McGary v. Ravindra

THEODORE MCGARY, Plaintiff, v. DEO RAVINDRA et al., Defendants.

Civil Action No. 19-3249 (TJK)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

July 28, 2020

MEMORANDUM OPINION

A few years ago, the Virginia Circuit Court awarded Theodore McGary's ex-wife Barbara McGary a divorce and about $75,000 from his Thrift Savings Plan (TSP) account under a "Retirement Benefits Court Order." The order provided that upon distributing that sum to her, the board administering Plaintiff's TSP account would adjust it for gains and losses. Plaintiff appealed, arguing that the court should have awarded him the divorce because she had abandoned the marriage, but the Virginia Court of Appeals affirmed the judgment. When the TSP Board received the Retirement Benefits Court Order, Plaintiff moved to vacate it, alleging fraud by his ex-wife and her counsel. The state court found his fraud allegation "without merit and entirely specious," and the TSP disbursed an adjusted sum—about $180,000—from Plaintiff's account to his ex-wife.

Plaintiff filed this suit to challenge the outcome of those state court proceedings, which right off the bat suggests he is barking up the wrong tree. Proceeding pro se, he asserts fraud against his ex-wife and breach of fiduciary duty under the Federal Employees' Retirement System Act of 1986, 5 U.S.C. § 8477, against the TSP Executive Director, Ravindra Deo. Among other relief, Plaintiff asks the Court to "award Plaintiff a final divorce decree as a matter of law," to vacate the parties' Memorandum of Understanding on which the state court based its Retirement Benefits Court Order, and to order the TSP funds returned to his account. Barbara McGary moved to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1) and the Rooker-Feldman doctrine, which limits federal courts from exercising appellate review over state court decisions. Deo moved to dismiss for failure to state a claim under Rule 12(b)(6). For the reasons explained below, the Court will grant both motions.

I. Background

The Complaint gives a detailed picture of Plaintiff and Barbara McGary's messy divorce, ECF No. 1 ("Compl.) at 17-19, but what is relevant here is how it concluded—with Plaintiff contesting the results of their state-court litigation at every turn.

Following various disputes over attorneys' fees, discovery, sanctions, and pendente lite relief, the Virginia Circuit Court referred the matter to a settlement conference. Compl. at 8; ECF No. 1-1 at 12; McGary v. McGary, No. CL14000788-00 (Va. Cir. Ct. Oct. 27, 2015). The parties appear to have settled in March 2016 when they signed a Memorandum of Understanding ("MOU") regarding the division of marital property, including retirement benefits from Plaintiff's TSP account, that read in part: "Ms. McGary will receive $75,146.63 from Mr. McGary's TSP account via a Court Order Acceptable for Processing." Compl. at 8-10; ECF No. 7-2 at 2. A few months later, the court awarded Barbara McGary "a final decree of divorce a vinculo matrimonii," ECF No. 7-1 at 3,¹ and entered a Retirement Benefits Court Order (RBCO) "in accordance with the terms of the" parties' MOU, ECF No. 1-1 at 3. The RBCO provided that she would receive a lump-sum payment of $75,146.63 from Plaintiff's TSP account, whichwould "be adjusted for any investment gains or losses thereon from December 6, 2011, to the date of distribution or rollover," with the precise calculation to be performed by the Federal Retirement Thrift Investment Board ("TSP Board") upon receipt of the RBCO. Id. at 5. Plaintiff "filed an appeal with the Virginia Court of Appeals in July 2016," Compl. at 12, that court affirmed, McGary v. McGary, CAV No. 1261-16-2 (Va. Ct. App. Mar. 28, 2017), and the Virginia Supreme Court declined to review the case, McGary v. McGary, SVC No. 170678 (Va. Aug. 24, 2017).

The TSP Board notified Plaintiff in January 2019 that it received the RBCO "awarding Defendant $75,146.63 from Plaintiff's TSP account . . . and that [Barbara McGary's] entitlement [would] be adjusted for earnings and losses based on the value of the share price two business days prior to payment." Compl. at 12. According to Plaintiff, he noticed that the parties had not included the RBCO's adjustment language in the MOU, so he searched the courthouse case file and purportedly "discovered documents not previously . . . available when he filed" his appeal. Id. In March 2019, he moved to vacate the RBCO in the Virginia Circuit Court, alleging that the MOU on which the RBCO was based resulted from fraudulent misrepresentations by his ex-wife and her counsel. See id. at 10-15, 20-22. In response, Barbara McGary filed a motion for a rule to show cause, arguing that Plaintiff's motion violated the MOU by interfering with her receipt of the TSP payment. ECF No. 11-1 at 22-23. Plaintiff "temporarily relocated" to do volunteer work in Colombia in May 2019 and missed the June hearing on those motions, when the court denied his motion to vacate as "without merit and entirely specious" and issued a rule to show cause. Compl. at 14-15; ECF No. 1-1 at 44-45.

In July 2019, the TSP Board notified Plaintiff that it had disbursed $180,959 from his TSP account to Barbara McGary in accordance with the RBCO. Compl. at 5, 14; ECF No. 1-1 at2. Plaintiff responded that he believed the disbursement "had been taken in error." Compl. at 5. The TSP Board denied any error, citing the RBCO and providing the relevant statutory authority to show how it calculated the disbursement amount. ECF No. 1-1 at 14.

The Virginia Circuit Court held a show-cause hearing the next month. Compl. at 15. The court found Plaintiff in contempt and sentenced him to 30-days incarceration unless he met certain conditions, including refraining from interfering with disbursement of Barbara McGary's TSP payment. ECF No. 1-1 at 46-47; see Compl. at 15-16. Plaintiff appealed that contempt order, Compl. at 16-17, but the Court of Appeals of Virginia dismissed the appeal after he failed to prosecute it, ECF No. 25-1 at 2; see also ECF No. 23-2 at 7. Upon Barbara McGary's request, the Court granted another rule to show cause against Plaintiff in January 2020 for violating the MOU and for "his continued interference with the Defendant's receipt of her share of the Plaintiff's TSP account." ECF No. 23-2 at 2; see ECF No. 26 at 5-6. Plaintiff failed to attend the show-cause hearing, so the court issued a capias for his arrest. See ECF No. 26-1 at 10-13; McGary v. McGary, No. CL14000788-03 (Va. Cir. Ct. Mar. 27, 2020).

Meanwhile, Plaintiff, proceeding pro se, filed this suit in October 2019. As best the Court can tell, he asserts a claim against his ex-wife for fraud, see Compl. at 19-22, and against the Executive Director of the TSP Board, Ravindra Deo,² for breach of fiduciary duty under the Federal Employees' Retirement System Act of 1986 (FERSA), 5 U.S.C. § 8477, see id. at 6-7, 12. Barbara McGary moved to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), ECF No. 7; Deo moved to dismiss for failure to state a claim under Rule 12(b)(6), ECF No. 15; and Plaintiff filed a "Motion for Leave to File a Preliminary Injunction," ECF No. 23,seeking an order dismissing or holding in abeyance the state court's January 2020 rule to show cause, ECF No. 23-1 at 1, 5-6.

II. Legal Standard

To survive a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction, a plaintiff bears the burden of establishing that the Court has jurisdiction. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). The Court must subject factual allegations to a higher level of scrutiny in resolving a Rule 12(b)(1) motion than in resolving one under Rule 12(b)(6) for failure to state a claim, because it has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Al-Owhali v. Ashcroft, 279 F. Supp. 2d 13, 21 (D.D.C. 2003) (citation omitted). The Court need not limit itself to the complaint when assessing subject matter jurisdiction; it "may consider relevant materials outside the pleadings to determine whether it has jurisdiction." Bank of Am., N.A. v. FDIC, 908 F. Supp. 2d 60, 78 (D.D.C. 2012).

Under Rule 12(b)(6), the Court must dismiss a claim if a plaintiff fails to plead "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court must accept "well-pleaded factual allegations as true and draw all reasonable inferences from those allegations in the plaintiff's favor." Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). Even so, "a complaint must have 'facial plausibility,' meaning it must 'plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Iqbal, 556 U.S. at 678)). When considering a Rule 12(b)(6) motion, the Court may consider "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, or documents upon which the plaintiff's complaint necessarily relies even if the document is produced not by the plaintiff but by the defendant in a motion todismiss." Ashbourne v. Hansberry, 245 F. Supp. 3d 99, 103 (D.D.C. 2017), aff'd, 894 F.3d 298 (D.C. Cir. 2018) (citation omitted).

While a pro se complaint must be construed liberally, pro se plaintiffs must still show that the court has subject matter jurisdiction and state a claim for relief. James v. United States, 48 F. Supp. 3d 58, 63 (D.D.C. 2014). The Court considers Plaintiff's pro se complaint in light of all filings in the record. Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015).

III. Analysis

A. Fraud Claim Against Barbara McGary

The Court lacks subject-matter jurisdiction over Plaintiff's fraud claim against...