Lampon-Paz v. Office of Personnel Management

REPLY BRIEF to Opposition to Motion

D.N.J.October 20, 2016

PAUL J. FISHMAN United States Attorney MICHAEL E. CAMPION Assistant United States Attorney 970 Broad Street, Suite 700 Newark, NJ 07102 Tel. (973) 645-3141 Fax (973) 297-2010 michael.campion@usdoj.gov UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY MANUEL LAMPON-PAZ, Plaintiff, v. OFFICE OF PERSONNEL MANAGEMENT, Defendant. HON. KEVIN MCNULTY Civil Action No. 15-5835 (KM) REPLY BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PAUL J. FISHMAN UNITED STATES ATTORNEY 970 Broad Street, Suite 700 Newark, NJ 07102 Attorney for Defendant On the Brief: MICHAEL E. CAMPION Assistant United States Attorney Case 2:15-cv-05835-KM-JBC Document 38 Filed 10/20/16 Page 1 of 12 PageID: 252 ii TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................................................................ iii INTRODUCTION ......................................................................................................... 1 ARGUMENT ................................................................................................................. 2 I. PLAINTIFF’S COMMON-LAW TORT CLAIM MUST BE DISMISSED FOR LACK OF SUBJECT-MATTER JURISDICTION BECAUSE SOVEREIGN IMMUNITY HAS NOT BEEN WAIVED .............................. 2 II. THE CIVIL SERVICE RETIREMENT ACT SETS FORTH A STATUTORY SCHEME FOR REVIEW OF THE RELEVANT FEDERAL BENEFITS DETERMINATION ............................................... 5 III. PLAINTIFF’S CLAIMS UNDER 42 U.S.C. §§ 1981 AND 1983 MUST BE DISMISSED FOR FAILURE TO STATE A CLAIM BECAUSE OPM ACTS UNDER THE COLOR OF FEDERAL LAW ........ 7 CONCLUSION ............................................................................................................. 8 Case 2:15-cv-05835-KM-JBC Document 38 Filed 10/20/16 Page 2 of 12 PageID: 253 iii TABLE OF AUTHORITIES CASES Berenato v. United States, No. 06-4355 (RBK) 2007 WL 2990626 (D.N.J. Oct. 9, 2007) ............................................................................................ 3-4 Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255 (1999) ............................................. 2 Germano v. United States, No. 2:14-CV-06330, 2015 WL 4138997 (D.N.J. July 9, 2015) .............................................................................................. 4 Hoffenberg v. Provost, 154 F. App’x 307 (3d Cir. 2005) ............................................... 4 Kelly v. Sapko, No. 03-368, 2006 WL 2380768 (W.D. Pa. Aug. 16, 2006) ................ 4-5 Lampon-Paz v. Department of Homeland Security, et al., 532 F. App’x 125 (3d Cir. 2013) .......................................................................................................... 6 Lightfoot v. United States, 564 F.3d 625 (3d Cir. 2009) .............................................. 3 McNeil v. United States, 508 U.S. 106 (1993) .......................................................... 2, 3 Smith v. Riley, No. 14-7247, 2015 WL 4615913 (D.N.J. July 31, 2015) ..................... 3 United States v. Testan, 424 U.S. 392 (1976) .............................................................. 2 Wadhwa v. Nicholson, 367 F. App’x 322 (3d Cir. 2010) .......................................... 3, 4 Wadwa v. Department of Veterans Affairs, 505 F. App’x 209 (3d Cir. 2012) .............. 5 Walker v. United States, 616 F. App’x 497 (3d Cir. 2015) ........................................... 3 Williams v. East Orange Community Charter School, 396 F. App’x 895 (3d Cir. 2010) ............................................................................. 5 STATUTES 5 U.S.C. 7703(b) ............................................................................................................ 6 5 U.S.C. 8331 ................................................................................................................ 5 5 U.S.C. 8347(c) ......................................................................................................... 5-6 5 U.S.C. 8347(d) ............................................................................................................ 6 28 U.S.C. 2675(a) .................................................................................................. 2, 3, 4 Case 2:15-cv-05835-KM-JBC Document 38 Filed 10/20/16 Page 3 of 12 PageID: 254 iv 42 U.S.C. 1981 .............................................................................................................. 7 42 U.S.C. 1983 .............................................................................................................. 7 RULES Fed. R. Civ. P. 12(b)(1) .................................................................................................. 8 Fed. R. Civ. P. 12(b)(6) .................................................................................................. 8 Case 2:15-cv-05835-KM-JBC Document 38 Filed 10/20/16 Page 4 of 12 PageID: 255 1 INTRODUCTION On May 5, 2016, Defendant United States Office of Personnel Management (“OPM”) moved to dismiss Plaintiff’s Amended Complaint for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted. Plaintiff’ subsequently filed two submissions in response to OPM’s motion to dismiss. While Plaintiff’s submissions are somewhat unclear, Plaintiff appear to argue that his “negligence” claim survives dismissal because he submitted an administrative tort claim to OPM. By Order dated September 28, 2016, the Court instructed OPM to file a “reply submission in which it analyzes the exhaustion issue and update its main brief in light of the plaintiff’s submission.” Additionally, in its Order, the Court stated it “is particularly interested in, whether, technicalities aside, there is an avenue for determination of whether the plaintiff has received the annuity payment he is owed.” OPM submits this reply brief to address the issues raised by the Court. Plaintiff’s submission of an administrative tort claim to OPM does not prevent dismissal of this action, because he failed to bring that action before filing this suit. Because he failed to exhaust his administrative remedies this Court lacks subject- matter jurisdiction over his claim. Instead, after OPM makes an initial determination of his claim, if Plaintiff is dissatisfied, he must appeal to the Merit Systems Protection Board (“MSPB”). He Case 2:15-cv-05835-KM-JBC Document 38 Filed 10/20/16 Page 5 of 12 PageID: 256 2 may then seek judicial review of the MSPB’s decision, but only in the Federal Circuit. ARGUMENT I. PLAINTIFF’S COMMON-LAW TORT CLAIM MUST BE DISMISSED FOR LACK OF SUBJECT-MATTER JURISDICTION BECAUSE SOVEREIGN IMMUNITY HAS NOT BEEN WAIVED Plaintiff’s “negligence” claim must be dismissed because there has been no waiver of sovereign immunity. The United States and its agencies are immune from suit unless it consents to be sued. United States v. Testan, 424 U.S. 392, 399 (1976) (citations omitted). A waiver of sovereign immunity must be “unequivocally expressed” and “strictly construed in favor of the sovereign.” Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255 (1999). A suit against the federal government for money damages cannot proceed without a waiver of sovereign immunity. Testan, 424 U.S. at 400. Although Plaintiff has now submitted an administrative tort claim, the Court still lacks subject-matter jurisdiction because Plaintiff did so after bringing suit. The Federal Tort Claims (“FTCA”) requires a litigant to exhaust administrative remedies before bringing suit. See 28 U.S.C. § 2675(a) (“An action shall not be instituted . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing”); see also McNeil v. United States, 508 U.S. 106, 112 (1993) (holding that the FTCA “bars claimants from bringing suit in federal court until Case 2:15-cv-05835-KM-JBC Document 38 Filed 10/20/16 Page 6 of 12 PageID: 257 3 they have exhausted their administrative remedies”). An agency “finally denie[s]” an administrative claim “either when the agency denies a claim in writing or when it fails to issue a decision within six months.” Walker v. United States, 616 F. App’x 497, 499 (3d Cir. 2015) (quoting 28 U.S.C. § 2675(a)). The FTCA’s “final denial requirement is jurisdictional and cannot be waived.” Lightfoot v. United States, 564 F.3d 625, 627 (3d Cir. 2009). Thus, when a plaintiff initiates suit before the relevant agency “finally denie[s]” her administrative claim, he has not “exhausted administrative remedies” at the time suit is brought, and the district court therefore lacks subject matter jurisdiction over those claims. See McNeil, 508 U.S. at 107-13 (in case where plaintiff failed to exhaust his administrative remedies prior to initiating suit, district court lacked jurisdiction over suit even though no substantial progress had been made in the litigation before exhaustion); Wadhwa v. Nicholson, 367 F. App’x 322, 324 (3d Cir. 2010) (plaintiffs who filed suit before receiving final denial of administrative tort claim “violated the strict requirement that administrative exhaustion must be complete before a party may institute a civil action in District Court under the FTCA”) (emphasis in original); Smith v. Riley, No. 14-7247, 2015 WL 4615913, at *5 (D.N.J. July 31, 2015) (where plaintiff filed tort claims in state court against federal employees and later filed administrative tort claim, “Plaintiff failed to satisfy the strict requirement that administrative exhaustion be completed before a party may Case 2:15-cv-05835-KM-JBC Document 38 Filed 10/20/16 Page 7 of 12 PageID: 258 4 institute a civil action against the United States”); Berenato v. United States, No. 06-4355 (RBK), 2007 WL 2990626, at *2 (D.N.J. Oct. 9, 2007) (under clear language of § 2675(a), “a court does not have jurisdiction before administrative remedies have been exhausted, and a court must dismiss any action that is initiated prematurely”) (quotation omitted). Here, by filing suit before filing an administrative tort claim, Plaintiff “violated the strict requirement that administrative exhaustion must be complete before a party may institute a civil action in District Court under the FTCA.” Wadhwa, 367 F. App’x at 324. Accordingly, the Court lacks subject-matter jurisdiction over Plaintiff’s negligence claim. Further, allowing Plaintiff to file another amended complaint at this juncture would not cure the jurisdictional defect, because the date an amended complaint is filed “cannot serve as the date the federal suit was ‘instituted’” for purposes of this requirement. See Hoffenberg v. Provost, 154 F. App’x 307, 310 (3d Cir. 2005) (in case where plaintiff amended complaint after federal agency adjudicated tort claim, district court properly dismissed claim because plaintiff had initially filed suit before exhausting administrative remedies); Germano v. United States, No. 2:14-CV-06330, 2015 WL 4138997, at *7 (D.N.J. July 9, 2015) (plaintiff who prematurely filed lawsuit before final denial of tort claim could not “cure this defect by filing an amended complaint” but instead “must file a new FTCA suit”); Kelly v. Sapko, No. 03-368, 2006 Case 2:15-cv-05835-KM-JBC Document 38 Filed 10/20/16 Page 8 of 12 PageID: 259 5 WL 2380768, at *6 (W.D. Pa. Aug. 16, 2006) (holding that plaintiff could not revive an FTCA claim dismissed for failure to exhaust by filing an amended complaint after agency denied administrative tort claim). Accordingly, the Court must dismiss the “negligence” claim in Plaintiff’s Amended Complaint for lack of subject-matter jurisdiction.1 II. THE CIVIL SERVICE RETIREMENT ACT SETS FORTH A STATUTORY SCHEME FOR REVIEW OF THE RELEVANT FEDERAL BENEFITS DETERMINATION In the Court’s Order dated September 28, 2016, the Court stated it “is particularly interested in, whether, technicalities aside, there is an avenue for determination of whether the plaintiff has received the annuity payment he is owed.” While there is such an avenue for determination, Plaintiff failed to comply with the procedural requirements for obtaining that determination. 1 In addition to attaching his administrative tort claim to his response, Plaintiff also attaches OPM’s administrative denial of Plaintiff’s Title VII employment-discrimination claim and the U.S. Equal Employment Opportunity Commission’s dismissal of Plaintiff’s appeal of that denial. While Plaintiff’s original Complaint alleged a Title VII claim, the Court dismissed that claim, and Plaintiff never asserted Title VII in his Amended Complaint. Because Plaintiff’s Amended Complaint contains no Title VII claim, the administrative record concerning Plaintiff’s Title VII claim is irrelevant. Furthermore, even if the Court construed Plaintiff’s Amended Complaint to include the allegations set forth in his initial Complaint, Plaintiff’s Title VII claim would still not survive this motion to dismiss. Indeed, in dismissing Plaintiff’s previous Title VII claim, the Court found that that Plaintiff’s “complaint [did] not state facts that would support a claim under Title VII.” Opinion, Apr. 4, 2016, at 2 (ECF No. 26). Since then, Plaintiff has not alleged any additional facts in support of a Title VII claim and, therefore, such a claim cannot survive dismissal. Even if Plaintiff had asserted a Title VII claim in his complaint with additional facts, this claim would still not survive because Plaintiff did not sue a proper party, Wadwa v. Department of Veterans Affairs, 505 F. App’x 209, 212- 13 (3d Cir. 2012), and he failed to file suit within 90 days of the denial of his appeal. Williams v. East Orange Community Charter School, 396 F. App’x 895, 897-98 (3d Cir. 2010). Case 2:15-cv-05835-KM-JBC Document 38 Filed 10/20/16 Page 9 of 12 PageID: 260 6 The Civil Service Retirement Act (“CSRA”), 5 U.S.C. § 8331 et seq., authorizes OPM to make an initial determination of eligibility of federal disability benefits. 5 U.S.C. § 8347(c). If dissatisfied with OPM’s determination, the CSRA permits an individual to appeal OPM’s determination to the Merit Systems Protection Board (“MSPB”). 5 U.S.C. § 8347(d). Judicial review is available only after MSPB's decision and only in the Federal Circuit. 5 U.S.C. § 7703(b). Even if plaintiff appropriately exhausted administrative remedies by appealing OPM’s determination to the MSPB, only the Court of Appeals for the Federal Circuit – not the U.S. District Court – has subject-matter jurisdiction to review a final decision of the MSPB. Lampon-Paz v. Department of Homeland Security, et al., 532 F. App’x 125, 126 (3d Cir. 2013) (affirming dismissal of the plaintiff’s complaint because the “final decisions of the MSPB may only be reviewed by the United States Court of Appeals for the Federal Circuit”). In any event, even if Plaintiff pursues an administrative claim, he is not entitled to relief. Plaintiff has received all disability annuity payments owed to him. (Declaration of Trevis Hall, dated October 18, 2016, ¶ 4). Although OPM suspended his disability aunnuity on July 1, 2015, it reinstated the payment on August 1, 2015. (Id.). OPM fully compensated Plaintiff for the payment he did not receive. (Id.). Case 2:15-cv-05835-KM-JBC Document 38 Filed 10/20/16 Page 10 of 12 PageID: 261 7 III. PLAINTIFF’S CLAIMS UNDER 42 U.S.C. §§ 1981 AND 1983 MUST BE DISMISSED FOR FAILURE TO STATE A CLAIM BECAUSE OPM ACTS UNDER THE COLOR OF FEDERAL LAW In Plaintiff’s response brief, Plaintiff does not address OPM’s argument that Plaintiff’s statutory claims – under 42 U.S.C. § 1981 and § 1983 – must be dismissed. Therefore, for the reasons set forth in OPM’s moving brief, the Court must dismiss these claims. Case 2:15-cv-05835-KM-JBC Document 38 Filed 10/20/16 Page 11 of 12 PageID: 262 8 CONCLUSION For the reasons stated above, pursuant to Rules 12(b)(1) and 12(b)(6), the Court must dismiss the Amended Complaint in its entirety. Dated: October 20, 2016 Newark, NJ Respectfully submitted, PAUL J. FISHMAN UNITED STATES ATTORNEY By: /s/ Michael E. Campion Michael E. Campion Assistant United States Attorney Case 2:15-cv-05835-KM-JBC Document 38 Filed 10/20/16 Page 12 of 12 PageID: 263 Case 2:15-cv-05835-KM-JBC Document 38-1 Filed 10/20/16 Page 1 of 2 PageID: 264 Case 2:15-cv-05835-KM-JBC Document 38-1 Filed 10/20/16 Page 2 of 2 PageID: 265 CERTIFICATE OF SERVICE I hereby certify that the Defendant=s Reply Brief in Support of the Defendant=s Motion to Dismiss was served on Plaintiff by electronic filing on October 20, 2016. s/Michael E. Campion Michael E. Campion, AUSA Case 2:15-cv-05835-KM-JBC Document 38-2 Filed 10/20/16 Page 1 of 1 PageID: 266