Knight v. United States Office of Personnel Management et al
Filing
13
MEMORANDUM AND ORDER affirming and adopting Report and Recommendations 9 . 3 Motion for Leave to Proceed in forma pauperis is denied. Court permits plaintiff to pay the filing fee in seven monthly installments of $50 and one final installme nt of $52. plaintiff's claims premised on the Freedom of Information Act; the Congressional Review Act; the Federal Employees' Retirement Service Actof 1986; the Tucker Act; the Social Security Act; and the False Claims Act are dismiss ed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. Plaintiff's claim premised on 5 U.S.C. § 552a(g)(1)(A) survives. Signed by District Judge Daniel D. Crabtree on 10/24/2024. Mailed to pro se party Phyllis M. Knight by regular mail. (msb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PHYLLIS M. KNIGHT,
Plaintiff,
Case No. 23-1193-DDC-GEB
v.
UNITED STATES OFFICE OF
PERSONNEL MANAGEMENT and
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendants.
MEMORANDUM AND ORDER
On September 12, 2023, pro se1 plaintiff Phyllis M. Knight filed a Complaint alleging
that defendants United States Office of Personnel Management (OPM) and Commissioner of the
Social Security Administration violated various federal statutes. Doc. 1. Plaintiff alleges that
defendants engaged in an eight-year theft and embezzlement scheme that denied plaintiff her
early disability retirement benefits. Id. at 5–6. On the same day, plaintiff also filed a Motion to
Proceed Without Prepayment of Fees. Doc. 3. United States Magistrate Judge Gwynne E.
Birzer recommended that the court deny plaintiff’s motion. Doc. 9 at 1. Magistrate Judge Birzer
also screened plaintiff’s Complaint—under 28 U.S.C. § 1915—to determine whether to dismiss
1
Plaintiff proceeds pro se, so the court construes her pleadings liberally. See Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991) (holding that courts must construe pro se litigant’s pleadings liberally
and hold them to a less stringent standard than formal pleadings drafted by lawyers). But the court does
not assume the role of plaintiff’s advocate. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005). And our Circuit “has repeatedly insisted that pro se parties follow the same rules of
procedure that govern other litigants.” Id. (citation and internal quotation marks omitted).
plaintiff’s claims sua sponte. And she recommended the court dismiss all but one of plaintiff’s
claims. Id. at 10–11.
Plaintiff then filed a timely objection to Magistrate Judge Birzer’s Order and Report and
Recommendation. Doc. 12. The court reviews Magistrate Judge Birzer’s conclusions de novo
and overrules plaintiff’s objection. The court affirms and accepts Magistrate Judge Birzer’s
Order and Report and Recommendation in its entirety, and thus denies plaintiff’s Motion to
Proceed Without Prepayment of Fees (Doc. 3) and dismisses all but one of plaintiff’s claims.
The court explains these decisions, below, beginning with the standard of review.
I.
Standard of Review
Fed. R. Civ. P. 72(b)(2) provides that a party may file specific, written objections to a
magistrate judge’s report and recommendation on dispositive matters. Denying a motion to
proceed without prepayment of fees is a dispositive matter. See Lister v. Dep’t of Treasury, 408
F.3d 1309, 1310–12 (10th Cir. 2005) (explaining that denying a “truly indigent claimant” leave
to proceed without paying fees bars the claimant from proceeding at all in district court and thus
presents “a dispositive matter”). And—to state the obvious—dismissing claims is likewise
dispositive.
When a party files objections to a report and recommendation, the district court “must
determine de novo any part of the magistrate judge’s disposition that has been properly objected
to.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(C) (“A judge of the court shall
make a de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.”). “In conducting a de novo review, the Court
must consider relevant evidence of record and not merely review the magistrate judge
recommendation.” Kelly-Leppert v. Monsanto/Bayer Corp., No. 20-2121-KHV, 2020 WL
2507634, at *2 (D. Kan. May 15, 2020) (citing Griego v. Padilla, 64 F.3d 580, 584 (10th Cir.
2
1995)). The district court then “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). The court begins
its de novo review by evaluating plaintiff’s Motion to Proceed Without Prepayment of Fees
(Doc. 3).
II.
In Forma Pauperis Legal Standard
According to 28 U.S.C. § 1915(a)(1), any court of the United States may authorize
commencement of any suit without prepayment when a person submits an affidavit and shows an
inability to pay. Courts refer to this situation as a litigant proceeding in forma pauperis (IFP).
Smith v. Torrez, 428 F. Supp. 3d 629, 632 (D.N.M. 2019). This IFP status “was intended for the
benefit of those too poor to pay or give security for costs.” Adkins v. E.I. DuPont de Nemours &
Co., 335 U.S. 331, 344 (1948). But proceeding IFP is “a privilege not a right—fundamental or
otherwise.” White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998) (internal quotation marks
and citation omitted).
The court should evaluate an IFP application “in light of the applicant’s present financial
status.” Scherer v. Kansas, 263 F. App’x 667, 669 (10th Cir. 2008). A district court “examines
the papers to determine if the requirements of 28 U.S.C. § 1915(a) are satisfied.” Menefee v.
Werholtz, 368 F. App’x 879, 884 (10th Cir. 2010) (quotation cleaned up). A person needn’t
show that she is “‘absolutely destitute’” to proceed IFP. Brewer v. City of Overland Park Police
Dep’t, 24 F. App’x 977, 979 (10th Cir. 2002) (quoting Adkins, 335 U.S. at 339). When one’s
“monthly income exceeds [her] monthly expenses by a few hundred dollars[,]” then she has
“sufficient income to pay the filing fees[.]” Id.
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III.
De Novo Review of IFP Motion
Plaintiff’s financial affidavits don’t establish that she’s unable to pay the court’s filing
fee.2 See Doc. 3; Doc. 8. Plaintiff’s papers indicate that her monthly income exceeds her
reported monthly expenses by more than $400. Doc. 8 at 4–5. And Magistrate Judge Birzer
cited that excess to explain why the court should deny plaintiff’s IFP motion. Doc. 9 at 3.
What’s more, the Tenth Circuit has determined that when an individual’s monthly income
exceeds her monthly expenses—even “by a few hundred dollars”—that income suffices to pay
filing fees. Brewer, 24 F. App’x at 979. And so, the court agrees with Magistrate Judge Birzer’s
Report and Recommendation.
In her objection, plaintiff argues that the court should determine her IFP status based on
the Federal Poverty Guidelines. Doc. 12 at 4. She contends—because her household’s gross
annual income is below 125% of those guidelines—that the court has committed plain error in
denying her motion. Id. And she cites 8 C.F.R. § 106.3 in support. Id. To be sure, § 106.3 lists
household income compared to the guidelines as one of its qualifying criteria for fee waiver. 8
C.F.R. § 106.3 (2024). But § 106.3 provides fee waivers and exemptions for people requesting
immigration benefits—not for people hoping to waive filing fees in federal court. Id. So,
§ 106.3—and its criteria—don’t apply here. Instead, the Tenth Circuit requires the court to
compare monthly income to monthly expenses—just like Magistrate Judge Birzer did. The court
thus overrules plaintiff’s objection to Magistrate Judge Birzer’s IFP recommendation. And the
court denies plaintiff’s Motion to Proceed Without Prepayment of Fees (Doc. 3).
2
Plaintiff filed an affidavit of financial status alongside her initial IFP motion. See Doc. 3-1. The
court then ordered plaintiff to submit a revised financial affidavit, more fully responding to specified
sections on the form. See Doc. 7. Plaintiff filed an amended financial affidavit on December 20, 2023.
Doc. 8.
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IV.
Dismissing Claims under 28 U.S.C § 1915 Legal Standard
Magistrate Judge Birzer also screened the Complaint, as required under the IFP statute.
See 28 U.S.C. § 1915(e)(2). And, based on her screening, she recommended that the court
dismiss all of plaintiff’s claims, save one. Doc. 9 at 4, 10–11.
The IFP statute provides, in part, that “the court shall dismiss the case at any time if the
court determines that . . . the action or appeal . . . fails to state a claim on which relief may be
granted[.]” 28 U.S.C. § 1915(e)(2)(B)(ii). To determine whether a pro se plaintiff states a
plausible claim, the “standard of review for dismissals under § 1915(e)(2)(B)(ii)” is the same as
“Federal Rule of Civil Procedure 12(b)(6) motions to dismiss for failure to state a claim.” Kay v.
Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). This standard demands that the pleading “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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). And the complaint must “‘give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.’” Mayfield v. Presbyterian Hosp. Admin., 772 F. App’x
680, 685 (10th Cir. 2019) (ellipses in original) (quoting Twombly, 550 U.S. at 555). The court
“accept[s] the facts alleged in the complaint as true and view[s] them in the light most favorable
to the plaintiff.” Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016).
Magistrate Judge Birzer recommended the court dismiss plaintiff’s claims relying on
numerous federal statutes: the Freedom of Information Act (FOIA); the Congressional Review
Act (CRA); the Federal Employees’ Retirement Service Act of 1986 (FERS); the Tucker Act; the
Social Security Act; and the False Claims Act (FCA). Doc. 9 at 6–11. Plaintiff objects with two
arguments: (1) the various acts are relevant to this case and (2) the various acts are legislative
acts enacted by legislative bodies. Doc. 12 at 7–10. But Magistrate Judge Birzer didn’t
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recommend dismissal based on irrelevance. Nor does the legislative source of these acts affect
the dismissal analysis.
Instead, Magistrate Judge Birzer concluded that plaintiff had failed to allege facts
sufficient to state a legal claim under four of these statutes: the FOIA, the CRA, the Social
Security Act, or the FCA. See Doc. 9 at 6–10. And she determined that three of the acts—the
CRA, FERS, and the Tucker Act—don’t permit judicial review of the type plaintiff seeks from
our court. Id. at 6–9. Other obstacles unique to a particular statute also preclude plaintiff’s
claims, Magistrate Judge Birzer concluded. See, e.g., id. at 10. For example, the FCA allows a
private citizen to initiate an action in the name of (and for the benefit of) the federal government.
31 U.S.C. § 3730(b)(1). But some courts have held that such a private citizen—termed a relator
under the FCA’s qui tam provisions—can’t proceed pro se, as plaintiff does here. See, e.g.,
Stoner v. Santa Clara Cnty. Off. of Educ., 502 F.3d 1116, 1127 (9th Cir. 2007) (“Our conclusion
that a pro se relator cannot prosecute a qui tam action on behalf of the United States is consistent
with the decisions of other circuits to have addressed the issue.”). All of this in view, Magistrate
Judge Birzer recommended that the court dismiss all but one of plaintiff’s claims. Doc. 9 at 11.
V.
De Novo Review of Claims Recommended for Dismissal
The standard of review requires the court to determine the issues de novo. Fed. R. Civ. P.
72(b)(3). So, the court independently has reviewed plaintiff’s Complaint (Doc. 1). It recites
briefly the Complaint’s facts to facilitate its review, below, of the claims recommended for
dismissal.
A.
Factual Background
Plaintiff alleges that the Social Security Administration (SSA) originally found her
disabled in October 2015. Doc. 1 at 6. But, she contends, the SSA failed to maintain accurate
medical records about her. Id. at 4. And the SSA passed on this “fraudulent medical
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information” to the Office of Personnel Management (OPM). Id. As a result, plaintiff failed to
qualify for early disability retirement benefits under FERS. Id. That is, the OPM denied
plaintiff “her lifetime guaranteed annuity monthly retirement income set to begin on November
1, 2015[.]” Id. at 7; see also Doc. 1-1 at 1 (denying plaintiff her disability retirement on August
16, 2022 because plaintiff’s request was untimely). The retirement income would have provided
plaintiff with more than $1,000 per month. Doc. 1 at 7. So, plaintiff contends, defendants
conducted a “nearly 8-year theft and embezzlement” of plaintiff’s retirement benefits and money
“for personal gain.” Id. at 6. And plaintiff alleges to have lost not only the money but also her
mental well-being and the ability to provide for her family. Id. at 7.
The court understands plaintiff’s action to center on the allegedly “fraudulent medical
document.” Id. at 8. And so, it evaluates whether defendants’ alleged failure to maintain
accurate medical records violates each of the federal statutes listed in plaintiff’s Complaint. The
court begins with the Freedom of Information Act.
B.
Freedom of Information Act (FOIA)
In 1966, Congress enacted the FOIA to “promote public access to federal agency records
and information upon request.” Friends of Animals v. Bernhardt, 15 F.4th 1254, 1260 (10th Cir.
2021) (citing NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 221 (1978)). The Act serves to
“ensure an informed citizenry . . . [have] a check against corruption, and [can] hold the governors
accountable to the governed.” Robbins Tire, 437 U.S. at 242. “The elements of a FOIA claim
are: (1) improperly (2) withheld (3) agency records.” US Right to Know v. Nat’l Nuclear Sec.
Admin., No. 23-CV-343-WJ-LF, 2024 WL 865878, at *7 (D.N.M. Feb. 29, 2024) (citing
Kissinger v. Reps. Comm. for Freedom of Press, 445 U.S. 136, 150 (1980)).
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Here, plaintiff doesn’t allege that the SSA withheld her records at all—much less
improperly. Instead, she alleges that the SSA didn’t revise her medical records accurately. Doc.
1 at 4. And so—even when the court takes all of plaintiff’s facts as true—they can’t support a
claim under the FOIA. The court thus dismisses plaintiff’s claims premised on the FOIA. And
the court turns to the next statute plaintiff lists: the CRA.
C.
Congressional Review Act (CRA)
Enacted in 1996, “the CRA ‘assists Congress in discharging its responsibilities for
overseeing federal regulatory agencies[.]’” Citizens for Const. Integrity v. United States, No. 20CV-03668-RM-STV, 2021 WL 4241336, at *1 (D. Colo. Aug. 30, 2021) (quoting Ctr. for
Biological Diversity v. Bernhardt, 946 F.3d 553, 556 (9th Cir. 2019)). Congress designed it to
provide “an expedited procedure to review and disapprove federal regulations.” Id. (citation and
internal quotation marks omitted). That is, it serves “to facilitate Congress’s oversight of the
executive branch” rather than “to protect third parties with an interest in agency rules.” Kan.
Nat. Res. Coal. v. U.S. Dep’t of Interior, 971 F.3d 1222, 1233 (10th Cir. 2020). What’s more,
the CRA includes a provision prohibiting judicial review. 5 U.S.C. § 805 (“No determination,
finding, action, or omission under this chapter shall be subject to judicial review.”); see also
Kan. Nat. Res. Coal., 971 F.3d at 1227 (explaining the legislative history that speaks to the
meaning and purpose of § 805’s no-judicial-review provision).
Here, plaintiff never alleges any facts suggesting she is challenging agency or
Congressional acts under the CRA. See generally Doc. 12. Nothing in her Complaint directs the
court to an agency’s failing to comply with CRA requirements. See generally Doc. 1. Nor does
she allege any facts about Congress reviewing or disapproving an agency rule. See generally id.
And even if she did, the CRA’s § 805 likely would prohibit this court’s review anyway. So,
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plaintiff fails to state a claim under the CRA, and the court dismisses plaintiff’s CRA claim, as
well. Next, the court evaluates whether plaintiff states a claim under FERS.
D.
Federal Employees’ Retirement Service (FERS) Act of 1986
Congress enacted the FERS Act of 1986 (5 U.S.C. §§ 8401–79) as a new retirement
scheme for federal employees. Reed v. Reno, 146 F.3d 392, 395 (6th Cir. 1998). FERS served
to reduce the costs of retirement to the federal budget. Id. at 395–96. “When Congress passed
the FERS statute, it created an exclusive remedial scheme . . . over FERS-related claims.”
Hasan v. United States, 171 Fed. Cl. 167, 171 (2024) (“‘The Office [OPM] shall adjudicate all
claims under the provisions of this chapter administered by the Office.’” (quoting 5 U.S.C.
§ 8461(c))). “Because the FERS Act contains its own judicial remedy, it is ‘the exclusive
framework’ to address FERS claims that ‘Congress created under the statute.’” Id. (quoting
United States v. Bormes, 568 U.S. 6, 12 (2012)). And so, a person contesting the amount of a
FERS benefit must proceed like this: submit a “request to OPM” and, if necessary, “appeal any
decision from OPM” to the Merit Systems Protection Board (MSPB), and then the Federal
Circuit. Id. at 171–72 (citing 5 U.S.C. § 8461(e)(1)).
Here, plaintiff alleges she hasn’t received due disability retirement benefits under FERS.
Doc. 1 at 7. But Congress’s exclusive remedial scheme for claims under FERS doesn’t involve
this court. See Hasan, 171 Fed. Cl. at 171–72. The OPM dismissed plaintiff’s application for
disability retirement on August 16, 2022, as untimely filed. Doc. 1-1 at 1. Then, on December
12, 2022, the OPM denied plaintiff’s request for reconsideration and advised plaintiff of her right
to appeal to the MSPB. Doc. 1-1 at 27–28. Plaintiff appealed and the MSPB denied plaintiff’s
appeal on June 13, 2023. Id. at 66–77. Then, plaintiff requested a review of MSPB’s decision—
with an unknown result. Id. at 96. So, plaintiff’s next step is the Federal Circuit, not a federal
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district court like ours. Because Congress’s remedial framework is exclusive, this court doesn’t
have jurisdiction over plaintiff’s FERS claim. And so, the court dismisses it. Plaintiff’s Tucker
Act claim is up next.
E.
Tucker Act
The Tucker Act provides the United States Court of Federal Claims “with exclusive
jurisdiction3 to decide specific types of monetary claims against the United States.” Hasan, 171
Fed. Cl. at 169; see also 28 U.S.C. § 1491(a)(1) (“The United States Court of Federal Claims
shall have jurisdiction to render judgment upon any claim against the United States[.]”). That
jurisdiction encompasses “actions brought pursuant to money-mandating statutes[.]” Roth v.
United States, 378 F.3d 1371, 1384 (Fed. Cir. 2004). But “when a law assertedly imposing
monetary liability on the United States contains its own judicial remedies[,]” those remedies
displace the Tucker Act. Bormes, 568 U.S. at 12.
Here, plaintiff asserts a monetary claim against the United States under FERS. Doc. 1 at
7. But FERS has its own judicial remedy system—the OPM, the MSPB, and then the Federal
Circuit. See Hasan, 171 Fed. Cl. at 171. That remedy system displaces the Tucker Act.
Bormes, 568 U.S. at 12. What’s more, even if the Tucker Act were in play, this federal district
court wouldn’t have a role because the Tucker Act vests exclusive jurisdiction over Tucker Act
claims in the Court of Federal Claims.4 See 28 U.S.C. § 1491(a)(1). This court thus lacks
3
The so-called Little Tucker Act provides concurrent jurisdiction over “[a]ny . . . civil action or
claim against the United States, not exceeding $10,000 in amount[.]” 28 U.S.C. § 1346(a)(2). But
plaintiff here contends she should receive funds to recover more than $1,000 per month over a span of
nearly eight years. Doc. 1 at 7. The amount at issue thus easily exceeds the threshold $10,000.
4
Courts have held this “exclusive” grant of jurisdiction not-so-exclusive, but only when Congress
vests jurisdiction in another court. See Blades v. Comm’r of Soc. Sec. Admin., No. CV-23-00545-PHXDJH, 2024 WL 3818595, at *5 (D. Ariz. Aug. 13, 2024) (“The Tucker Act’s grant of jurisdiction to the
Court of Federal Claims is ‘frequently referred to as “exclusive,” but ‘that courts’ jurisdiction is
“exclusive” only to the extent that Congress has not granted any other court authority to hear the claims
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jurisdiction over any Tucker Act claims—and FERS’s judicial remedies displace the Tucker Act
anyway. So, the court dismisses plaintiff’s claims premised on the Tucker Act. The court moves
on to address plaintiff’s Social Security Act claim.
F.
Social Security Act
Recall that plaintiff’s Complaint must “contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). And the Complaint must “give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.” Presbyterian Hosp. Admin., 772 F. App’x at 685
(ellipses in original) (internal quotation marks and citation omitted). To the extent that plaintiff
intended to assert a claim under the Social Security Act, it fails under this standard. Plaintiff
hasn’t identified what claim she asserts under the Social Security Act. Nor has she specified
what provision of the Social Security Act her claim invokes. Indeed, her Complaint mentions
the Social Security Act just once. Doc. 1 at 3. And that one mention occurs in a lengthy list of
federal statutes allegedly “at issue in this case.” Id. What’s more, her objection asserts only that
the Social Security Act is “relevant to the adverse injury claim” because it covers “social
security, health insurance, [and] programs for special groups ‘such as’ government employees[.]”
Doc. 12 at 9. But that assertion doesn’t give defendants fair notice of what the “claim is and the
grounds upon which it rests.” Presbyterian Hosp. Admin., 772 F. App’x at 685. Nor has
plaintiff pleaded facts suggesting a plausible claim under the Social Security Act. Thus, the
court dismisses as insufficiently pleaded plaintiff’s claim under the Social Security Act. And,
finally, the court turns to plaintiff’s FCA claim.
that may be decided by the Claims Court.’” (quoting McGuire v. United States, 550 F.3d 903, 911 (9th
Cir. 2008))).
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G.
False Claims Act (FCA)
The FCA imposes civil liability on any person who “knowingly presents, or causes to be
presented, a false or fraudulent claim [to the government] for payment or approval.” 31 U.S.C. §
3729(a)(1)(A). The FCA also contains a qui tam provision that allows a private party—a
relator—“‘to bring an FCA action on behalf of the Government.’” U.S. ex rel. Louderback v.
Sunovion Pharms., Inc., 703 F. Supp. 3d 961, 969 (D. Minn. 2023) (quoting State Farm Fire &
Cas. Co. v. U.S. ex rel. Rigsby, 580 U.S. 26, 29 (2016)).
Here, plaintiff doesn’t purport to bring a claim on behalf of the government. And she
doesn’t allege that anyone presented a fraudulent record to the government and received payment
based on it. Instead, she contends that her medical records were fraudulent, resulting in the
absence of payment by the government. So, plaintiff also fails to state a claim under the FCA.
The court thus dismisses plaintiff’s FCA claims, as well.
After all that, plaintiff is left with one surviving claim. The court outlines the surviving
claim, below.
VI.
Surviving Claim under 5 U.S.C. § 552a(g)(1)
As ordered by Magistrate Judge Birzer, the court concludes that plaintiff’s claim under 5
U.S.C. § 522a(g)(1) survives the IFP statute screening. Plaintiff objects to this order, apparently
not realizing that the claim survives. Plaintiff contends the court lacks authority to deny her
§ 522a(g)(1) claim for failure to state a claim. See Doc. 12 at 6 (“[B]ecause Congress retains its
general legislative power[,] this court lacks the rule making authority to deny Plaintiff’s
§552a(g)(1) claims, for failure to state a claim upon which relief can be granted[.]”). But
Magistrate Judge Birzer neither denied this claim nor recommended that the court dismiss it. See
generally Doc. 9. And so, this claim survives.
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§ 552a(g)(1)(A)—a provision of the Administrative Procedure Act—provides that
whenever
any agency . . . makes a determination . . . not to amend an individual’s record in
accordance with his request, or fails to make such review . . . the individual may
bring a civil action against the agency, and the district courts of the United States
shall have jurisdiction in the matters[.]
Plaintiff’s pleaded facts align with a plausible claim under § 552a(g)(1)(A). In her Complaint,
plaintiff alleges that the SSA failed to maintain accurate medical records about her. Doc. 1 at 4.
And she claims that the SSA passed on this “fraudulent medical information” to the OPM. Id.
The court concludes—accepting plaintiff’s facts as true—that these alleged facts suffice at the
pleading stage to state a claim under § 552a(g)(1)(A).
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff Phyllis K.
Knight’s Response in Opposition to Order and Report and Recommendation (Doc. 12) is
overruled. Magistrate Judge Gwynne Birzer’s Order and Report and Recommendation (Doc. 9)
is affirmed and adopted in its entirety.
IT IS FURTHER ORDERED THAT plaintiff’s Motion to Proceed without Prepayment
of Fees (Doc. 3) is denied. The court permits plaintiff to pay the filing fee in seven monthly
installments of $50 and one final installment of $52.
IT IS FURTHER ORDERED THAT plaintiff’s claims premised on the Freedom of
Information Act; the Congressional Review Act; the Federal Employees’ Retirement Service Act
of 1986; the Tucker Act; the Social Security Act; and the False Claims Act are dismissed under
28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. Plaintiff’s claim premised on 5 U.S.C.
§ 552a(g)(1)(A) survives.
IT IS SO ORDERED.
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Dated this 24th day of October, 2024, at Kansas City, Kansas.
s/ Daniel D. Crabtree______
Daniel D. Crabtree
United States District Judge
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