Two Years Means Two Years

A retired federal employee missed the deadline to elect a survivor annuity for her new husband. She took her case to the appeals court when OPM turned her down. See if she fared any better with the court.

The facts are summarized in the court’s decision in Wishneski v. Office of Personnel Management (CAFC No. 2014-3128 (nonprecedential) 11/7/14).  A retiree who married some seven years after her retirement from federal service added her new husband to health benefits within a month of the marriage. However, for some reason she waited two years and four months to ask the Office of Personnel Management  (OPM) to provide a survivor annuity for him. Meanwhile OPM had sent her a few notices—including the annually required reminders—telling her that she must elect the survivor annuity in writing within two years of her marriage. Four months past the two-year deadline, the retiree wrote OPM to request survivor benefits. She claimed she did not know she had to elect these benefits, despite the notices that she later admitted receiving. (Opinion pp. 2-3)

OPM denied her application as untimely and the Merit Systems Protection Board agreed. (p. 4)

Undaunted, the retiree took her case to court. She recently lost her bid to get the court to overturn OPM. She argued that OPM failed to “inform her more clearly” that she had two years to elect the survivor benefit. (p. 4)

The court points out that OPM has no authority to waive the two-year filing requirement. However, it does have an obligation to inform retirees of the ins and outs of electing a survivor annuity after marrying, including the strict two-year deadline. Here, the retiree clearly missed the deadline by four months. She admits she got the notices, and OPM showed that those notices informed Ms. Wishneski of her obligations. The court opined that the notices were clear even though the retiree tried to argue they were too vague to understand. In short, because OPM showed it had sent the required notices, the appeals court affirms its denial of her application as untimely. (pp. 5-6)

Wishneski v. OPM 2014-3128

About the Author

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.