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James Scott v. Janet A Napolitano

September 14, 2012

JAMES SCOTT,
PLAINTIFF,
v.
JANET A NAPOLITANO, DEPARTMENT OF HOMELAND SECURITY,
DEFENDANTS.



The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court

ORDER GRANTING IN PART AND DENYING PART DEFENDANT'S EX PARTE APPLICATION TO CANCEL OR LIMIT SCOPE OF EVIDENTIARY HEARING

Defendant has filed an ex parte application to cancel or limit the scope of the evidentiary hearing on Defendant's motion to enforce settlement. For the reasons discussed below, Defendant's application is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

Plaintiff and Defendant filed competing motions to enforce settlement. In an order filed on July 10, 2012, the Court denied Plaintiff's motion to enforce an alleged settlement reached on July 28, 2011, and granted an evidentiary hearing on Defendant's motion to enforce the August 12, 2010 Memorandum of Settlement.

The Court granted an evidentiary hearing on the issue of whether Plaintiff could avoid enforcement of the Memorandum based on unilateral or mutual mistake of fact. The Court found that there was a factual question as to whether there was a mutual or unilateral mistake with respect to (1) whether Plaintiff had the option of obtaining federal health coverage through an OPM waiver; and (2) whether $150,000 was sufficient to provide comparable health coverage to Plaintiff and his family.

II. DISCUSSION

In its ex parte application, Defendant argues that the evidentiary hearing should be limited in scope or canceled. As discussed below, the Court finds that the evidentiary hearing should be limited to the second issue regarding the cost of comparable health coverage.

With respect to the OPM waiver, Defendant raises a new argument - that Plaintiff was not statutorily eligible for the OPM waiver. Defendant should have raised this argument earlier in connection with the motions to enforce settlement or at least well before the scheduled evidentiary hearing. Nevertheless, it appears that Defendant is correct.

5 U.S.C. § 8905 provides:

An annuitant who at the time he becomes an annuitant was enrolled in

a health benefits plan under this chapter--

(1) as an employee for a period of not less than--(A) the 5 years of service immediately before retirement;

(B) the full period or periods of service between the last day of the first period, as prescribed by regulations of the Office of Personnel Management, in which he is eligible to enroll in the plan and the date on which he becomes an annuitant; or

(C) the full period or periods of service beginning with the enrollment which became effective before January 1, 1965, and ending with the date on which he ...


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