Manuel Lampon-Paz v. Office of Personnel Management

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: JORDAN, RESTREPO and SCIRICA, Circuit Judges. Total Pages: 7.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-2519
___________
MANUEL LAMPON-PAZ,
Appellant
v.
OFFICE OF PERSONNEL MANAGEMENT
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2-16-cv-08650)
District Judge: Honorable Kevin McNulty
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 20, 2018
Before: JORDAN, RESTREPO and SCIRICA, Circuit Judges
(Opinion filed April 30, 2018)
___________
OPINION*
___________
PER CURIAM
Manuel Lampon-Paz appeals from the order of the District Court dismissing his

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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complaint with prejudice for lack of subject matter jurisdiction. We will affirm.
I.
Lampon-Paz is a former federal employee who is receiving federal disability
retirement annuity payments. At issue here is the second of two lawsuits regarding those
payments that he filed against the Office of Personnel Management (“OPM”). In his first
suit, he claimed that the OPM improperly offset his monthly payments in 2014 for Social
Security benefits that he had stopped receiving. He also claimed that the OPM
improperly withheld his July 2015 payment. He did not dispute that the OPM, as it
argued, ultimately recalculated his payments and retroactively paid him everything he
was due. Instead, he alleged in conclusory fashion that the OPM was negligent in failing
to pay the proper amounts sooner. He sought compensatory damages allegedly resulting
from the delay. The District Court construed his complaint as arising in relevant part
under the Federal Tort Claims Act (“FTCA”) and dismissed it without prejudice because
he did not exhaust his administrative remedies before filing suit.
Five days later, Lampon-Paz filed the complaint at issue here raising the same
claims and also claiming to have exhausted his administrative remedies for FTCA
purposes while his prior suit was pending. The OPM filed a motion to dismiss his
complaint under Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction on the ground that his
claim for negligence under the FTCA was preempted by the Civil Service Reform Act
(“CSRA”) which, inter alia, amended and supplemented the Civil Service Retirement Act
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(the “Retirement Act”). The District Court agreed and dismissed Lampon-Paz’s
complaint on that basis. Lampon-Paz appeals.1
II.
We will affirm. The CSRA and Retirement Act are part of the “overlapping
statutory schemes that specify the benefits to which federal employees . . . are entitled,
and provide a reticulated remedial regime for beneficiaries to secure review—including
judicial review—of benefit determinations.” Rodriguez v. United States, 852 F.3d 67, 83
(1st Cir. 2017) (quotation marks omitted); see also Lindahl v. Office of Pers. Mgmt., 470
U.S. 768, 771-75 (1985) (describing interaction of the CSRA, the Retirement Act, and the
Federal Courts Improvement Act of 1982). For ease of discussion only, we will refer to
the relevant portions of these overlapping schemes as the CSRA.
The CSRA requires the OPM to administer its provisions, adjudicate claims for
benefits, and pay all payable claims. See 5 U.S.C. §§ 8347(a), 8461(a), (c). A
beneficiary unhappy with the OPM’s determination of benefits may seek review by the
Merits Systems Protection Board. See 5 U.S.C. §§ 8347(d)(1), 8461(e)(1). And a
beneficiary unhappy with the Board’s decision may then seek judicial review, but only in

1

We have jurisdiction under 28 U.S.C. § 1291. Our review of facial challenges to the
District Court’s jurisdiction is plenary. See Treasurer of N.J. v. U.S. Dep’t of Treasury,
684 F.3d 382, 395 (3d Cir. 2012). The OPM also argued below that dismissal was
warranted because the United States itself is the only proper defendant on an FTCA
claim. See 28 U.S.C. § 2679(a), (b)(1). The District Court did not dismiss LamponPaz’s complaint on that basis and instead noted that it might have permitted him to name
the United States if his FTCA claim were otherwise valid.
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the United States Court of Appeals for the Federal Circuit. See 5 U.S.C. § 7703(b)(1)(A).
Both the Supreme Court and this Court have held that the CSRA’s specific and
detailed statutory scheme divests courts of jurisdiction to award certain supplemental
remedies. See, e.g., United States v. Fausto, 484 U.S. 439, 453-54 (1988) (holding that
employees who were covered by the CSRA but did not have a remedy thereunder could
not seek relief under the Back Pay Act); Sarullo v. U.S. Postal Serv., 352 F.3d 789, 795
(3d Cir. 2003) (declining to imply a cause of action for tort damages arising from federal
employment because “the CSRA . . . provides the full scheme of remedies available”).
For the same reason, other courts have held that the CSRA precludes supplemental
remedies under the FTCA in particular. See, e.g., Mahtesian v. Lee, 406 F.3d 1131, 1134
(9th Cir. 2005); Am. Postal Workers Union v. U.S. Postal Serv., 940 F.2d 704, 708 (D.C.
Cir. 1991); Rollins v. Marsh, 937 F.2d 134, 139 (5th Cir. 1991); Premachandra v. United
States, 739 F.2d 392, 394 (8th Cir. 1984). These cases arose in the federal employment
context, which the CSRA also governs, but courts have recognized that the framework
prohibiting supplemental remedies in that context applies equally in the context of
retirement benefits as well. See Rodriguez, 852 F.3d at 82-83; Lacson v. U.S. Dep’t of
Homeland Sec., 726 F.3d 170, 174 n.4 (D.C. Cir. 2013).
For example, one court has concluded that the CSRA divests courts of jurisdiction
to consider challenges under the Administrative Procedure Act to the OPM’s calculation
of retirement benefits. See Fornaro v. James, 416 F.3d 63, 66-69 (D.C. Cir. 2005)
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(Roberts, J.). As that court explained, “[a] series of opinions from the Supreme Court
and this court make clear that [the CSRA’s] remedial provisions are exclusive, and may
not be supplemented by the recognition of additional rights to judicial review having their
sources outside the CSRA.” Id. at 66. “In sum,” the court concluded, “so far as review
of determinations under the CSRA is concerned, what you get under the CSRA is what
you get.” Id. at 67.
The District Court properly relied on these principles in concluding that the CSRA
precludes Lampon-Paz’s FTCA claim in this case. Lampon-Paz raises essentially four
arguments to the contrary. First, he argues that the CSRA does not preclude his claim
because he is challenging, not the OPM’s ultimate calculation of his benefits, but its
failure to arrive at that calculation sooner. The fact remains, however, that Lampon-Paz
is challenging the OPM’s administration and payment of his benefits, which fall squarely
within the CSRA. It may be that the CSRA does not provide a full remedy for any
damages suffered as a result of a delay in making full payments.2 As explained above,
however, the CSRA precludes courts from providing supplemental remedies for claims
arising under the CSRA. That is true even if the CSRA itself does not provide complete
relief. See Fausto, 484 U.S. at 455; Mahtesian, 406 F.3d at 1134; Rollins, 937 F.2d at

At the Clerk’s direction, the OPM filed a supplemental brief addressing whether there is
a remedy for Lampon-Paz’s alleged injuries under the CSRA. The OPM argues that
there is not. Cf. Lichtman v. Office of Pers. Mgmt., 835 F.2d 1427, 1428 (Fed. Cir.
1988) (holding that “there is no provision in law for accrual of interest when payment of
annuity benefits is delayed”) (quotation marks omitted). We need not resolve that issue.
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139-40; cf. Schweiker v. Chilicky, 487 U.S. 412, 425 (1988) (declining to supplement the
Social Security Act by implying a cause of action for consequential damages even though
the Act did not provide “a remedy in damages for . . . hardships suffered because of
delays in [plaintiffs’] receipt of Social Security benefits”).
Second, Lampon-Paz argues that his claim is supported by Stephenson v. Office of
Personnel Management, 705 F.3d 1323 (Fed. Cir. 2013). In that case, the court held that
the OPM may not offset disability retirement annuity payments for Social Security
benefits that the claimant had stopped receiving. See id. at 1324, 1331. It appears that
Stephenson and related litigation are what led the OPM to stop offsetting Lampon-Paz’s
payments. Stephenson, however, does not hold that beneficiaries have a cause of action
against the OPM for offsetting their payments. To the contrary, Stephenson itself was a
case in which the beneficiary sought review under the CSRA from the OPM, from the
Merits System Protection Board, and then from the Federal Circuit. See id. at 1325-26.
Lampon-Paz has raised nothing suggesting that he could not have done the same.
Third, Lampon-Paz argues that the District Court already decided this issue in his
favor by dismissing his first suit for lack of FTCA exhaustion instead of invoking the
CSRA. There was some discussion of the CSRA in Lampon-Paz’s first suit,3 but the

The District Court directed the OPM to file a supplemental brief addressing “whether,
technicalities aside, there is an avenue for determination of whether plaintiff has received
the annuity benefits he is owed.” (D.N.J. Civ. No. 2-15-cv-05835, ECF No. 34.) The
OPM responded that the CSRA provides Lampon-Paz with the mechanism for review
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District Court did not address whether the CSRA required dismissal. The District Court’s
dismissal for lack of exhaustion instead had no bearing on that issue because “a federal
court has leeway to choose among threshold grounds for denying audience to a case on
the merits.” Sinochem Int’l Co. v. Malaysian Int’l Shipping Corp., 549 U.S. 422, 431
(2007) (quotation marks omitted). That is just what the District Court did.
Finally, Lampon-Paz argues that the absence of a remedy in this situation would
permit the OPM to intentionally withhold his payments whenever it wants and for as long
as it likes. This case does not present that scenario. Lampon-Paz alleges merely that the
OPM committed unspecified negligence by partially offsetting his payments for one year
before retroactively paying him the full amount. We thus do not consider whether any
other set of allegations might permit mandamus or any other relief. Cf. Hinkel v.
England, 349 F.3d 162, 165 (3d Cir. 2003) (addressing mandamus and the CSRA).
III.
For these reasons, we will affirm the judgment of the District Court. LamponPaz’s motions to amend and supplement his briefs are granted, and we have considered
his amendments and supplements in reaching our decision. All of his other motions are
denied. The OPM’s motion to file a supplemental appendix is granted except to the
extent that the OPM seeks to expand the record on appeal.

described above, but the OPM did not seek dismissal for that reason at that time.
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