United States District Court for the District of Columbia
October 21, 2004.
FRAN HISLER, Plaintiff,
GALLAUDET UNIVERSITY Defendant.
The opinion of the court was delivered by: RICARDO URBINA, District Judge
GRANTING IN PART AND DENYING IN PART THE PLAINTIFF'S MOTION FOR
PARTIAL SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OF COUNT I AND MOTION TO
DISMISS COUNT III
The plaintiff, Fran Hisler, brings this three-count complaint
against her former employer, Gallaudet University. The plaintiff
alleges in count I that the defendant acted in violation of both
the Americans with Disabilities Act of 1990 ("ADA"),
42 U.S.C §§ 12101-12213, and the Rehabilitation Act, as amended,
29 U.S.C. §§ 701-796i, by improperly terminating her employment and failing to
accommodate her disability. In count II, the plaintiff claims
that the defendant failed to notify her of her rights under the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA")
pursuant to 29 U.S.C. § 1166(a)(1). The plaintiff alleges in
count III that the defendant did not grant her appropriate
pension credits towards her Civil Service Retirement System
("CSRS") retirement benefits.
This matter comes before the court on the plaintiff's partial
motion for summary judgment, specifically requesting that the
court stay count I or, in the alternative, dismiss count I without prejudice, and further requesting summary judgment on
count III ("Pl.'s Mot."), as well as the defendant's cross-motion
for summary judgment as to count I and the defendant's motion to
dismiss count III ("Def.'s Mot."). After a careful review of the
submissions of both parties, the court, pursuant to its
discretionary powers, grants the plaintiff's voluntary dismissal
of count I, contingent on her acceptance of the terms and
conditions that the court imposes in its discretion. FED. R. CIV.
P. 41(a)(2). The court grants the defendant's motion to dismiss
for lack of subject matter jurisdiction on count III. Finally, by
request of the parties, the court dismisses count II with
prejudice. Pl.'s Mot. at 13; Def.'s Opp'n at 2 n. 1.
A. Factual Background
From July 1983 to September 1986, the defendant, a government
corporation that receives financial support from the federal
government, employed the plaintiff as an occupational therapist
at Kendall Demonstration Elementary School. Am. Compl. ¶¶ 6-8;
Pl.'s Mot. at 2; Def.'s Mot. at 1; Def.'s Mot. Ex. 1 at
2-3.*fn1 Federal policies govern the administration of
certain employment rights and benefits for the defendant's
In June of 1986, upon exposure to the Epstein-Barr virus during
the course of her employment at Kendall School, the plaintiff was
diagnosed with Chronic Fatigue Immune Dysfunction Syndrome
("CFIDS"). Am. Compl. ¶ 8; Def.'s Mot. at 2. Subsequently, due to
her medical condition, the plaintiff applied for and received
benefits under the Federal Employees Compensation Act ("FECA") from the Office of Workers'
Compensation Programs ("OWCP") of the Department of Labor, for
approximately ten years. Def.'s Mot. Ex. 1 at 2. The plaintiff's
OWCP benefits ceased shortly after the defendant, in 1995,
contracted with a private insurance company for its workers'
compensation benefits, thereby ending its participation in
programs authorized by FECA, including OWCP. Pl.'s Mot. at 3;
Def.'s Mot. Ex. 1 at 2. Consequently, the plaintiff's eligibility
under FECA and her OWCP benefits terminated. Id. The plaintiff
received further compensation from the defendant's private
insurer from May 5, 1996 through January 18, 1998. Id.
During the approximate twelve-year period, 1986 through 1998,
that the plaintiff was receiving workers' compensation benefits
from OWCP and later through a private insurer, she also requested
that the defendant provide employment accommodations for her
disability. Am. Compl. ¶ 10; Def.'s Statement of Material Facts
Not in Dispute ("Def.'s Statement") ¶ 1. The plaintiff and the
defendant did not agree on the extent to which the plaintiff
could work nor on the necessary accommodations. Am. Compl. ¶¶
10-12; Def.'s Statement ¶¶ 4, 6. Despite the plaintiff's
dissatisfaction with the defendant's job offers, on January 18,
1998, the plaintiff made an attempt to return to work as a kiosk
attendant for the defendant. Pl.'s Mot. at 3-4; Def.'s Statement
¶ 1. But shortly thereafter, the plaintiff stopped working and
went on leave-without-pay due to her illness. Def.'s Mot. Ex. 25;
Am. Compl ¶¶ 14-16. The defendant required the plaintiff to
produce medical documentation supporting her claimed inability to
work. Def.'s Mot. Ex 25. The defendant claims that the plaintiff
abandoned her position, while the plaintiff claims that she was
terminated. Am. Compl. ¶¶ 14-16; Def.'s Statement ¶ 6.
Nevertheless, subsequent to the parties ending their employment
relationship, the plaintiff filed a claim with the Equal Employment Opportunity Commission ("EEOC"). Am. Compl.
¶ 4. On January 18, 1999, the plaintiff received her "Rights to
Sue" letter from the EEOC. Id. She then filed suit against the
defendant in this court alleging the claims listed in count I of
her amended complaint.*fn2 Id.
In the meantime, following the plaintiff's employment
termination in 1998, the plaintiff also filed for disability
retirement benefits under CSRS. Pl.'s Mot. at 3-4; Def.'s Mot. at
3. There were difficulties with the plaintiff's pension credit
calculations from the outset. While initially the defendant
agreed to credit the plaintiff's pension for the May 4, 1996
through January 18, 1998 period, the Office of Personnel
Management ("OPM") later discovered that the plaintiff had been
overpaid because the May 4, 1996 through January 18, 1998 period
was incorrectly included in the service credit calculation.
Def.'s Mot. Ex. 1 at 3.
The plaintiff requested that OPM reconsider the exclusion of
the above period. Def.'s Mot. Ex. 1 at 15. The plaintiff
bootstrapped an argument to her request for reconsideration that
the defendant erred by not adjusting the calculations with
incremental merit raises for her projected salary. Id. The OPM
affirmed its earlier decision of her overpayment, yet only
briefly mentioned the inclusion of merit increases because it
considered the issue to be in the defendant's "exclusive
purview." Pl.'s Opp'n at 10; Def.'s Mot. Ex. 1 at 15. The
plaintiff appealed the OPM decision with the Merit System
Protection Board ("MSPB"). Id. The MSPB dismissed the appeal
but gave the plaintiff the option of requesting a board review of
its ruling. Def.'s Mot. Ex. 1 at 19-20. The plaintiff accordingly submitted a
request to the MSPB, which it dismissed in a "final order"
because first, the plaintiff failed to bring forth new,
previously unavailable evidence and second, there was no
outcome-determinative error in law or regulation. Def.'s Mot. Ex.
2 at 1-2.
At the end of her administrative review rope, the plaintiff
still had judicial review at her disposal. MSPB stipulated in its
final order that 5 U.S.C. § 7703 vested the plaintiff with a
right to appeal the board decision in the United States Court of
Appeals for the Federal Circuit. Def.'s Mot. Ex. 2 at 1. Instead
of appealing to the Federal Circuit, the plaintiff brought this
claim, as count III, to this court along with her ADA,
Rehabilitation Act, and COBRA violation claims.
B. Procedural History
Following the plaintiff's receipt of her "Dismissal and Notice
of Rights to Sue" letter from the EEOC, the plaintiff filed the
instant suit on September 8, 1999, seeking reinstatement to her
former position with appropriate accommodations and damages. Am.
Compl. at 1; Hisler v. Gallaudet Univ., 2002 U.S. Dist. LEXIS
3080, at *2 (D.D.C. Jan. 10, 2002). The original complaint
alleged that the defendant acted in violation of both the ADA and
the Rehabilitation Act. Hisler, 2002 U.S. Dist. LEXIS at *2.
The plaintiff's counsel at the time filed a motion for leave to
withdraw from the case, which the court granted in an order dated
December 6, 1999. Id. On November 15, 1999, the defendant filed
its answer to the plaintiff's complaint. Id. The plaintiff's
new counsel entered an appearance on November 19, 1999, however,
on February 9, 2002, the plaintiff's new counsel filed a motion
for leave to withdraw from the case, which the court granted.
On July 18, 2000, the court issued an order staying and
administratively closing the case until the plaintiff secured new representation. Hisler, 2002
U.S. Dist. LEXIS 3080, at *2. On November 22, 2000, the defendant
filed a motion to dismiss for failure to prosecute. In an order
on November 30, 2000, the court directed the plaintiff to show
cause by January 8, 2001 as to why the plaintiff's case should
not be dismissed for failure to prosecute. The plaintiff filed a
timely response on January 8, 2001. The court found the response
sufficient and denied the defendant's motion to dismiss. Order
dated April 6, 2001, at 2.
On January 10, 2002, the court granted the plaintiff's motion
for leave to file an amended complaint and granted the
defendant's motion to extend time for discovery. On that same
day, the plaintiff filed her amended complaint, adding two claims
premised on the defendant's failure to notify her of COBRA rights
and the failure to appropriately calculate pension credits. Am.
Compl. ¶¶ 2, 18-24. The plaintiff also relied on the Employee
Retirement Income Security Act ("ERISA"),
29 U.S.C. § 1132(c)(1)(B) and 29 U.S.C. § 1132(e) to support her contention
that this court has subject matter jurisdiction to hear her
The parties actively continued the litigation of the case.
Then, on May 5, 2003, the court granted the parties' joint motion
to stay proceedings until the conclusion of the mediation process
before Magistrate Judge Facciola.
In its March 10, 2004 order, the court struck the parties'
dispositive motion submissions and set a revised briefing
schedule. The court instructed the parties to submit new briefing
that would clarify arguments on the plaintiff's alleged
entitlement to merit salary increases and the defendant's alleged
failure to make disability annuity payments. Order dated March
10, 2004, at 2. The court further directed the parties to brief
the question of subject matter jurisdiction in light of Graham
v. Ashcroft, 358 F.3d 931 (D.C. Cir. 2004). Id. On April 30, 2004, the plaintiff submitted a motion for partial
summary judgment. In her motion, the plaintiff dismisses count II
with prejudice; requests that the court either stay count I or,
in the alternative, permit the plaintiff to voluntarily dismiss
count I without prejudice; and moves for summary judgment on
count III. Pl.'s Mot. at 1-2. On May 3, 2004, the defendant filed
a cross-motion for summary judgment as to count I and to dismiss
count III for lack of subject matter jurisdiction. On May 13,
2004, the defendant filed its opposition to the plaintiff's
motion, agreeing to dismiss count II with prejudice, but opposing
the plaintiff's motion with regard to counts I and III. Def.'s
Opp'n at 2. The next day, the plaintiff filed her opposition to
the defendant's motion. On May 19, 2004, both parties timely
submitted their replies.
Because the parties have agreed to dismiss count II with
prejudice, the court grants the plaintiff's motion, in part, to
dismiss count II with prejudice and now addresses the two
remaining counts. For the reasons that follow, the court grants
each of parties' motions in part. The court denies the
plaintiff's motion to stay count I, grants the plaintiff's motion
to dismiss count I without prejudice, denies the defendant's
motion for summary judgment of count I, grants the defendant's
motion to dismiss count III for lack of subject matter
jurisdiction, and denies the plaintiffs motion for summary
judgment of count III.
A. The Court Denies the Plaintiff's Motion to Stay Count I
The plaintiff requests that the court stay count I proceedings
pending the outcome of the two cases in District of Columbia
Court of Appeals and the Department of Employment Services, Labor
Standards, Office of Worker's Compensation ("DOES"). Pl.'s Mot.
at 1. The court, in balancing the equities, concludes that granting a stay
would be unfair to the defendants as it would unnecessarily delay
this case at this late stage in the litigation.
A trial court has broad discretion to stay all proceedings in
an action pending the resolution of independent proceedings
elsewhere. See Landis v. North American Co., 299 U.S. 248, 254
(1936). "[T]he power to stay proceedings is incidental to the
power inherent in every court to control the disposition of the
causes on its docket with economy of time and effort for itself,
for counsel, and for litigants." Id. at 254-55. Indeed, "[a]
trial court may, with propriety, find it is efficient for its own
docket and the fairest course for the parties to enter a stay of
an action before it, pending resolution of independent
proceedings which bear upon the case." Levya v. Certified
Grocers of California, Ltd., 593 F.2d 857, 863-64 (9th Cir.
The Supreme Court has guided that "the suppliant for a stay
must make out a clear case of hardship or inequity in being
required to go forward, if there is even a fair possibility that
the stay for which [the movant] prays will work damage to some
one else." Landis, 299 U.S. at 255. Thus, the plaintiff
shoulders the burden in demonstrating a "clear case of hardship."
Id. The plaintiff in the instant case contends that she seeks
to avoid adverse legal impact and interference of this claim on
related pending cases. But stating a possibility of
inconsistencies in rulings on the same issue, without any
explanation on how her claim will suffer any harm, does not
establish, in itself, a "clear case of hardship." See, e.g.,
Colkitt v. GFL Advantage Fund, LTD., 216 F.R.D. 189, 193 (D.D.C.
2003) (Facciola, Mag. J.).
In balancing the equities, the court concludes that a stay
would be unfair to the defendant Gallaudet who, after five years of litigation, is finally at the
second round of dispositive motions.*fn3 See Landis,
299 U.S. at 255 (stating that a court, in deciding a motion to stay,
must exercise judgment that "weigh[s] competing interests and
maintain[s] an even balance") (citations omitted). Furthermore,
the plaintiff has failed to show the requisite hardship and the
court, accordingly, denies the plaintiff's motion for stay.
B. The Court Grants the Plaintiff's Motion for Voluntary
Dismissal of Count I
As an alternative to staying the proceedings on count I, the
plaintiff requests that the court allow the plaintiff to
voluntarily dismiss count I without prejudice. Contingent on
specific conditions set forth by the court below, the court
grants the plaintiff's voluntary dismissal of count I without
1. Legal Standard for Voluntary Dismissal Under Rule 41
Federal Rule of Civil Procedure 41(a) governs voluntary
dismissal of an action. FED. R. CIV. P. 41(a)(1). Under Rule
41(a)(1), a plaintiff may dismiss a civil action without an order
of the court by filing a notice of dismissal before the adverse
party files an answer or motion for summary judgment, or by
filing a stipulation of dismissal signed by all parties. Id.;
Swift v. United States, 318 F.3d 250, 252 (D.C. Cir. 2003).
Otherwise, under Rule 41(a)(2), "an action shall not be dismissed
at the plaintiff's instance save upon order of the court and upon
such terms and conditions as the court deems proper." FED. R.
CIV. P. 41(a)(2); Taragan v. Eli Lilly & Co., Inc.,
838 F.2d 1337, 1339 (D.C. Cir. 1988). Dismissals under Rule 41(a)(2)
"generally [are] granted in the federal courts unless the
defendant would suffer prejudice other than the prospect of a second lawsuit or some tactical disadvantage." Conafay v.
Wyeth Labs., 793 F.2d 350, 353 (D.C. Cir. 1986); see also 9
FED. PRAC. & PROC. CIV.2d § 2364. A court applying Rule 41(a)(2)
therefore must consider whether the plaintiff seeks the motion
for voluntary dismissal in good faith, and whether the dismissal
would cause the defendant "legal prejudice" based on factors such
as the defendant's trial preparation efforts, any excessive delay
or lack of diligence by the plaintiff in prosecuting the action,
an insufficient explanation by the plaintiff for taking nonsuit,
and the filing of motions for summary judgment by the defendant.
In re Vitamins Antitrust Litigation, 198 F.R.D. 296, 304
2. The Defendant Will Not Suffer Legal Prejudice Upon Dismissal
of Count I without Prejudice
As an initial matter, because the defendant has filed a motion
for summary judgment as to count I, Rule 41(a)(1) does not apply.
Robinson v. England, 216 F.R.D. 17, 18 (D.D.C. 2003) (noting
that the court applies Rule 41(a)(2) when a defendant has filed
an alternative motion for summary judgment and has not stipulated
to the dismissal). Accordingly, the court applies Rule 41(a)(2)
to the plaintiff's motion for voluntary dismissal.
The court begins its analysis with the issue of whether the
plaintiff's voluntary withdrawal is in good faith. In re
Vitamins, 198 F.R.D. at 305. The plaintiff is currently pursuing
cases relating to count I of her complaint in two other fora,
namely, the District of Columbia Court of Appeals and DOES. Pl.'s
Mot. at 1. The plaintiff moves to dismiss count I to avoid costly
adjudication in multiple fora and legal inconsistencies and
interference between related cases. Pl.'s Mot. at 13. The
defendant asserts that the plaintiff's interests in postponing
the adjudication of count I are time-consuming and costly. Def.'s
Opp'n at 8-9. Be that as it may, although the plaintiff is motivated by self-interest, this
fact alone is not indicative of bad faith. As discussed more
fully below, the plaintiff has sufficiently persuaded the court
that she brings her motion for voluntary dismissal in good faith,
or at least not in bad faith.
The issue of good or bad faith alone, however, is not
dispositive of the plaintiff's motion. See In re Vitamins,
198 F.R.D. at 304. Generally, courts grant voluntary dismissals
unless the defendant would suffer legal prejudice other than the
prospect of a second lawsuit or some tactical disadvantage.
Conafay, 793 F.2d at 353. Pursuant to the guidance lent by the
D.C. Circuit, the court considers the following factors to
determine whether or not legal prejudice exists in the case at
hand: the defendant's trial preparation efforts, any excessive
delay or lack of diligence by the plaintiff in prosecuting the
action, an insufficient explanation by the plaintiff for taking
nonsuit, and the filing of motions for summary judgment by the
defendant. Id. Accordingly, the court addresses each of these
factors in turn.
The first factor of prejudice that the court considers is the
defendant's trial preparation. On its face, it appears that if
the court grants the plaintiff's voluntary dismissal of count I,
the defendant's work-product, purchased through expense and
diligent effort, would all be for naught. The defendant argues
that the trial preparation efforts since the incipience of this
case in 1999, are potentially wasted. On second glance, the
diligence of the defendant does not necessarily lose all
usefulness on dismissal. As stated by both parties, related
claims are pending in two additional fora. Pl.'s Mot at 1, 12-13;
Def.'s Opp'n at 8-9. It does not tax one's legal imagination to
surmise that between related cases, efforts are freely lent from
one to the other. E.g., In re Vitamins, 198 F.R.D. at 304
(discussing that a party is not entitled to reimbursement for
expenses incurred for work-product that is useful in a second
suit with repetitious claims) (citations omitted). Moreover, if the plaintiff does choose to
refile and relitigate this count, much of the defendant's
preparations will likely be useful in a potential second
The court is wary of meandering into the forest of speculation
by postulating on the usefulness of the defendant's efforts
elsewhere. It is enough to note the fact that the defendant "may
have incurred substantial expense prior to dismissal does not
amount to legal prejudice." Piedmont Resolution v. Johnston,
Rivlin & Foley, 178 F.R.D. 328, at 331-32 (D.D.C. 1998)
(Attridge, Mag. J.).
The court next considers the second factor of prejudice, the
plaintiff's lack of diligence or unnecessary delay. The parties
would have been better served had the issue of the pending cases
been raised at least as early as December 24, 2003, when the
plaintiff filed an application for a formal hearing with DOES.
The plaintiff neglected to voice her concerns over inconsistent
rulings until her dispositive motion on April 30, 2004. But
still, although the plaintiff's behavior is far from
praiseworthy, the court must look at whether the plaintiff has
"demonstrated excessive delay and lack of diligence in
prosecuting this action as a whole." In re Vitamins,
198 F.R.D. at 305 (emphasis added). That she has not. Overall, the plaintiff
has complied with orders and her motions have been timely filed.
Thus, the plaintiff's delay in asking for voluntary dismissal is
not a dispositive factor in showing that she wholly lacks
diligence in her prosecution of this case. Id. The court, looking at the procedural posture of this case
as a whole, concludes that the defendant would not suffer legal
The court next turns to the adequacy of the plaintiff's need
for dismissal. In prior cases, the court has found insufficient
those explanations that served as veiled maneuvers to avoid
adverse rulings. In re Vitamins, 198 F.R.D. at 305 (citing
Teck Gen. P'ships v. Crown Cent. Petroleum Corp.,
28 F. Supp. 2d 989 (E.D. Va 1998) (holding that a plaintiff who is unable to
meet the scheduling deadlines may not obtain a non-prejudicial
voluntary dismissal to avoid an adverse ruling)). Here, the
defendant asserts that the plaintiff makes this request to "avoid
a substantive adjudication of a groundless claim . . ." Def.'s
Opp'n at 9. The court concludes that the supposition that the
plaintiff's intent is to avoid an adverse ruling is a contortion
of legal reality. It will always be the case that a voluntary
dismissal avoids an adverse ruling just as much as it avoids a
favorable one. Thus, on the present facts, the plaintiff's motion
for voluntary dismissal does not necessarily avoid an adverse
ruling on this count because the court has not yet addressed the
case on its merits. The defendant assumes optimistically that it
will prevail, but the court deems the defendant's self-confidence
The plaintiff posits her need for nonsuit on financial
constraints and her desire to avoid legal impact and interference
among her claims. Pl.'s Mot. at 12-13. The plaintiff filed her
pending suits after count I was initially filed in this court in
1999. Compl. at 1. The plaintiff must have realized at some
earlier stage that there was overlap between her multiple claims,
which could cause legal inconsistency. Yet, faced with the
financial reality of litigating in multiple courts, the plaintiff
seeks quickly to jettison this claim for possible later
retrieval. Although the gauge for sufficiency is not precise, the court is
unconvinced that the plaintiff's explanation is sufficient.
But even when a plaintiff does not present a "compelling reason
for dismissal," the court, to avoid legal prejudice, has broad
discretion to impose "such terms and conditions as the court
deems proper." FED. R. CIV. P. 41(a)(2); In re Vitamins,
198 F.R.D. at 305; Lee County v. United States, 1988 U.S. Dist.
LEXIS 5655, at *11-12 (D.D.C. 1994) (noting that "this Circuit
has granted district courts considerable discretion in ordering
requirements upon dismissal"). That discretion is limited to
those conditions that will "alleviate the harm (other than
tactical disadvantage) that the defendant will suffer if the
motion is granted." In re Vitamins 198 F.R.D. at 305 (noting
that per LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604-605 (5th
Cir. 1976), the district court's discretion is limited and that
the district court's decision on appeal is held to an abuse of
discretion standard on appeal). The court is mindful that "[t]he
purpose of the `terms and conditions' clause [of Rule 41(a)(2)]
is to protect a defendant from any prejudice or inconvenience
that may result from the plaintiff's voluntary dismissal."
Taragon, 838 F.2d at 1340 (citations omitted) (alteration in
To prevent legal prejudice to the defendant, the court
conditions the plaintiff's voluntary dismissal on the plaintiff's
acceptance of these following conditions. First, the plaintiff
may only refile in this court if these pending cases have been
resolved and no concurrent litigation on common issues exist in
other fora. Furthermore, if the plaintiff should chose to refile,
the defendant then has the option of submitting a detailed
statement itemizing its costs and fees for work-product in this
litigation that cannot be used in the future action. The
defendant must produce supporting documentation that includes,
but is not limited to, billing statements and times sheets. See Collins v. Baxter Healthcare Corp., 2001 U.S.
Dist LEXIS 5365, at *4 (D.D.C. 2001) (citations omitted).
The court also notes that the pendency of a summary judgment
motion is also a factor the court considers in determining legal
prejudice. The defendant has filed a summary judgment motion on
count III, which is currently pending. The court has considered
that "most denials for voluntary dismissals are justified by the
fact that the defendants had already filed motions for summary
judgment or that the parties were on the eve of trial." In re
Vitamins, 198 F.R.D. at 305 (citations omitted). But pendency of
"a dispositive motion alone is not grounds for denying the
plaintiff's dismissal motion." Robinson, 216 F.R.D. at 18
(citations omitted). In fact, "[m]otions for summary judgment
filed after the motion for voluntary dismissal are insufficient
to support a finding of prejudice." Piedmont, 178 F.R.D. at 331
The parties are, however, on the eve of trial, so to speak. The
plaintiff filed her motion to dismiss at a late stage in this
litigation, that is, more than two years after the deadline for
completion of discovery. The defendants have incurred substantial
expense prior to this dismissal motion. Although this does not
amount to legal prejudice, the court concludes that potential
burdens of relitigation are satisfactorily cured by conditioning
the plaintiff's dismissal and refiling of the claim on "the
payment of costs for work and effort incurred in the first case
that would not be of use in the second." Piedmont,
178 F.R.D. at 331-32 (internal citations omitted). The court concludes that
the defendant will not be legally prejudiced by the plaintiff's
motion for voluntary dismissal without prejudice under the terms
and conditions already imposed by the court. Accordingly, the
plaintiff's voluntary dismissal of count I is granted contingent
on her acceptance of these conditions, as set forth above. C. The Court Denies the Defendant's Motion for Summary Judgment
as to Count I
The court, having dismissed count I without prejudice, subject
to conditions, does not reach the issue of the pending summary
judgment on this count. Because this issue is moot, the court
accordingly denies the defendant's motion for summary judgment as
to count I.
D. The Court Grants the Defendant's Motion to Dismiss Count III
for Lack of Subject Matter Jurisdiction
The court next considers the pending motions on count III. In
its order dated March 9, 2004, the court instructed the parties
to review and brief whether this court has subject matter
jurisdiction over count III. Subsequently, the plaintiff moved
for summary judgment on this count and the defendant moved to
dismiss the plaintiff's claim on the ground that this court does
not have jurisdiction to adjudicate this matter. For the
following reasons, the court grants the defendant's motion to
dismiss for lack of subject matter jurisdiction.
1. Legal Standard for a Motion to Dismiss Pursuant to Rule
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
(1994); St. Paul Mercury Indem. Co. v. Red Cab Co.,
303 U.S. 283
, 288-89 (1938); see also Gen. Motors Corp. v. Envtl. Prot.
Agency, 363 F.3d 442
, 448 (D.C. Cir. 2004) (noting that "[a]s a
court of limited jurisdiction, we begin, and end, with an
examination of our jurisdiction").
Because "subject-matter jurisdiction is an `Art. 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 Bauxite de
Guinea, 456 U.S. 694, 702 (1982)). On a motion to dismiss for
lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the
plaintiff bears the burden of establishing that the court has
subject matter jurisdiction. Evans v. B.F. Perkins Co.,
166 F.3d 642, 647 (4th Cir. 1999); Rasul v. Bush,
215 F. Supp. 2d 55, 61 (D.D.C. 2002) (citing McNutt v. Gen. Motors
Acceptance Corp., 298 U.S. 178, 182-83 (1936)). The court may dismiss a
complaint for lack of subject matter jurisdiction only if "`it
appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief.'"
Empagran S.A. v. F. Hoffman-Laroche, Ltd., 315 F.3d 338, 343
(D.C. Cir. 2003) (quoting Conley v. Gibson, 355 U.S. 41, 45-46
Because subject matter jurisdiction focuses on the court's
power to hear the claim, however, the court must give the
plaintiff's factual allegations closer scrutiny when resolving a
Rule 12(b)(1) motion than would be required for a Rule 12(b)(6)
motion for failure to state a claim. Macharia v. United States,
334 F.3d 61, 64, 69 (D.C. Cir. 2003); Grand Lodge of Fraternal
Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C.
2001). Moreover, the court is not limited to the allegations
contained in the complaint. Hohri v. United States,
782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds,
482 U.S. 64 (1987). Instead, to determine whether it has jurisdiction over
the claim, the court may consider materials outside the
pleadings. Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197
(D.C. Cir. 1992).
2. CSRA Precludes Judicial Review of the Plaintiff's Claim in
Following the court's March 9, 2004 order directing the parties
to brief the subject matter jurisdiction of this court over count
III, the defendant moved to dismiss for lack of subject matter
jurisdiction, citing Graham v. Ashcroft, 358 F.3d 931
Cir. 2004). The defendant asserts in its motion that this court
does not have subject matter jurisdiction because the Civil
Service Reform Act ("CSRA") did not provide for judicial review of
disability retirement benefits beyond those of appellate review
in the Federal Circuit. Def.'s Mot. at 16. The defendant further
contends that the plain language of 5 U.S.C. §§ 1295(a)(9) and
7793(b)(1) gives the Federal Circuit exclusive jurisdiction over
appeals of final MSPB decisions or orders. Def.'s Mot. at 14;
5 U.S.C. § 1295(a)(9); 5 U.S.C. § 7793(b)(1).
The plaintiff, on the other hand, asserts that ERISA,
29 U.S.C. §§ 1132(c)(1)(B) and 1132(e), provide a basis for subject matter
jurisdiction. Am. Compl. ¶ 2; Pl.'s Mot. at 7; Pl.'s Reply at 3.
Specifically, she avers that "the defendant's conduct as a
sponsor of a pension program is subject to review under ERISA."
Pl.'s Reply at 3. The court disagrees. The court finds that ERISA
does not preempt CSRA in the administration of CSRS.
Congress enacted ERISA, intending "to provide uniform federal
regulation of employee retirement benefit plans and to make
regulation of benefits an entirely federal concern." Nat'l
Rehab. Hosp. v. Manpower Int'l, Inc., 3 F. Supp. 2d 1457, 1459
(citing Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45-46
(1987)). Although ERISA's preemption power is broad in creating
this uniformity, id.; see 29 U.S.C. § 1144(a), it stops short
when affronted with a "governmental plan."
29 U.S.C. § 1003(b)(1). For the purposes of ERISA, a "governmental plan" is
one "established or maintained for its employees by the
Government of the United States, by the government of any State
or political subdivision thereof, or by any agency or
instrumentality of any of the foregoing." 29 U.S.C. § 1002(32).
CSRS falls under ERISA's "governmental plan" exception.
Congress, in 1920, "passed the first civil service retirement
act, which provided that any eligible employee in the classified
civil service could receive an annuity based upon his or her
years of federal service and average annual salary." Am. Postal Workers Union, AFL-CIO v. U.S. Postal
Serv., 707 F.2d 548, 559-50 (D.C. Cir. 1983) (citing Act of May
22, 1920 ch. 195, 41 stat. 614). Through its subsequent
amendments in the last eighty years, CSRS remains a governmental
plan established or maintained for its employees by the
Government of the United States.
Unsatisfied with this plain meaning of the statute, the
plaintiff suggests that even if her CSRS benefits are generally
exempt from the ERISA coverage, the defendant as a
non-governmental employer is not exempt from ERISA. Pl.'s Reply
at 4. The plaintiff's concern over the defendant's governmental
status is oblique to the main question. The court points out that
an entity may be governmental for one purpose and
non-governmental for another. Alley v. Resolution Trust Corp.,
984 F.2d 1201, 1206 (D.C. Cir. 1993). Therefore, the question for
this court (for the purposes of the ERISA "governmental plan"
exemption) is whether in its employment relationships, the
defendant entity functions like a governmental agency. Id.
In Alley, the court found ERISA applicable because the
defendant related to its employees "as would a private business
an entity whose employees are not subject to laws governing
public employees generally." Id. Those "laws governing public
employees" include 5 U.S.C. § 2105 (defines federal "employee"
for purposes of title 5), 5 U.S.C. § 5101 (classifies positions
for purposes of pay and for use "in all phases of personnel
administration"), and 5 U.S.C. §§ 8331 et seq. (outlines civil
service retirement benefits). Id.
Here, in stark contrast, the defendant's employees' retirement
rights are primarily governed as public employees. The
defendant's employees, unlike those involved in Alley, are
subject to personnel rules or restrictions on salaries and
benefits imposed generally on federal employees.*fn5 See id. Furthermore, for the purposes of
CSRS, Congress categorizes the defendant Gallaudet as the
"government," 29 U.S.C. 8331 (7), and an "employee" as an
individual employed by the defendant Gallaudet.
29 U.S.C. 8331(1)(H). In light of these facts, ERISA is inapplicable and
jurisdiction for count III in this court is based solely on the
auspices of CSRS.
CSRA governs all administrative and judicial remedies for the
plaintiff's CSRS claim. In 1978, CSRA overhauled the civil
service system and created both the OPM and MSPB. Congress
included in OPM's responsibilities the administration of the
CSRA. 5 U.S.C. § 8347(a); Lindahl v. Office of Pers. Mgmt.,
470 U.S. 768, 773-74 (1985). Congress also vested MSPB with
jurisdiction to review OPM's Retirement Act decisions.
5 U.S.C § 8347(d)(1); Lindahl, 470 U.S. at 774. Moreover, in 1985 the
Supreme Court held that MSPB appeals involving disability
retirement under the Retirement Act enjoyed judicial review only
in the Federal Circuit. Lindahl, 470 U.S. 768, 792. In the
words of Justice Brennan:
Title 28 U.S.C. § 1295(a) provides: The United States
Court of Appeals for the Federal Circuit shall have
exclusive jurisdiction . . . (9) of an appeal from a
final order or final decision of the Merit System
Protection Board, pursuant to sections 7703(b)(1) and
7703(d) of title 5. Title 5 U.S.C. § 7703(b)(1) in
turn provides that, except for discrimination cases
covered by subsection (b)(2), a petition to review a
final order or final decision of the Board shall be
filed in the United States Court of Appeals for the
Federal Circuit. Sections 1295(a)(9) and 7703(b)(1)
together appear to provide for exclusive jurisdiction
over MSPB decisions in the Federal Circuit, and do
not admit any exceptions for disability retirement
claims.*fn6 Id. (emphasis deleted) (internal quotations and
footnotes omitted). CSRA's statutory scheme
essentially leaves no room for federal district court
review of MSPB decisions regarding disability
retirement. Denton v. Merit Sys. Prot. Bd.,
768 F.2d 422, 424-25 (D.C. Cir. 1985).
The plaintiff protests that because the OPM and MSPB have no
jurisdiction to review the certification of pay, this court is
the proper forum to adjudicate issues related to the
administration of an employee benefit plan. Pl.'s Opp'n at 10.
The plaintiff points to the MSPB's initial decision on September
6, 2001, where the MSPB held that it had no authority to review
the defendant's salary structure and pension credit calculations.
Def.'s Mot. Ex. 1 at 17.
Assuming that the OPM and MSPB could do no more for her, the
plaintiff still cites no legal support for jurisdiction in this
court. Unlike other employees governed by CSRA, the plaintiff had
the benefit of judicial review through the Federal Circuit upon
receipt of a final order. She received her final order from the
MSPB on July 28, 2003. Def.'s Mot. Ex. 2 at 1. The last page of
the order clearly laid out instructions regarding further review
rights through the Federal Circuit. Id. at 2. The plaintiff
chose not to pursue that remedy and instead brought her claim
here. But other than the plaintiff's mention of ERISA as a
possible basis for jurisdiction which the court has established
it is not she has not provided a germ of substantive authority
from which jurisdiction could sprout.
For background purposes, President Carter's concerns over the
increasingly inefficient and labored management and merit
protection of the civil service system prompted him to propose
legislation in 1978, that would restructure the civil service to
strengthen employee rights, improve the efficiency and
responsiveness of the federal government, and reduce the red-tape and costly delay in the then inefficient personnel system.
Frazier Jr. V. Merit Sys. Prot. Bd., 672 F.2d 150, 153-54 (D.C.
Cir. 1982) (citing H.R. Rep. No. 1403, 95th Con., 2d Sess. 2-3).
Congress responded by enacting CSRA, "which replaced the
patchwork system with an integrated scheme of administrative and
judicial review, designed to balance the legitimate interests of
the various categories of federal employees with the needs of
sound and efficient administration." United States v. Fausto,
484 U.S. 439, 445 (1988). Congress, in enacting CSRA, saw it fit
to strip the federal district courts of jurisdiction over MSPB
appeals, including appeals involving disability retirement.
28 U.S.C. § 1295(9); 5 U.S.C. § 7703(b)(1). This court cannot
provide judicial review otherwise because "the CSRA precludes
resort to other statutory schemes for aggrieved federal employees
raising non-constitutional claims against employers."
Sculimbrene v. Reno 158 F. Supp. 2d 1, 7 (quoting Spagnolo I,
809 F.2d 16, 30 (D.D.C. 2001)). To allow the plaintiff judicial
review outside the CRSA scheme would "afford her greater rights"
than CSRA affords other employees in her same employee category.
See Graham 358 F.3d at 935; see also Carducci v. Regan,
714 F.2d 171, 174 (D.C. Cir. 1983); United States v. Fausto,
484 U.S. 439, 451 at n. 3 (noting that employees who are given review
rights cannot expand these rights by resort to pre-CSRA
The court recognizes that "it is the comprehensiveness of the
statutory scheme involved, not the adequacy of specific remedies
thereunder, that counsels judicial abstention." Spagnola v.
Mathis, 859 F.2d 223, 227 (D.C. Cir. 1988) (internal quotations
omitted). Simply put, CSRA's remedial scheme does not provide
judicial review for the plaintiff's claim in this court, but
rather, it precludes any relief in this court for the plaintiff.
Accordingly, the court dismisses the plaintiff's claim for lack
of subject matter jurisdiction because "it appears beyond doubt
that the plaintiff can prove no set of facts which would entitle [her] to
relief." Sinclair v. Kleindienst, 711 F.2d 291, 193 (D.C. Cir.
1983) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
The court holds that the CSRA precludes this court's review of
the plaintiff's claim that the defendant failed to properly
calculate her pension credits for her disability retirement
annuity under the Retirement Act. Neither ERISA nor CSRA provides
this court with any basis for subject matter jurisdiction.
Accordingly, the court grants the defendant's motion to dismiss
count III for lack of subject matter jurisdiction.
E. The Court Denies the Plaintiff's Motion for Summary Judgment
as to Count III
The court, having dismissed count III with prejudice, does not
reach the issue of the pending motion for summary judgment on
this count. The court concludes that this issue is moot and
accordingly denies the plaintiff's motion for summary judgment as
to count III.
For the foregoing reasons, the court grants the plaintiff's
voluntary dismissal of count I without prejudice, contingent on
the plaintiff's acceptance of stipulated conditions. The court
further dismisses count II with prejudice by the request of both
parties and grants the defendant's motion to dismiss count III.
An order consistent with this Memorandum Opinion is separately
and contemporaneously issued this 21st day of October 2004.