Kinkaid v. McDonald

208 F.Supp.3d 212

Stanley G. KINKAID, Petitioner,

v.Robert A. MCDONALD, et al., Respondents.

Civil Action No. 15-0797 (ABJ)

United States District Court, District of Columbia.

Signed September 22, 2016

Michael D.J. Eisenberg, Law Offices of Michael D.J. Eisenberg, Washington, DC, for Petitioner

Joshua M. Kolsky, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Respondent

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Petitioner Stanley Kinkaid has brought this action seeking to compel Robert McDonald, in his official capacity as Secretary of the U.S. Department of Veterans Affairs ("VA"), and Ash Carter, in his official capacity as Secretary of the U.S. Department of Defense, to award him back pay under the Back Pay Act, 5 U.S.C. § 5596. Pet. for Writ of Mandamus [Dkt. # 1] ("Pet."). He claims respondents have failed to award him the wages he is owed for the period between his unjustified discharge and the administrative decision ordering his reinstatement. Id. at 1–2. Respondents have moved to dismiss the petition for lack of subject matter jurisdiction, on the grounds that the Defense Finance and Accounting Service ("DFAS") has paid petitioner in full for the wages he was owed, rendering this action moot. Resp'ts' Mot. to Dismiss as Moot [Dkt. # 22] ("Resp'ts' Mot.") at 1. While it should not have taken as long as it did, petitioner has now received the full amount of back pay to which he is entitled by law, so there is no longer a live case or controversy over which this Court has jurisdiction, and respondents' motion will be granted.

BACKGROUND

Petitioner was formerly employed as a full-time staff physician at the VA Medical Center in Beckley, West Virginia. Pet. at 2. On April 19, 2011, he was notified of his proposed removal from his position based on eight charges, which were sustained on May 25, 2011. Id. Petitioner requested a Disciplinary Appeals Board ("DAB") hearing, which was held in December 2012. Id. The DAB upheld five of the charges against petitioner in whole and two in part, and rejected one charge. Id. But on April 25, 2013, the Principal Deputy Under Secretary for Health ordered that petitioner's charges be overturned on due process grounds, and further ordered that petitioner be reinstated and that he be awarded back pay within sixty days of the reinstatement decision. Id.

Petitioner states that he repeatedly contacted the VA to inquire as to the status of his award. Pet. at 3. He initiated this civil action on May 31, 2015, and alleged that as of the date of filing, he had still not received any back pay. Id. at 4. Respondents answered the petition on September 18, 2015, Resp'ts' Answer to Pet. [Dkt. # 8], and after the parties agreed that there was "a realistic possibility of resolving this case without further litigation," see Joint Rule 16 Pretrial Conf. Report [Dkt. # 13] at 2, the parties engaged in several attempts to settle the matter through the exchange of documentation regarding petitioner's claimed back pay and respondents' calculations of the amount owed. See Joint Status Reports [Dkt. ## 15–19].

On January 27, 2016, DFAS mailed petitioner a check for $116,499.87 for back pay and interest. Resp'ts' Mot. at 2; Decl. of Lilia Rivera [Dkt. # 25] ("Rivera Decl.") ¶ 5; see also Pet'r's Opp. to Resp'ts' Mot. [Dkt. # 27] ("Pet'r's Opp.") at 2 (acknowledging that petitioner received the check). Accordingly, respondents have moved to dismiss the petition as moot. Resp'ts' Mot. at 1. Petitioner opposes the motion, arguing that respondents' calculations of his back pay award "improperly deduct portions of non-replacement wages" and that he has therefore only received part of what his petition seeks. Pet'r's Opp. at 1.

STANDARD OF REVIEW

In evaluating a motion to dismiss under Rule 12(b)(1), the Court must "treat the complaint's factual allegations as true ... and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’ " Sparrow v. United Air Lines, Inc. , 216 F.3d 1111, 1113 (D.C.Cir.2000) (internal citations omitted), quoting Schuler v. United States , 617 F.2d 605, 608 (D.C.Cir.1979) ; see also Am. Nat'l Ins. Co. v. FDIC , 642 F.3d 1137, 1139 (D.C.Cir.2011). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. Browning v. Clinton , 292 F.3d 235, 242 (D.C.Cir.2002).

Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; Shekoyan v. Sibley Int'l Corp. , 217 F.Supp.2d 59, 63 (D.D.C.2002). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ; see also Gen. Motors Corp. v. EPA , 363 F.3d 442, 448 (D.C.Cir.2004) ("As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction."). "[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as well as a statutory requirement ... no action of the parties can confer subject-matter jurisdiction upon a federal court.’ " Akinseye v. District of Columbia , 339 F.3d 970, 971 (D.C.Cir.2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982).

When considering a motion to dismiss for lack of jurisdiction, the court "is not limited to the allegations of the complaint." Hohri v. United States , 782 F.2d 227, 241 (D.C.Cir.1986), vacated on other grounds , 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, "a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics , 104 F.Supp.2d 18, 22 (D.D.C.2000), citing Herbert v. Nat'l Acad. of Scis. , 974 F.2d 192, 197 (D.C.Cir.1992) ; see also Jerome Stevens Pharm. , Inc. v. FDA , 402 F.3d 1249, 1253 (D.C.Cir.2005).

ANALYSIS

Respondents have moved to dismiss this action for lack of subject matter jurisdiction on the grounds that the payment of $116,499.87 renders petitioner's petition moot. Resp'ts' Mot. at 1–2. Petitioner has opposed the motion, arguing that respondents' calculations improperly deducted petitioner's outside earnings from the total amount of back pay he was owed, and that the award is therefore incomplete. Pet'r's Opp. at 1. But the Court finds that DFAS correctly calculated the amount of wages petitioner was owed under the relevant statute and regulations. Since petitioner has been made whole, there is no longer a live case or controversy, and the Court will grant respondents' motion to dismiss this matter.

"The purpose of the Back Pay Act was to make an employee affected by an unjustified personnel action financially whole ...." Am. Fed'n of Gov't Emps. v. FLRA , 843 F.2d 550, 555 (D.C.Cir.1988) ; see also Martin v. Dep't of Air Force , 184 F.3d 1366, 1372 (Fed.Cir.1999) ("[T]he purpose of the Back Pay Act is to place a wrongfully discharged employee back in the position he would have been in had the termination not occurred ...."). In furtherance of that goal, the Back Pay Act provides that a government employee who has been subjected to an unjustified personnel action which caused him to suffer a loss in pay:

is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect—

(i) an amount equal to all or any part of the pay, allowances, or differentials, as applicable which the employee normally would have earned or received during the period if the personnel action had not occurred, less any amounts earned by the employee through other employment during that period ....

5 U.S.C. § 5596(b)(1)(A)(i).

Here, in support of their position that petitioner has been made whole by the back pay award he has already received, respondents rely on the declaration of Lilia Rivera, a DFAS Financial Systems Analyst. Resp'ts' Mot. at 3–4; Rivera Decl. ¶ 1. Rivera avers that petitioner's gross back pay totaled $456,714.05, but that the award was subject to a series of deductions: $192,534.86 in outside earnings received by petitioner during the separation period; $39,384.15 for a lump sum accumulated annual leave payment; $26,316.90 for a lump sum payment for market pay; $1,091.00 in mandatory employee retirement contributions; $10,224.93 in Social Security and Medicare taxes; $28,789.11 in federal income tax; $9,263.00 in state income tax; and $56,415.00 in Thrift Savings Plan deductions. Rivera Decl. ¶ 5. She adds that petitioner was awarded $23,804.77 in interest pursuant to 5 C.F.R. § 550.806. Id. ¶ 6. After those deductions and with interest, petitioner's net back pay award totaled $116,499.87. Id. ¶ 5.

Petitioner does not appear to challenge the majority of the deductions listed by Rivera or the amount of interest to which he was entitled, but he insists that the deduction for outside earnings was improper, because respondents failed to "tak[e] into account the nature of those earnings in comparison to [his] government employment." Pet'r's Opp. at 1. Specifically, he maintains that "these earnings are not equivalent and should not be ... treated as solely replacement income," because his "work during his separation period was ... not substantially similar" to his work at the VA, and because he "had to work more hours in a week, with longer work days and weekend work, compared to his VA schedule." Id. at 5, 7.

But there is no support in the statute, regulations, or case law for petitioner's position. The relevant regulation requires that "an agency must make the following offsets and deductions" in calculating a net back pay award under the Back Pay Act:

Any

...