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Minney v. United States Office of Personnel Management

United States District Court, D. Columbia.

September 15, 2015

GLENN MINNEY, Plaintiff,
v.
UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, Defendant

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[Copyrighted Material Omitted]

Page 227

          For GLENN MINNEY, Plaintiff: Larry Edward Tanenbaum, LEAD ATTORNEY, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington, DC; Jennifer L. Woodson, PRO HAC VICE, AKIN GUMP STRAUSS HAUER & FELD, LLP, New York, NY.

         For U.S. OFFICE OF PERSONNEL MANAGEMENT, Defendant: John G. Interrante, Stephanie Nicole Liaw, LEAD ATTORNEYS, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC.

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         MEMORANDUM OPINION

         [Dkts. #2, #14, #23]

         RICHARD J. LEON, United States District Judge.

         This is a tragic case of a severely wounded and much decorated war veteran seeking reinstatement of disability benefits that the federal bureaucracy at the Office of Personnel Management extinguished on a technicality. Plaintiff Glenn Minney (" plaintiff" or " Minney" ) commenced the instant action against defendant United States Office of Personnel Management (" defendant" or " OPM" ), on July 13, 2015, seeking a preliminary injunction to remedy alleged violations of section 504 of the Rehabilitation Act of 1973 and the due process clause of the Fifth Amendment. See generally Compl.; Pl. Glenn Minney's Mot. for TRO & Prelim. Inj. (" Pl.'s Mot." ) [Dkt. #2]; Mem. of Law in Supp. of Pl. Glenn Minney's Mot. for TRO & Prelim. Inj. (" Pl.'s Mem." ) [Dkt. #2-1]. OPM not only opposes the entry of a preliminary injunction, but also moves to dismiss for lack of jurisdiction. See Def.'s Mot. to Dismiss for Lack of Jurisdiction and Opp'n to Pl.'s Mot. for Prelim. Inj. (" Def.'s Mot." ) [Dkt. #14]. Upon careful review of the pleadings, the relevant law, and the entire record herein, the Court DENIES OPM's Motion to Dismiss, GRANTS plaintiff's Motion for a Preliminary Injunction, and REINSTATES plaintiff's Federal Employee Retirement System Benefits.[1]

         BACKGROUND

         Plaintiff joined the Navy in 1985, where he served as a corpsman on both active and reservist duty for over twenty years. Decl. of Glenn Minney in Supp. of Mot. for TRO & Prelim. Inj. (" Minney Decl." ) ¶ ¶ 2, 4 [Dkt. #2-21. Plaintiff, having earned a Purple Heart Medal and numerous other military honors and awards during his decades-long service, had a distinguished naval career. See Minney Decl. ¶ 3.

         The instant case arises from his deployment to Iraq in January 2005. See Minney Decl. ¶ 9. On April 18, 2005, plaintiff accompanied Marine ground troops to the Haditha Dam, where he was caught in the crosshairs of an insurgent strike and severely injured in an ensuing mortar explosion.

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Minney Decl. ¶ 10. His injuries proved devastating. In the days and months following the attack, plaintiff's vision deteriorated to the point of near-blindness. Minney Decl. ¶ ¶ 12-17. Subsequent medical examinations yielded a grim prognosis. In addition to irreparably damaging plaintiff's optic nerve, the blast destroyed twenty five percent of the brain tissue in his parietal and occipital lobes, leaving him fully blind in his right eye, mostly blind in his left eye, and, as a result, permanently disabled. Minney Decl. ¶ ¶ 16-17. Unable to continue active service, plaintiff retired from the Navy in October 2006. Minney Decl. ¶ 18.

         Later that same month, plaintiff began working for the VA Patient Advocates Office, where he earned approximately $49,000 per year. Minney Decl. ¶ 19. The VA's inability to accommodate his visual impairments rendered even the most menial tasks difficult, and the physical demands of his position soon proved untenable. See Minney Decl. ¶ ¶ 20-32; Compl. ¶ ¶ 25-31. This, of course, did not escape the VA's notice. In 2010, the VA informed plaintiff that he would not be able to continue in his current capacity and offered him a choice. Minney Decl. ¶ 32. Either he could take a position as " door greeter," which paid approximately $25,000 a year, or he could retire with Federal Employees Retirement Systems (" FERS" ) disability benefits. Minney Decl. ¶ ¶ 33-34; Compl. ¶ 31. Financially unable to accept the former, plaintiff opted for retirement. Minney Decl. ¶ 34.

         On October 2, 2010, plaintiff applied for FERS benefits. Decl. of Trevis A. Hall (" First Hall Decl." ) ¶ 4 [Dkt. #9-1]. OPM approved plaintiff's application on April 22, 2011 and sent a written notice of his approval to the mailing address it had on file--a P.O. Box in Clarksburg, Ohio. See Decl. of Kimberly A. Wilhelm (" Wilhelm Decl." ) ¶ 15 [Dkt. #21-2]. Included within this April 2011 notice was a paragraph detailing the effect " Restoration of Earning Capacity" would have on his FERS benefits. See First Hall Decl. ¶ 4. This notice advised plaintiff that:

" [i]f you are under age 60 and working in a non-federal position, there is a limit on the amount you can earn . . . and still be entitled to your annuity payment. If your earnings in any calendar year equal at least 80 percent of the current salary of the position from which you retired, we will find your earning capacity to have been restored. Disability annuity payments will stop six months from the end of the calendar year in which your earning capacity is restored."

Ex. To Def.'s Notice of Filing of Decl. and Exs. & Mem. of Law, [Dkt. #9-2]. Plaintiff claims, however, that he never received this mailing because it was sent to the incorrect address. Minney Decl. ¶ 37. Nor, for that matter, did the VA's Human Resources specialist apprise plaintiff of this earning restriction before he left the VA. Indeed, upon his departure from the VA, plaintiff was advised only that his benefits would terminate if he returned to work for the federal government. See Minney Decl. ¶ ¶ 35-36. According to plaintiff, he did not learn of any earning restrictions whatsoever until approximately four years after he obtained FERS approval. See Minney Decl. ¶ 35.

         Unaware of any limitations on his entry into the private workforce, plaintiff began working as a legislative liaison for the Blinded Veterans Association (" BVA" ), where he earned $56,000 per year. Minney Decl. ¶ 39; Compl. ¶ 35. In February 2015, approximately one year after beginning work at the BVA, plaintiff received a print letter from OPM at his home address in Virginia. Compl. ¶ 38. Because the letter " was not written in braille or any other format that would have allowed [him] to read" it, plaintiff " had to have

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someone else read [it] to him." Compl. ¶ 38. Its contents were, according to plaintiff, shocking. The letter advised plaintiff that his FERS benefits would terminate if his 2014 income exceeded 80 percent of the current rate of pay for the position from which he had retired, the so-called " eighty percent limitation." Compl. ¶ 39; Minney Decl. ¶ 37.[2]

         Thereafter, at OPM's request, plaintiff reported his 2014 income from the BVA, which, at $56,000, exceeded his $54,100 income at the VA for the previous fiscal year. Decl. of Trevis A. Hall (" Second Hall Decl." ) ¶ 4 [Dkt. #14-1]; see Minney Decl. ¶ 42. This, too, did not escape OPM's notice. On May 8, 2015, OPM advised plaintiff that because his BVA salary exceeded the eighty percent limitation, OPM would terminate his FERS benefits. First Hall Decl. ¶ 4; Minney Decl. ¶ ¶ 43-45. Plaintiff sought reconsideration, but was advised by OPM, while his request was still pending, that it would be denied. Minney Decl. ¶ ¶ 51-52. OPM made good on its promise and terminated plaintiffs benefits on June 30, 2015. See Second Hall Decl. ¶ 4. Plaintiff received his last disability annuity payment on July 1, 2015. Second Hall Decl. ¶ 4. Although plaintiff is eligible to reapply for his benefits in January 1, 2016, he, and his daughters, are currently without the medical coverage FERS previously provided.[3] See Second Hall Decl. ¶ 4.

         On July 13, 2015, plaintiff filed a complaint alleging that OPM had violated section 504 of the Rehabilitation Act of 1973 and the due process clause of the Fifth Amendment by failing to provide adequate advance notice of the eighty percent limitation. See generally Compl. That same day, plaintiff sought a Temporary Restraining Order (" TRO" ) and Preliminary Injunction to prevent OPM from terminating his FERS benefits. See Pl.'s Mot. By Order dated July 21, 2015, this Court denied issuance of a TRO, but ...


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