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Update on FLEOA’s Legal Challenge Against OPM

August 21, 2020 

Dear Fellow Members, 

I am writing to provide you an update on FLEOA’s ongoing legal challenge against the Office of Personnel Management (OPM) for its 2016 decision to clandestinely reinterpret the retirement laws on the divisibility of a retirement annuity supplement (RAS) between a retiree and his or her former spouse. OPM’s decision has far-reaching financial consequences for many of our retired members who, through no fault of their own and without notice, saw their monthly retirement payments significantly reduced. Several entities have found fault with the way OPM implemented this policy change, including the OPM Inspector General. At FLEOA’s request, the OIG investigated this issue and found that OPM violated its own rules. 

Filed in U.S. District Court for the District of Columbia last year, FLEOA’s lawsuit challenges the OPM policy on three counts under the Administrative Procedure Act (APA):  (1) that the policy is arbitrary and capricious; (2) the policy constitutes an agency action taken without a notice-and-comment rulemaking process required by the APA; and (3) that in implementing the policy, OPM exceeded its statutory authority, particularly with regards to making the cut to a retiree’s monthly benefit payments retroactive. 

Soon thereafter, OPM filed a motion to dismiss the lawsuit, claiming that FLEOA lacked standing to bring the case and that the court lacked jurisdiction to hear it.  The court denied OPM’s motion without prejudice in November and requested that FLEOA and OPM provide additional information on the nature of OPM’s revised RAS policy and on the jurisdictional question OPM raised. 

In a decision released yesterday rejecting OPM’s attempt to quash the lawsuit, the court sided with FLEOA on two counts, and for the agency on the third.  On the first and third counts, the court rejected OPM’s argument that the issue should not be resolved by the court in the first instance and instead ruled that FLEOA could proceed our challenges to OPM's statutory authority to implement the policy change, which validated these points in our lawsuit. On the second count, however, the court sided with the government, finding that no rulemaking process was required because the agency was merely interpreting the statute instead of promulgating a legislative rule.  The court also directed us to confer with OPM about how to proceed with the case and to file a joint status report by September 21, 2020. 

The hope is that since the two points the court held in favor are purely legal as opposed to factual, we will be able to proceed straight to a summary judgment briefing on those issues and resolve this case in favor of our retired members. 

Despite the delay in the lawsuit, FLEOA is committed to continuing our efforts to address this fundamentally unfair and unlawful OPM policy. And we will continue this fight in the courts and on Capitol Hill until justice is achieved for our members. 

Fraternally, 

Larry Cosme           

National President

Federal Law Enforcement Officers Association