01-0018

Office of Merit Systems Oversight and Effectiveness

Date: April 9, 2001
File Number: [01-0018]
Matter of: [Claimants Name]

OPM Contact: Melissa Drummond

The claimant is currently an employee of the [agency]. In November 1994, the claimant was transferred from the [agency] to her current employing agency. While with the [agency], the claimant waived Federal Employees Group Life Insurance (FEGLI) coverage. However, upon her transfer to the [agency], she was erroneously enrolled in FEGLI. The claimant states that, through her employing agency, the Office of Personnel Management (OPM) has unjustly taken her pay for FEGLI premiums - premiums that she never enrolled in, coverage that she never had, and insurance that she had specifically "blocked" or waived and then unknowingly and unwittingly paid for. She requests that the money associated with those FEGLI premiums be restored to her, in a back pay amount of $1761.65. For the reasons discussed herein, the claim is denied.

The claimant provided a copy of a SF-50 Notification of Personnel Action, which showed that, while employed with and upon her termination from the [agency], she waived all life insurance. She also provided a copy of the SF-50 Notification of Personnel Action, that transferred her from the [agency] to the [agency]. In Block 27, it showed that "basic coverage" was elected. The claimant was enrolled in FEGLI with Basic Coverage from November 20, 1994 to October 20, 2000. The claimant provided copies of leave and earnings statements for each year during the claim period, which shows a deduction for this coverage. During an Inspector General audit in August 2000, a representative of the [agency] found the coverage error. The agency denied the claim in December 2000. We accepted the claim on February 20, 2001 and the agency provided information on March 30, 2001.

Following the agency's denial of her request, the claimant wrote to OPM's Insurance Policy and Information Division to request retroactive refund of the FEGLI premiums that were erroneously withheld for coverage that she had waived. She asked that OPM use the "equity and good conscience" provision in regulations to allow this retroactive payment. OPM informed the claimant that the incontestability provision, which is statutory, applied to her case. OPM stated that, if she or the agency had questioned the withholding within the

two-year time frame of the law, the claimant would have been able to receive a refund. However, according to 5 CFR 870.104, once two years have passed, the erroneous coverage becomes valid.

We concur with the agency's denial as well as the denial received from OPM's Insurance Policy and Information Division. We, along with the agency, agree that the agency mistakenly elected Basic Coverage for the claimant and did not waive the FEGLI coverage as indicated by the claimant during her initial employment with the CPSC. Nevertheless, in a Comptroller General decision, Simon B. Guedea, B-189385, Aug. 10, 1977, the employee's request for waiver of a resulting indebtedness was denied in view of the employee's fault in failing to verify the correctness of the information (or lack thereof) provided on his earnings and leave statements. That decision stated that the employee's agency has the responsibility to prepare proper payrolls and the duty to take steps to ensure that this responsibility is properly discharged. It pointed out, however, that the employee has the responsibility of verifying the correctness of the payments he or she receives and, where a reasonable person would have made inquiry but the employee did not, then he or she is not free from fault and the claim may not be waived. Therefore, the claim is denied.

OPM does not conduct investigations or adversary hearings in adjudicating claims, but relies on the written record presented by the parties. See Frank A. Barone, B-229439, May 25, 1988. Where the agency's factual determination is reasonable, we will not substitute our judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, Mar. 15, 1982, as cited in Philip M. Brey, supra.

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the claimants right to bring an action in an appropriate United States Court.