Schwartz v. United States Office of Personnel Management

Filing 25

MEMORANDUM OPINION (c/m to Plaintiff 9/25/13 sat). Signed by Chief Judge Deborah K. Chasanow on 9/25/13. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT§
FOR THE DISTRICT OF MARYLAND
:
CHARLES A. SCHWARTZ
:
v.

:

Civil Action No. DKC 12-1567

:
UNITED STATES OFFICE OF
PERSONNEL MANAGEMENT

:
:
MEMORANDUM OPINION

Presently pending and ready for review in this dispute over
life

insurance

benefits

continuing

into

retirement

under

the

Federal Employees’ Group Life Insurance Act (“FEGLIA”), 5 U.S.C.
§§

8701,

et

alternative,
States

Office

seq.,
for
of

is

the

summary

motion

judgment

Personnel

to

filed

Management

dismiss,
by

(“OPM”

or

in

Defendant
or

the

United

“Defendant”)

(ECF No. 10) and a cross-motion for summary judgment filed by
Plaintiff

Charles

Schwartz

(“Plaintiff”)

(ECF

No.

21).

The

issues have been fully briefed, and the court now rules, no
hearing being deemed necessary.

Local Rule 105.6.

For the

following reasons, the court will grant Defendant’s motion and
deny Plaintiff’s cross-motion for summary judgment.

I.

Background
A.

Factual Background

The salient facts are undisputed and are drawn from the
administrative record before OPM.1

In 1968, Plaintiff began a

federal judicial clerkship in the United States Court of Claims,
which he asserts is now the United States Court of Appeals for
the Federal Circuit.

(ECF No. 1 ¶ 1).2

On September 3, 1968,

Plaintiff completed Standard Form (“SF”) 176 covering election,
declination, or waiver of life insurance coverage.
2, at 73).

(ECF No. 10-

The form gave Plaintiff the following options: (1)

to “elect the $10,000 additional optional insurance . . . [t]his
optional

insurance

insurance”;3

(2)

to

is

in

addition

“decline

the

to

$10,000

[employee’s]

regular

additional

optional

insurance,” but not regular insurance; or (3) to waive coverage

1

Because
the
court’s
review
is
limited
to
the
administrative record, the affidavit Plaintiff submitted with
his opposition and cross-motion for summary judgment will not be
considered.
See Burgin v. OPM, 120 F.3d 494, 497 (4th Cir.
1997).
2

The appellate division of the former United States Court
of Claims is now part of the United States Court of Appeals for
the Federal Circuit, but the trial functions of the former
United States Court of Claims are now assigned to the United
States Court of Federal Claims.
3

As will be seen, the option to elect or decline “$10,000
additional optional insurance” on SF 176 referred to “Optional
insurance” covered in 5 U.S.C. § 8714a, which was enacted on
December 16, 1967. See Pub.L.No. 90-206, 81 Stat. 613, 647.
2

under

Federal

Employees’

Group

Life

Insurance

(“FEGLI”)

altogether.4
When Plaintiff completed SF 176 in 1968, FEGLIA offered to
federal

employees

regular

life

insurance” under 5 U.S.C. § 8714a.

insurance

and

“Optional

Section 8702 of the FEGLIA,

enacted in 1954, addressed “Automatic coverage” for regular or
“Basic life insurance.”

See 5 U.S.C. § 8702; see also Pub.L.No.

89-554, 80 Stat 578, 593 (1966).

Specifically, Section 8702

provided that “[a]n employee is automatically insured on the
date he becomes eligible for insurance.”

5 U.S.C. § 8702(a).

The statute further provided that “[a]n employee desiring not to
be insured shall give written notice to his employing office on
a form prescribed by the Commission,” such as SF 176.

5 U.S.C.

§ 8702(b).5

4

FEGLI is a comprehensive life insurance program for
federal employees created by the Federal Employees Group Life
Insurance Act of 1954 (“FEGLIA”), codified at 5 U.S.C. §§ 8701 8716 (2006).
5

Section 8702 has been amended three times since 1954, but
the applicable provisions here, namely Sections 8702(a) and (b),
have remained largely unchanged.
Specifically, Section 8702(a)
was slightly amended in 1978 with the substitution of the
“Office of Personnel Management” for “Civil Service Commission.”
Pub.L.No. 95-454, § 906(a)(2), 92 Stat. 1111.
Section 8702(b)
has not been amended since 1954.
When FEGLIA was enacted in 1954, employees eligible to be
insured who did not opt out of life insurance coverage under
Section 8702(b), were “eligible to be insured for an amount of
group life insurance approximating . . . annual compensation not
exceeding $20,000” pursuant to 5 U.S.C. § 8704.
See Pub.L.No.
3

Individuals with regular or “Basic life insurance” could
also elect “Optional insurance” pursuant to 5 U.S.C. § 8714a,
which was enacted on December 16, 1967.

See Pub.L.No. 90-206.6

598, 86 Stat. 736, 737 (1954).
Section 8704(a) was amended in
1967, eliminating the $20,000 annual compensation cap.
The
amended Section 8704(a) provided that “[a]n employee eligible
for insurance [under FEGLIA] is entitled to be insured for an
amount of group life insurance” based on the employee’s annual
pay.
Section 8704(a) now provides that “[a]n employee eligible
for insurance is entitled to be insured for an amount of group
life insurance equal to – (1) the employee’s basic insurance
amount, multiplied by (2) the appropriate factor determined on
the basis of the employee’s age in accordance with [the schedule
in Section 8704].”
Section 8701 of the FEGLIA was amended in
1980 to add a new subsection (c), defining “basic insurance
amount” as an amount equal to the greater of:
(1) the annual rate of basic pay payable to
the employee, rounded to the next higher
multiple of $2,000 plus $2,000, or
(2) $10,000, except that the amount of
insurance may not exceed the annual rate of
basic pay payable for positions as level II
of the Executive Schedule under section 5313
of this title.
Pub.L.No. 96-427, 94 Stat. 1831, 1831.
The current Section
8701(c) defines “basic insurance amount” as an amount equal to
the greater of “(1) the annual rate of basic pay payable to the
employee, rounded to the next higher multiple of $1,000 plus
$2,000, or (2) $10,000.” 5 U.S.C. § 8701(c).
6

“Optional insurance” under Section 8714a is also known
“Option A” standard optional insurance.
See 5 C.F.R. §
870.205(a). Section 8714a(a), when enacted, provided that
“[u]nder the conditions, directives, and terms specified in
sections 8709-8712 of this title, the Civil Service Commission .
. . may purchase a policy which shall make available to each
insured employee equal amounts of optional life insurance . . .
in addition to the amounts provided in section 8704(a) of this
4

Section 8714a(b) provided that “[t]he optional life insurance .
. . shall be made available to each insured employee under such
conditions

as

the

Commission

shall

prescribe

and

in

amounts

approved by the Commission but not more than the greater of
$10,000 or an amount which, when added to the amount provided in
section 8704(a) of this title, makes the sum of his insurance
equal to his annual pay.”7
When Plaintiff completed SF 176 on September 3, 1968, he
elected to waive all life insurance available under FEGLIA at
the

time,

namely

regular

or

“Basic

life

insurance”

under

5

U.S.C. § 8702 and “Optional insurance” under Section 8714a.8

title.” Although Section 8714a has been amended multiple times
since 1967, Section 8714a(a) has remained largely unchanged.
7

This section is now 8714a(b)(2), and provides that:
[t]he optional life insurance . . . shall be
made available to each insured employee
under such conditions as the Office shall
prescribe and in amounts approved by the
Office but not more than the greater of
$10,000 or an amount which, when added to
the amount provided in section 8704(a) of
this title, makes the sum of his insurance
equal to his annual pay.

(emphasis added). 5 C.F.R. § 870.205(a) provides that effective
for pay periods beginning on or after October 30, 1998, coverage
for “Optional insurance,” or “Option A” standard optional
insurance, is $10,000.
8

In 1980, two more types of optional life insurance became
available: (1) “Additional optional life insurance” under 5
U.S.C. § 8714b, also known as “Option B” additional optional
insurance (see 5 C.F.R. § 870.205(b)(1)); and (2) “Optional life
5

Plaintiff remained a law clerk until 1970.

After completing his

two-year clerkship, Plaintiff worked in the private sector for
approximately

twenty-nine

(29)

years.

(ECF

No.

1,

at

2).

Plaintiff entered federal service again on December 6, 1999 in
various contractual positions with the United States Agency for
International Development (“USAID”), during which time he was
ineligible to participate in FEGLI.
22,

2007,

Plaintiff

began

(Id. at 3).

employment

with

the

Then, on July
United

States

Department of Agriculture (“USDA”) as a “Schedule B” employee,
at which point he became eligible for FEGLI coverage.
4).

On

August

19,

2007,

Plaintiff

elected

(Id. at

“Basic

life

insurance” and “Additional optional life insurance” under FEGLI.
(ECF No. 10-2, at 72).
USDA terminated Plaintiff’s employment and then Plaintiff
retired

effective

September

10,

2010,

just

after he elected to participate in FEGLI.
Plaintiff elected an annuity at retirement.

over

three

years

(Id. at 76, 83).
(Id. at 76).

Upon

termination, USDA informed Plaintiff that he would be ineligible
to continue receiving life insurance into retirement because he
did

not

have

life

insurance

for

the

five

years

immediately

preceding retirement and he waived life insurance coverage at
insurance on family members” under 5 U.S.C. § 8714c, also known
as “Option C” family optional insurance. See Pub.L.No. 96-427,
94 Stat. 1831, 1834-1836.
The former insurance is discussed
supra and the latter is not at issue here.
6

his first opportunity to elect it when he joined federal service
in 1968 as a law clerk.
B.

(Id. at 67).

Procedural Background

On October 22, 2011, Plaintiff submitted a letter to OPM,
in which he requested that the agency waive the “5-year service
requirement”

to

retirement.”
never

be

eligible

to

(Id. at 66—67).

informed

during

his

continue

life

insurance

into

Plaintiff asserted that he was

clerkship,

a

temporary

two-year

position, about “the consequences of not accepting . . . Life
Insurance at the earliest opportunity.”
further

stated

that

even

though

(Id. at 67).

he

rejoined

Plaintiff

the

federal

government in 1999, he was employed as a contractor until 2007
and in that capacity was ineligible for life insurance coverage
under

FEGLIA.

participate

Plaintiff

in

life

maintained

insurance

under

that

FEGLIA

he
at

elected
the

to

earliest

opportunity, which he believed to be in August 19, 2007, when he
was hired as a Schedule B employee with USDA.
On

January

20,

2012,

OPM

denied

Plaintiff’s

request

to

continue “Basic life insurance” under FEGLIA into retirement on
the ground that Plaintiff “[d]id not have insurance for the full
period(s) it was available or for the five years immediately
preceding

the

Specifically,
became

annuity
the

available

agency
to

commencing
noted

Plaintiff

that
on

7

date.”
“Basic

August

26,

(Id.
life
1968,

at

59).

insurance”
he

first

elected

to

receive

subsequently
Furthermore,

life

retired
OPM

insurance

on

stated

on

September
that

August
11,

“[s]ince

19,

2007,

2010.

the

and

(Id.).

continuation

of

optional life insurance depends upon the continuation of Basic
Life

Insurance,

optional

life

[Plaintiff

insurance

is]

[he]

not

may

eligible

have

to

had

as

continue

any

an

employee.”

timely

requested

(Id.).
On

February

15,

2012,

Plaintiff

reconsideration from OPM, raising many of the same arguments as
in his initial request, namely that he elected to be covered
under life insurance at his first opportunity, which he believed
to be when he joined USDA as a “Schedule B” employee on July 22,
2007.

(Id. at 13 - 14).

Plaintiff reiterated that he did not

recall being informed of the consequences of not accepting life
insurance when he first began federal employment in 1968 with
the U.S. Court of Claims.
On

April

affirming

the

19,

2012,

agency’s

OPM

issued

initial

a

decision

final
to

agency
deny

request to extend life insurance into retirement.

decision

Plaintiff’s

(Id. at 5-6).

OPM referenced 5 C.F.R. § 870.701(a)(1-3), which states that
when an insured employee retires, he may continue basic life
insurance provided he:
(1)

Is entitled to retire on an immediate
annuity under a retirement system for
civil employees . . .
8

(2)

Was insured for the 5 years of service
immediately before the date the annuity
starts or for the full period(s) of
service during which he . . . was
eligible to be insured if less than 5
years; and
Has not converted to an individual
policy as described in § 870.603.

(3)

5 C.F.R. § 870.701(a)(1-3).

OPM noted that Plaintiff was not

enrolled “in the basic life insurance coverage during the full
five
thus]

years

immediately

[in]eligible

retirement.”
further

was

OPM

did

requirement under the law.

not

have

(Id.).

insurance

[and

(ECF No. 10-2, at 6) (emphasis in original).
it

life

retirement,

into

that

continue

[his]

coverage

noted

to

preceding

authority

to

waive

this

Finally, OPM referenced

Plaintiff’s argument that he was uninformed about the “five year
requirement,” but advised that “OPM will not grant relief solely
because an individual was misadvised or not advised by his or
her employing office regarding this requirement.”

(Id.).

OPM

further advised Plaintiff of his right to appeal to federal
district court.
Plaintiff subsequently filed the instant complaint on May
24, 2012, challenging OPM’s final agency decision and seeking an
order requiring OPM “to grant Plaintiff’s request to carry FEGLI
Insurance into retirement.”

(ECF No. 1, at 11).

Thereafter,

both parties filed several motions requesting to extend the time
to file their respective responses, and Defendant finally moved

9

to dismiss or for summary judgment on February 4, 2013.
No. 10).

(ECF

Plaintiff filed his opposition on July 31, 2013 and a

cross-motion for summary judgment.

(ECF No. 21).

Defendant

replied to Plaintiff’s Opposition and opposed Plaintiff’s crossmotion for summary judgment on August 14, 2013.

(ECF No. 23).

Plaintiff replied to Defendant’s opposition to the cross-motion
on August 21, 2013.
II.

(ECF No. 24).

Analysis
A.

Standard of Review

“A person suffering legal wrong because of agency action,
or adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review
thereof.”

5 U.S.C. § 702.

A court reviews OPM actions under

the FEGLIA pursuant to the Administrative Procedure Act (“APA”),
5 U.S.C. § 706, based on the administrative record that was
before OPM when it made its determination.
497.

Burgin, 120 F.3d at

Under Section 706 of the APA, a court reviews an agency

decision to determine whether it was “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A).

In its analysis, the court must decide

“whether the decision was based on a consideration of all the
relevant factors and whether there has been a clear error of
judgment.”

Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402, 416 (1971), overruled on other grounds by Califano
10

v.

Sanders,

430

U.S.

99,

97

(1977).

Although

the

court’s

“inquiry into the facts is to be searching and careful, the
ultimate standard of review is a narrow one.

The court is not

empowered to substitute its judgment for that of the agency.”
Id.
B.
Requirements
Retirement
Plaintiff

disputes

for

Continuing

OPM’s

decision

life insurance coverage into retirement.9

FEGLI

to

deny

Coverage

him

into

continued

Although he initially

9

Although OPM styles its motion as one to dismiss or for
summary judgment, the argument for lack of subject matter
jurisdiction is unclear.
FEGLIA states that “[t]he district
courts of the United States have original jurisdiction . . . of
a civil action or claim against the United States founded on
this chapter.”
5 U.S.C. § 8715.
This waiver of sovereign
immunity, courts have found, is limited to actions that involve
a breach of the Government’s duties under FEGLIA.
Barnes v.
United States, 307 F.2d 655, 657-58 (D.C.Cir. 1962); see also
Lewis v. Merit Sys. Prot. Bd., 301 F.3d 1352, 1353 (Fed.Cir.
2002) (noting that sovereign immunity waived under FEGLIA is
limited to claims involving some right created by the Act, and a
breach by the government of some corresponding duty).
Section
8715 specifically grants jurisdiction to hear suits arising
under FEGLIA – it “would be meaningless if sovereign immunity
could be interposed as a defense to any such suit. Accordingly,
numerous courts have held that [Section] 8715’s consent to
jurisdiction waives the Government’s sovereign immunity to
claims arising under FEGLIA.” Nixon v. U.S., 916 F.Supp.2d 855,
861 (N.D.Ill. 2013); Laporte v. United States, No. 09-7247, 2011
WL 3678872, at *4 (S.D.N.Y. Aug. 19, 2011) (citing cases).
OPM appears to argue that sovereign immunity has not been
waived as to Plaintiff’s claims. Plaintiff’s primary claim that
OPM violated FEGLIA by denying him life insurance coverage into
retirement, for which he alleges he is qualified under FEGLIA,
arises under the statute.
See Nixon, 916 F.Supp.2d at 861
(“whether a claim has substantive merit is an entirely separate
question from whether the Government has waived sovereign
11

challenged the decision to deny him any insurance coverage into
retirement, his primary argument now is that an annuitant is
eligible to continue “Additional optional life insurance” into
retirement

regardless

of

whether

he

is

eligible

to

continue

“Basic life insurance” into retirement, provided the annuitant
had “Additional optional life insurance” in place for the full
five

years

immediately

preceding

retirement,

or

in

the

alternative, the full period of service during which “Additional
optional life insurance” was available to him.
12).

(ECF No. 21, at

Put differently, Plaintiff argues that eligibility for

“Additional
contingent
retirement.

optional
on

life

eligibility

insurance”
for

into

“Basic

retirement

life

is

insurance”

not
into

Plaintiff asserts that “Additional optional life

insurance” only became available in 1980, with the enactment of
5 U.S.C. § 8714b, and thus Plaintiff elected to be covered under
“Additional optional life insurance” at the first opportunity
when he became a “Schedule B” employee with USDA on July 22,
2007.

As

will

be

seen,

Plaintiff’s

attempt

to

detach

immunity with respect to that class of claim.”). The Government
has waived sovereign immunity over Plaintiff’s primary claim.
As will be seen, however, Plaintiff’s second claim that he
was not advised about the consequences of waiving life insurance
coverage does not appear to depend on any legal duty that the
Government breached under FEGLIA, and it may be that sovereign
immunity has not been waived as to Plaintiff’s second claim.

12

“Additional optional life insurance” from “Basic life insurance”
fails.
Section 8714b(a), which covers “Additional optional life
insurance,” specifically provides that “[u]nder the conditions,
directives, and terms specified in sections 8709 through 8712 of
this

title,

the

Office

of

Personnel

Management

.

.

.

may

purchase a policy which shall make available to each employee
insured under section 8702 of this title amounts of additional
optional

life

insurance.”

(emphasis

added).

This

language

plainly dictates that “Basic life insurance” coverage pursuant
to

Section

8702

is

a

prerequisite

optional life insurance.”

to

electing

“Additional

Along the same lines, an individual

“who cancels his/her Basic insurance automatically cancels all
forms of Optional insurance.”

5 C.F.R. § 870.502(b) (emphasis

added).
Life insurance terminates at the earlier of an employee’s
separation

from

service

discontinuance of his pay.
who

retires

on

an

or

twelve

(12)

months

See 5 U.S.C. § 8706(a).

immediate

annuity,

however,

after

An employee
may

continue

receiving life insurance under conditions determined by OPM, and
provided he has been insured throughout:
(A) the 5 years of service immediately
preceding
the
date
of
the
employee’s
retirement [“5-year requirement”], or
(B)
the full period or periods of service
during which the employee was entitled to be
13

insured, if fewer than 5 years [the “allopportunity requirement”].

5 U.S.C. § 8706(b)(1). Section 8714b, which covers “Additional
optional

life

annuitant

insurance,”

satisfies

similarly

the

above

states

two

that

provided

conditions,

a

an

retiring

employee may continue life insurance under conditions determined
by

OPM.

See

5

U.S.C.

§

8714b(c)(2).

Thus,

both

sections

authorize OPM to “prescribe regulations necessary to carry out
the

purposes”

requirements

to

of

FEGLIA,

continue

including

life

regulations

insurance

into

governing

retirement.

5

U.S.C. § 8716; see also Reichenback v. Merit Systems Protection
Board, 2000 WL 1471633, at *2 (Fed. Cir. 2000).
It

is

axiomatic

that

“[t]he

power

of

an

administrative

agency to administer a congressionally created . . .

program

necessarily requires the formulation of policy and the making of
rules

to

fill

Congress.”

any

gap

left,

implicitly

or

explicitly,

by

Chevron v. National Resources Defense Council, 467

U.S. 837, 843 (1984) (citing Morton v. Ruiz, 415 U.S. 199, 231
(1974)).

If Congress has explicitly left a gap for the agency

to fill, there is an express delegation of authority to the
agency

to

regulation.
regulations
insurance”

elucidate

a

specific

provision

of

the

statute

by

Accordingly, as authorized by statute, OPM enacted
that

made

coverage

qualifying

into

for

retirement
14

continuing
a

“Basic

prerequisite

to

life
an

annuitant’s ability to continue any type of “Optional insurance”
into retirement, irrespective of whether the annuitant otherwise
met the requirements under Section 8714b(c)(2).
870.701(e)(1);

see

also

Grooms

v.

See 5 C.F.R. §

Office

of

Personnel

Management, 154 F.3d 181, 184 (4th Cir. 1998)(recognizing that
“[s]tandard

optional

life

insurance

and

additional

life

insurance are made available to employees who have basic life
insurance

under

such

conditions

as

‘the

Office

shall

prescribe.’” (quoting 5 U.S.C. §§ 8714a(b) and 8714b(b)).

Such

legislative regulations are given controlling weight unless they
are

arbitrary,

capricious,

or

manifestly

statute, which is simply not the case here.

contrary

to

the

Chevron, 467 U.S.

at 843-44.
Plaintiff’s reading of Section 8714b(c) ignores the portion
of the statute that explicitly enables a retiring employee to
continue “Additional optional life insurance” under conditions
determined

by

OPM.

See

5

U.S.C.

10

§

8714b(c)(2).10

These

The legislative history behind Section 8714b that
Plaintiff cites, (ECF No. 21, at 18 - 19), is inapposite because
it does nothing to undermine the statute’s plain language, which
provides that OPM can prescribe conditions under which an
employee who retires on an immediate annuity may continue FEGLI
coverage.
See United States v. Gonzales, 503 U.S. 1, 6 (1997)
(“[g]iven the straightforward statutory command, there is no
reason to resort to legislative history”); see also Mylan
Pharmaceuticals, Inc. v. U.S. Food and Drug Admin., 454 F.3d
270, 276 (4th Cir. 2006) (rejecting Plaintiff’s references to
legislative history because there was “no textual ambiguity of
15

statutory

conditions

are

restated

in

the

requirements

of

5

C.F.R. §§ 870.701(a)(1),(a)(2), and (e)(1).
Pursuant to 5 C.F.R. § 870.701(a), an employee may continue
“Basic

life

insurance”

into

retirement,

provided

he

is:

(a)

entitled to retire on an immediate annuity; (b) was insured for
the 5 years of service immediately before the date the annuity
starts, or for the full period(s) of service during which he was
eligible to be insured if less than 5 years; and (c) has not
converted to an individual policy as described in 5 C.F.R. §
870.603.
elected

Here,
to

Plaintiff

acknowledges

waive

all

insurance

opportunity in 1968.

life

that

he

coverage

(ECF No. 10-2, at 73).

explicitly

at

the

first

He next elected

life insurance in July 2007, when he first became eligible as a
“Schedule B” employee with the USDA, and retired three years
later on September 11, 2010.

Thus, Plaintiff did not meet the

eligibility requirements to continue “Basic life insurance” into
retirement.
Section 870.701(e)(1) provides that being able to continue
“Basic life insurance” into retirement is indeed a prerequisite
to

an

annuitant’s

insurance.
“[a]n

ability

to

continue

any

type

of

optional

Specifically, Section 870.701(e)(1) provides that

annuitant

.

.

.

who

is

eligible

to

continue

or

have

the sort that would ordinarily lead [the court] to consider
materials outside the statute’s four corners”).
16

reinstated Basic insurance is also eligible to continue or have
reinstated Optional insurance if he/she meets the same coverage
requirements for Optional insurance as those stated in [Section
870.701(a)] for Basic insurance.”

(emphasis added).11

The FEGLI

handbook that OPM publishes on its website further supports this
point,

providing

“Basic

insurance”

optional

that

only

become

insurance,

annuitants

eligible

provided

the

to

eligible
continue

annuitants

to
any

meet

continue
type
the

of

same

coverage requirements for the optional insurance as those for
“Basic insurance.”

(ECF No. 10-3, at 5).12

Finally, the fact

that initial enrollment in “Additional optional life insurance”
requires that an employee first be eligible for “Basic life
insurance”

further

undermines

Plaintiff’s

position

that

11

5 C.F.R. § 870.201(b) provides that there are three types
of “Optional insurance”: Option A (standard optional insurance),
Option B (additional optional insurance), and Option C (family
optional insurance).
12

Notably, OPM’s handbook on FEGLI includes the following
example, which is virtually identical to the facts before the
court.
The example provides that an employee waived all FEGLI
coverage when she was first employed in 1973, left federal
government in 2003, and subsequently returned in 2004, at which
point she elected “Basic life insurance.” (ECF No. 10-3, at 4).
She subsequently retired in 2005.
OPM notes that “[s]ince she
did not have the coverage for the full period of service it was
available to her, she also didn’t meet the all-opportunity
requirement.
Therefore, [the employee] was not eligible to
continue any of her FEGLI coverage into retirement.”
(Id.)
(emphasis added).
17

eligibility

for

“Additional

life

insurance”

coverage

is

independent from the “Basic life insurance.”13
Accordingly, there was no clear error of judgment on behalf
of OPM in denying Plaintiff relief because Plaintiff has not
held

“Basic

life

insurance”

for

the

duration

of

five

years

immediately preceding his September 11, 2010 retirement date,
nor

did

during

he

have

which

the

“Basic

life

insurance

insurance”

was

for

available

the

to

full

him,

period

given

his

decision explicitly to waive all life insurance coverage when he
first entered federal service in 1968.
C. The Government’s Duties Related to FEGLIA
Plaintiff further argues that when he commenced clerking in
1968,

he

was

not

advised

about

the

consequences

of

waiving

“Basic life insurance“ and the waiver form that he signed in
1968, SF 176, also did not identify any consequences associated
with waiving coverage.

(ECF No. 21, at 23-24, 27).

Plaintiff

contends that because he was uninformed about the consequences
of

waiving

life

insurance

coverage

in

1968,

his

first

opportunity to elect “Basic life insurance” was in July 2007,
when

he

employee.

13

5
elect one
has Basic
that type

rejoined

the

federal

government

as

a

“Schedule

B”

Plaintiff cannot point to any affirmative duty that

C.F.R. § 870.301(b)(2) provides that an employee may
or more types of Optional insurance if: “(i) He/she
insurance; and (ii) He/she does not have a waiver of
(or types) [of] Optional insurance still in effect.”
18

FEGLIA imposes on the Government to advise employees regarding
the consequences of waiving life insurance coverage.

Sovereign

immunity has not been waived as to this claim.

But even if the

Government

Plaintiff

cannot

show

allegedly
that

breached

OPM’s

final

a

legal

agency

duty,
decision

was

still

arbitrary,

capricious, or an abuse of discretion.
FEGLIA does not impose a duty on a federal employer to
inform

employees

about

the

consequences

of

waiving

life

insurance coverage, nor does it impose a duty on the Government
to ensure that the life insurance waiver form explicitly warn
prospective retirees about the waiver’s effect on future life
insurance coverage claims.

OPM’s decision to use a specific

form to allow employees to select or decline life insurance
coverage

when

they

enter

federal

service

is

a

discretionary

function “so long as the form selected satisfies the statute’s
requirements of being a ‘written notice.’”

Grooms v. Office of

Personnel Management, 154 F.3d 181, 185(4th Cir. 1998) (quoting 5
U.S.C. § 8702(b)).

Section 8702(b) merely provides that “[a]n

employee desiring not to be insured shall give written notice to
his employing office on a form prescribed by the Office [OPM].”
5 U.S.C. § 8702(b) (emphasis added).
of

beneficiary

designation

forms

Moreover, in the context

under

FEGLIA,

for

instance,

some courts have found that the Government’s only duty is to
preserve forms “in a manner that permits accurate assessment.”
19

Nixon, 916 F.Supp.2d at 863; cf. Frerichs v. U.S., No. 05 C
5900, 2006 WL 200812, at *2 (N.D.Ill. Jan. 23, 2006) (noting
that “no duty was created by the promise by USPS human resources
official . . . to correct the election form”).
Notably, other courts have recognized that under FEGLIA,
the

Government

properly

had

completed

no

duty

their

to

ensure

insurance

forms

that
-

employees

let

alone

even
advise

employees of the consequences of electing to waive coverage on
the

prescribed

maintained

form

forms

once

-

provided

employees

the

executed

Government
them.

properly

Metropolitan

Life Ins. Co. v. Atkins, 225 F.3d 510, 514 (5th Cir. 2000); see
also Argent v. O.P.M., No. 96 Civ. 2516, 1997 WL 473975, at *2
(S.D.N.Y. Aug. 20, 1997) (holding that “the Government’s duties
under FEGLIA are limited to negotiating and procuring group life
insurance policies for its employees” and the government has no
duty to inspect the beneficiary forms it receives to determine
whether

they

are

authentic

or

fraudulent).

Consequently,

sovereign immunity has not been waived as to Plaintiff’s claim
that he was uninformed about the consequences of waiving life
insurance coverage.
Even assuming Plaintiff had alleged that the Government had
a

legal

duty

to

advise

Plaintiff

about

the

consequences

of

waiving life insurance, Plaintiff still cannot show that OPM’s
decision to deny him life insurance coverage into retirement was
20

arbitrary, capricious, or an abuse of discretion.

Plaintiff

explicitly waived all life insurance coverage on SF 176 when he
first had the opportunity to elect life insurance under FEGLIA
in

1968.

In

Grooms

v.

Office

of

Personnel

Management,

the

Fourth Circuit observed that an employee’s act of filing and
executing a life insurance coverage form that OPM prescribed,
“was an affirmative act of waiver and wholly sufficient under
the statutory and regulatory framework of FEGLIA.”

The court in

Grooms further noted that even “government employees’ careless
administration of [the employee’s] SF 2817 filing cannot estop
the government or require it to pay out benefits.” (emphasis
added); see also Chrobak v. Metropolitan Life Ins. Co., 517 F.2d
883, 887 (7th Cir. 1975) (holding that policy coverage cannot be
expanded

by

erroneous

government

notices

or

billings

or

premiums).
Here, Plaintiff’s execution of SF 176 - a form that OPM
prescribed
insurance
coverage
about

employees

coverage
under

the

decision

for

-

FEGLIA,

consequences
to

deny

was

to

elect,

sufficient

regardless
of

decline,

such

Plaintiff

of

to

life

waive

whether

waiver.

or

he

waive

Plaintiff’s
was

advised

Consequently,

insurance

life

coverage

OPM’s
into

retirement, given his explicit waiver in 1968, fell within the
Government’s discretion and was not arbitrary or capricious.

21

III. Conclusion
For
granted.
denied.

the

foregoing

reasons,

Defendant’s

motion

will

be

Plaintiff’s cross-motion for summary judgment will be
A separate Order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

22