MEMORANDUM OPINION
Thomas
F. Hogan, Senior United States District Judge
Pending
before the Court is the District of Columbia's motion to
dismiss plaintiff Allan Earl Lucas, Jr.'s Second Amended
Complaint (“SAC”). [ECF No. 56]. The plaintiff
seeks to recover financial damages stemming from the District
of Columbia Metropolitan Police Department's
(“MPD”) alleged failure to treat his induction
into the United States Marine Corps as a military furlough
and to reemploy him upon his discharge from military service.
In his Second Amended Complaint, the plaintiff alleges
federal and common law claims. In Count One, the plaintiff
claims that he is entitled to back pay pursuant to the Back
Pay Act, 5 U.S.C. § 5596. SAC ¶¶ 40-43. In
Count Two, he claims that he is entitled to compensation for
lost wages and benefits pursuant to the Veterans'
Reemployment Rights Act, 38 U.S.C. § 2021 (1992).
Id. ¶¶ 44-48. In Counts Three and Four, he
asserts claims for breach of contract and negligence,
respectively. Id. ¶¶ 49-61.
In its
motion to dismiss, the District contends that the section of
the Veterans' Reemployment Rights Act that the plaintiff
cites does not exist, and that the plaintiff has failed to
allege the elements of a Back Pay Act claim. The District
also argues that the plaintiff's common law claims are
preempted by the Comprehensive Merit Personnel Act, and that
they are barred by the statute of limitations.
I.
FACTUAL BACKGROUND[1]
In May
1972, the plaintiff began employment with the Metropolitan
Police Department. SAC ¶ 4. He was
“inducted” into the military to serve in the
Vietnam War in December 1972. Id. ¶ 5. Although
he gave MPD notice of his induction, he was “never
offered or provided any separation counseling” or
information regarding his employment rights. Id.
¶ 6. He was also “never informed of his employment
right to a military furlough.” Id. Instead of
being offered a military furlough, Mr. Lucas was
“coerced into submitting his resignation” from
MPD in January 1973. Id. ¶ 7. The personnel
form documenting his departure from MPD stated that he
resigned “to enter the armed services.”
Id. He entered the United States Marine Corps in
February 1973, id., and was honorably discharged in
February 1978, id ¶ 9.
Within
days of his discharge, the plaintiff wrote to MPD requesting
that he be reinstated to his previous position. Id.
¶ 10. MPD denied his request and told him that it did
not have a record of his employment. Id. ¶ 11.
The plaintiff then obtained work with the United States
Marshals Service. Id. ¶ 14.
MPD
reemployed the plaintiff in September 1982. He was hired on a
probationary status and was placed into the District's
“post-home rule” municipal retirement plan
instead of the federal retirement plan. Id. ¶
16. In 1994, Mr. Lucas obtained employment with the District
of Columbia Department of Corrections and was reinstated to
the federal civil service law enforcement retirement system.
Id. ¶¶ 17-28. He retired on May 16, 2005.
Id. ¶ 19.
On the
date of his retirement, he met with Ms. Wanda Moncrieff, a
Human Resources Specialist from the District of Columbia
Office of Personnel. Id. ¶ 20. During the
meeting, he learned that his previous service with MPD had
been recorded by the Department of Human Resources and the
Office of Personnel Management (“OPM”).
Id. He alleges that his “total service
computation sheet” was changed to reflect a military
furlough. Id. His federal retirement benefits were
approved by the Department of Human Resources in May 2005 and
reflected his initial employment with MPD. Id.
¶ 21.
On
February 3, 2007, the plaintiff received correspondence from
OPM informing him that “[22] years of his previously
credited federal service would not be eligible for annuity
unless he paid $55, 419 plus interest” into the federal
Civil Service Retirement System. Id. ¶ 24. OPM
informed him that his military service time “should
have been redeposited and paid before retiring, and would be
deducted from his retirement.” Id. He asserts
that this letter was his “first indication an error had
possibly occurred when calculating his federal
benefits.” Id. ¶ 24. On February 9, 2007,
he received an additional letter from OPM stating that he
owed $5, 955.87 because of overpayments due to the
District's erroneous calculations. Id. ¶
25. OPM then began to withhold $165 from his monthly annuity.
Id. ¶ 26. The plaintiff responded to OPM's
letters and requested that an investigation be conducted.
Id. ¶ 26. He does not know whether OPM
conducted an investigation. Id. On March 1, 2007,
his “retirement deposit” was “drastically
reduced without explanation.” Id. ¶ 28.
On
March 7, 2007, he sent a letter to Ms. Moncrieff at the
District of Columbia Office of Personnel telling her that his
retirement payments were drastically reduced and that he
“was told” that because he received a military
furlough, he needed to be “restored” to receive
his original federal benefits. Id. ¶ 29, Ex. 1.
Because he was not restored to MPD in 1978, “none of
his years of public service” since 1973 were creditable
to his retirement. Id. He then asked Ms. Moncrieff
“what [was] going on, ” and further asked her
“[w]hat does OPM mean by saying that [he] received a
furlough but was not restored” when she had already
reviewed and approved his benefits. Id. He asserted
that “something [was] terribly wrong, ” then
formally requested that the D.C. Office of Personnel
investigate his “grievance.” Id.
Between
March 2007 and March 2010, the plaintiff contacted OPM and
the District of Columbia Retirement Board approximately 52
times. Id. ¶ 30. He received “nothing but
the run-around.” Id. On March 26, 2010, the
plaintiff wrote to the District of Columbia Retirement Board
requesting the correction and restoration of his benefits.
SAC ¶ 31, Ex. 2. Around April 27, 2010, he received a
response from the District of Columbia Retirement Board
acknowledging his grievance, but concluding that it had no
responsibility to determine eligibility for retirement, which
was the responsibility of the Police and Firefighters'
Retirement and Relief Board (“the Board”), or to
determine employment rights with MPD. The District of
Columbia Retirement Board forwarded Mr. Lucas' letter and
attachments to the Board and to MPD's Human Resources
Office. SAC ¶ 32, Ex. 3.
On
August 18, 2010, the plaintiff met with Ms. Moncrieff,
Sheila-Ford Haynes, an MPD Human Resources Specialist, and
Pamela Brown, an attorney who represented the Board. During
the meeting, Ms. Moncrieff “acknowledged that [the
plaintiff] had not received proper separation counseling,
” and Ms. Brown then “conceded” that he
should have received such counseling. SAC ¶ 33. Ms.
Brown and Ms. Ford-Hayes also acknowledged that he left
employment for military duty and had been eligible for a
military furlough. Id. Ms. Brown ultimately
“demanded” that Ms. Ford-Haynes stop speaking and
ended the meeting to further investigate the grievance.
Id.
Plaintiff's
counsel wrote follow-up letters to Ms. Brown on February 7,
March 6, March 28, and September 20, 2012. SAC ¶ 34. The
plaintiff received a 14-page legal opinion from the Board
dated October 9, 2012 that concluded, after conducting
“an investigation of the matter, ” that
“[t]he doctrine of laches bar[red] any claim
in this matter because of Mr. Lucas' unreasonable delay,
” and that the Board had “no jurisdiction”
to resolve his claims. Id. ¶ 35, Ex. 4 at
13-14. The plaintiff filed a complaint in this Court on
February 4, 2013. [ECF No. 1].
II.
LEGAL STANDARD
A
complaint “must contain . . . a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). Under Rule 12(b)(6)
of the Federal Rules of Civil Procedure, a party may move to
dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To
survive a motion to dismiss based on Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks omitted). A claim “has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id.
When
ruling on a motion to dismiss, the Court must “accept
all the well-pleaded factual allegations of the complaint as
true and draw all reasonable inferences from those
allegations in the plaintiff's favor.” Banneker
Ventures, 798 F.3d at 1129. The Court may consider facts
alleged in the complaint, as well as “any documents
either attached to or incorporated in the complaint and
matters of which the court may take judicial notice.”
Hurd v. District of Columbia, 864 F.3d 671, 678
(D.C. Cir. 2017) (internal quotation marks omitted and edits
accepted).
III.
DISCUSSION
A.The Plaintiff's ...