LAMPON-PAZ v. OFFICE OF PERSONNEL MANAGEMENT

Filing 47

OPINION. Signed by Judge Kevin McNulty on 7/12/17. (sr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MANUEL LAMPON-PAZ,
Plaintiff,

Civ. No. 16-8650 (1CM) (JBC)
V.

OPINION
OFFICE OF PERSONNEL
MANAGEMENT,
Defendant.

KEVIN MCNULTY, U.S.D.J.:

Manuel Lampon-Paz brings this action against defendant Office of
Personnel Management (“OPM”). Lampon-Paz here alleges, as he did in a prior,
dismissed action, that OPM failed to provide him with monthly disability
annuity retirement payments that were due to him, although the amounts
owed were later repaid. He adds a claim arising from a setoff for Social Security
disability (“SSDI”) benefits. The OPM moves to dismiss the complaint for lack of
jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1). For the reasons set out below,
OPM’s motion to dismiss is granted, and the complaint is dismissed with
prejudice for lack of jurisdiction.
I.

BACKGROUND
A.

The Prior Action

On July 24, 2015, Lampon-Paz filed a complaint against OPM, Civ. No.
15-5835, alleging that OPM “stopped I hisj annuity without cause.” This, he
alleged, violated Title VII of the Civil Rights Act, 42 U.S.C.

§

2000e-3. (Civ. No.

15-5835 ECF no. 1) In April 2016, I dismissed that complaint, noting that
Lampon-Paz had (1) sued the wrong party, (2) failed to state facts that would
support a claim under Title VII, and (3) failed to exhaust administrative
A review of the docket reveals that Mr. Lampon-Paz has filed nine actions in this Court.
By the “prior action,” I mean Civ. No. 15-5835.

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remedies before bringing suit. (Civ. No. 15-5835 ECF Nos. 26-27) That
dismissal was without prejudice to the submission of an amended complaint.
(Civ. No. 15-5835 ECF Nos. 26-27)
In April 2016, Mr. Lampon-Paz filed an amended version of his complaint
in Civ. No. 15-5835. This time, he asserted claims for negligence and violations
of 42 U.S.C.

§

1981 and 1983. (Civ. No. 15-5835 ECF No. 28) On May 5, 2016,

OPM again moved to dismiss for failure to exhaust administrative remedies and
failure to state a claim. (ECF No. 30)
On September 28, 2016, I ordered OPM to analyze the exhaustion issue
in light of Lampon-Paz’s submission and address “whether, technicalities aside,
there is an avenue for determination of whether plaintiff has received the
annuity benefits he is owed.” (Civ. No. 15-5835 ECF No. 34) In response, OPM
submitted evidence that Lampon-Paz was repaid all the disability payments
owed to him for the one-month period that his benefits were temporarily
suspended (from July 1, 2015, to August 1, 2015). (OPM Reply Br. 6) That,
Lampon-Paz admitted, was correct, “but the fact that a payment was
suspended without reason or justification

.

.

.

shows that the defendants must

have bias.” (Civ. No. 15-5835 ECF no. 39)
I granted OPM’s motion to dismiss the amended complaint. (Civ. No. 155835 ECF no. 40) The federal statutory claims were dismissed with prejudice
because they failed to state a claim, and amendment would have been futile. I
dismissed the negligence claim under the Federal Tort Claims Act because Mr.
Lampon-Paz had not exhausted administrative remedies. That portion of the
dismissal was without prejudice, because the grounds did not involve the
merits.

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B.

This Action

The most pertinent language of the Complaint is quoted in the margin.2 I
summarize the allegations as follows.
In the current action, Mr. Lampon-Paz reasserts the same grievance—Le.,
that his disability retirement annuity payments were suspended for a short
period. As Mr. Lampon-Paz acknowledged in that earlier action, OPM
suspended his July 1, 2015 annuity payment, saying that he had not
responded to a required survey form. By August 1, 2015, the problem was
fixed, and OPM paid both the August 1 and the July 1 instalment.
The complaint also relates to a dispute involving SSDI benefits. The OPM
is not responsible for Social Security benefits, but it has a policy of offsetting
SSDI benefits against the disability annuity payment.3 Mr. Lampon-Paz alleges
that his benefits were offset in 2013 and/or 2014 based on a now-superseded
policy of the OPM that the offset would apply even if the SSA had interrupted
or stopped paying the SSDI benefits.4 The focus of Mr. Lampon-Paz’s papers in

Here is some of the critical language, from the Complaint at page 2:
In August, 2010, I was awarded a disability retirement annuity. In
August 20151 was informed that the Office of Personnel Management
had stopped my annuity without cause. I was informed by personnel at
OPM that I will not being issuing my annuity for August 2015 because
letters from OPM were sent back to OPM as undeliverable. In November
2013 I informed the Office of Personnel Management that my Social
Security was going to be stopped in December 2013 and that I needed
my full annuity allotment to start in January 2014. 1 sent them the
required material to OPM personnel so they can make the adjustment.
OPM stated that my full allotment would start by February 2014. In fact,
OPM did not start my full allotment until January2015...
Mr. Lampon-Paz has separately filed two actions against the Commissioner of
Social Security. Civ. Nos. 16-5052, 16-9537.
4
OPM has submitted a sworn declaration on this issue, which it is not necessary
to consider on this motion to dismiss. (“Reach Decl.”, ECF no. 27-1) The declaration
relates that there was an interruption in 2014, but it had nothing to do with this SSDI
policy; it related to incorrect banking information given by Mr. Lampon-Paz. At any
rate, all amounts withheld pursuant to the superseded SSDI policy were repaid
retroactively on January 1, 2015. I do not need to rely on those factual contentions to
decide the jurisdictional issue presented here. They would properly be considered
2

3

opposition to the motion to dismiss shifts almost entirely to this aspect of the
complaint.
Mr. Lampon-Paz alleges that OPM was negligent, and that as a result, he
suffered harm, including ruined credit and eviction.
II.

DISCUSSION
A.

Standard of Review

OPM moves to dismiss the complaint for lack of jurisdiction under
Federal Rule of Civil Procedure 12(b)(1). Lack of subject matter jurisdiction may
be raised at any time. Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 437-38
(D.N.J. 1999). Rule 12(b)(1) challenges may be either facial or factual attacks.
See 2 Moore’s Federal Practice

§

12.30[4] (3d ed. 2007); Mortensen v. First Fed.

Sai’. &LoanAss’n, 549 F.2d 884, 891 (3d Cir. 1977). A facial challenge asserts
that the complaint does not allege sufficient grounds to establish subject
matter jurisdiction. Iwanowa, 67 F. Supp. 2d at 438. A court considering such
a facial challenge assumes that the allegations in the complaint are true, and
may dismiss the complaint only if it nevertheless appears that the plaintiff will
not be able to assert a colorable claim of subject matter jurisdiction. Cardio—
Med. Assoc., Ltd. v. Crozer—Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983);
Iwanowa, 67 F. Supp. 2d at 438. In reviewing a factual attack, “the court must
permit the plaintiff to respond with rebuttal evidence in support of jurisdiction,
and the court then decides the jurisdictional issue by weighing the evidence. If
there is a dispute of a material fact, the court must conduct a plenary hearing
on the contested issues prior to determining jurisdiction.” Lincoln Ben. LVe Co.
a AEILiJe, LLC, 800 F.3d 99, 105 (3d Cir. 2015) (citing McCann a Newman
Irrevocable Trust, 458 F.3d 281, 290 (3d Cir. 2006) (citations omitted).)
Where a plaintiff, like Mr. Lampon-Paz here, is proceeding pro se, his
complaint is “to be liberally construed,” and, “however inartfully pleaded, must

pursuant to a motion for summary judgment on the merits, but I do not consider them
now.
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be held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson

i’.

Pardus, 551 U.S. 89, 93-94 (2007). Nevertheless, “prose litigants

still must allege sufficient facts in their complaints to support a claim.” Mala v.
Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). “While a litigant’s
pro se status requires a court to construe the allegations in the complaint
liberally, a litigant is not absolved from complying with Twombly and the
federal pleading requirements merely because s/he proceeds pro se.” Thakar v.
Tan, 372 F. App’x 325, 328 (3d Cir. 2010) (citation omitted).
B.

Analysis

The OPM seeks dismissal for lack of jurisdiction. Mr. Lampon-Paz seems
to be alleging that he has remedied one deficiency with his complaint in the
earlier action, Civ. No. 15-5835, in that he has now exhausted administrative
remedies in connection with a negligence claim under the Federal Tort Claims
Act (“VPCA”).5 Mr. Lampon-Pa2’s claims, whether considered as negligence
claims or under some other theory, essentially flow from his contention that his
disability annuity payments were delayed or miscalculated for some period or
periods of time.
As the OPM points out, mere failure to exhaust is not the only problem
with such a claim. A more fundamental problem is that such claims for
damages6 against the OPM concerning a disability annuity are cognizable
exclusively under the review procedures of the Civil Service Retirement Act
(“CSRA”), 5 U.S.C.

§

8331, et seq. See also Foniaro v. James, 416 F.3d 63, 67

(D.C. 2005) (“[Wjhat you get under the CSRA is what you get.”); Sarullo tc U.S
Postal Service, 352 F.3d 789, 795 (3d Cir. 2003) (holding that the court lacked
subject matter jurisdiction over plaintiff’s malicious prosecution claim because
OPM states that the FTCA claim is defective because the Complaint fails to
name the proper defendant, i.e., the United States. See Lampon-Paz v. Office of
Personnel Management, 15-5835(1CM), ECF No. 40 (Nov. 15, 2016 Opinion) at 4, n. 5.
Particularly in a pro se case, I might permit amendment to correct that technical error
of pleading. For the reasons expressed herein, however, the flaw is more basic.
6
The complaint contains a pro fonna demand for injunctive relief. To that extent,
I would dismiss it for failure to state a claim. No forward-looking facts are pled.
S

5

the “case ar[ose] out of the employment context and

[]

the CSRA therefore

provides the full scheme of remedies available to [plaintiff].”)
The CSRA commits an initial determination regarding federal disability
benefits to the OPM. See5 U.S.C.

§

8451, 8461; see also 5 U.S.C.

The OPM’s determination is reviewable by the MSPB. See 5 U.S.C.

§ 844.103,
§ 8347.

Judicial review of the MSPB’s determination is available only in the United
States Court of Appeals for the Federal Circuit. See 5 U.S.C.

§

7703(d); see also

Lindahi v. OPM, 470 U.S. 768, 798—99 (1985); Lampon-Paz v. Dep’t of Homeland
Sec., 532 F. App’x 125 (3d Cir. 2013) (affirming dismissal of complaint for lack
of jurisdiction to the extent it could be construed as an appeal of a decision of
the MSPB). It would not be reviewable here.
In his two oppositions (ECF nos. 28, 29), Mr. Lampon-Paz refers to the
Beach Declaration’s citation to Stephenson v. OPM, 705 F.3d 1323 (Fed. Cir.
2013) (Beach Decl.

¶

7—9). That case, however, merely reversed the OPM

policy (now superseded) that a disability annuity would be offset by the amount
of Social Security disability benefits, despite their having been discontinued.
Stephenson was itself an appeal to the Federal Circuit from an MSPB
determination; it does not rebut the jurisdictional point asserted by OPM here.
In his first opposition (ECF no. 28, at 9—12), Mr. Lampon-Paz addresses
the jurisdictional issue to some degree. He states in essence that he is no
longer an employee, and that in any event he was employed by the Department
of Homeland Security, not OPM, and therefore was not required to go through
the MSPB. That contention is amply rebutted by the authorities cited by OPM
in both its moving and reply briefs. As a CSRA disability annuitant, Mr.
Lampon-Paz must proceed through the MSPB and appeal any adverse decision
to the Federal Circuit. SeeS U.S.C.

§

8461(e), 7701, 7703(b). Those

procedures are not confined to employees of the OPM itself; the OPM was
created for the purpose of, inter alia, adjudicating federal disability annuity
benefits claims. Fomaro, 416 F.3d at 66. See also Rahowshy v. OPM, MSPB
Docket No. DE-0831-14-0388-I-1, 2016 WL 1580227 (Apr. 13, 2016) (widow of

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non-OPM employee annuitant filing for benefits); Pennoda u. OPM, MSPB
Docket No. CH-0831-14-0810-I-2, 2017 WL 67121 (Jan. 5, 2017) (former Air
Traffic Controller for the Federal Aviation Administration filing for annuity
benefits)

.

OPM further contends that the case is moot because Mr. Lampon-Paz
sues for amounts which, even if erroneously withheld for a time, were fairly
promptly repaid. It is not necessary for me to reach this contention.
III.

CONCLUSION
For the foregoing reasons, the motion to dismiss of defendant OPM is

GRANTED and the complaint is DISMISSED WITH PREJUDICE for lack of
jurisdiction. An appropriate Order accompanies this Opinion.
Dated: July 12, 2017

KEVIN MCNULTY
United States District J

Mr. tampon-Paz filed a third, surrebuttal opposition. (ECF no. 32) it was filed
without leave, and I disregard it. I note, however, that it would not require a different
analysis or result. In that third opposition, he states that restoration of benefits
wrongfully withheld pursuant to the old SSDI offset policy is outside the
MSPA/Federal Circuit review regime, again citing Stephenson. But Stephenson itself
was an appeal to the Federal Circuit from an MSPB determination. The fact that the
OPM and MSPB are bound to adhere to the Stephenson holding does not confer
jurisdiction on this court.
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