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Federal employee retirement death benefit: A homicide determined the payment

On April 15, published a summary of a decision in a federal employee's retirement case involving homicide, money, and the aftermath of a tragedy. The unusual facts concern payment for the contributions by a retired federal employee to his retirement account payable upon his death. The circumstances call forth a scene from a Shakespearean tragedy, such as Othello:

From Shakespeare's character Othello:

I pray you, in your letters,
When you shall these unlucky deeds relate,
Speak of me as I am; nothing extenuate,
Nor set down aught in malice. Then must you speak
Of one that lov'd not wisely but too well;
Of one not easily jealous, but being wrought,
Perplex'd in the extreme. . . .

A retired federal employee covered by the Federal Employee Retirement System (FERS), Michael Cross, designated his wife, Susan Orndorff, as his only beneficiary for any contributions to his federal government retirement account payable upon his death.

They relationship apparently deteriorated. According to a local newspaper account from 2011, "The shooting deaths of a Frederick County [Virginia] couple found on Saturday were a murder-suicide, authorities say." The event described as a "murder-suicide" by the paper was the shooting of the wife, Susan Orndorff, at the hands of her husband, Michael Cross. Mr. Cross was a retired federal employee.

Cross and Orndorff did not have any children together. However, they each had adult children as a result of previous relationships.

The incident created this legal question: "What happens to the payment of FERS lump-sum death benefits?" Does it make a difference if a person(s) who will receive a payment from the government became entitled to this benefit because the retired federal employee intentionally killed his wife?

The son of the woman who was killed applied to the federal government for a lump-sum payment based on Mr. Cross’s federal service. In cases such as this, the U.S. Office of Personnel Management (OPM) makes the decision as to whether a payment is appropriate. In this instance, the federal government concluded Ms. Orndorff died before Mr. Cross apparently killed himself. Because Ms. Orndorff died before Mr. Cross killed himself, and no other beneficiary was named, the decision was made by OPM to award the money to the surviving sons of Mr. Cross.

However, Ms. Orndorff’s son, Junior F. Whetzel III, disagreed with the wisdom of this decision by OPM. The son appealed the decision to deny him the monetary payment upon the death of his mother's husband, Mr. Cross. His appeal was based on the argument that a State of Virginia law— the “Slayer Statute”—should guide the decision of OPM under the circumstances of this case..

The Slayer Statute reads, in part, “[n]either the slayer nor any person claiming through him shall in any way acquire any property or receive any benefits as the result of the death of the decedent.” In other words, argued Ms. Orndorff's son, his mother’s estate should receive the money and that the sons of the man who killed his mother should not receive the money.

The MSPB Administrative Judge agreed with this argument and concluded that the son of Ms. Orndorff should receive the money. OPM disagreed. The agency that oversees the federal human resources system (OPM) still concluded, as stated in its original decision, that the sons of the man who killed Ms. Orndorff should receive the retirement payment. OPM appealed the decision of the administrative judge to the Merit Systems Protection Board (MSPB) on the theory that the Slayer Statute had been incorrectly interpreted.

The MSPB agreed with OPM. In its decision, the MSPB concluded: "The Slayer Statute does not deprive the murderer of any property rights but prevents his acquisition of additional rights by unlawful and unauthorized means."

MSPB concluded that Mr. Cross did not receive any additional property because he killed his wife. His wife would have received the government payment if she were still alive. But, because she was already dead when Mr. Cross took his own life, and no other beneficiaries were named with regard to his retirement account, “the lump-sum payment passes to Mr. Cross’s heirs.”

In short, the sons of the man who killed Ms. Orndorff receive the money from the government. There is, of course, the right of appeal to the U.S. Court of Appeals for the Federal Circuit.

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