thedrifter
02-21-08, 04:36 AM
Widows win right to sue for denied survivor pay
Published Thu, Feb 21, 2008 12:00 AM
Tom Philpott
milupdate@aol.com
A U.S. Court of Federal Claims judge has given a green light to three military widows to sue the government for a combined $105,000 -- the accumulated value of Survivor Benefit Plan payments that, the widows contend, have been unlawfully withheld since Dec. 16, 2003.
In a 24-page opinion denying the government's motion to dismiss the case, Judge George W. Miller found that both the facts and the law favor the widows and counter every legal argument raised by government attorneys.
If they win their case, hundreds of surviving spouses in the same category could be in line for hefty benefit plan repayments, too. That category is precise: surviving spouses who remarried at 57 or older and who have had their Survivor Benefit Plan cut or wiped out by their decision to accept Dependency and Indemnity Compensation from the Department of Veterans Affairs.
The lawsuit challenges how the Department of Defense has interpreted a provision of the Veterans Benefits Act of 2003 (Public Law 108-183). The widows argue that Congress intended for them to be among the first small group of surviving military spouses deemed eligible for "concurrent receipt" of both Survivor Benefit Plan and Dependency and Indemnity Compensation. In other words, they were to be the first of 44,000 dual-eligible widows to be exempt from the so-called Survivor Benefit Plan-Dependency and Indemnity Compensation offset.
Under the benefit plan, service members nearing retirement elect to pay a monthly premium so that, in case of their death, their surviving spouse or a dependent child continues to receive up to 55 percent of their annuity.
Dependency and Indemnity Compensation, meanwhile, is a fixed amount of monthly compensation offered to families of service members who die while on active duty or military retirees who die of their service-related disabilities.
If a surviving spouse drawing Survivor Benefit Plan qualifies also for tax-free Dependency and Indemnity Compensation, the law requires that taxable Survivor Benefit Plan be reduced dollar-for-dollar by Dependency and Indemnity Compensation. Basic Dependency and Indemnity Compensation is now $1,067 a month with extra amounts paid for each dependent child.
It's important to understand that, until December 2003, Dependency and Indemnity Compensation stopped for any surviving spouse who remarried. But the Veterans Benefits Act of 2003 modified that rule. It allowed Dependency and Indemnity Compensation to continue, or be restored, if the surviving spouse remarried at 57 or older. This provision made more than 12,000 widows eligible again for Dependency and Indemnity Compensation if they knew to apply for it.
But advocates for military widows said the same provision did more than that. "Paragraph B" was written so that it would shield these remarried widows, when their Dependency and Indemnity Compensation was restored, from any reduction in
Survivor Benefit Plan. That intent was confirmed by members and staff of the House Veterans Affairs Committee interviewed by Military Update back in January 2004.Rep. Henry E. Brown Jr., then chairman of the personnel subcommittee, said weeks after the law was enacted: "We put a special paragraph in there to, basically, get (the Department of
Defense) to do that. This was to get the camel's nose under the tent, sort of like we did with concurrent
receipt'' for disabled retirees.
Judge Miller referred to Brown's quote in his opinion rejecting the dismissal motion though he relied on
legal arguments for his actual
opinion.
Despite protests from affected widows, Defense pay officials and lawyers declined in 2004 to interpret the law to allow concurrent receipt. Like other surviving spouses, these widows saw that as their Dependency and Indemnity Compensation kicked in, their Survivor Benefit Plan fell away. Last July, three of them filed their complaint with the claims court, with support from Gold Star Wives of America. Patricia R. Sharp, remarried widow of an Army brigadier general, said she was owed more than $50,000 in Survivor Benefit Plan. Margaret M. Haverkamp, remarried widow of a retired Army lieutenant colonel, is owed $18,800, the complaint said. Iva Dean Rogers, remarried widow of an Army master sergeant, is owed $36,000.
The Survivor Benefit Plan she now is denied, Rogers said, began in 1976, the year her first husband, Arlan E. Wilson, died just two years into his retirement after 32 years as a decorated soldier and combat tours in three wars.
"That was all I had," said Rogers, now 82, of her early Survivor Benefit Plan. "He had had a life in the Army of wars after wars where I was left alone with my two boys for month
after month. So I felt like I was
eligible" for that Survivor Benefit Plan.
After VA determined that her husband's brain stem cancer was
service connected and qualified her for Dependency and Indemnity Compensation, the Survivor Benefit Plan annuity stopped and his premiums were refunded. In 1996, when she remarried at 70, her
Dependency and Indemnity Compensation stopped. Rogers said she went without any survivor payments for years, not realizing she was eligible to resume Survivor Benefit Plan given her age at remarriage. Survivor Benefit Plan isn't impacted by remarriage after age 55.
When the 2003 law restored her eligibility for Dependency and Indemnity Compensation but removed her Survivor Benefit Plan again, Rogers decided last year to join in the lawsuit, both for the money at stake and to help educate other widows to the "unfairness" of the Survivor Benefit Plan-Dependency and Indemnity Compensation offset. It should end for any surviving spouse, she said.
The government maintains that the intent of the 2003 law is unclear. Even if Congress did want surviving spouses to draw both Survivor Benefit Plan and Dependency and Indemnity Compensation, by virtue of remarriage at 57, the language
enacted is too imprecise to allow it.
Judge Miller disagreed. The 2003 law did indeed "partially repeal" the Survivor Benefit Plan-Dependency and Indemnity Compensation offset for "those surviving spouses who receive Dependency and Indemnity Compensation by virtue of their having remarried after the age of 57."
Michael R. Franzinger, a lawyer for the widows, said Miller's point-by-point rejection of the motion to dismiss "resolves the central legal question in the case" even though the case isn't over.
If the judge accepts the widows' motion for summary judgment, as now seems likely, Franzinger said, "my hope is" that the government will allow that ruling to apply to "other, similarly situated spouses of veterans."
Ellie
Published Thu, Feb 21, 2008 12:00 AM
Tom Philpott
milupdate@aol.com
A U.S. Court of Federal Claims judge has given a green light to three military widows to sue the government for a combined $105,000 -- the accumulated value of Survivor Benefit Plan payments that, the widows contend, have been unlawfully withheld since Dec. 16, 2003.
In a 24-page opinion denying the government's motion to dismiss the case, Judge George W. Miller found that both the facts and the law favor the widows and counter every legal argument raised by government attorneys.
If they win their case, hundreds of surviving spouses in the same category could be in line for hefty benefit plan repayments, too. That category is precise: surviving spouses who remarried at 57 or older and who have had their Survivor Benefit Plan cut or wiped out by their decision to accept Dependency and Indemnity Compensation from the Department of Veterans Affairs.
The lawsuit challenges how the Department of Defense has interpreted a provision of the Veterans Benefits Act of 2003 (Public Law 108-183). The widows argue that Congress intended for them to be among the first small group of surviving military spouses deemed eligible for "concurrent receipt" of both Survivor Benefit Plan and Dependency and Indemnity Compensation. In other words, they were to be the first of 44,000 dual-eligible widows to be exempt from the so-called Survivor Benefit Plan-Dependency and Indemnity Compensation offset.
Under the benefit plan, service members nearing retirement elect to pay a monthly premium so that, in case of their death, their surviving spouse or a dependent child continues to receive up to 55 percent of their annuity.
Dependency and Indemnity Compensation, meanwhile, is a fixed amount of monthly compensation offered to families of service members who die while on active duty or military retirees who die of their service-related disabilities.
If a surviving spouse drawing Survivor Benefit Plan qualifies also for tax-free Dependency and Indemnity Compensation, the law requires that taxable Survivor Benefit Plan be reduced dollar-for-dollar by Dependency and Indemnity Compensation. Basic Dependency and Indemnity Compensation is now $1,067 a month with extra amounts paid for each dependent child.
It's important to understand that, until December 2003, Dependency and Indemnity Compensation stopped for any surviving spouse who remarried. But the Veterans Benefits Act of 2003 modified that rule. It allowed Dependency and Indemnity Compensation to continue, or be restored, if the surviving spouse remarried at 57 or older. This provision made more than 12,000 widows eligible again for Dependency and Indemnity Compensation if they knew to apply for it.
But advocates for military widows said the same provision did more than that. "Paragraph B" was written so that it would shield these remarried widows, when their Dependency and Indemnity Compensation was restored, from any reduction in
Survivor Benefit Plan. That intent was confirmed by members and staff of the House Veterans Affairs Committee interviewed by Military Update back in January 2004.Rep. Henry E. Brown Jr., then chairman of the personnel subcommittee, said weeks after the law was enacted: "We put a special paragraph in there to, basically, get (the Department of
Defense) to do that. This was to get the camel's nose under the tent, sort of like we did with concurrent
receipt'' for disabled retirees.
Judge Miller referred to Brown's quote in his opinion rejecting the dismissal motion though he relied on
legal arguments for his actual
opinion.
Despite protests from affected widows, Defense pay officials and lawyers declined in 2004 to interpret the law to allow concurrent receipt. Like other surviving spouses, these widows saw that as their Dependency and Indemnity Compensation kicked in, their Survivor Benefit Plan fell away. Last July, three of them filed their complaint with the claims court, with support from Gold Star Wives of America. Patricia R. Sharp, remarried widow of an Army brigadier general, said she was owed more than $50,000 in Survivor Benefit Plan. Margaret M. Haverkamp, remarried widow of a retired Army lieutenant colonel, is owed $18,800, the complaint said. Iva Dean Rogers, remarried widow of an Army master sergeant, is owed $36,000.
The Survivor Benefit Plan she now is denied, Rogers said, began in 1976, the year her first husband, Arlan E. Wilson, died just two years into his retirement after 32 years as a decorated soldier and combat tours in three wars.
"That was all I had," said Rogers, now 82, of her early Survivor Benefit Plan. "He had had a life in the Army of wars after wars where I was left alone with my two boys for month
after month. So I felt like I was
eligible" for that Survivor Benefit Plan.
After VA determined that her husband's brain stem cancer was
service connected and qualified her for Dependency and Indemnity Compensation, the Survivor Benefit Plan annuity stopped and his premiums were refunded. In 1996, when she remarried at 70, her
Dependency and Indemnity Compensation stopped. Rogers said she went without any survivor payments for years, not realizing she was eligible to resume Survivor Benefit Plan given her age at remarriage. Survivor Benefit Plan isn't impacted by remarriage after age 55.
When the 2003 law restored her eligibility for Dependency and Indemnity Compensation but removed her Survivor Benefit Plan again, Rogers decided last year to join in the lawsuit, both for the money at stake and to help educate other widows to the "unfairness" of the Survivor Benefit Plan-Dependency and Indemnity Compensation offset. It should end for any surviving spouse, she said.
The government maintains that the intent of the 2003 law is unclear. Even if Congress did want surviving spouses to draw both Survivor Benefit Plan and Dependency and Indemnity Compensation, by virtue of remarriage at 57, the language
enacted is too imprecise to allow it.
Judge Miller disagreed. The 2003 law did indeed "partially repeal" the Survivor Benefit Plan-Dependency and Indemnity Compensation offset for "those surviving spouses who receive Dependency and Indemnity Compensation by virtue of their having remarried after the age of 57."
Michael R. Franzinger, a lawyer for the widows, said Miller's point-by-point rejection of the motion to dismiss "resolves the central legal question in the case" even though the case isn't over.
If the judge accepts the widows' motion for summary judgment, as now seems likely, Franzinger said, "my hope is" that the government will allow that ruling to apply to "other, similarly situated spouses of veterans."
Ellie