FLEOA wants repeal of 2016 annuity supplement policy

A group representing more than 27,000 federal law enforcement professionals is asking the Office of Personnel Management to roll back on a policy that negatively affects divorced former federal employees’ annuity supplements.

An Inspector General report found that OPM made a policy change that a former spouse is entitled to not only a portion of a retired law enforcement officer’s basic annuity, but that former spouse is also entitled to a portion of the former LEO’s annuity supplement, even if the divorce decree does not mention the issue.

Furthermore, the agency made the change without public notice and made it retroactive, and the IG report noted a rule against retroactive rulemaking based on a Supreme Court decision that stated, “congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.”

"Both the OPM-OIG and the [Merit Systems Protection Board] have found that OPM’s actions constituted a reinterpretation of current law that was outside of the agency’s authority and was done absent a specific grant of authority from Congress or through a notice-and-comment rulemaking process,” Nathan Catura, national president of the Federal Law Enforcement Officers Association, wrote in a letter to acting OPM Director Margaret Weichert.

Making the policy retroactive was the most significant impact of the rule because many officers suddenly accrued an unexpected debt upon retirement— as much as a $28,389.96 debt, according to Catura, which OPM has sought repayment in the form of prospective and retrospective assessments from annuitants’ retirement benefits.

Historically— for about 30 years—OPM applied the state court-ordered marital share to the basic annuity (known as the gross monthly annuity) only, and not also to the annuity supplement.

OPM began applying the state court-ordered marital share to both annuities, even in cases where the state court order did not address the annuity supplement, in July 2016.

“…these actions—whether or not officially sanctioned by your predecessors—have been allowed to continue for far too long,”Catura continued in the letter. “As such, we respectfully request that you take immediate and public steps to rectify this situation by: (1) immediately rescinding any and all debt collection efforts against retirees; (2) restoring all improperly seized RAS and/or other retirement benefits to the affected retirees; and (3) repealing the policy guidance issued in violation of the APA by the Retirement Services division that apportions a divorced retiree’s FERS annuity supplement where such division is not expressly provided for in a qualifying court order.”

Read the full letter here.

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