United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
case concerns the 2016 decision of Defendants, the Director
of the United States Office of Personnel Management and the
United State Office of Personnel Management
(“OPM”), to implement a policy which resulted in
the reduction of supplemental annuity payments for many
retired law enforcement officers who are divorced. Plaintiff,
the Federal Law Enforcement Officers Association
(“FLEOA”), represents 27, 000 current and retired
federal law enforcement officers and challenges the 2016
supplemental annuity payment policy under the Administrative
Procedure Act (“APA”). In Count 1, Plaintiff
contends that the policy is arbitrary and capricious; in
Count 2, Plaintiff claims that Defendants failed to engage in
the proper rulemaking procedures under the APA; and, in Count
3, Plaintiff alleges that Defendants acted in excess of
congressional authority by making the policy retroactive.
Defendants move for dismissal on two jurisdictional grounds.
First, Defendants argue that Plaintiff's APA claims are
precluded by the Civil Service Reform Act
(“CSRA”). Second, Defendants contend that
Plaintiff lacks standing to bring its claims.
consideration of the pleadings, the relevant legal authorities,
and the record as a whole, the Court DENIES WITHOUT PREJUDICE
Defendants' motion. Prior to deciding Defendants'
jurisdictional arguments, the Court first must determine
whether or not Defendants' 2016 supplemental annuity
payment policy constitutes a “rule” which could
be subject to pre-enforcement rulemaking review under the
APA. And, while the parties provided fulsome briefing as to
their jurisdictional and standing arguments, the parties did
not provide adequate briefing as to this specific issue.
the parties should provide details about the nature of the
2016 supplemental annuity payment policy, such as whether or
not Defendants captured the new policy in writing in any way.
The Court further requires additional briefing as to whether
or not Defendants were permitted to re-interpret their
obligations pursuant to the statute without engaging in a
rulemaking process. The parties should explain what indicia
signal whether the 2016 supplemental annuity payment policy
is the type of statutory re-interpretation that does or does
not require a rulemaking process. Additionally, insofar as
Plaintiff contends that the 2016 supplemental annuity payment
policy should be treated as a rule despite the lack of a
rulemaking process, Plaintiff should cite cases in which
courts have agreed to treat statutory reinterpretations as
to the Federal Employees Retirement System
(“FERS”), federal government civilian employees
may receive retirement benefits, such as annuities and Social
Security. Compl., ECF No. 1, ¶ 6. Federal civilian
employees who reach retirement age with the required number
of service years are entitled to an annuity. Id. at
¶ 7. Certain employees, such as law enforcement
officers, are eligible to retire at a younger age with fewer
service years. Id. at ¶ 8. These employees are
entitled to a supplemental annuity payment which substitutes
for Social Security until the retiree reaches the minimum age
to qualify for Social Security. Id.
to Plaintiff, supplemental annuity payments are to “be
treated in the same way” as basic annuity payments.
Id. at ¶ 12 (quoting 5 U.S.C.
§ 8421(c)). Basic annuity payments can be paid to
a person other than the retiree “if and to the extent
provided for in the terms of  any court decree of divorce,
annulment, or legal separation, or the terms of any court
order or court-approved property settlement agreement
incident to any court decree of divorce, annulment, or legal
separation.” Id. at ¶ 9 (quoting 5 U.S.C.
§ 8467(a)(1)). In interpreting court orders,
Defendants “perform purely ministerial actions,
” “must honor the clear instructions of the
court, ” and “will not supply missing provisions,
interpret ambiguous language, or clarify the court's
intent by researching individual State laws.”
Id. at ¶ 10 (quoting 5 C.F.R. §
claims that from the implementation of FERS until 2016,
Defendants did not include supplemental annuity payments in
the calculation of basic annuity payments to a retiree's
former spouse pursuant to a court order unless that court
order expressly called for the division of the supplemental
annuity payment. Id. at ¶ 13. However, in July
2016, Defendants began apportioning supplemental annuity
payments to former spouses of retirees where there was a
court-ordered division of basic annuity benefits, even if the
court order did not expressly call for the division of
supplemental annuity payments. Id. at ¶ 15.
Plaintiff contends that this change was spurred by
Defendants' determination that 5 U.S.C.
§ 8421(c) required that supplemental annuity
payments be apportioned to a former spouse whenever a court
order required the apportionment of basic annuity payments.
Id. at ¶ 16; 5 U.S.C. § 8421(c)
(requiring that supplemental annuity payments “be
treated in the same way” as basic annuity payments).
July 2016, Plaintiff contends that Defendants calculated the
supplemental annuity payment amounts that would have been due
to the affected retirees' former spouses had the policy
been in effect from the date of their retirement or the date
of the court order dividing basic annuity benefits.
Id. at ¶ 17. Defendants notified the affected
retirees of these amounts and began deducting the amounts
owed in monthly installments from the annuity payments.
Id. at ¶¶ 18-19.
on the 2016 supplemental annuity payment policy, Plaintiff
brings three APA claims. In Count 1, Plaintiff alleges that
the policy is arbitrary and capricious because federal
employee retirement benefits can be paid to another person
only if expressly provided and the new policy pays
supplemental annuity payments to former spouses of retirees
even if there is no court order expressly providing for the
apportionment of supplemental annuity payments. Id.
at ¶¶ 27-32. In Count 2, Plaintiff contends that
the policy constitutes agency action taken without observance
of procedures required under the APA. Id. at
¶¶ 33-39. Specifically, Plaintiff alleges that
Defendants' “reinterpretation” of FERS is a
legislative rule for which Defendants failed to engage in
proper rulemaking such as notice-and-comment procedures.
Id. Plaintiff highlights that the Inspector General
for OPM determined that the 2016 supplemental annuity payment
policy constituted a rule within the meaning of the APA which
can only be implemented through notice-and-comment
rulemaking. Id. at ¶ 24. In Count 3, Plaintiff
contends that Defendants acted in excess of congressional
authority by improperly engaging in retroactive rulemaking.
Id. at ¶¶ 40-44.
their Motion to Dismiss, Defendants argue that each of
Plaintiff's Counts should be dismissed because the CSRA
precludes Plaintiff's claims and because Plaintiff lacks
standing. As will be further explained below, prior to
resolving these jurisdictional issues, the Court requires
additional briefing as to the nature of the 2016 supplemental
annuity payment policy and how the Court should decide
whether or not the policy should be subject to
pre-enforcement rulemaking review under the APA.
move to dismiss Plaintiff's Complaint under Federal Rule
of Civil Procedure 12(b)(1) for lack of jurisdiction. A court
must dismiss a case when it lacks subject matter
jurisdiction. See Fed. R. Civ. P. 12(h)(3). In doing
so, 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) (internal quotation marks omitted)); See also
Jerome Stevens Pharm., Inc. v. Food & Drug Admin.,
402 F.3d 1249, 1253 (D.C. Cir. 2005) (“[T]he district
court may consider materials outside the pleadings in
deciding whether to grant a motion to dismiss for lack of
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). Despite the favorable inferences that
a plaintiff receives on a motion to dismiss, it remains the
plaintiff's burden to prove subject matter ...