Sherman v. United States, 17-1830C

• Decision Date: 20 August 2018
• Docket Number: No. 17-1830C,17-1830C
• Parties: LEELA H. SHERMAN, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Claims Court

LEELA H. SHERMAN, Plaintiff, v. UNITED STATES, Defendant.

No. 17-1830C

United States Court of Federal Claims

August 20, 2018

ORIGINAL

Pro Se Plaintiff; Motion To Dismiss; Subject Matter Jurisdiction; Federal Retirement Benefits Claim.

Leela H. Sherman, pro se, Laguna Beach, CA.

Joshua A. Mandlebaum, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. for defendant. With him were Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, Civil Division, and Chad A. Readier, Acting Assistant Attorney General.

OPINION

HORN, J.

FINDINGS OF FACT

On November 20, 2017, pro se plaintiff Leela H. Sherman, who is a former employee of the Internal Revenue Service (IRS), filed a complaint in this court. The plaintiff claims that "[t]his is an action for eligible annuity of the plaintiff and her spouse" and that "[h]er only claim is for estimate of her annuity." The plaintiff indicates that she is "currently receiving FECA [Federal Employees' Compensation Act] benefits" from the Office of Workers' Compensation Programs (OWCP). The plaintiff indicates that she is not currently receiving an annuity under the Federal Employees Retirement System (FERS), but that the plaintiff seeks an "estimate" of her FERS retirement annuity so that plaintiff may make "a meaningful decision" regarding whether she wants to continue receiving FECA benefits or receive FERS retirement benefits instead.

The plaintiff states that she previously served as a "Senior Internal Revenue Agent" with the IRS and alleges that a "TRE"¹ supervisor, who the plaintiff alleges was not the plaintiff's supervisor, "negligently generat[ed]" a Standard Form 50 (SF 50), Notice of Personnel Action, and a Standard Form 52 (SF 52), Request for Personnel Action,² separating the plaintiff from her employment with the IRS "on or around Nov. 2011."³ Both the plaintiff and the defendant indicate that the SF 50 document at issue was the document which separated plaintiff from her IRS employment, that the document was generated in November 2011, and that the effective date of the SF 50 was retroactively set to January 3, 2010. The plaintiff claims that she did not receive notice that the IRS would generate the SF 50, thereby separating plaintiff from her employment, until on or around November 28, 2011, when the plaintiff alleges that "third party record Keeper TSP [Thrift Savings Plan] fund" sent the plaintiff a letter which informed her of the retroactive separation. The plaintiff argues that the SF 50 "den[ied] her and her spouses [sic] the protection to their rights of benefits," and that, consequently, the defendant "separat[ed] the plaintiff without following any due process."⁴ The plaintiff further states that the SF 50 "suppressed the fact that the plaintiff was under [sic] workers' compensation program" at the time plaintiff received notice of her separation on or around November 28, 2011, and that, at the time of notification, the plaintiff "should have been placed as on Leave without pay status." (capitalization in original).

The plaintiff alleges in her complaint that, prior to her obtaining knowledge of the retroactive separation on or around November 28, 2011, the plaintiff submitted an application for disability retirement, which the plaintiff states "was ignored by the agency."⁵ According to the plaintiff, she suffered a workplace injury in 2008 and had surgery on January 15, 2009, followed by two months of "light duty" employment, during which timethe plaintiff was compensated by the OWCP. The plaintiff claims that, "[w]hile her timely application for disability appears to have been not processed by the agency, the SF 50 document deprived the plaintiff's ability to apply for disability since her separation was about 2 years advanced retroactively." The plaintiff states that she has taken steps to "set her service record right," but that "[t]he agency insisted that the action is warranted because of an agreement the plaintiff had with the agency settling previous non [sic] selection and discrimination cases."

According to plaintiff, she has contacted the OPM "many times from 2012" regarding her retirement benefits. The plaintiff alleges that on January 30, 2012, she received a letter from the OPM that placed her in the "wrong retirement system," and asserts that the January 30, 2012 letter stated that "the plaintiff belonged to CSRS [Civil Service Retirement System] and giving service dates and contributions that were all wrong and substantially distorting her benefits under FERS." The plaintiff claims that she contacted the OPM regarding this alleged error, but did not receive a response from the OPM. The plaintiff also states that she has previously contacted the OPM by phone and by mail regarding her retirement annuity estimate but alleges that the "OPM has not answered to any of her inquiries."

After the IRS separated the plaintiff from her employment in November 2011 with a retroactive separation date of January 3, 2010, the plaintiff challenged her separation before the Merit Systems Protection Board (MSPB), alleging that she had not voluntarily resigned from the IRS. See Sherman v. Dep't of the Treasury, No. SF-0752-12-0193-I-1, 2012 WL 682673 (M.S.P.B. Feb. 13, 2012). The MSPB administrative judge found that the plaintiff and her employer, the IRS, had entered into a Stipulation for Compromise (Stipulation) in May 2009. See id. The MSPB administrative judge noted that the Stipulation contained a clause stating that the plaintiff would "retire or resign from the IRS on or about December 26, 2009, but not later than the start of the first pay period of calendar year 2010, as a Revenue Agent, GS 14-3." Id. (quoting the Stipulation). The administrative judge also noted that the clause in the Stipulation stated that the plaintiff's agreement to retire was "irrevocable and supported by valuable consideration," and, if the plaintiff failed to retire "on or about December 26, 2009, but not later than the start of the first pay period of calendar year 2010," the plaintiff's "signature on this document shall serve as her resignation from employment with the IRS." Id. (quoting the Stipulation). The administrative judge determined that the plaintiff had failed to retire by the first pay period of the calendar year of 2010, as the plaintiff was required to do under the Stipulation. See id. According to the administrative judge, after the plaintiff failed to retire, "the agency processed a resignation on her behalf" in November 2011 and "separated her from the service [IRS] retroactive to January 3, 2010." Id. Ultimately, the MSPB administrative judge concluded that the MSPB did not have jurisdiction over the plaintiff's claim because the plaintiff had resigned voluntarily under the terms of the Stipulation. See id. The plaintiff filed a petition for the MSPB to reconsider its initial decision, which the MSPB denied. See Sherman v. Dep't of the Treasury, 118 M.S.P.R. 433 (2012), aff'd, Sherman v. Merit Sys. Prot. Bd., 530 F. App'x 940 (Fed. Cir.), reh'g denied (Fed. Cir. 2013). On February 8, 2013, the plaintiff appealed the MSPB's decision to the United States Court of Appeals for the Federal Circuit, which affirmed the decision of the MSPB in an unpublishedopinion. See Sherman v. Merit Sys. Prot. Bd., 530 F. App'x 940, 942 (Fed. Cir.) (per curiam), reh'g denied (Fed. Cir. 2013).

Subsequently, on October 31, 2016, the plaintiff filed a complaint against the Secretary of the Department of the Treasury in the United States District Court for the Central District of California, alleging that the IRS had violated the Age Discrimination in Employment Act (ADEA), the Rehabilitation Act, Title VII of the Civil Rights Act, and the FECA when the IRS separated the plaintiff from her employment. See Sherman v. Mnuchin, No. SA CV 16-1979 PA (KESx), 2017 WL 1927876, at *1 (C.D. Cal. May 9, 2017). The United States District Court for the Central District of California indicated the plaintiff's complaint was based on a "right to sue" letter issued by the Department of the Treasury after the Department of the Treasury had dismissed for lack of timeliness an Equal Employment Opportunity (EEO) complaint made by the plaintiff against the Department of the Treasury.⁶ Id. at *2. In the United States District Court for the Central District of California, the plaintiff asserted that "she did not resign," "that the separation forms were improperly completed," "that she was not given disability retirement paperwork as requested," and that she was denied "a within-grade step increase." Id. The plaintiff alleged that the actions and omissions of the IRS "were discriminatory and have prevented her [plaintiff] from receiving certain benefits." Id. The United States District Court for the Central District of California found that the plaintiff's claims under the ADEA, the Rehabilitation Act, and Title VII of the Civil Rights Act were all barred because the plaintiff had failed to exhaust her administrative remedies within the statutory period for EEO claims, and that the court lacked jurisdiction over the plaintiff's FECA claim because the plaintiff had not raised a constitutional challenge to the Secretary of Labor's decision regarding her FECA benefits or claimed a violation of a "clear statutory mandate or prohibition." Id. at *3-5 (citing Markham v. United States, 434 F.3d 1185, 1187 (9th Cir. 2006)). Additionally, the United States District Court for the Central District of California found that the United States Court of Appeals for the Federal Circuit's decision in Sherman v. Merit Systems Protection Board, 530 F. App'x 940, affirming the MSPB's finding that the plaintiff had resigned voluntarily under the Stipulation, barred the United States District Court for the Central District of California from considering whether the...