VICTORY AT LAST! – OPM LOSES APPEAL
DECISION ISSUED 10/10/2025 – COURT RULES COAP MUST EXPRESSLY STATE DIVISION OF RAS
“We ORDER OPM to rescind its December 12, 2017 final decision, stop apportioning the annuity supplement, and refund all previously apportioned annuity supplement amounts to the appellant. OPM must complete this action no later than 20 days after the date of this decision.”
As of 12/31/2025, this is officially over. OPM did not file an appeal to be heard by the full appeals court or to the SCOTUS. Below is the MANDATE filed by the US Court of Appeals on December 31, 2025. The mandate is the official action of the appeals court sending the matter back to the lower court, in this case, the MSPB. Below the image, you will still find the filings and details of this matter for reference. Affected parties should call OPM at 202-606-0222 and get placed on “the list.” I advise calling between 0800 and 0830.
Many folks have made inquiry now as to what there next steps should be. OPM initially signaled a possible appeal to the full 12-judge Court of Appeals or a writ of certiorari to the SCOTUS. OPM had until December 23, 2025, to make such an appeal or submit the writ to the SCOTUS, and as of December 28, 2025, no filings were made. It initially looked like OPM Policy/Legal and OPM IG were putting out different advice within OPM. In the last few days, several people have received positive efforts by OPM to cease the current apportionment of the RAS and to make refunds to for amounts previously withheld. I have clients that have already received refunds of previously apportioned RAS funds and several clients report no RAS apportionment on their December 2025 annuity statement.
Proof that refunds are being processed:
Despite OPM having made the filing with the US Court of Appeals – Federal District, to preserve their right to appeal to the full 12-judge Appeals Court or file a writ with the SCOTUS, it appears from the email below and interactions with affected parties that OPM is not going to appeal the 10/10/2025 Appeals Court decision. December 23, 2025, has come and gone, so OPM is not appealing this decision.
My advice is to call OPM’s Court Ordered Benefits Branch (COBB) at 202-606-0222 and get on “the list.” Not sure if that will speed things up or not. OPM is going to have to review thousands of cases adjudicated between 2016 and 2025 where there was a divorce order and the annuitant was under age 62 at retirement. Call between 0745 and 0830 for the best chance to get a human on the phone. Don’t leave a message – no one will call you back. I verified with a client on 12/4/2025, that OPM COBB is indeed collecting names and CSA numbers of affected annuitants, so call COBB and get on the list.
If you have benefitted from Ron Moulton’s efforts, and the efforts of his pro-bono counsel and would like to “thank” him, just email me and I’ll provide you with Ron’s address.
The emails below were received on November 18-24, 2025, by clients from an OPM COBB representative:
Good morning, Mr. Smith,
We have received guidance from OIG regarding the Moulton Decision. I’ve reached out to the Legal Administrative Specialist that is currently in possession of your case to give rerouting instructions for it to be returned to me, so I can start processing the removal of the supplement. In the meantime, please be assured that the supplement will be refunded to you from your former spouse’s apportionment once the court order is reviewed and confirmed to have not included the supplement.
Respectfully,
Paralegal Specialist
Court-Ordered Benefits, Branch 3
Retirement Services Department
U.S. Office of Personnel Management
****************************************************************
Good morning Mr. _________
Thank you for your inquiry regarding the court-ordered division of your FERS annuity supplement. We are recording your name and claim number to ensure your case is reviewed.
As you know, the Court of Appeals for the Federal Circuit recently issued a decision in Office of Personnel Management v. Ronald L. Moulton directing OPM to divide the FERS annuity supplement only when expressly provided for in a court order.
OPM is currently reviewing all court orders affected by the Court’s decision. We are working as quickly as possible to make the necessary annuity adjustments and refunds. All affected parties will receive written notification with the results of OPM’s review.
If you are at this page, you’ve probably heard the outstanding news! EIGHT years after OPM’s ill-fated “policy change” of June 2016, whereby OPM decided to automatically apportion the RAS, a brave soldier has won his battle with OPM. This page is structured with the newest material appended at the bottom, so scroll DOWN↓ to see the latest.
If you have been affected by OPM’s June 2016 policy, I encourage you to read the 20-page Opinion and Order below. It’s an easy read and makes perfect sense as you read through it. After reading it, you may say, “that was a no-brainer,” but remember, the MSPB in DC was without a quorum for over FIVE years. Between January 7, 2017, and March 3, 2022, the Merit Systems Protection Board did not have a quorum of members and therefore could not vote on any petitions for review or other cases requiring action by the Board.
Link to the MSPB’s 11/28/2023 Opinion and Order: MSPB Opinion and Order – Moulton
On 1/30/2024, OPM’s appeal to the U.S. Court of Appeals for the Federal Circuit was docketed as case 24-109. The case was received on 1/26/2024. On 5/3/2024, case 24-109 was closed and merged into case 24-1774. If you are following this case on PACER, follow case 24-1774 in the U.S. Court of Appeals – Federal Circuit.
Last PACER check: 12/28/2025
Salient Documents:
Document 2 – Petition For Review Of A Final Decision Of The Merit Systems Protection Board In No. DE-0841-18-0053-I-1
Document 6 – MSPB’s Response to OPM’s Petition for Judicial Review
Document 10 – Order – Granting OPM’s petition for review of final order issued by the MSPB. OPM’s opening brief is due 60 days after 5/3/2024
Document 14 – Motion of OPM to extend time to 8/23/2024 to file brief
Document 16 – OPM’s “Brief of Petitioner” 23pg document with 17 pgs of “actual” brief
Document 20 – Ron Moulton’s Legal Team’s brief – 47 pgs – filed on 10/2/2024
Document 21 – MSPB’s Brief -51 pgs filed on 10/2/2024
Document 22 – FLEOA’s “amicus” Brief – 22 pgs filed on 10/9/2024
Document 23 – OPM Requests 44-day extension to file their reply brief. Filed on 10/16/2024 – Court approves
Document 28 – FLEOA files “corrected amicus brief” – filed on 10/21/2024
Document 29 – OPM’s “Reply Brief of Petitioner” – 14 pgs filed on 12/6/2024
Document 39 – Notice to Advise of Scheduling Conflicts of Arguing Counsel – 1pg filed on 2/3/2025
Document 45 – Petitioner’s Motion for Stay Pending Appeal – 62pgs filed on 3/17/2025
Document 46 – Motion by OPM for a Stay of MSPB Decision – 2pgs filed on 3/18/2025
Document 47 – Opposition to Petitioner’s (OPM’s) Motion for Stay Pending Appeal – 21pgs filed on 3/25/2025
Document 48 – Petitioner’s (OPM’s) Reply in Support of its Motion – 10pgs filed 3/28/2025
Document 49 – Order of the Court Granting Stay – 3pgs filed 4/21/2025
Document 59 – Notice of Oral Argument – 1pg filed 6/20/2025
ORAL ARGUMENTS – 8/8/2025 – Link to text and audio of hearing: CourtListener.com https://share.google/
Document 72 – Mandate from Appeals Court to MSPB – 1pg filed 12/31/2025
Link to See Decisions: https://www.cafc.uscourts.gov/home/case-information/opinions-orders/
DECISION – OPM LOSES: Decision filed 10/10/2025
On November 7, 2025, I was advised that OPM has requested a 30-day extension to seek rehearing of this matter. Rehearing is essentially a way for the losing party to ask for reconsideration, both from the same panel who already issued the opinion or from the full, 12 judge court. The government made clear that by asking for the extension they haven’t necessarily decided that they will seek rehearing, but they have to go through internal processes to come to a decision one way or another. With the extension, their rehearing request would be due December 23, 2025.
Read the filing here (Doc 69): Petitioner’s Motion for Extension of Deadline (10pp) Filed 11/10/2025
News Articles Published on this Matter:
Fedsmith: https://www.fedsmith.com/2023/12/07/divorce-fers-annuity-supplement/
FedWeek: https://www.fedweek.com/fedweek/mspb-overturns-opm-policy-of-dividing-fers-supplement-in-divorces/amp/d and received the following letter.