Thomas v. Brennan

MARGARET L. THOMAS, Plaintiff, v. MEGAN J. BRENNAN, Defendant.

Civil Action No. 19-0512 (ABJ)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

March 4, 2020

MEMORANDUM OPINION

This matter is before the Court on Defendant's Motion to Dismiss (ECF No. 11). For the reasons discussed below, the Court grants the motion.¹

I. BACKGROUND

Plaintiff is a former employee of the United States Postal Service ("USPS") whose career began in May 1969 and ended upon her retirement in August 1992. See Complaint (ECF No. 7, "Compl.") at 4 ¶ XI; see id., Ex. 1 (Certified Summary of Federal Service).² Generally, she alleges that USPS failed to maintain accurate personnel and payroll-related records, particularly herIndividual Retirement Record ("SF-2806" or "IRR"). See id. at 2 ¶ II; see generally id., Ex. 11.³ When the Office of Personnel Management ("OPM") relied on the inaccurate information USPS provided, plaintiff alleges, OPM miscalculated her retirement annuity benefits. As a result, plaintiff allegedly is receiving an annuity lower than the amount she is entitled to receive.

Plaintiff brings this action under the Privacy Act, see 5 U.S.C. § 552a, specifically its amendment and damages provisions, see 5 U.S.C. § 552a(g)(1)(A), (C). Given plaintiff's pro se status, the Court construes her complaint liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and takes into account all of her submissions, including her multiple responses to defendant's motion to dismiss, see Richardson v. United States, 193 F.3d 545, 549 (D.C. Cir. 1999). Many of these exhibits reflect plaintiff's efforts over the years to have her IRR corrected and her annuity recalculated. The Court identifies three exhibits which are particularly relevant to plaintiff's Privacy Act claims.

A. OPM Decision on Reconsideration dated July 9, 2007

On July 9, 2007, OPM responded to plaintiff's March 30, 2007, April 30, 2007, May 4, 2007, June 6, 2007, and June 26, 2007, requests for reconsideration of its prior decision "that[plaintiff's] high-three average salary was computed correctly under the Civil Service Retirement System (CSRS) law." Plaintiff's Formal Brief and Numbered Exhibits (ECF No. 4), Ex. (ECF No. 4-1 at 97-99, "OPM Decision") at 1. OPM found:

We find that your (pre-April 7, 1986 and post-April 6, 1986) high-three average salary was computed based on the base pay amounts certified by your former employing agency; that the (post-April 6, 1986) high-three average salary of $29,280.00 is correct. We find that your annuity . . . was computed correctly in accordance with retirement law and regulations and increased by subsequent Cost-of-Living Adjustments (COLAs). Because you have been in receipt of the appropriate amount of annuity . . . you are entitled to receive, we must deny your request for a change in the amount of your gross monthly annuity.

OPM Decision at 3.

B. MSPB Initial Decision dated November 6, 2007

Plaintiff appealed OPM's July 9, 2007 decision to the Merit Systems Protection Board ("MSPB"). See generally Compl., Ex. 9. She maintained "that her current SF-2806 is incorrect and, therefore, her annuity should be adjusted upward." Id., Ex. 9 at 1. The Administrative Judge explained to plaintiff "that the SF-2806 is the basic record for action on all claims for an annuity . . . and that the issue of the correctness of her annuity would be adjudicated on that basis." Id., Ex. 9 at 1. He further stated that only plaintiff's employing agency, USPS, could correct the SF-2806. See id., Ex. 9 at 1-2. He dismissed plaintiff's appeal without prejudice, and without an objection from USPS, to give plaintiff "an opportunity to attempt to obtain a corrected SF-2806 from her employing agency, and present that updated information to OPM so that her annuity can be recomputed." Id., Ex. 9 at 2.

C. Plaintiff's 2015 Letter and USPS' Response dated November 23, 2015

Attached to Plaintiff's Response to Defendant's Motion to Dismiss (ECF No. 15) was a

copy of a letter (ECF No. 15-1) plaintiff sent to the Postmaster General in 2015. Defendant located USPS' written response which in relevant part stated:

This letter is in response to your undated letter to Postmaster General Megan Brennan requesting a recalculation of your Civil Service Retirement System (CSRS) annuity because you believe that your Individual Retirement Records (IRR) are incorrect.

You have presented [USPS] with several documents regarding the abolishment of your Level 7 position in Brooklyn, NY in 1990. You were advised that you would continue to be paid as a Level 7 for a two year period commencing February 18, 1990, regardless of the job you may have bid for. Instead of obtaining a bid locally, on February 9, 1991, you voluntarily transferred to a lower level position in the North Metro Atlanta P&DC. [USPS] justifiably terminated your rate retention at this time per . . . Section 421.514 of the Employee and Labor Relations Manual[.]

Rate retention is terminated and reduced to a lower salary at an employee's own request. When you voluntarily requested and accepted a transfer to a part-time flexible . . . position in another state, you effectively negated the rate retention you received in Brooklyn, NY. Your annuity was properly calculated accordingly.

Reply Mem. in Support of Def.'s Mot. to Dismiss (ECF No. 16, "Reply"), Ex. 1 (ECF No. 16-1) at 2.

II. ANALYSIS

A. Dismissal Under Rule 12(b)(6)

Defendant moves to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) on the ground that plaintiff failed to file it within the two-year statute of limitations prescribed in the Privacy Act. See Mem. in Support of Def.'s Mot. to Dismiss (ECF No. 11, "Def.'s Mem.") at 3-5 (page numbers designated by ECF).

A complaint survives a Rule 12(b)(6) motion if it "contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face . . . . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonableinference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted); see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (stating that a plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level") (citations omitted). When ruling on a Rule 12(b)(6) motion, the court "may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which we may take judicial notice." EEOC v. St. Francis Xavier Parochial School, 117 F.3d 621, 624 (D.C. Cir. 1997).

"A defendant may raise the affirmative defense of statute of limitations via a Rule 12(b)(6) motion[.]" Lewis v. Bayh, 577 F. Supp. 2d 47, 51 (D.D.C. 2008) (citing Smith-Haynie v. District of Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998)). The Court may grant "[a] motion to dismiss . . . on statute of limitations grounds only if apparent from the face of the complaint." Johnson v. Long Beach Mrtg. Loan Trust 2001-4, 451 F. Supp. 2d 16, 39 (D.D.C. 2006) (citations omitted); see Ramirez v. Dep't of Justice, 594 F. Supp. 2d 58, 63 (D.D.C. 2009).

B. Statute of Limitations and Equitable Tolling

Applicable to all claims under the Privacy Act is the following provision:

An action to enforce any liability created under this section may be brought . . . within two years from the date on which the cause of action arises, except that where an agency has materially and willfully misrepresented any information required under this section to be disclosed to an individual and the information so misrepresented is material to establishment of the liability of the agency to the individual under this section, the action may be brought at any time within two years after discovery by the individual of the misrepresentation.

5 U.S.C. § 552a(g)(5) (emphasis added). "A cause of action arises under the Privacy Act 'at the time that (1) an error was made in maintaining plaintiff's records; (2) plaintiff was harmed by the error; and (3) the plaintiff either knew or had reason to know of the error.'" Samtmann v. U.S. Dep't of Justice, 35 F. Supp. 3d 82, 88 (D.D.C. 2014) (quoting Conklin v. U.S. Bureau of Prisons,514 F. Supp. 2d 1, 4 (D.D.C. 2007)) (additional citations omitted), aff'd, No. 14-5115, 2015 WL 236560 (D.C. Cir. Jan. 16, 2015).

The Privacy Act's statute of limitations period is not jurisdictional. See Kursar v. Transp. Sec. Admin., 751 F. Supp. 2d 154, 165-66 (D.D.C. 2010) (citing Chung v. U.S. Dep't of Justice, 333 F.3d 273, 278 n.* (D.C. Cir. 2003)), aff'd, 442 F. App'x 565 (D.C. Cir. 2011) (per curiam). If, for example, a plaintiff "despite all due diligence . . . is unable to obtain vital information bearing on the existence of [her] claim," Chung, 333 F.3d at 278 (citations omitted), the doctrine of equitable tolling may allow her to pursue her Privacy Act claims beyond the statute of limitations period, see Kursar, 752 F. Supp. 2d at 168.

C. Plaintiff's Privacy Act Claims Are Time-Barred

"[A] court should assess when a plaintiff knew or should have known of an alleged error from the facts pled, and only grant a motion to dismiss 'if the complaint on its face is conclusively time-barred.'" Kursar, 751 F. Supp. 2d at 166 (quoting Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996)) (additional citations omitted); see Allmon v. Fed. Bureau of Prisons, 605 F. Supp. 2d 1, 5 (D.D.C. 2009) ("Because statute of limitations issues often depend on contested questions of fact, the Court must exercise caution before dismissing a complaint on statute of limitations grounds based solely on the face of the complaint.") (citation omitted).

Notwithstanding the vague and confusing nature of the complaint, plaintiff mentions two significant dates: July 9, 2007 and November 6, 2007. See Compl. at 3 ¶¶ VI, VIII. Defendant argues that plaintiff's cause of action arose no...