The widow of a federal employee who missed having 10 years of creditable federal service by thirteen days, has now lost before the appeals court on her bid for a survivor annuity benefit under FERS. (Almaden v. Office of Personnel Management, C.A.F.C. No. 2009-3300 (nonprecedential), 1/15/2010)
This case underscores the lack of flexibility when it comes to statutory requirements. Either the employee had completed ten years of creditable service, or he hadn’t.
In this case, the Office of Personnel Management concluded that Manuel Almaden—who had worked for multiple federal agencies before his death—had completed a total of nine years, 11 months, and 17 days of creditable federal service under FERS. (Opinion pp. 1-2)
Mrs. Almaden had no success in her request to the OPM to reconsider and an appeal to the Merit Systems Protection Board, so she took her case to the Federal Circuit Court of Appeals.
The court has now upheld OPM’s determination, finding no basis to disturb it.
Mrs. Almaden admitted to the appeals court that her husband lacked the requisite service by 13 days. However, she argued that OPM should consider her husband’s overtime hours worked, and give weight to her financial and physical hardships (she has cancer). (p. 3)
The court, while sympathetic to Almaden’s "unfortunate circumstances," points out that the law is specific on the question of including overtime in the calculation of creditable service. "Full-time service means any actual service in which the employee is scheduled to work the number of hours and days required by the administrative workweek for his or her grade or class (normally 40 hours)." (pp. 3-4)
Further, the court points out that "annuities under FERS cannot be granted based on equitable grounds." Therefore, the court is "compelled" to affirm OPM’s decision. (p. 4)
Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.