I Forgot About It – That’s Why I Deserve an Extension

A federal retiree acknowledged receiving the notice from Office of Personnel Management about the strict deadline for appealing an annuity decision, but said he should have received an extension because he put it aside and forgot about it. See how the court reacts in Schumacher v. Office of Personnel Management (CAFC No. 2014-3110 (nonprecedential), 9/15/14).

As reported in the court decision, this federal employee retired in 1999 on a full annuity. Although married at the time, Mr. Schumacher (for simplicity, “Mr. S”) did not elect a survivor annuity. Some eight years later, Mr. S was widowed. He remarried a few years later and at that time elected the maximum survivor annuity for his second wife. OPM sent Mr. S an explanation that by electing a full annuity, his monthly annuity would be actuarially reduced so that he would make up the cost that he would have incurred had he elected the full survivor annuity when he first retired in 1999. OPM warned Mr. S that this reduction would be “permanent even if the marriage ends.” (Opinion pp. 1-2) OPM further explained that Mr. S could elect reduced survivor benefits. Mr. S stayed the course and the full survivor annuity election kicked in.

Sure enough the marriage ended the next year. Mr. S got in touch with OPM seeking to undo the actuarial adjustment notwithstanding that OPM had warned him he could not go back once the survivor annuity kicked in the previous year. After some back and forth, Mr. S maintained that he never received that original OPM notice explaining the permanent nature of his previous election and that had he received it he would have NOT elected the full survivor annuity. (p. 3)

OPM denied the request to stop the actuarial reduction and told him he had thirty days to request reconsideration.  Mr. S waited a few months past the thirty-day deadline and requested reconsideration. Predictably, OPM rejected the request as untimely. On appeal to the Merit Systems Protection Board, Mr. S explained that he never got the initial OPM notice, that had he received it he would have cancelled the election, and indicated that he missed the deadline for requesting reconsideration because he “put the letter in [his] file and forgot about it.” (p. 3)

He also argued it was unfair to enforce the 30-day deadline because “OPM had taken so long to respond to his earlier requests.” (p. 4)

After the Board backed OPM’s decision, Mr. S went to the appeals court. Not too surprisingly the court points out that Mr. S admitted his request for reconsideration missed the deadline that he agreed had been clearly stated in OPM’s denial notice. Not persuaded by Mr. S’ arguments, the court found his request for reconsideration “was untimely because he put the letter in his file and forgot about it.”  (p. 5) Ouch!

Schumacher v. OPM 2014-3110

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.