                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

__________________________________________
                                          :
JON C. COOPER,                            :
                                          :
                        Plaintiff,        :
                                          :
      v.                                  :                Civil Action No. 15-2052 (ABJ)
                                          :
UNITED STATES OFFICE OF                   :
PERSONNEL MANAGEMENT,                     :
                                          :
                        Defendant.        :
_________________________________________ :

                                 MEMORANDUM OPINION

       This matter is before the Court on Defendant’s Motion for Summary Judgment [Dkt. # 11]

and Plaintiff’s Motion to Amend Complaint [Dkt. # 14]. For the reasons discussed below, the

Court will grant the former and deny the latter.

                                        BACKGROUND

       Federal employees may participate in the Federal Employees’ Group Life Insurance

Program (“FEGLI”). See Mem. of Law in Supp. of Mot. for Summ. J. [Dkt. # 11-1] (“Def.’s

Mem.”) at 3. The government of the United States “is the policyholder under a policy of life

insurance issued by a commercial company” which administers claims under FEGLI through its

Office of Federal Employees’ Group Life Insurance. Id. at 4. An employee is automatically

eligible for and covered under FEGLI unless he affirmatively waives Basic coverage. Id. at 6,

citing 5 U.S.C. § 8701(a)–(b) and 5 C.F.R. § 870.301(a). An employee may elect to cancel

coverage at any time by submitting his request in writing. See id., citing 5 C.F.R. § 807.502(a).

Ordinarily, coverage ceases upon the employee’s separation from federal service. Id. However,




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coverage may be continued under certain circumstances, and relevant to this case is the following

provision:

               In the case of any employee who retires on an immediate annuity
               and has been insured under this chapter throughout —

                      (A) the 5 years of service immediately preceding the date of
               the employee’s retirement, or

                     (B) the full period or periods of service during which the
               employee was entitled to be insured, if fewer than 5 years,

               life insurance, without accidental death and dismemberment
               insurance, may be continued, under conditions determined by the
               Office [of Personnel Management].

5 U.S.C. § 8706(b)(1) (emphasis added).

        The Office of Personnel Management (“OPM”) illustrates the application of §

8706(b)(1)(B), known as the “all opportunity” requirement, with this example from the FEGLI

Handbook:

               Amy waived all FEGLI when she was first employed in 1973. She
               left Federal service in 2003 and returned to service in 2011. When
               she returned to service, she was automatically enrolled in Basic
               insurance her very first day. She retired 11/30/12. Amy did not
               meet the 5-year requirement for continuing her FEGLI coverage
               (she waived it back in 1973). Her “first opportunity” to enroll was
               in 1973. Since she did not have the coverage for the full period of
               service it was available to her, she also didn’t meet the all-
               opportunity requirement. Therefore, Amy was not eligible to
               continue any of her FEGLI coverage into retirement.

Def.’s Mem. at 7–8 (excerpt from FEGLI Handbook). Breaks in service are not considered. See

id. at 7.

        Plaintiff was an employee of the Environmental Protection Agency from May 27, 1979 to

February 4, 1983, when he left the federal service. Administrative R., Ex. to Def.’s Mem. [Dkt. #

11-3] (“AR”) at OPM 056; Compl. [Dkt. # 1] at 2. He waived FEGLI coverage twice: on May 31,


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1979 and March 12, 1981. AR at OPM 004–005. When plaintiff joined the United States Coast

Guard as a civilian employee, he selected Basic FEGLI coverage effective May 21, 2011. AR at

OPM 003; see Compl. at 1. He retired on May 31, 2014. AR at OPM 056.

       Plaintiff elected Basic FEGLI life insurance coverage “as part of his retirement package

from the . . . Coast Guard, but his application was denied by OPM.” Compl. at 1. On or about

September 8, 2015, plaintiff sought reconsideration of the initial decision, but the agency denied

his request again. Final Agency Decision dated October 8, 2015, Ex. to Compl (“Final Agency

Decision”).

       OPM’s Final Agency Decision referred to 5 C.F.R. § 870.701(a), which provides:

               When an insured employee retires, Basic life insurance . . . continues
               or is reinstated if he/she:

                      (1) Is entitled to retire on an immediate annuity under a
               retirement system for civilian employees, including the retirement
               system of a nonappropriated fund instrumentality of the Department
               of Defense or the Coast Guard;

                       (2) Was insured for the 5 years of service immediately before
               the date the annuity starts, or for the full period(s) of service during
               which he/she was eligible to be insured if less than 5 years; and

                       (3) Has not converted to an individual policy as described in
               § 870.603. If it is determined that an individual is eligible to
               continue the group coverage as an annuitant after he/she has already
               converted to an individual policy, the group enrollment may be
               reinstated. If the individual wants the group coverage reinstated, the
               conversion policy must be voided, the group policy must be
               reinstated retroactively, and the premiums already paid on the
               conversion policy must be refunded to the individual.

5 C.F.R. § 870.701(a)(1)–(3) (emphasis added). As OPM explained it, the agency accounted for

both plaintiff’s Coast Guard service and his prior service with the Environmental Protection

Agency when it considered whether he had satisfied the five-year requirement:




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               Since in your case, your last period of service did not total five years
               of creditable coverage, your prior service had to be used to
               determine your eligibility to continue your coverage of life
               insurance into retirement. But because you had waived your
               coverage during that entire period of service, you did not meet the
               five years requirement. The fact is you elected to waive the life
               insurance at every opportunity you had until your employment in
               May 2011. Therefore, you only had coverage for 3 years, 0 months
               and 10 days.

Final Agency Decision at 2.

       Plaintiff acknowledges that, because he had not been employed with the Coast Guard for a

full five-year period immediately preceding his retirement, he is not eligible to continue FEGLI

coverage under 5 U.S.C. § 8706(b)(1)(A). See Compl. at 1. He objects to “the look back period

of 30 years,” id. at 2, and asserts that, under 5 U.S.C. § 8706(b)(1)(B), he is entitled to continued

life insurance coverage because he was both eligible and elected coverage for the full period of

service as a Coast Guard employee. See id. at 1–2. Plaintiff demands that OPM provide life

insurance coverage “as part of his OPM retirement package.” Id. at 3.

                                            ANALYSIS

I.     Plaintiff’s Motion to Amend Complaint

       Generally, the Court “should grant leave to amend a complaint ‘[i]n the absence of any

apparent or declared reason – such as undue delay, bad faith or dilatory motive on the part of the

movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice

to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.”’

Atchinson v. District of Columbia, 73 F.3d 418, 425–26 (D.C. Cir. 1996), quoting Foman v. Davis,

371 U.S. 178, 182 (1962). Leave to amend a complaint under Rule 15(a) “shall be freely given

when justice so requires.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996), citing Fed.

R. Civ. P. 15(a). “Where amendment would be futile, however, the Court may in its discretion



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deny such a motion.” Anderson v. Fed. Bureau of Prisons, No. 10-0413, 2011 WL 346079, at *1

(D.D.C. Feb. 3, 2011). And an amendment is considered futile “if it would not survive a motion

to dismiss or for judgment on the pleadings.” Stith v. Chadbourne & Parke, LLP, 160 F. Supp. 2d

1, 6 (D.D.C. 2001).

       A. Age Discrimination Claim

       Plaintiff moves to amend his complaint “to add a [claim] that the action of the OPM violates

Federal Statutes against age discrimination in that it discriminates against senior citizens.” Mot.

to Am. Compl. [Dkt. # 14] (“Pl.’s Mot.”) at 1. He points to the FEGLI Handbook example

involving “Amy,” the fictional employee who did not qualify for life insurance coverage into

retirement because she waived coverage “at her first opportunity (which was approximately 39

years before her retirement date),” and concludes that ‘“Amy’ is a senior citizen.” Id. at 5.

According to plaintiff, “the major group impacted and damaged by [the all opportunity

requirement] is senior citizens.” Id. at 6. He opines that there exists “a large group of people who

worked for the Federal Government when they were young, then took another position outside of

government for many years . . . , and then returned to government service in their later years.” Id.

“By requiring a look back period,” encompassing the group members’ entire history of federal

service, “under the OPM interpretation, it is highly unlikely that this entire group of individuals

would qualify for insurance.” Id. In effect, plaintiff asserts, OPM’s interpretation “has the effect

of denying coverage to seniors at a time they most need it.” Id.

       Plaintiff does not identify the federal statute or statutes on which his proposed age

discrimination claim relies. OPM presumes that plaintiff’s claim would be brought under the Age

Discrimination in Employment Act (“ADEA”), see 29 U.S.C. § 621 et seq., and argues that an

ADEA claim would be subject to dismissal. See Def.’s Opp. to Pl.’s Mot. for Leave to Am. Compl.



                                                 5
[Dkt. # 15] (“Def.’s Opp.”) at 5. A claimant may not commence a civil action under the ADEA

unless he first filed a charge with the Equal Employment Opportunity Commission “within 180

days after the alleged unlawful practice occurred,” 29 U.S.C. § 626(d)(1)(A), and nothing in the

record of this case suggests that plaintiff ever filed a charge of age discrimination with the EEOC.

Thus, OPM argues, and the Court concurs, that “[p]laintiff failed to exhaust administrative

remedies.” Def.’s Opp. at 5–6. Therefore, the Court will deny plaintiff’s motion to amend the

complaint to add an age discrimination claim on the ground that the amendment would be futile.

       B. APA Claim

       Plaintiff also requests leave add two claims under the Administrative Procedure Act

(“APA”). See 5 U.S.C. § 701 et seq. First, he asserts that the term “all opportunity” does not

appear as “a term or concept in the controlling legislation,” and instead deems it “a regulatory

change that has no justification,” rendering it “arbitrary and capricious.” Pl.’s Mot. at 4. Second,

plaintiff contends that, absent any “record cited by the OPM in publishing the regulation and asking

for public comments,” OPM ran afoul of the APA’s notice and comment requirement. Id.

       OPM notes that any challenge under the APA “must be brought within six years of when

the right of action accrued.” Def.’s Opp. at 1 n.1. “It is not clear when plaintiff is alleging his

challenge to OPM’s interpretation of the FEGLI statute accrued,” but since “OPM’s regulation

implementing the statutory five year rule has been in place since at least 1978,” OPM argues that

plaintiff’s challenge is untimely. Id. The Court agrees. “[E]very civil action commenced against

the United States shall be barred unless the complaint is filed within six years after the right of

action first accrues,” 28 U.S.C. § 2401(a), and this provision applies to a civil action brought under

the APA. See, e.g., Harris v. FAA, 353 F.3d 1006, 1009 (D.C. Cir. 2004). Section 2401(a) is a

waiver of the federal government’s sovereign immunity, such that plaintiff’s failure to mount a



                                                  6
timely challenge to the implementation of the regulation at issue deprives the Court of subject

matter jurisdiction over the claim. See, e.g., Terry v. U.S. Small Bus. Admin., 699 F. Supp. 2d 49,

54 (D.D.C. 2010) (concluding that plaintiff's claims are barred under § 2401(a) and must be

dismissed for lack of subject matter jurisdiction).

II.    Defendant’s Motion for Summary Judgment

       Since the Court will not grant plaintiff leave to file an amended complaint, it must consider

the dispositive motion filed in connection with his original complaint. In this action, plaintiff

challenges OPM’s Final Agency Decision and seeks judicial review under the APA, pursuant to

which the Court “shall . . . hold unlawful and set aside agency action, findings, and conclusions

found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law.” 5 U.S.C. § 706(2)(A). “This standard of review is highly deferential to the agency.” Bean

Dredging, LLC v. United States, 773 F. Supp. 2d 63, 73 (D.D.C. 2011). An agency’s decision may

be deemed arbitrary and capricious if the agency

               has relied on factors which Congress has not intended it to consider,
               entirely failed to consider an important aspect of the problem,
               offered an explanation for its decision that runs counter to the
               evidence before the agency, or is so implausible that it could not be
               ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

“In applying that standard, the focal point for judicial review should be the administrative record

already in existence,” Camp v. Pitts, 411 U.S. 138, 142 (1973), and the Court may not “substitute

its judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402,

416 (1971).

       There is no dispute as to the basic facts of this case. It is apparent that plaintiff was not

eligible and covered for a full five-year period prior to his retirement from the Coast Guard in



                                                  7
2014, and instead was eligible and covered only for a period of three years and ten days. In

addition, the record shows that plaintiff had been eligible for and waived coverage for the entire

period of his prior federal service with the Environmental Protection Agency. According to OPM,

plaintiff does “not meet the statutory requirements of 5 U.S.C. § 8706(b)(1) or 5 C.F.R. §

870.701(a)(1-3) for continuing FEGLI Basic coverage as an annuitant” because “he was not

insured for FEGLI Basic coverage for all periods of service during which he was eligible to be

insured” due to his waiver of coverage in 1979 and 1981. Def.’s Mem. at 10. OPM argues that

“there was only one reasonable conclusion the agency could have reached,” such that it “is in no

way arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. at

11 (emphasis omitted).

        Now that OPM has “clarified [its] position based on [its] manual,” Pl.’s Resp. to Def.

Office of Personnel Management Mot. for Summ. J. [Dkt. # 13] (“Pl.’s Opp.”) at 1, plaintiff argues

that “OPM . . . completely ignores that the full period of [Coast Guard] service . . . was sufficient

to meet the requirements of the statute.” Id. at 4. “A plain reading [of the all opportunity

requirement] is that[,] if a five year period is not satisfied, then a shorter period is justified as long

as the individual has been fully covered during the current employment period.” Id. (emphasis

omitted). In other words, the provision “does not provide for any look-back period.” Id.

        But plaintiff’s interpretation of the all opportunity requirement is at odds with the test. The

statutory language authorizes OPM to consider “the full period or periods of service during which

the employee was entitled to be insured,” in circumstances where the employee had been employed

“fewer than 5 years” immediately preceding his retirement. 5 U.S.C. § 8706(b)(1)(B) (emphasis

added). Nothing in this language prevents OPM from considering a prior period of federal service

in order to determine whether the employee both had been eligible for and had been covered for a



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five-year period before retirement. In other words, the look back gives retirees who re-entered

federal service late in life the opportunity to point to previous service to obtain the insurance

benefit; it does not penalize employees with prior service.

       Plaintiff’s period of service with the Coast Guard was three years and ten days, i.e., less

than five years immediately preceding his retirement. OPM therefore looked at plaintiff’s prior

federal service and found that plaintiff was entitled to FEGLI coverage, but he waived it. In short,

plaintiff had not been insured “throughout . . . the full period or periods of service during which

[he] was entitled to be insured,” 5 U.S.C. § 8706(b)(1)(B) (emphasis added), and therefore plaintiff

is not eligible to continue FEGLI coverage into retirement. See Schwartz v. U.S. Office of Pers.

Mgmt., No. 12-1567, 2013 WL 5428719, at *5 (D. Md. Sept. 25, 2013) (concluding that plaintiff

who waived life insurance coverage at the first opportunity in 1968, elected life insurance at 2007

when he came back into federal service, and retired three years later “did not meet the eligibility

requirements to continue ‘Basic life insurance’ into retirement”).

                                         CONCLUSION

       The Court will deny plaintiff’s motion to amend the complaint as futile because the

proposed new claims would be subject to dismissal. With respect to the original complaint, OPM

has demonstrated that there are no genuine issues of disputed facts, and that it is entitled to

judgment as a matter of law. Therefore, the Court will grant its motion for summary judgment.

       A separate order will issue.




                                                     /s/
                                                     AMY BERMAN JACKSON
DATE: November 30, 2016                              United States District Judge



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