United States District Court, E.D. Kentucky, Northern Division, Covington
ELZA L. HARRELL, Plaintiff,
OFFICE OF PERSONNEL MANAGEMENT, ET AL., Defendants.
MEMORANDUM OPINION AND ORDER
WILLIAM O. BERTELSMAN, District Judge.
Plaintiff Elza Harrell ("Harrell"), proceeding pro se, challenges the decision of the Office of Personnel Management ("OPM") denying his request to change the life insurance election he made upon his retirement from the U.S. Postal Service in 2005. Liberally construing the complaint, Harrell asserts claims under the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. §§ 701-796 l, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 500-706.
The matter is currently before the Court on Defendants' motion to dismiss or, in the alternative, motion for summary judgment (Doc. 27). The Court has reviewed the parties' briefs and concludes that oral argument is not necessary. For the following reasons, the Court grants Defendants' motion.
Harrell retired from the U.S. Postal Service on May 19, 2005. (Doc. 28-2, A.R., at 2.) On May 21, 2005, Harrell completed a Standard Form 2818 ("SF 2818") - entitled Continuation of Life Insurance Coverage - on which he chose to continue his Basic coverage under the Federal Employees' Group Life Insurance ("FEGLI") Program with a 75 percent reduction. ( Id. at 12.) Harrell alleges that he was "under extreme mental duress" and taking anti-depressants as well as anti-psychotics to treat post-traumatic delayed stress syndrome and extreme depression brought on by a tour of duty in Vietnam. (Doc. 5, Amended Complaint, at 2).
In February of 2012, Harrell reviewed his retirement paperwork with his wife. She became concerned when she saw that Harrell had continued his life insurance coverage at a 75 percent reduction. Harrell subsequently contacted the Office of Personnel Management ("OPM") and alleges that OPM directed him to send a letter requesting a change from a 75 percent reduction to a zero reduction in his FEGLI benefit. ( Id. )
Harrell alleges that he sent such a letter and that OPM informed him in May of 2012 that they had lost the letter. Harrell sent a second letter via certified mail in July of 2012, which he alleges OPM also lost despite the fact that someone signed for it. Harrell finally sent a copy of the letter to OPM via fax. ( Id. )
II. PROCEDURAL HISTORY
OPM received the fax and issued an initial decision denying Harrell's request to change his FEGLI election. Harrell timely requested reconsideration of that initial decision, but OPM denied reconsideration and issued a final administrative decision on August 21, 2012. (Doc. 28-3, A.R., at 2-3.)
Harrell then filed suit in this Court against OPM and its Associate General Counsel, Richard Allan Miller ("Miller"), on September 18, 2012 (Doc. 1). On April 15, 2014, Defendants filed the instant motion to dismiss or, in the alternative, motion for summary judgment (Doc. 27).
Pursuant to the Federal Employees' Group Life Insurance Act ("FEGLIA"), 5 U.S.C. §§ 8701-8716, OPM purchases life insurance policies for federal government employees who participate in the FEGLI program. But the government is not the insurer; it is the policyholder under a commercial insurance policy. Kimble v. United States, 345 F.2d 951, 952 (D.C. Cir. 1965).
Although the federal government has given consent to be sued under FEGLIA, 5 U.S.C. § 8715, federal courts have construed that consent narrowly. "The statutory scheme presupposes that claimants will ...