Visit FedSmith.com to subscribe to our free email list!

Missed a Survivor Annuity by Six Days

A federal retiree’s widow missed out on claiming a survivor annuity by days. See how the appeals court ruled.

In Gibson v Office of Personnel Management (CAFC No. 2020-1651 (nonprecedential) 9/9/20, a widow sought to have the appeals court overturn a decision by the Office of Personnel Management (OPM) denying her a survivor annuity.

Ms. Gibson married her retiree husband on May 21, 2018. He elected a survivor annuity for her. Unfortunately for Ms. Gibson, her husband died February 15, 2019, six days before their 9 month “anniversary” date. OPM found that Ms. Gibson did not qualify as a widow as required by law. She was married 8 months and 24 days, or a total of six days shy of the required 9 months to qualify as his widow for annuity purposes. OPM therefore denied her application for the annuity. (Opinion p. 2)

Ms. Gibson took her appeal to the Merit Systems Protection Board (MSPB). The MSPB found there was no issue that she was married to Mr. Gibson. The issue was whether she met the 9 month requirement. The administrative judge did his own computation of the length of the marriage before Mr. Gibson died, but was only able to add one day by including the day of his death into the computation. Since the law says in order to qualify for a survivor’s annuity, the marriage must have been for at least 9 months prior to the date of the retiree’s death, the MSPB affirmed OPM’s decision. (p. 2)

The appeals court had the same problem. It ruled that under this law “month” refers to a calendar month or a 30-day period. For a different outcome in a future case, the court notes it is up to Congress “to make any changes it deems warranted in the definition of the lines that determine eligibility for the benefits at issue.” (p. 7)

This is a tough outcome for Ms. Gibson. She will not receive a survivor annuity.

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.