Opinion
CIVIL 3:22-CV-01088
08-22-2023
JOHN G. MARKEWICZ, Plaintiff v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, Defendant
MANNION, D.J.
REPORT AND RECOMMENDATION
(ON DEFENDANT'S MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT (DOC. 13))
William I. Arbuckle, U.S. Magistrate Judge
I. INTRODUCTION
Federal employees can purchase relatively inexpensive group life insurance known as Federal Employee Group Life Insurance (FEGLI). Statutory provisions establish when and how an employee can purchase this life insurance, including coverage that will extend beyond retirement. Employee choices, called “elections” can be made when the employee is hired, during employment in so called “open seasons,” upon the happening of specific “life events” and upon retirement. The life insurance can be for a death benefit payout equal to one-year of salary, or for as much as five times the employees one-year salary. The cost to the employee is greater for each multiple more than one that the employee chooses. Administration of this benefit is the responsibility of the Office of Personnel Management (“OPM” or “Defendant”).
John G. Markewicz (“Plaintiff”) claims that he elected a multiple of five coverage when he retired. OPM determined that whatever he elected, he was only legally eligible for the single multiple coverage. This case requires the Court to review that decision.
Currently before the Court is OPM's Motion seeking dismissal of Plaintiff's complaint under Fed.R.Civ.P. 12(b)(1), or in the alternative summary judgment under Fed.R.Civ.P. 56. (Doc. 13). For the reasons explained in this Report and Recommendation, it will be recommended that Defendant's Motion for Summary Judgment (Doc. 13) be granted.
II. BACKGROUND AND PROCEDURAL HISTORY
This case involves a dispute between a former federal employee and the Office of Personnel Management about the employee's eligibility to carry Option B-Additional Optional life insurance at five multiples into his retirement under the Federal Employees' Group Life Insurance Program. For the benefit of the Court and parties, we begin our analysis by detailing: a) Plaintiff's pre-retirement benefit elections; b) the disputes that arose concerning the extent of Plaintiff's postretirement coverage; c) the allegations in Plaintiff's complaint; and d) the procedural history of this case.
A. Plaintiff' s Pre-Retirement Benefit Elections
On January 6, 2015, following his military service, Plaintiff began working as a civilian employee at the Department of Labor Wage and Hour Division (the “DOL”). He completed and signed the FEGLI Program Life Insurance Election Form, SF 2817, electing Option B coverage at one multiple. (Doc. 18, p. 8; Doc. 193, p. 5). DOL received this form on January 9, 2015, and listed January 9, 2015, as the effective date of coverage. (Doc. 19-3, p. 5).
In the month of September 2016, an Open Season was held, allowing eligible federal employees to elect any coverage FEGLI offers, regardless of whether they were currently enrolled. The announcement informed eligible employees that elections made during the September 2016 Open Season would have a one-year delayed effect, becoming effective on the first day of the first full pay period on or after October 1, 2017, as long as the employee met the pay and duty status requirements.
Open Season Announcement from OPM (https://www.opm.gov/healthcare-insurance/life-insurance/open-season/#:7Etext=Overview,2016%20through%20September%2030%2C%202016).
Id.
On September 15, 2016, Plaintiff participated in the FEGLI Open Season, completing and signing a SF 2817 Life Insurance Election Form. (Doc. 18, p. 28; Doc. 19-3, p. 4). Plaintiff elected Option A Standard insurance and changed the number of multiples under his Option B Additional Optional life insurance, increasing the number of multiples from one (1) to five (5). Id. The DOL signed off on Plaintiff's Open Season SF 2817, indicating it was received on September 22, 2016, and that the effective date of coverage would be October 1, 2017. Id.
On October 30, 2020, in preparation for his retirement, Plaintiff completed and signed a Continuation of Life Insurance Coverage, form SF 2818. (Doc. 19-3, p. 2; Doc. 19-7, p. 8). Two different versions of this form exist in the record.
All employees eligible to continue Basic life insurance as an annuitant or compensationer are required to complete an SF 2818. On that form, an employee chooses whether he or she wants to continue basic life insurance, and the amount of basic life insurance he or she wants to keep. FEGLI Handbook, pp. 119-129.
One SF 2818 form is partially computer generated with some hand-written notations (“First October 2020 SF 2818”). On the First October 2020 SF 2818, Plaintiff indicated that he wanted to have basic life insurance in retirement, with no reduction in coverage, he wanted Option A (if eligible), Option B (if eligible) and selected that he wanted one multiple of his compensation to continue in his retirement. (Doc. 19-3, p. 2). The First October 2020 SF 2818 bears Plaintiff's handwritten signature, and a handwritten date of October 30, 2020. Id.
A second SF 2818 form, also dated October 30, 2020, is completely computer generated, and is not signed (“Second October 2020 SF 2818”). Plaintiff's elections on the Second October 2020 SF 2818 form are identical to the First October 2020 SF 2818 except that on the Second October 2020 form Plaintiff selected ‘5' multiples under Option B. (Doc. 19-7, p. 8).
In November 2020, Plaintiff became very ill and made the decision to retire. (Doc. 22, p. 4). The same month, Human Resources Specialist Lillian Baer (“Baer) of the DOL and Jennifer Love (“Love”) of USDA/National Finance Center signed a completed SF 2821 certifying Plaintiff's insurance status at the time of his separation for retirement. (Doc. 18, p. 9; Doc. 19-3, p. 1). The SF 2821 completed on Plaintiff's behalf of Plaintiff certified that:
FEGLI Handbook, pp. 128-129.
(1) Plaintiff did have Option B insurance;
(2) Plaintiff first elected Option B insurance on January 9, 2015;
(3) the number of multiples under Option B, as of the date of separation, was five; and
(4) the lowest number of multiples selected under Plaintiff's Option B insurance in the last five years was one (emphasis added).(Doc. 19-3, p. 1).
OPM alleges that the SF 2821 incorrectly certified the effective date of coverage for Option B at five multiples on January 9, 2015 and notes that Markewicz did not elect Option B at five multiples until the September 2016 Open Season. (Doc. 18, p. 10).
On December 31, 2020, Plaintiff formally retired from DOL, Wage and Hour Division. (Doc 1, p. 4; Doc. 18, p. 10).
B. Post-Retirement Coverage Dispute
On May 14, 2021, OPM issued a form RI 76-6 “Continuation of Your Optional Life Insurance” letter to Plaintiff. (Doc. 18, p. 10; Doc. 19-4, p. 2). That letter indicated that Plaintiff could not continue standard optional insurance, but (apparently incorrectly) informed Plaintiff he was eligible to continue Option B-Additional Optional Life Insurance at five times his salary because that coverage under Option B at five multiples was effective on January 9, 2015. (Doc. 18, p. 11; Doc. 19-4, p. 2).
On July 20, 2021, OPM mailed to Markewicz a different letter titled “Your FEGLI Coverage” showing “the amount of [Plaintiff's] Federal Employees' Group Life Insurance (FEGLI) coverage.” (Doc. 18, p. 11; Doc. 19-5, p. 7). The letter indicated that Plaintiff's coverage included Option B Additional Optional life insurance at “one multiple” of his final pay. Id. At some point after this, Plaintiff received a “Notice of Annuity Adjustment” letter from OPM. (Doc. 18, p. 11; Doc. 19-5, p. 8). In that letter, Plaintiff was advised that the amount OPM was paying him changed, and that the change would be reflected in his August 2, 2021 payment. Id.
On August 9, 2021, Plaintiff sent a letter to OPM challenging the determination that he was only entitled to carry Option B into retirement at one multiple. (Doc. 18, pp. 11-12; Doc. 19-5, pp. 3-4). Plaintiff “instruct[ed]” OPM to change the amount it was withholding and the amount of coverage to what it should be under Option B with a multiple of five. Id.
On December 6, 2021, a year after his DOL retirement, Plaintiff was diagnosed with lymphoma. (Doc. 22, p. 4). On December 16, 2021, the Veteran's Administration approved Plaintiff's 100% disability rating. (Doc. 22, pp. 4, 22).
On January 14, 2022, OPM sent Plaintiff a letter denying his request to change his withholdings. (Doc. 18, p. 12; Doc. 19-5, pp. 1-2, 5). In the letter, OPM explained the May 14, 2021 letter was incorrect and the correct number of multiples Plaintiff was eligible to carry into retirement under Option B was a multiple of one. Id. Along with the letter, Plaintiff was provided a corrected RI 76-6 form. Id. The letter explained it was an initial decision of OPM and that Plaintiff could request reconsideration within 30 days of the date of the letter and included instructions on how to do so. (Doc. 18, p. 12; Doc. 19-5, pp. 1-2).
Later the same day, Plaintiff requested reconsideration of OPM's initial decision. (Doc. 18, p. 12; Doc. 19-6, pp. 3-4). In the letter, Plaintiff alleged that Baer, the DOL's Human Resource Specialist, was aware the only reason Plaintiff stayed the last three years of his employment with DOL was so that he could obtain Option B at five multiples. (Doc. 18, p. 13; Doc. 19-6, pp. 3-4). Plaintiff concluded the letter by alleging OPM's decision denying him the ability to carry Option B at five multiples into retirement was arbitrary. Id.
On March 9, 2022, OPM issued a final agency decision affirming the initial denial of Plaintiff's request. (Doc. 1, pp. 4-5). In that decision, OPM found that Plaintiff:
First elected Option B, Additional Optional life insurance coverage on January 6, 2015. You elected the Additional Optional at 1 multiple. Your election became effective on January 9, 2015. On September 15, 2016, you elected to change your Additional Optional coverage from 1 multiple to 5 multiples. Your election became effective on October 1, 2017. On October 30, 2020, we received your election, “Continuation of Life Insurance Coverage,” electing to continue your Additional Optional coverage at 1 multiple into retirement.(Doc. 1, p. 4). In its analysis, OPM found that the statute and regulation that applied in this case was 5 U.S.C. § 8714c(c)(2), and 5 C.F.R. § 870.705. It then concluded that Plaintiff:
had the Additional Optional life insurance coverage at 5 multiples from October 1, 2017, until your retirement on December 31, 2020. Therefore, you are only eligible to carry Option B, Additional Optional, coverage at 1 multiple into retirement. Though we sincerely sympathize with the situation you have presented, the law is specific on this point and regulations do not allow us to grant the relief you are seeking.(Doc. 19-6, p. 2). In the decision, Plaintiff was advised that an appeal to the appropriate federal district court must be filed within 30 calendar days of that date Plaintiff received the decision. Id.
Defendant alleges this was a scrivener's error on the part of OPM and that the statute actually applying to Plaintiff's case is 5 U.S.C. § 8714b(c)(2) not 5 U.S.C. § 8714c(c)(2). (Doc. 18, pp. 14, 24) (emphasis added).
On March 26, 2022, Plaintiff sent a letter to OPM disputing authenticity of the first October 2020 SF 2818, electing a multiple of one. (Doc. 19-7, p. 2). Plaintiff alleged that the handwritten SF 2818 was a fabrication and that “the open season for [FEGLI] offered for the period September 1, 2016 thru [sic] September 30, 2016 was the first [FEGLI] open season offered in twelve (12) years. Therefore, I do meet the requirement of the first opportunity prior to retirement.” (Doc. 19-7, pp. 2-3). Plaintiff then requested that his FEGLI Option B coverage be increased to five multiples. Id.
On April 18, 2022, OPM sent Plaintiff a letter in reply to his March 26, 2022 letter asking Plaintiff to send any correspondence or appeal request regarding the OPM final decision directly to the Federal district court and that his letter and its attachments would be associated with his case file. (Doc. 19-7, p. 1).
C. Allegations in Plaintiff's Complaint
Plaintiff filed his Complaint in this Court on July 12, 2022 (Doc. 1). Plaintiff's Complaint is written on a two-page, pre-printed form. (Doc. 1, pp. 1-2). This form required Plaintiff to do four things: (1) identify himself, provide his address, and indicate the statute his claim is brought under; (2) identify the defendant, and provide defendant's address; (3) state the facts of his case; and (4) ask for relief.
Plaintiff alleges that his claim is brought under 5 U.S.C. § 8714c(c)(2), the same statute cited in OPM's final decision. Plaintiff stated the facts of his case as follows:
Plaintiff John G. Markewicz denied FEGLI benefits on March 9, 2022 by defendant USOPM based on USC Title 5, Section 8714c(c)(2). Plaintiff John G. Markewicz is entitled to FEGLI benefits based on USC Title 5, Section 8714c(c)(2). reference(https://www.opm/gov/healthcare-insurance/life-insurance/open-season/} Life Insurance Open Season (September 1 -September 30, 2016) Overview The Federal Employees [sic] Group Life Insurance Program, FEGLI, is having an Open Season from September 1, 2016 thru [sic] September 30, 2016. This is the first Open Season since 2004. Therefore; USC Title 5, Section 8715c(c)(2)(B) applies “the full period or periods of service during which the insurance was available to the employee, if fewer than 5 years.”(Doc. 1, pp. 1-2). The statute Plaintiff cites, 5 U.S.C. § 8714c(c)(2), applies only to Option C- family life insurance. This statute was incorrectly cited by both Plaintiff in his complaint, and by OPM in its final decision.
As relief, Plaintiff requests that (OPM) “Reinstate Additional Optional Life Insurance coverage from 1 multiple to 5 multiples. (Doc. 1, p. 2).
While Plaintiff purports to bring a claim under FEGLIA, 5 U.S.C. § 714c(c)(2) in his Complaint, based on the Court's reading of the Complaint, Plaintiff's Complaint really seeks review of OPM's final decision that he is not eligible to increase his Option B life insurance from one multiple to five multiples into retirement under the APA. When Plaintiff requested reconsideration he alleged that the denial was arbitrary. (Doc. 19-6, p. 4). Then, after receiving OPM's final decision denying him Option B at five multiples, in a letter to OPM he effectively argued that FEGLIA had been applied incorrectly in his case, stating that he met the requirements to carry Option B at five multiples into retirement because he was enrolled at five multiples from his first opportunity to enroll until his retirement. (Doc. 19-7, p. 3). In his Complaint, Plaintiff alleges that he was denied FEGLI benefits, that he is entitled to them under 5 U.S.C. § 8714c(c)(2), and, effectively, that OPM's decision otherwise was arbitrary and contrary to the applicable law. Thus, the Court reads Plaintiff's Complaint as a request for review of the final agency decision under the APA.
If Plaintiff is in fact attempting to bring a claim directly under FEGLIA he may clarify that and what precisely his FEGLIA claim is in objections to this Report and Recommendation.
D. Procedural History In This Court
On July 12, 2022, Plaintiff initiated this case by lodging his Complaint (Doc. 1) and filing a Motion to Proceed in forma pauperis (Doc. 2). On July 21, 2022, the Court granted Plaintiff's Motion. (Doc. 2). Plaintiff's Complaint was deemed filed, and the Clerk of Court issued summons to the United States Marshal for service on Defendant. (Docs. 5, 6).
On January 3, 2023, Defendant filed the current Motion to Dismiss and/or for Summary Judgment. (Doc. 13). On January 10, 2023, Plaintiff filed an affidavit alleging Defendant's Motion violated U.S. District Court for the Middle District of Pennsylvania Standing Order No. 94-2 and reciting Local Rule 7.6. (Doc. 14). On January 11, 2023, the Court ordered Plaintiff's Affidavit (Doc. 14) stricken from the record (Doc. 15). On January 17, 2023, Defendant filed a Brief in Support (Doc. 18), a Statement of Material Facts (Doc. 19), and exhibits.
On January 26, 2023, Plaintiff filed a second affidavit, again alleging Defendant had violated Standing Order No. 94-2 and Local Rule 7.6. He also argued that this Court had jurisdiction to hear his case because he has standing. (Doc. 20).
On January 30, 2023, the Court ordered Plaintiff's second affidavit stricken from the record. (Doc. 21). The Court advised Plaintiff that an affidavit is not an appropriate response to Defendant's Motion. Id. Plaintiff was instructed to file a brief in opposition to Defendant's motion, and to respond to Defendant's statement of material facts, on or before February 17, 2023. Id.
On February 17, 2023, Plaintiff filed a Brief in Opposition to Defendant's Motion. (Doc. 22). Plaintiff did not respond to Defendant's statement of material facts. Plaintiff was given another chance and ordered to file a response to the statement of material facts on or before March 14, 2023. (Doc. 24). In the same order, Defendant was afforded additional time to reply to Plaintiff's filings. Id. Despite multiple opportunities to do so, Plaintiff did not file a response to Defendant's statement of material facts. On March 28, 2023, Defendant filed a Reply Brief. (Doc. 25). Defendant's Motion to Dismiss and/or for Summary Judgment is now ripe and ready to be decided.
With this factual and procedural background, we now turn to the legal standards to be applied to OPM's Motion.
III. LEGAL STANDARDS
A. The Federal Employees' Group Life Insurance Act (“FEGLIA”)
The Federal Employees' Group Life Insurance Act of 1954 (“FEGLIA”), codified at 5 U.S.C. § 8701 et seq. created the Federal Employees' Group Life Insurance Program (“FEGLI”). The purpose of FEGLIA is to provide low-cost group life insurance in sums that approximate an employee's yearly salary to Federal employees. Under FEGLIA, the United States has a limited role, it is not the insurer, but rather the policyholder under a policy issued by a commercial company. The FEGLI Program is administered by OPM (5 U.S.C. § 8716) and its implementing regulations are found in Title 5, Part 870 of the Code of Federal Regulations.
Walker v. U.S., 161 Ct. Cl. 792, 797 (1963).
Kimble v. United States, 345 F.2d 951 (D.C. Cir. 1965).
When a Federal employee is appointed or transferred to a FEGLI eligible position, they automatically receive Basic insurance unless they waive coverage.If an eligible employee has Basic insurance (or elects Basic at the same time), they can elect Optional insurance within 60 days after becoming eligible for coverage (such as when they are appointed or transferred to an eligible position), during an open season, or at a qualifying life event. There are three types of Optional insurance:
Federal Employees' Group Life Insurance (FEGLI) Handbook, p. 74 (https://www.opm.gov/healthcare-insurance/life-insurance/reference-materials/publications-forms/feglihandbook.pdf)
Id. pp. 9, 75, 89. When OPM schedules an open season for life insurance, is sets the effective dates for elections made during that open season.
1) Option A - insures the employee's life for $10,000 (5 U.S.C. § 8714a; 5 C.F.R. § 870.205(a));
2) Option B - insures the employee's life for one, two, three, four, or five multiples of their annual rate of basic pay rounded up to the next even $1,000 (5 U.S.C. § 8714b; 5 C.F.R. § 870.205(b)); and
3) Option C - insures the lives of the employee's spouse and eligible dependent children at one, two, three, four, or five multiples, with a
multiple equal to $5,000 for a spouse and $2,500 for each eligible dependent child (5 U.S.C. § 8714c; 5 C.F.R. § 870.205(c)).
Id. at p. 7.
The cost to the employee for each of these options, if elected, is then deducted from the employee's pay.
FEGLIA contains a limited waiver of sovereign immunity for actions involving a breach of the Government's duties under FEGLIA: “The district courts of the United States have original jurisdiction, concurrent with the United States Court of Federal Claims, of a civil action or claim against the United States founded on this chapter.”
Laporte v. United States, No. 09-7247, 2011 WL 3678872, at *4 (S.D.N.Y. Aug. 19, 2011) (collecting cases See Argent v. O.P.M., No. 96 Civ. 2516(PKL), 1997 WL 473975, at *2 (S.D.N.Y. Aug. 20, 1997); see also Lewis v. Merit Sys. Prot. Bd., 301 F.3d 1352, 1353 (Fed. Cir.2002) (noting that sovereign immunity waiver under FEGLIA is limited to claims involving some right created by the Act, and a breach by the government of some corresponding duty); Barnes v. United States, 307 F.2d 655, 657-58 (D.C. Cir.1962) (“The United States has consented to be sued, we conclude, to the extent that any such civil action or claim can be shown to involve some right created by [FEGLIA] and a breach by the Government of some duty with respect thereto.”); Dixon v. United States Post Office, No. 09-CV-1694, 2009 WL 51255825, at *2 (N.D. Cal. Dec. 21, 2009) (noting that “the waiver contained in 5 U.S.C. § 8715 ... pertains only to legal duties establish[ed] by [FEGLIA]”); Jacobs v. United States, 794 F.Supp. 509, 511 (S.D.N.Y.1992) (same)).
Upon retirement, under 5 U.S.C. § 8714b(c)(1), Option B Additional Optional life insurance elected by an employee pursuant to this section stops upon separation from service or twelve months after discontinuance of the employee's pay, whichever comes first. However, this is subject to a provision for temporary extension of life insurance coverage and conversion to an individual life insurance policy under certain approved conditions. Under 5 U.S.C. § 8714b(c)(2), an annuitant may be eligible to continue their FEGLI benefits if they meet four criteria:
1) They are entitled to retire on an immediate annuity under a retirement system for civilian employees;
2) They are insured for five years of service immediately before the starting date of their annuity, or for the full period(s) of service during which the annuitant was eligible to be insured if less than five years (“all opportunity requirement”);
3) They are enrolled in FEGLI on the date of their retirement; and
4) Coverage was not converted to an individual policy.
5 U.S.C. § 8714b(c); Federal Employees' Group Life Insurance (FEGLI) Handbook, p. 114.
The number of multiples of Option B coverage that can be continued into retirement, if an employee is eligible, is the number of multiples meeting the five year or the “all opportunity” requirement. With this understand of FEGLIA we turn to the Motion to Dismiss Standard under Federal Rule of Civil Procedure 12(b)(1).
5 U.S.C. § 8714b(c)(2); Federal Employees' Group Life Insurance (FEGLI) Handbook, p. 119.
B. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(1) Standard
Federal Rule of Civil Procedure 12(b)(1) provides the mechanism for a party to move for dismissal due to the court's lack of subject matter jurisdiction. “Subjectmatter jurisdiction defines the court's authority to hear a given type of case.”Subject matter jurisdiction “represents the extent to which a court can rule on the conduct of persons or the status of things.” When subject matter jurisdiction is challenged, the plaintiff “bears the burden of demonstrating subject matter jurisdiction.” In deciding a Rule 12(b)(1) motion, the court must first determine whether the “motion presents a “facial” attack or a “factual” attack on the claim at issue, because that distinction determines how the pleading must be reviewed.”
United States v. Morton, 467 U.S. 822, 828 (1984).
Carlsbad Tech. Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (citing Black's Law Dictionary, 870 (8th ed. 2004) (internal quotations omitted)).
Lightfoot v. U.S., 564 F.3d 625, 627 (3d Cir. 2009).
Const. Party of Pennsylvania v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014) (quoting In re Schering Plough Corp. Intron, 678 F.3d 235, 243 (3d Cir. 2012) (internal quotation marks omitted)) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).
A facial attack . . . is an argument that considers a claim on its face and asserts that it is insufficient to invoke the subject matter jurisdiction of the court because, for example, it does not present a question of federal law, or because there is no indication of a diversity of citizenship among the parties, or because some other jurisdictional defect is present. Such an attack can occur before the moving party has filed an answer or otherwise contested the factual allegations of the complaint. A factual attack . . . is an argument that there is no subject matter jurisdiction because the facts of the case . . . do not support the asserted jurisdiction. So, for example, while diversity of citizenship might have been
adequately pleaded by the plaintiff, the defendant can submit proof that, in fact, diversity is lacking ....In sum, a facial attack ‘contests the sufficiency of the pleadings,' ‘whereas a factual attack concerns the actual failure of a [plaintiff's] claims to comport [factually] with the jurisdictional prerequisites.'”
Id. at 358 (citing Mortensen, 549 F.2d at 891 (quoting In re Schering Plough Corp. Intron, 678 F.3d 235, 243 (3d Cir. 2012) (internal quotation marks omitted)) (quoting CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008) (internal quotation marks omitted)).
When reviewing a facial attack, “the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.” The court must also “consider the allegations of the complaint as true.” Therefore, the court is “to apply the same standard of review it would use in considering a motion to dismiss under Rule 12(b)(6), i.e., construing the alleged facts in favor of the nonmoving party.”
Gould Electronics Inc. v. United States of America, 220 F.3d 169, 176 (3d Cir. 2000). See also Moore v. Angie's List Inc., 118 F.Supp.3d 802, 806 (E.D. Pa. 2015).
Mortensen, 549 F.2d at 891.
Constitution Party, 757 F.3d at 358 (citing In re Schering Plough Corp. Intron, 678 F.3d at 243).
On the other hand, a factual attack permits “a court [to] weigh and consider evidence outside the pleadings.” “[T]he trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” In doing so, “no presumptive truthfulness attaches to plaintiff's allegations ” While evaluating a factual attack, “the court may consider evidence outside the pleadings.” A factual attack on subject matter jurisdiction requires a factual dispute and “attacks the factual allegations underlying the complaint's assertion of jurisdiction, either through the filing of an answer or ‘otherwise present[ing] competing facts.'” A Rule 12(b)(1) factual attack “should be granted sparingly” as the “disputed factual issue [ ] goes both to the merits and jurisdiction.” The court must “demand less in the way of jurisdictional proof than would be appropriate at a trial stage.”
Id. at 358. (quoting Gould Elecs. Inc., 220 F.3d at 176 (citing Gotha v. United States, 115 F.3d 176, 178-79 (3d Cir.1997))). See also Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016).
Mortensen, 549 F.2d at 891.
Id.
Gould Electronics Inc., 220 F.3d at 178.
Davis, 824 F.3d at 346 (quoting Constitution Party, 757 F.3d at 358).
Id. at 350.
Mortensen, 549 F.2d at 892.
C. Administrative Procedure Act (“APA”) Standard of Review
“While summary judgment is the proper mechanism for deciding, as a matter of law, whether an agency decision is supported by the administrative record and consistent with the APA standard of review because the district judge sits as an appellate tribunal in such cases, the usual summary judgment standard does not apply.” Instead, the APA provides the standard of review courts must utilize when reviewing final agency decisions. In pertinent part, 5 U.S.C. § 706 provides:
Uddin v. Maryorkas, 862 F.Supp.2d 391, 399 (E.D. Pa. 2012) (internal citations and quotation marks omitted) (quoting UPMC Mercy v. Sebelius, 793 F.Supp.2d. 62, 67 (D.D.C. 2011).
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be-
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ....
A district court's scope of review under the arbitrary and capricious standard “is narrow” and “a court is not to substitute its judgment for that of the agency in an APA challenge.” “In determining whether an agency acted arbitrarily and capriciously, a district court considers whether the agency relied on factors outside those Congress intended for consideration, completely failed to consider an important aspect of the problem, or provided an explanation that is contrary to, or implausible in light of, the evidence.” The court may only reverse “only where the administrative action is irrational or not based on relevant factors.”
Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Auto Ins. Co., 463 U.S. 29, 43 (1983).
NVE, Inc. v. Dep't Health & Human Servs., 436 F.3d 182, 190 (3d Cir. 2006) (internal quotation marks omitted) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc., 463 U.S. at 43).
Elfeky v. Johnson, 232 F.Supp.3d 695, 706 (E.D. Pa. 2017) (quoting NVE, Inc. 436 F.3d at 190).
NVE, Inc. 436 F.3d at 190 (citing Pennsylvania Dep't of Pub. Welfare v. United States Dep't of Health and Human Servs., 101 F.3d 939, 943 (3d Cir.1996)).
In reviewing the agency action, the APA provides explicit instructions that the court is to “review the whole record or those parts of it cited by a party.”Specifically, “a court reviews OPM actions under the FEGLIA pursuant to the [APA], 5 U.S.C. § 706, based on the administrative record that was before OPM when it made its determination.”
Schwartz v. U.S. Off. Of Pers. Mgmt., No. DKC 12-1567, 2013 WL 5428719, at * 3 (D. Md. Sept. 25, 2013) (citing Burgin v. Off. of Pers. Mgmt., 120 F.3d 494, 497 (4th Cir. 1997)).
Section 706 also instructs that “due account shall be taken of the rule of prejudicial error.” This is effectively an instruction that the harmless error rule applies. “The Attorney General's Manual on the Administrative Procedure Act explained that the APA's reference to “prejudicial error” is intended to “su[m] up in succinct fashion the ‘harmless error' rule applied by the courts in the review of lower court decisions as well as of administrative bodies.” Therefore, “[i]f the agency's mistake did not affect the outcome, if it did not prejudice the petitioner, it would be senseless to vacate and remand for reconsideration.”
Shinseki v. Sanders, 556 U.S. 396 (2009) (quoting Dept. of Justice, Attorney General's Manual on the Administrative Procedure Act 110 (1947) (emphasis added)).
PDK Labs. Inc. v. United States Drug Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir. 2004).
With these factual and legal points in mind we now turn to the merits of this case.
IV. ANALYSIS
A. Defendant' s Motion To Dismiss for Lack of Jurisdiction
Defendant argues that, to the extent Plaintiff attempts to allege a claim directly under FEGLIA that the government breached a legal duty owed to Plaintiff under FEGLIA, the claim is barred by sovereign immunity. (Doc. 18, pp. 15-19; Doc. 25, pp. 3-4). The Court does not interpret Plaintiff's Complaint as bringing a claim directly under FEGLIA, but instead pursuant to the APA, 5 U.S.C. § 706. Therefore the Court need not determine whether we have subject matter jurisdiction under FEGLIA.
B. Defendant' s Motion for Summary Judgment
Markewicz asserts “the record overwhelmingly precludes summary judgment for USOPM and in fact, the undisputed material facts demonstrate that summary judgment should be entered in favor of Plaintiff,” (Doc. 22, pp. 2, 17), but we are compelled to disagree and will recommend Defendant's Motion for Summary Judgment be granted.
First, it appears there is a dispute about which section of FEGLIA is applicable. OPM asserts that because the claim involves Option B- Additional Insurance, 5 U.S.C. § 8714b applies, specifically § 8714b(c)(2)(A). (Doc. 18, pp. 19-29; Doc. 25, pp. 4-8). Plaintiff asserts in his Complaint that 5 U.S.C. § 8714c(c)(2)(B) applies. (Doc. 1, pp. 1-2). But in the Introduction to his Brief in Opposition, Plaintiff appears to allege 5 U.S.C. § 8714a applies. Plaintiff recites 5 U.S.C. § 8714a, bolding § 8714a(c)(2)(B)(i) and (ii) which read:
As explained above, there appears to have been a scrivener's error in OMP's final agency decision which Plaintiff copied into his Complaint. We interpret this as harmless error given the arguments of the parties, each agreeing that this is a question of multiples of life insurance for the employee, not the family members.
(B) In the case of any employee who becomes entitled to receive compensation under subchapter I of chapter 81 of this title because of disease or injury to the employee and has been insured under this section throughout-
(i) the 5 years of service immediately preceding the date such employee becomes entitled to such compensation, or
(ii) the full period or periods of service during which the employee was entitled to be insured, if less than 5 years ....(Doc. 22, pp. 2-4).
Option A- Standard Optional life insurance is governed by 5 U.S.C. § 8714a. Option C- Optional Family life insurance is governed by 5 U.S.C. § 8714c. Neither Option A nor Option C life insurance benefits elections are at issue in this case and as such, neither 5 U.S.C. § 8714a or § 8714c apply.
Option B- Additional Optional life insurance is governed by 5 U.S.C. § 8714b. Plaintiff is seeking review of OPM's decision that he is not eligible to continue Option B life insurance at five multiples into retirement so clearly the applicable law is 5 U.S.C. § 8714b.
Reviewing the administrative record before OPM when it rendered its final decision, (Docs. 19-2, 19-3, 19-4, 19-5, 19-6, 19-7), we conclude that OPM's decision was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ” Under the applicable statute, to carry Option B life insurance into retirement at a certain multiple, the retiring employee must have had Option B at that multiple for either the five years immediately preceding his retirement (“the five year requirement,”) or the entire time Option B at that multiple was available to him if less than five years (“the all opportunity requirement”).
Plaintiff alleges that the “all opportunity” requirement applies to him. (Doc. 1; Doc. 22; Doc. 19-7, pp. 2-3). Plaintiff believes the first opportunity for him to elect Option B coverage was during the September 2016 Open Season, at which time he elected Option B at five multiples. (Doc. 1, p. 2; Doc. 19-7, p. 3; Doc. 22, p. 8). In Plaintiff's view, because he elected five multiples in September 2016 and retired in December 2020, Option B was not available to him for five years, so the “all opportunity” requirement applies and was met. Id.
OPM asserts that the five-year requirement applies to Plaintiff and that its final decision was correct. (Doc. 18, pp. 19-30). OPM supports its assertion by citing to the OPM administrative record, specifically the SF 2817 life insurance election form Plaintiff signed and completed on January 6, 2015, which reflects that Plaintiff elected Option B coverage at one multiple when he first started civilian employment at the Department of Labor. (Doc. 18, pp. 26-27, 29-30; Doc. 19-3, p. 5; Doc. 25, p. 6).
Review of the administrative record confirms OPM's final decision (that Plaintiff is eligible to carry Option B life insurance only at one multiple into retirement) was correct. On January 6, 2015, the day Plaintiff was hired at DOL, he filled out and signed an SF 2817, Life Insurance Election form. (Doc. 19-3, p. 5). On that form, Plaintiff indicated he wanted Basic insurance. Id. As a result, Plaintiff was eligible at that same time to elect Option B Additional Optional life insurance. This was the first opportunity for Plaintiff to elect Option B life insurance. Id. Plaintiff did so, indicating on the SF 2817 dated January 6, 2015 that he was electing Option B life insurance at one multiple. Id. That form was received by DOL on January 9, 2015, and Plaintiff's Option B life insurance coverage at one multiple was effective as of that date. Id. Option B life insurance was thus available to Plaintiff beginning in January 2015.
Plaintiff emphasizes that the September 2016 Open Season was the first Open Season since 2004 and appears to believe that means Option B was not available to him until September 2016. (Doc. 1, p. 2; Doc. 22, p. 8). However, that is not the case. Option B life insurance was available to Plaintiff upon his hiring and at that time he chose to elect Option B at one multiple. (Doc. 19-3, p. 5).
Plaintiff retired on December 31, 2020, more than five years after January 2015, when Option B life insurance was first available to him. (Doc. 18, p. 6). Therefore, the five-year requirement applies to Plaintiff's case. This means we examine December 31, 2015, through December 31, 2020, to determine whether Plaintiff had Option B at five multiples the entirety of those five years. Looking at the history of Plaintiff's Option B life insurance election during the five years immediately preceding his retirement, the lowest number of multiples Plaintiff elected during that time was, in fact, one. (Docs. 19-2, 19-3, 19-4, 19-5, 19-6, 19-7). Plaintiff elected Option B for the first time, when it was first available to him, on January 6, 2015 at one multiple. (Doc. 19-3, p. 5). Plaintiff did not elect to increase his Option B coverage until the September 2016 Open Season. Because the lowest multiple of Option B life insurance Plaintiff elected during the five years immediately preceding his retirement was one multiple, Plaintiff is only eligible to carry Option B life insurance into retirement at one multiple. That is the conclusion OPM made. (Doc. 1, pp. 4-5; Doc. 19-6, pp. 1-2; Doc. 19-7, pp. 4-5). Therefore, OPM's final decision was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
There is apparently dispute among the parties about when Plaintiff's Open Season election of Option B at five multiples went into effect. Defendant asserts it went into effect October 1, 2017 as OPM stated in the Open Season announcement and as was written on Plaintiff's SF 2817 by DOL. (Doc. 18, p. 28; Doc. 19-3, p. 4). In his Brief in Opposition Plaintiff states, “Defendant failed to point out that the employee would pay the higher premium for Option B- Additional Life Insurance at 5 multiples coverage without ANY entitlement to the higher life insurance benefit until October 1st [sic] 2017. The contract started when they started to take the money on October 1st [sic] 2016. I had the contract for Option B- Additional Life Insurance at 5 Multiples for over 4 full years when I became il [sic] and had to retire.” (Doc. 22, p. 8). However, it does not matter when the Open Season election became effective as the Open Season was not the time when Option B first became available to Plaintiff. Additionally, as explained above, two versions of an October 30, 2020, SF 2818 Continuation of Life Insurance Coverage form appear in the OPM administrative record, one electing Option B at one multiple, and one electing Option B at five multiples. (Doc. 19-3, p. 2; Doc. 19-7, p. 8). Plaintiff urges the Court to use the version electing five multiples (Doc. 22, p. 14), while Defendant asserts the version electing one multiple controls (Doc. 18, p. 29; Doc. 25, p. 7). It does not matter which form is controlling. Even if the digital version showing an election of Option B at five multiples is controlling, Plaintiff still does not qualify to elect to continue Option B at any multiple under 5 U.S.C. § 8714b(c)(2)(A) for the reasons explained.
In the March 9, 2022 letter constituting OPM's final decision, OPM mistakenly identified 5 U.S.C. § 8714c(c)(2) as the law applicable to Plaintiff's case. (Doc. 19-6, pp. 1-2). However, this was harmless error. The controlling issue in this case is when Option B life insurance was first available at any multiple to Plaintiff and when he first elected Option B life insurance at five multiples. We are thus concerned with the timing element of 5 U.S.C. § 8714b(c)(2). While OPM apparently applied 5 U.S.C. § 8714c(c)(2) to Plaintiff's case, the timing requirements under 5 U.S.C. § 8714b(c)(2)(A) and (B), (the law applicable in this case), and 5 U.S.C. § 8714c(c)(2)(A) and (B) are identical. Section 8714b(c)(2) provides:
(2) In the case of any employee who retires on an immediate annuity or who becomes entitled to receive compensation under subchapter I of chapter 81 of this title because of disease or injury to the employee, so much of the additional optional insurance as has been in force for not less than--
(A) the 5 years of service immediately preceding the date of retirement or entitlement to compensation, or
(B) the full period or periods of service during which the insurance was available to the employee, if fewer than 5 years ....
Section 8714c(c)(2) provides:
(2) In the case of any employee who retires on an immediate annuity or who becomes entitled to receive compensation under subchapter I of chapter 81 of this title because of disease or injury to the employee and who has had in force insurance under this section for no less than--
(A) the 5 years of service immediately preceding the date of retirement or entitlement to compensation, or
(B) the full period or periods of service during which the insurance was available to the employee, if fewer than 5 years ....
Both sections require that the retiring employee had the Option B or Option C insurance at the multiples they seek to carry into retirement for the five years immediately preceding the date of their retirement, or for the full period Option B or Option C were available for them, if fewer than five years. Plaintiff does not meet the timing requirement under either Section for the reasons explained above. Therefore, it was harmless error for OPM to mistakenly evaluate Plaintiff's case under 5 U.S.C. § 8714c(c)(2).
It also appears Plaintiff tries to argue in his Reply Brief that, because he received a 100% disability rating by the VA (after he retired) another section should apply to him. He argues that, starting on December 16, 2021(his VA disability effective date), the “any employee who becomes entitled to receive compensation under subchapter I of chapter 81 of this title because of disease or injury to the employee” language of 5 U.S.C. § 8714a(c)(2)(B) applied to him, making him eligible to continue his Option B coverage at five multiples into retirement. (Doc. 22, p. 14). As explained above, 5 U.S.C. § 8714a does not apply to Plaintiff's case. However, 5 U.S.C. § 8714b(c)(2) also contemplates “any employee . . . who becomes entitled to receive compensation under subchapter I of chapter 81 of this title because of disease or injury to the employee ....”
5 U.S.C. § 8714b(c)(2). Section 8714c(c)(2) contains this same language and would be subject to the same analysis performed below. Therefore OPM's apparent application of § 8714c(c)(2) to Plaintiff's case would still be harmless error under this language.
To the extent Plaintiff asserts that he qualifies under this language because he received a 100% disability rating from the VA after he retired, he is incorrect. The language instructs, “in the case of any employee . . . who becomes entitled ”
5 U.S.C. § 8714b(c)(2). (emphasis added).
First, Plaintiff does not allege or show that he was entitled to compensation under subchapter I of chapter 81 of Title 5 as required.
Second, Plaintiff bases his argument that this language applies to the fact that on December 16, 2021, his 100% disability rating was approved by the VA. (Doc. 22, pp. 4, 14-15, 22).
Plaintiff retired on December 31, 2020. (Doc. 18, pp. 10, 25, 30). Thus, under the definitional section of Chapter 87, Plaintiff was not an “employee” at the time that disability rating was approved, he was by then an “annuitant.” Plaintiff therefore does not qualify under this disability language to continue his Option B Additional Optional life insurance into retirement at five multiples.
For the reasons explained above, it will be recommended that Defendant's Motion for Summary Judgment (Doc. 13) be granted.
Two additional “claims” must be addressed, the attempted ADA claim and Plaintiff's request for summary judgment.
C. Plaintiff's Administrative Procedures Act and Rehabilitation Act Claims
It appears to the Court that Plaintiff tries to amend his Complaint in his Brief in Opposition by asserting different claims: that OPM somehow violated the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“RA”). (Doc. 22, pp. 18-21). Plaintiff states in the argument section of his Brief that “After outlining the ‘Regarded as' provisions of Section 504 and the ADA, this section will address the United States Office of Personnel Management ignored argument.” (Doc. 22, p. 18). The Court does not know what Plaintiff means by “the United States Office of Personnel Management ignored argument.” Id. Neither the ADA nor Section 504 of the RA are mentioned in Plaintiff's Complaint. Thus Defendant could not have ignored any claims or arguments relating thereto. Plaintiff did not cite to the ADA or RA or mention these claims in his Complaint. It is well settled that a Plaintiff cannot amend a complaint in a brief opposing a motion to dismiss or summary judgment. Plaintiff attempts to do so here by apparently asserting ADA and RA claims against OPM. Plaintiff may not do so. If Plaintiff would like to bring an ADA or RA claim, he is free to do so by filing a new complaint properly asserting such a claim in compliance with the Federal Rules of Civil Procedure, Local Rules, and the applicable statute of limitations.
Reed v. Chambersburg Area School. Dist., 951 F.Supp.2d 706, 720 (M.D. Pa. 2013), Davis v. Portfolio Recovery Associates, LLC., No. CV 21-166, 2022 WL 138046, at *4 (W.D. Pa. Jan. 14, 2022).
D. Plaintiff's “Motion for Summary Judgment”
In the Introduction to his Brief in Opposition, Plaintiff argues that Defendant violated Local Rule 7.6 for failing to timely reply to his motion for summary judgment filed on July 12, 2022. (Doc. 22, p. 1). However, Plaintiff has not filed a motion for summary judgment in this case. On July 12, 2022, Plaintiff filed his Complaint with the Court. (Doc. 1). A complaint is not the same as a motion for summary judgment. Therefore to the extent Plaintiff may be attempting to argue he has a pending motion for summary judgment that should be granted in his favor, this argument is erroneous as no such motion has been filed.
V. RECOMMENDATION
For the reasons explained above, it is RECOMMENDED THAT:
(1) Defendant's Motion for Summary Judgment (Doc. 13) be GRANTED; and
(2) The Clerk of Court be instructed to CLOSE this case.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the
Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.