United States District Court, D. Columbia
ALLAN EARL LUCAS, JR, Plaintiff: Sean C.E. McDonough, David
Drake Hudgins, HUDGINS LAW FIRM, P.C., Alexandria, VA.
DISTRICT OF COLUMBIA, DISTRICT OF COLUMBIA METROPOLITAN
POLICE DEPARTMENT, DISTRICT OF COLUMBIA POLICE AND
FIREFIGHTER RETIREMENT RELIEF BOARD, DISTRICT OF COLUMBIA
DEPARTMENT OF HUMAN RESOURCES, Defendants: Ali Naini, LEAD
ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF
COLUMBIA, Public Interest Division, Washington, DC.
F. Hogan, Senior United States District Judge.
Earl Lucas, Jr. (the " plaintiff" ) commenced this
federal lawsuit against the District of Columbia (the "
defendant" ) to recover money damages for lost earnings
and retirement benefits stemming from the Metropolitan Police
Department's alleged failure -- nearly 43 years ago -- to
treat his induction into the United States Marine Corps as a
military furlough and to reemploy him upon his discharge from
military service. After careful consideration, and for the
reasons that follow, the Court concludes that the
plaintiff's lawsuit must be dismissed without prejudice
because all claims asserted in the First Amended Complaint
are preempted by the Comprehensive Merit Personnel Act
(" CMPA" ) and the plaintiff has not exhausted his
administrative remedies pursuant to that Act.
plaintiff alleges that he was employed by the Metropolitan
Police Department for about seven months from 1972 to 1973
before resigning to serve in the United States Marine Corps
during the Vietnam Conflict. First Am. Compl. ¶ ¶
4-6 [ECF No. 34]. According to the plaintiff, when he
resigned from the Metropolitan Police Department, he received
no separation counseling or other information about his
employment rights, and he was never advised about his
eligibility for a military furlough or the effect his
resignation might have on future reemployment rights or
benefits. First Am. Compl. ¶ ¶ 6, 7, 32. The
plaintiff served in the Marine Corps until he was honorably
discharged with a disability in 1978. First Am. Compl. ¶
being discharged, the plaintiff immediately wrote to the
Metropolitan Police Department to request reinstatement to
his prior position but his request was denied after he was
advised that the Department had no record of his employment.
First Am. Compl. ¶ ¶ 10, 11. In 1982, however, the
plaintiff was again employed by the Metropolitan Police
Department, albeit the plaintiff contends that he was hired
on a probationary status at a lower salary than he would have
qualified for if his prior Department and military service
had been properly credited. First Am. Compl. ¶ 13. In
addition, the plaintiff claims that his retirement benefits
were improperly administered under the District retirement
plan rather than the federal retirement plan he was entitled
to if (1) he had been granted a military furlough when he
first left the Metropolitan Police Department and (2) he had
been reinstated to a position within the Department when his
military service concluded. First Am. Compl. ¶ 13, 21.
plaintiff remained employed by the Metropolitan Police
Department until 1993, when he began working as a Corrections
Officer at the District of Columbia Department of
Corrections. First Am. Compl. ¶ ¶ 14, 16. For
reasons that are not explained in the plaintiff's First
Amended Complaint, the plaintiff was reinstated to the
Federal Civil Service Law Enforcement retirement system in
1994. First Am. Compl. ¶ 15. The plaintiff ultimately
retired from the Department of Corrections in 2005 and he
claims that was when he discovered that his prior employment
with the Metropolitan Police Department had been "
recorded" by the Department of Human Resources and
Office of Personnel Management, contrary to what the
Metropolitan Police Department told him in 1978. First Am.
Compl. ¶ 16. " As a result, his OPM total service
computation sheet appeared to have been 'corrected'
to reflect his initial employment with
[the Metropolitan Police Department] . . . ." First Am.
Compl. ¶ 16.
Department of Human Resources approved the plaintiff's
retirement benefits in 2005 and the plaintiff asserts that
" [i]t was at this time that his total service
computation sheet was changed to reflect the action of a
military furlough . . . ." First Am. Compl. ¶ 17.
Consequently, by May of 2005, it appeared to the plaintiff
that the errors in the computation of his retirement benefits
had been corrected. First Am. Compl. ¶ 18. The plaintiff
claims, however, that his retirement benefits were calculated
using his " accrued federal service of 29 years, 8
months, 2 days and a monthly annuity of $2,281.46,"
which " did not reflect the higher salary and title he
was entitled to had the original mistake not been made in
1978[.]" First Am. Compl. ¶ 19. The plaintiff
further complains that " interim years of employment
that should have been included under the federal system had
he been properly restored in 1978" were not accounted
for in the calculation of his retirement benefits,
id., so he did not receive credit for " his
actual 33 years of service," First Am. Compl. ¶ 20.
The plaintiff also was subjected to four probationary periods
of employment that he asserts " unnecessarily decreased
the salary [he] was earning at the time of his retirement in
2005." First Am. Compl. ¶ 20; see also id.
February 3, 2007, the plaintiff was notified by an official
at the Office of Personnel Management that 22 years of his
" previously credited" federal service would not be
eligible for annuity payments unless the plaintiff paid
$55,419 into the federal Civil Service Retirement System.
First Am. Compl. ¶ 22. According to the plaintiff,
" [h]e was also told that his military service time
should have been re-deposited and paid for before retiring,
and that at 65-years of age, it would be deducted."
First Am. Compl. ¶ 22. The plaintiff asserts that "
[t]his was [his] first indication that an error had possibly
occurred when calculating his federal benefits." First
Am. Compl. ¶ 22. Nearly a week after receiving the
letter from the Office of Personnel Management, the plaintiff
received another letter stating that he owed $5,955.87 as a
result of overpayments that were made to him after his
retirement in 2005. First Am. Compl. ¶ 23. The Office of
Personnel Management informed the plaintiff that $165.00
would be withheld from his monthly annuity until the
overpayment was recouped. First Am. Compl. ¶ 24. In
response to the letters, the plaintiff requested that an
investigation be conducted. First Am. Compl. ¶ 24. The
plaintiff claims, however, that " [h]e received no
further contact from OPM, except to state that his retirement
was under law enforcement from the DC government." First
Am. Compl. ¶ 24.
plaintiff subsequently contacted the Office of Personnel
Management and the " D.C. Retirement Information
about 52 times from 2007 to 2010 before finally receiving a
" response"  from the District of Columbia Police
and Firefighter Retirement Relief Board that acknowledged his
" grievance." First Am. Compl. ¶ 27. On August
18, 2010, the plaintiff met with a Chief Personnel Specialist
for the District's Office of Personnel, a Human Resource
Specialist for the Metropolitan Police Department, and a
District attorney who represented the Police and
Firemen's Retirement Relief Board. First Am. Compl.
¶ 28. According to the plaintiff, during that meeting
the officials " acknowledged" that the plaintiff
had not received proper separation counseling from the
Metropolitan Police Department, that he left the Department
to serve in the military and was eligible for a military
furlough, and that he should have been reemployed by the
Department upon his discharge from the
military. First Am. Compl. ¶ 28. Despite
these acknowledgments, the plaintiff alleges that, in October
2012, the " defendants . . . refused to give [the
plaintiff] his proper benefits." First Am. Compl. ¶
plaintiff originally filed a Complaint against the District
of Columbia, the District of Columbia Metropolitan Police
Department, the District of Columbia Police and Firefighter
Retirement Relief Board, and the District of Columbia
Department of Human Resources. Complaint 2 [ECF No. 1]. The
Complaint set forth the following five causes of action: (1)
breach of contract based on alleged violations of Chapter 8,
Subparts 12.2 and 13.1, of a District Personnel Manual that
the plaintiff asserts applied to him when he was employed by
the MPD from 1972 to 1973, Complaint ¶ ¶ 33, 34,
35; (2) negligence for failure to maintain records of the
plaintiff's employment, properly calculate the
plaintiff's retirement benefits, and correct calculation
errors, Complaint ¶ ¶ 40, 41, 42; (3) entitlement
to back pay and attorney's fees pursuant to the Back Pay
Act, 5 U.S.C. § 5596, based on the plaintiff's
allegation that he " was the recipient of an unjustified
and unwarranted personnel action [that] has resulted in the
withdrawal and reduction of his pay, allowances, and
benefits," Complaint ¶ ¶ 45, 46; (4)
entitlement to compensation for loss of wages and benefits
pursuant to the Uniformed Services Employment and
Reemployment Rights Act, 38 U.S.C. § 4301 et
seq., for the District's failure to reemploy the
plaintiff after he was honorably discharged from the military
in 1978, Complaint ¶ ¶ 49, 50, 51, 52, 53; and (5)
entitlement to liquidated damages pursuant to the Uniformed
Services Employment and Reemployment Rights Act, 38 U.S.C.
§ 4323(d), on the ground that the District's alleged
acts or omissions involved a willful deprivation of the
plaintiff's " reemployment rights," Complaint
¶ ¶ 55, 56, 57.
District of Columbia, the District of Columbia Metropolitan
Police Department, the District of Columbia Police and