United States District Court, District of Columbia
Colleen Kollar-Kotelly, United States District Judge.
Cai-Yen Firestone alleges that she is the designated
beneficiary of a Thrift Savings Plan (“TSP”)
account containing retirements benefits accrued by her
now-deceased brother, Bernard Hsieh. But because Mrs.
Firestone cannot show that Mr. Hsieh effectively designated
her prior to his death, she is unable to prevail. Mr.
Hsieh's surviving spouse, Defendant Melissa Wang, shall
receive the proceeds of his TSP account pursuant to the
statutory order of precedence.
consideration of the pleadings,  the relevant legal
authorities, and the record as a whole, the Court
GRANTS Mrs. Wang's  Motion to
Dismiss or, in the Alternative, for Summary Judgment, and
GRANTS Defendants Federal Retirement Thrift
Investment Board's (“FRTIB”) and
TSP's  Motion to Dismiss, or, in the
Alternative, for Summary Judgment.
summarize the few relevant factual allegations, the Court
shall rely on the  Amended Complaint, as supplemented by
the record where the Court indicates.
he was battling cancer, Bernard Hsieh prepared and submitted
a Form TSP-3 to FRTIB and TSP that purported to designate one
of his sisters, Mrs. Firestone, as the 100% beneficiary of
his TSP account numbered 6801147154539. Am. Compl., ECF No.
17 (“Am. Compl.”), ¶¶ 7, 8 10, 11. Mrs.
Firestone alleges that the form was “properly signed
and dated” on November 5, 2015, by not only Mr. Hsieh
but also his two witnesses. Id. ¶ 10. A copy of
the operative portion of Mr. Hsieh's Form TSP-3 is in the
record and, with one exception, it undisputedly supports her
contention. Pl.'s Opp'n to FRTIB's Mot., Ex. 5,
ECF No. 33-5 (“Hsieh TSP-3”). Although the
parties dispute the significance of that exception, they do
not dispute that Carolan Bontje, one of Mr. Hsieh's two
witnesses, did not add a date to the blocks above the
language, “Date Signed (mm/dd/yyyy), ”
next to her signature on the first page of his Form TSP-3.
Id.; see also, e.g., [FRTIB's] Stmt. of
Material Facts as to Which There Is No. Genuine Dispute, ECF
No. 30, ¶ 3 (asserting that government received Mr.
Hsieh's Form TSP-3 that lacked date of one witness's
signature); [Wang's] Undisputed Stmt. of Material Facts,
ECF No. 29-1, ¶ 22 (same); Pl.'s Opp'n to
FRTIB's Mot., Ex. 4, ECF No. 33-4 (Aff. of Carolan Bontje
¶ 11 (“I am fairly certain that I did not include
the numerical date in these blocks on the first page because
. . . .”)); Pl.'s Opp'n to Wang's Mot., Ex.
4, ECF No. 31-5 (Aff. of Carolan Bontje ¶ 11 (same)).
Upon Mr. Hsieh's death, Mrs. Firestone allegedly asked
FRTIB and TSP about her rights to his account and was told
that she is not a beneficiary. Am. Compl. ¶ 13.
Firestone filed this suit on September 9, 2016, against FRTIB
and TSP. Compl., ECF No. 1. The Court granted FRTIB's and
TSP's motion under Federal Rule of Civil Procedure 19(a)
to join Mr. Hsieh's surviving spouse, Mrs. Wang. Mem. Op.
and Order, ECF No. 16. The Court agreed that Mrs. Wang is a
necessary party because, in short, she would be entitled to
Mr. Hsieh's TSP funds if his designation of Mrs.
Firestone were found invalid. See Id. at 2. FRTIB
and TSP have evidently agreed not to make a distribution from
that account until this litigation concludes. Am. Compl.
Amended Complaint adding Mrs. Wang as a defendant, Mrs.
Firestone pleads four claims against some combination of the
three defendants. Am. Compl. In Count I, she seeks a
Declaratory Judgment vis-à-vis all three defendants
that she is the beneficiary of Mr. Hsieh's TSP account
No. 6801147154539 and any other account where associated
funds may currently be held. Count II alleges that FRTIB and
TSP have breached a putative contract they had with Mr. Hsieh
and of which Mrs. Firestone is allegedly a third-party
beneficiary. In Count III, Mrs. Firestone requests specific
performance of FRTIB's and TSP's alleged obligation
to make a distribution to her from the subject TSP account.
And Count IV asserts equitable estoppel to prevent FRTIB and
TSP from withholding those TSP assets from Mrs. Firestone and
distributing them to anyone else, and to prevent Mrs. Wang
from attempting to claim those assets.
Firestone's and Mrs. Wang's request in June 2017, the
Court postponed the deadline for Mrs. Wang's response to
the Amended Complaint to permit those parties to engage in
mediation. Order, ECF No. 26. When mediation did not succeed,
Mrs. Wang filed her motion to dismiss, or in the alternative,
for summary judgment. FRTIB and TSP followed shortly
thereafter with their own such motion. Briefing having
concluded, both motions are now ripe for resolution.
Federal Rule of Civil Procedure 12(b)(1)
must dismiss a case pursuant to Federal Rule 12(b)(1) when it
lacks subject-matter jurisdiction. In determining whether
there is jurisdiction, “the court may consider the
complaint supplemented by undisputed facts evidenced in the
record, or the complaint supplemented by undisputed facts
plus the court's resolution of disputed facts.”
Coal. for Underground Expansion v. Mineta, 333 F.3d
193, 198 (D.C. Cir. 2003) (quoting Herbert v. Nat'l
Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992))
(internal quotation marks omitted). “At the motion to
dismiss stage, counseled complaints, as well as pro
se complaints, are to be construed with sufficient
liberality to afford all possible inferences favorable to the
pleader on allegations of fact.” Settles v. U.S.
Parole Comm'n, 429 F.3d 1098, 1106 (D.C. Cir. 2005).
In spite of the favorable inferences that a plaintiff
receives on a motion to dismiss, still that
“[p]laintiff bears the burden of proving subject matter
jurisdiction by a preponderance of the evidence.”
Am. Farm Bureau v. EPA, 121 F.Supp.2d 84, 90 (D.D.C.
2000). “Although a court must accept as true all
factual allegations contained in the complaint when reviewing
a motion to dismiss pursuant to Rule 12(b)(1), [a]
plaintiff['s] factual allegations in the complaint . . .
will bear closer scrutiny in resolving a 12(b)(1) motion than
in resolving a 12(b)(6) motion for failure to state a
claim.” Wright v. Foreign Serv. Grievance Bd.,
503 F.Supp.2d 163, 170 (D.D.C. 2007) (internal citations and
quotation marks omitted).
Federal Rule of Civil Procedure 56
judgment is appropriate where “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The mere existence of some
factual dispute is insufficient on its own to bar summary
judgment; the dispute must pertain to a
“material” fact. Id. Accordingly,
“[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Nor
may summary judgment be avoided based on just any
disagreement as to the relevant facts; a
“genuine” dispute requires sufficient admissible
evidence to support a jury verdict for the non-movant.
attempting to place a fact beyond dispute, or to show that it
is truly disputed, must (a) rely on specific parts of the
record, such as documentary evidence or sworn statements, or
(b) “show[ ] that the materials cited do not establish
the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support
the fact.” Fed.R.Civ.P. 56(c)(1). Conclusory assertions
offered without any factual basis in the record cannot create
a genuine dispute sufficient to survive summary judgment.
See Ass'n of Flight Attendants-CWA, AFL-CIO v. U.S.
Dep't of Transp., 564 F.3d 462, 465-66 (D.C. Cir.
2009). Moreover, where “a party fails to properly
support an assertion of fact or fails to properly address
another party's assertion of fact, ” the district
court has the discretion to “consider the fact
undisputed for purposes of the motion.” Fed.R.Civ.P.
faced with a motion for summary judgment, the district court
may not assess credibility or weigh evidence; instead, the
evidence must be analyzed in the light most favorable to the
non-movant, with “all justifiable inferences . . .
drawn in his favor.” Anderson, 477 U.S. at
255. “If material facts are at issue, or though
undisputed, are susceptible to divergent inferences, summary
judgment is not available.” Moore v. Hartman,
571 F.3d 62, 66 (D.C. Cir. 2009) (quoting Kuo-Yun Tao v.
Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994)) (internal
quotation marks omitted). In the end, the district
court's task is to determine “whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson, 477
U.S. at 251-52. In this regard, the non-movant must “do
more than simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). “If the evidence is merely colorable, or is not
significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 249-50.
Mrs. Firestone has not established subject-matter
jurisdiction, all four of her claims must be dismissed under
Rule 12(b)(1). The Court need not reach Rule 12(b)(6) grounds
for dismissal. In the alternative, Defendants are entitled to
summary judgment as to all four of Mrs. Firestone's
Dismissal for Lack of Subject-Matter Jurisdiction Under Rule
Firestone alleges that this Court has subject-matter
jurisdiction over a federal question pursuant to 5 U.S.C.
§ 8477(e)(7)(A). See Am. Compl. ¶ 5; 28
U.S.C. § 1331. Her additional assertion now of
jurisdiction under the Declaratory Judgment Act is
unavailing; settled precedent recognizes that this statute
does not independently confer jurisdiction. See
Pl.'s Opp'n to Wang's Mot. at 9-10 (citing 28
U.S.C. § 2201(a)); Pl.'s Opp'n to FRTIB's
Mot. at 4-5 (same); FRTIB's Reply at 5 (citing
C&E Servs., Inc. of Wash. v. D.C. Water & Sewer
Auth., 310 F.3d 197, 201 (D.C. Cir. 2002)); 10B Charles
Alan Wright et al., Federal Practice and Procedure
Civil § 2766 (4th ed.). Because Mrs. Firestone has
not pled diversity jurisdiction or supplemental jurisdiction
in the alternative, the Court finds that she has waived those
grounds for jurisdiction over any claims in her Amended
Complaint for which jurisdiction by federal question is
Firestone's federal question arises under the Federal
Employees' Retirement System Act of 1986
(“FERSA”), as amended, 5 U.S.C. § 8401,
et seq., which governs Mr. Hsieh's TSP. “A
TSP is a retirement savings plan for federal employees, and
it operates much like the Section 401(k) savings plans which
are offered to employees by private sector employers.”
Kriebel v. Long, 994 F.Supp.2d 674, 675 (E.D. Pa.
2014). Section 8477(e) furnishes exclusive jurisdiction over
the FERSA claims in this case to federal district courts and
expressly recognizes the U.S. District Court for the District
of Columbia as an available option. 5 U.S.C. §
Section 8477(e), Congress has likewise specified the types of
actions that fall within this grant of subject-matter
A civil action may be brought in the district courts of the
United States . . . by any participant or beneficiary . . .
to recover benefits of such participant or beneficiary under
the provisions of subchapter III of this chapter, to enforce
any right of such participant or beneficiary under such
provisions, or to clarify any such right to future benefits
under such provisions[.]
Id. § 8477(e)(3)(C)(i). Only if Mrs. Firestone
can establish that she is a participant or beneficiary would
the Court consider whether it has jurisdiction under Section
8477(e) over the four specific claims she raises.
undisputed that Mrs. Firestone is not the relevant
participant for purposes of her claim to the proceeds Mr.
Hsieh's TSP account. See Id. § 8471(3)
(defining “participant” as “an individual
for whom an account has been established under section 8439
of this title”). Mrs. Firestone instead maintains that
she is a beneficiary, or rather, the beneficiary.
The Court shall evaluate Mrs. Firestone's ability to make