After an adverse initial decision, a claimant may request reconsideration in writing and such independent review would be conducted at or above the level at which the initial decision was rendered. A final decision must be rendered in writing after reconsideration. The court finds that this section of the regulations provides for review within the employing office itself. However, section 890.105 does provide for review by the OPM after denial by the carrier of a claim. In determining a motion to dismiss, the court looks only to the face of the complaint to determine if a fatal flaw exists even after taking the plaintiffs' allegations as true.
Plaintiffs submit that they have exhausted their administrative remedies.
Plaintiffs' Complaint at 2. Even though the plaintiffs argue in the alternative that exhaustion would be futile if they have not exhausted their administrative remedies, the Complaint also clearly states that all remedies have been exhausted. Although the defendant may eventually prevail on the merits, the court finds that the defendant's motion to dismiss is not well taken. In that lack of subject matter jurisdiction was the only ground submitted by OPM in support of its motion to dismiss, the court must rule in the plaintiffs' favor at this time after taking the facts as alleged in the plaintiffs' Complaint as true. See footnote 8 A separate order in accordance with this opinion shall issue this day.