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April 8, 1986


The opinion of the court was delivered by: TROUTMAN


 The above captioned action presents this Court with a most unique case. For this reason, and also to better understand our disposition of the parties' cross-motions for summary judgment, the facts of this case merit recitation.

 The plaintiff's husband, Bernard R. Garner, was employed by the Department of the Navy's Fleet Materials Support Office in Mechanicsburg, Pennsylvania, as a civilian computer systems analyst. On May 21, 1982, he traveled alone to the Province of Quebec in northern Canada, purportedly on a fishing trip from which he was to return a few days later. A bush pilot flew him into a camp located in an area accessible only by pontoon aircraft. The pilot returned a few days later to recover his passenger and found all the materials he had deposited at the camp site substantially undisturbed. The only telltale signs of his passenger's possible whereabouts was a capsized fishing boat floating upon the lake.

 The subsequent search of the area by Canadian authorities produced no corpus delecti. Presuming that Mr. Garner had drowned, the Canadian authorities declared him officially dead upon their issuance of a death certificate.

 The plaintiff, as the deceased's widow, thereafter obtained a decree from the Lancaster County Court of Common Pleas declaring her husband to have presumptively died on May 24, 1982. She was appointed administratrix of her husband's estate and proceeded to claim the benefits due her under her "deceased" husband's Federal Employee Group Life Insurance (FEGLI) policy. Interestingly -- an appropriate term based upon what would later occur -- Mr. Garner had during the life insurance "open season" in March 1981, adjusted his coverage upwards to the maximum available.

 The Office of Federal Employees Group Life Insurance (OFEGLI), an administrative unit of the Metropolitan Life Insurance Company, the insurance carrier with which the Office of Personnel Management (OPM) currently contracts for life insurance coverage for eligible federal employees, initially questioned Mrs. Garner's claim because her husband's body had never been recovered. However, upon issuance of the death certificate, Metropolitan paid Mrs. Garner's FEGLI claim in full, a total of $205,918.61.

 Some time in July, 1983, the Garners' daughter contacted the OFEGLI to inform it that her father was alive, and had been living with her and her family since shortly after his feigned death in Canada. The OFEGLI forwarded this information to OPM, which notified the Department of Justice. Meanwhile, Mr. Garner returned to his home in Pennsylvania and in a letter to his former employer, i.e., the Navy, dated September 4, 1983, requested that he be reinstated to the job from which he had absented himself since May, 1982. The Navy, of course, had separated Mr. Garner from service based upon his presumed death. According to OPM's Memorandum in support of its motion, at page 3, Mr. Garner, in explanation of his absence, stated he had been "lost in the woods, chased by bears and rescued by a pair of French Canadian fur trappers who 'nursed him back to health'." Mr. Garner further claimed that although he returned to civilization December, 1982, he did not contact his wife because he feared the shock it might induce.

 The Navy now faced the predicament of dealing with Mr. Garner's reappearance. He had been separated from employment because of his death, but he was not, in fact, dead. Therefore, in the interest of avoiding any violations of the constitutional, statutory or regulatory rights which might be due Mr. Garner, the Navy reinstated him on November 1, 1983, and on November 2, 1983, informed him of their intent to separate him involuntarily for "excessive unauthorized absence". *fn1" Garner, in response, resigned his position effective November 7, 1983.

 Bernard R. Garner died on November 13, 1983. *fn2"

 Subsequent to her husband's "second" death, the plaintiff was convicted of federal charges by a jury in the United States District Court for the Middle District of Pennsylvania based upon her participation in the scheme to defraud the defendants. The Court imposed a sentence upon Mrs. Garner which included restitution of the monies she had received. She returned over half of the money, and executed a judgment note in favor of Metropolitan for the unpaid balance. (See Answer and Counterclaim of Metropolitan, paras. 36 and 37, and Ex. A., attached thereto).

 The plaintiff, subsequent to both her husband's death and her conviction had, as the government describes it, the "audacity" to file another claim for FEGLI benefits based upon her husband's legitimate death. Mrs. Garner's claim, understandably, caused much confusion among the Navy, OPM and OFEGLI as to how to respond. OPM, on May 2, 1984, notified OFEGLI that Mr. Garner was not covered by the FEGLI plan and that no payments should be made to his widow. (See deposition of James C. Bush, Ex. 9). OPM, according to the government's memorandum, informed the Navy, as the deceased's employing agency, of its determination on May 14, 1984. Ironically, when the Navy reinstated Garner, it reinstated the same amount of life insurance coverage he had carried when he disappeared and, in fact, made appropriate deductions from his salary for such coverage. (See deposition of James C. Bush, Exs. 5, 6 and 7).

 Regardless of OPM's instructions to the contrary, the Navy issued an "Agency Certification of Insured Status" to the plaintiff on July 17, 1984. *fn3" (See deposition of James C. Bush, Ex. 8). Nevertheless, OFEGLI continued to deny Mrs. Garner's claim based upon OPM's determination that her husband was not a covered employee. (See deposition of James C. Bush, Exs. 9 and 10). Mrs. Garner, in response, instituted this action seeking payment of the benefits claimed to be due her and recovery of the consequential damages she has allegedly suffered as a result of the defendants' denial of her claim.

 The sole issue is whether, at the time of his death on November 13, 1983, Bernard R. Garner was covered by FEGLI. *fn4" More specifically, we must decide whether, as the government argues, Mr. Garner was excluded from such coverage as "an employee whose employment (was) of uncertain or purely temporary duration . . ." under 5 U.S.C. ...

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