt Greene died. (AR. 27.) — 14 — On May 12, 2020, Plaintiff’s attorney submitted to DFAS copies of Plaintiff’s April — 15 — 2020 Notice of Filing Foreign Judgment, Divorce Decree, and Consent Order, as well as — 16 — Plaintiff’s SBP Former Spouse Request for Deemed Election, DD Form 2656-10. (AR. 28– — 17 — 39.) On June 5, 2020, DFAS denied Plaintiff’s request for deemed election, explaining that — 18 — Plaintiff must provide a copy of the U.S. court order signed by a judge that approves/ adopts — 19 — the registration of the foreign order and that the Notice of Filing of Foreign Judgment was — 20 — insufficient. (AR. 41.) DFAS also noted that the Consent Order between Plaintiff and MSgt — 21 — Greene lacked any signatures of the parties or the judge. (Id.) DFAS directed Plaintiff to — 22 — 10 U.S.C. §§ 1447 and 1450 for a detailed explanation on the SBP and then explained that — 23 — Plaintiff would need to submit a DD 2656-10 form “within 1 year of the date the court — 24 — entered the order requiring election of former spouse SBP coverage.” (Id.) — 25 — Plaintiff requested DFAS reconsider its decision. On February 11, 2021, DFAS — 26 — affirmed its denial of Plaintiff’s deemed election request. (AR. 49.) On March 5, 2021, — 27 — Plaintiff appealed DFAS’ final decision to the Defense Office of Hearings and Appeals — 28 — (DOHA). (AR. 52–59.) On November 26, 2021, DOHA affirmed DFAS’ decision. (AR. 1 82–83.) DOHA first noted that Plaintiff’s Notice of Filing of Foreign Judgment pursuant 2 to A.R.S. § 12-1702 was not sufficient for the Divorce Decree and Consent Order to qualify 3 as “court orders” under 10 U.S.C. § 1408 (a). (Id.) DOHA explained that, based on Arizona 4 case law, A.R.S. § 12-1702 provides for the enforcement of judgments from sister states, 5 not from foreign countries, and so registering Plaintiff’s Divorce Decree and Consent Order 6 under § 12-1702 was not proper. (Id.) Rather, Plaintiff should have registered her orders 7 under A.R.S. § 25-1301, which provides that a foreign support order may be registered in 8 Arizona for enforcement. (Id.) DOHA then explained that even if Plaintiff had properly 9 registered her foreign orders under A.R.S. § 25-1301, her deemed election for former 10 spouse SPB coverage was required to be received by the Secretary within one year of 11 Plaintiff’s May 20, 2009 divorce. Plaintiff’s request for a deemed election for former 12 spouse SBP coverage was untimely because it was not submitted until April 15, 2020. (Id.) 13 Subsequently, Plaintiff filed suit in this Court seeking review of DFAS’ decision 14 under the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701 et seq. Pending now 15 are the parties’ cross motions for summary judgment. 16 II. LEGAL STANDARD 17 Generally, a court may grant summary judgment where “there is no genuine dispute 18 as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 19 Civ. P. 56(a). However, when a court is asked to review an administrative agency’s action, 20 “there are no disputed facts that the district court must resolve.” Occidental Eng’g Co. v. 21 Immigr. & Naturalization Serv., 753 F.2d 766 , 769 (9th Cir. 1985). In such cases, the 22 agency, not the Court, is the fact finder. The Court’s role is merely to “determine whether 23 or not as a matter of law the evidence in the administrative record permitted the agency to 24 make the decision it did.” Id. Thus “summary judgment is an appropriate mechanism for 25 deciding the legal question of whether the agency could reasonably have found the facts as 26 it did.” Id. 27 Under the APA, a reviewing court must uphold agency action unless it is arbitrary, 28 capricious, an abuse of discretion, contrary to law, or unsupported by substantial evidence. — 1 — 5 U.S.C. § 706 (2)(A), (E). The party challenging an agency’s decision bears the burden of 2 demonstrating that the agency acted in violation of the APA. Forest Guardians v. U.S. 3 Forest Serv., 370 F. Supp. 2d 978, 984 (D. Ariz. 2004). 4 “The scope of review under the ‘arbitrary and capricious’ standard is narrow and a 5 court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of 6 the U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). Under this standard, 7 “a reviewing court may not set aside an agency rule that is rational, based on consideration 8 of the relevant factors, and within the scope of the authority delegated to the agency by the 9 statute.” Id. at 42 . Although the Court’s review is highly deferential, an agency must 10 articulate a satisfactory explanation for its actions and provide a “rational connection 11 between the facts found and the choice made.” Burlington Truck Lines v. United States, — 12 — 371 U.S. 156, 168 (1962). Generally, a court will find an agency decision to be arbitrary 13 and capricious if “the agency has . . . offered an explanation for its decision that runs 14 counter to the evidence before [it] or is so implausible that it could not be ascribed to a 15 difference in view or product of agency expertise.” State Farm, 463 U.S. at 43 . 16 An agency decision satisfies the “substantial evidence” standard if it is supported 17 by “such relevant evidence that a reasonable mind might accept as adequate to support the 18 conclusion.” Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The standard 19 requires “more than a mere scintilla but less than a preponderance” of evidence. Orteza v. 20 Shalala, 50 F.3d 748, 749 (9th Cir. 1995). Again, the Court’s review is highly deferential. 21 Sacora v. Thomas, 628 F.3d 1059, 1068 (9th Cir. 2010). “Where the agency has relied on 22 ‘relevant evidence [such that] a reasonable mind might accept as adequate to support a 23 conclusion,’ its decision is supported by substantial evidence.” San Luis & Delta-Mendota 24 Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014). And “[if] the evidence is 25 susceptible of more than one rational interpretation, [the Court] must uphold [the agency’s] 26 findings.” Bear Lake Watch, Inc. v. F.E.R.C., 324 F.3d 1071 , 1076 (9th Cir. 2003). 27 III. ANALYSIS 28 There are two issues for the Court’s consideration: (1) whether Plaintiff’s Notice of 1 Filing of Foreign Judgment is “a court order, regular on its face, which . . . incorporates, 2 ratifies, or approves the written agreement” between Plaintiff and MSgt Greene, and 3 (2) whether Plaintiff timely submitted her request for a deemed election. 4 A. Court Order 5 As mentioned, for a former spouse to make a request for a deemed election under 6 § 1450, the former spouse must submit to the Secretary either “a copy of the court order, 7 regular on its face, which requires such election or incorporates, ratifies, or approves the 8 written agreement [between the service member and their former spouse]” or “a statement 9 of the clerk of the court (or other appropriate official) that such agreement has been filed 10 with the court in accordance with applicable State law.” 10 U.S.C. § 1450 (f)(3)(A)(ii). 11 The USFSPA defines “court order” as “a court’s final decree of divorce . . . or a 12 court ordered, ratified, or approved property settlement incident to such a decree.” 10 13 U.S.C. § 1447 (13). A “final decree” is defined as “a decree from which no appeal may be 14 taken or from which no appeal has been taken within the time allowed for the taking of 15 such appeals under the laws application to such appeals.” (Id.) “Court” is defined as “any 16 court of competent jurisdiction of any State . . . , [and] any court of competent jurisdiction 17 of a foreign country with which the United States has an agreement requiring the United 18 States to honor any court order of such country.” See §§ 1447(12); 1408(a)(1). 19 There is no dispute that Plaintiff’s Divorce Decree and Consent Order on their own 20 do not qualify as a “copy of a court order” under § 1450 since the Cambridge County Court 21 fails to meet the definition of a “court” under the USFSPA. The issue then is whether the 22 filing of these foreign orders in Maricopa County Superior Court pursuant to A.R.S. § 1223 1202 qualifies as a “court order . . . which ratifies, incorporates, or approves the written 24 agreement” between Plaintiff and MSgt Greene. DFAS concluded it did not because 25 Plaintiff filed the foreign judgment in Maricopa County under the wrong statute, in addition 26 to the fact that Plaintiff’s filing failed to demonstrate that a court “approved, ratified, or 27 incorporated” the Consent Order between Plaintiff and MSgt Greene. The Court finds that 28 DFAS’ conclusion is not arbitrary or capricious and is supported by substantial evidence. 1 A.R.S. § 12-1702 provides, 2 A copy of any foreign judgment . . . may be filed in the office of the of the clerk of any superior court of [Arizona]. The clerk 3 shall treat the foreign judgment in the same manner as a judgment of the superior court of this state. A judgment so filed 4 as the same effect and is subject to the same procedures, defenses, and proceedings . . . and may be enforced or satisfied 5 in like manner. 6 Arizona courts, however, have clarified that a “foreign judgment” under § 12-1702 refers 7 to judgments of “a sister state but not [] judgments from foreign countries.” Multibanco 8 Comermex, S.A. v. Gonzalez H., 630 P.2d 1053, 1053 (Ariz. Ct. App. 1981); see also 9 Rotary Club of Tucson v. Chaprales Ramos de Pena, 773 P.2d 467, 469 (Ariz. Ct. App. 10 1989). It was reasonable for DFAS to conclude that Plaintiff’s filing of her foreign orders 11 in Arizona pursuant to A.R.S. § 12-1702 failed to properly domesticate those orders and 12 thus Plaintiff did not provide DFAS with a copy of a court order that either ratified, 13 approved, or incorporated her written agreement with MSgt Greene, as required by 10 14 U.S.C. § 1450 . 15 DFAS goes on to argue that the applicable Arizona statutes Plaintiff should have 16 used were A.R.S. §§ 25-1205 and 25-1301, which provide that a “support order or an 17 income withholding order issued in another state or a foreign support order may be 18 registered in this state for enforcement.” (See Doc. 31 at 10.) Plaintiff responds that DFAS 19 is incorrect because § 25-1301 is part of Arizona’s Uniform Interstate Family Support Act, 20 and this act only applies to the registration and enforcement of child support and family 21 maintenance. (See Doc. 32 at 4.) The Court need not reach this argument given DFAS’ 22 reasonable conclusion regarding the deficiency of Plaintiff’s Notice of Filing of Foreign 23 Judgment pursuant to A.R.S. § 12-1702.2 24 Plaintiff also argues that although an agency is generally entitled to deference when 25 2 The Court will note, however, that under Arizona’s Uniform Interstate Family Support Act, a “support order” is defined as a “judgment, decree, order . . . issued in a state 26 or foreign country for the benefit of a child, a spouse or former spouse, that provides for monetary support . . . . Support order may include related costs and fees, interest, income 27 withholding . . . and other relief.” A.R.S. § 25-1202(29). Given this definition and that § 25-1301 specifically provides for the registration and enforcement of a support order 28 from another country, there exists a non-frivolous argument that Plaintiff could properly domesticate her Divorce Decree and Consent Order under A.R.S. §§ 25-1205 and 25-1301. 1 it reasonably interprets statutes and regulations the agency is responsible for administering, 2 DFAS is not entitled to deference here in its interpretation of the Arizona Revised Statutes 3 because state law falls outside the scope of DFAS’ administrative authority. The Court is 4 not persuaded that DFAS engaged in any interpretation of Arizona law; rather, DFAS 5 deferred to Arizona courts’ interpretation of A.R.S. § 12-1702, and that case law makes 6 clear that § 12-1702 does not apply to judgments from foreign countries. In sum, it was not 7 arbitrary or capricious for DFAS to conclude that Plaintiff failed to comply with the court 8 order requirement under 10 U.S.C. § 1450 (f)(3)(A)(ii), and that decision is supported by 9 substantial evidence. 10 B. Timeliness of Plaintiff’s Request 11 To make a timely request for a deemed election, “the Secretary concerned [must] 12 receive a request from the former spouse . . . within one year of the date of the court order 13 or filing involved.” 10 U.S.C. § 1450 (f)(3)(C). Plaintiff and Defendants dispute the 14 expiration of the one-year time limit on Plaintiff’s request. Plaintiff argues that the one15 year limit starts running from the date of the “court order” granting the former spouse SBP 16 coverage—i.e., an order from a qualifying court, such as Maricopa County Superior Court, 17 not Plaintiff’s Divorce Decree and Consent Order from the United Kingdom. (Doc. 30 at 18 8–9.) Defendants, however, argue that the one-year limit starts running from the date of 19 divorce. (Doc. 31 at 10.) 20 Defendants contend that DFAS’ interpretation of § 1450(f)(3)(C) as requiring a 21 deemed request within one year of divorce is reasonable given that a voluntary election by 22 a service member for former spouse coverage—as opposed to the deemed election 23 procedure—must be received by the Secretary “within one year after the date of the decree 24 of divorce, dissolution, or annulment.” 10 U.S.C. § 1448 (b)(3)(iii). Defendants reason that 25 “the voluntary election procedure clearly indicates that the limitations period runs from the 26 date of the divorce, and while the [deemed election] limitations provision is less explicit, 27 it is logical for DFAS to interpret these provisions consistently, i.e., both procedures for 28 obtaining former spouse coverage are limited to one year from the date of the divorce.” (Doc. 31 at 10.) Defendants’ argument presumes that Chevron deference is appropriate 2|| here—that 10 U.S.C. § 1450 (f)(3)(C) is ambiguous and so DFAS’ reasonable interpretation 3|| of statute must be given controlling effect. Chevron U.S.A., Inc. v. Natural Res. Def. 4|| Council, Inc., 467 U.S. 837 (1994); see also Nw Ecosystem Alliance v. U.S. Fish & Wildlife 5|| Serv., 475 F.3d 1136, 1141 (9th Cir. 2007) (noting that if a statute is ambiguous and 6 || Congress has delegated interpretative authority to the agency, then Chevron deference || applies and the agency’s “legislative regulations are given controlling weight’). However, 8 || neither Plaintiff nor Defendants explicitly argue whether the statute is indeed ambiguous 9|| or whether Chevron applies. 10 That said, the Court need not reach this issue at this time given that DFAS’ decision |} must be affirmed on the finding that Plaintiff failed to provide a sufficient court order as || required by 10 U.S.C. § 1450 (f)(3)(A) Gi). Put differently, even assuming that □□□□□□□□□□□ 13 || request for a deemed election was timely, DFAS reasonably denied the request based on Plaintiffs failure to comply with the court order requirement. 15 IT IS ORDERED that Plaintiffs motion for summary judgment (Doc. 30) is DENIED and Defendants’ cross motion for summary judgment (Doc. 31) is GRANTED. 17 IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment 18 || accordingly and terminate this case. 19 Dated this 19th day of December, 2023. — 20 — — 21 — 22 {Z, 23 _- {UO 24 Ueied States Dictric Judge — 25 — — 26 — — 27 — — 28 — -ll-