Trotter v. Office of Personnel Management et al

Filing 21

ORDER granting 19 defendant's Motion to Dismiss and dismissing plaintiff's Complaint (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 10/16/2017. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
PORTIA KAY TROTTER,
Plaintiff,
vs.
OFFICE OF PERSONNEL
MANAGEMENT; RETIREMENT
SECTION,
Defendant.

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Case No. CIV-17-674-M

ORDER
Before the Court is defendant’s Motion to Dismiss, filed September 13, 2017. On October
2, 2017, plaintiff filed her response. Defendant moves this Court, pursuant to Federal Rule of Civil
Procedure 12(b)(1), to dismiss plaintiff’s Complaint.
On June 20, 2017, plaintiff, who is proceeding pro se, filed the instant action. In her
Complaint, plaintiff alleges a claim for embezzlement under 18 U.S.C. § 664. This statute,
however, is a federal criminal statute that does not provide for a private cause of action. See NYSAILA Med. & Clinical Servs. Fund v. Catucci, 60 F. Supp. 2d 194 (S.D.N.Y. 1999) (holding that 18
U.S.C. § 664 does not create civil cause of action). Accordingly, the Court finds that this claim
should be dismissed.
Plaintiff also alleges a claim challenging defendant’s decision to reduce plaintiff’s monthly
annuity payment.
Review by OPM/MSPB/Federal Circuit is the exclusive remedy for
claims regarding retirement benefits of federal workers. See 5
U.S.C. §§ 8461(c), (e)(1); 7703(b)(1). Courts have consistently and
broadly upheld the exclusivity of this remedial scheme. See United
States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830
(1988); Lindahl v. OPM, 470 U.S. 768, 105 S.Ct. 1620, 84 L.Ed.2d
674 (1985); Fornaro v. James, 416 F.3d 63 (D.C. Cir. 2005).

Eisenbeiser v. Chertoff, 448 F. Supp. 2d 106, 111-12 (D.D.C. 2006). Because plaintiff’s claim
involves her federal retirement benefits, the Court finds that this Court does not have jurisdiction
over this claim. Accordingly, the Court finds plaintiff’s claim challenging defendant’s decision to
reduce plaintiff’s monthly annuity payment should also be dismissed.
The Court, therefore, GRANTS defendant’s Motion to Dismiss [docket no. 19] and
DISMISSES plaintiff’s Complaint.
IT IS SO ORDERED this 16th day of October, 2017.