United States District Court, D. Columbia.
[Copyrighted Material Omitted]
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.
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,
#2, #14, #23]
J. LEON, United States District Judge.
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.
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.
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.
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.
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.
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
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.
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
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. ¶
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. See Second Hall Decl. ¶
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 ...