applied for Medicare. Blum advised her to apply for no fault insurance benefits but did not advise her to apply for Medicare. In a May 1984 letter to plaintiff's attorney, DHHS Personnel Manager Robert Collins described plaintiff's employment status, pay status, and the number of hours plaintiff had worked since the accident. Collins did not give plaintiff an application for Social Security disability benefits and did not accept an application for Social Security disability benefits from the plaintiff.
Neither incident amounts to affirmative misconduct on the part of either employee. Blum and Collins were not under any statutory duty to assist plaintiff with her Medicare and Social Security applications. They violated no law, statute, or regulation. Cf. Schweiker v. Hansen, 450 U.S. 785, 789-90, 67 L. Ed. 2d 685, 101 S. Ct. 1468 (1987). They did not provide any erroneous information of a factual or legal nature to plaintiff. They simply did not act.
Plaintiff alleges no facts in her complaint, reply, repleading, and two amended complaints which, if proved, would entitle her to relief. Plaintiff has had several opportunities to plead the necessary facts. She was able to respond to defendant's motion for judgment on the pleadings with an amended complaint. While plaintiff provided additional details of the relevant conduct in her latest complaint, this conduct is not affirmative misconduct and does not state a claim of estoppel against the Secretary. Accordingly, defendant's motion for judgment on the pleadings is granted.
Plaintiff's Amended Complaint
In response to defendant's answer and motion, plaintiff submits a second amended complaint alleging various additional causes of action arising from her employment at DHHS and her accident of November 1983.
In her first amended complaint, plaintiff sought damages against her former employer and a "permanent injunction from the defendant performing Active Reinstatement or other similar act in the future [sic]." Aside from the appeal of her Medicare hearing, her complaint did not state an appropriate jurisdictional basis for the various causes of action sufficient to overcome the bar of sovereign immunity. See United States v. Mitchell, 463 U.S. 206, 212, 77 L. Ed. 2d 580, 103 S. Ct. 2961 (1983) (consent to be sued is "prerequisite" for jurisdiction in any suit against the United States). Additionally, the complaint did not present the defendant with any coherent theory of liability against which it could defend. Therefore, with the exception of the Medicare appeal, the complaint was dismissed with leave to amend.
Plaintiff has attempted to clarify her original complaint with a submission dated July 12, 1996. According this pro se petition the liberal reading to which it is entitled under Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), plaintiff appears to have alleged five causes of action.
First, plaintiff asserts a claim under 5 U.S.C. § 337(a). This statute provides for early retirement from the civil service due to a disability. Claims regarding disability retirement are to be adjudicated by the OPM. See 5 U.S.C. § 8347(b). The OPM is not a party to this action. Plaintiff has raised this exact issue against the OPM in an earlier case. See Fabiano v. Office of Personnel Management, 1996 U.S. Dist. LEXIS 20316, No. 94-4739 (E.D.N.Y. Jan. 9, 1996).
Second, plaintiff alleges that she was deprived of an annuity upon retirement. Because she was discharged for misconduct, she is not entitled to an annuity under 5 U.S.C. § 8336(d)(1). Retirement annuities are part of the Civil Service Retirement System and are administered by the OPM. All claims under the Civil Service Retirement System are to be adjudicated by the OPM. See 5 U.S.C. § 8347(b). Although the plaintiff has challenged OPM determinations in other cases, the OPM is not a party to this action. Plaintiff has challenged her discharge for misconduct in an earlier case. See Fabiano v. Merit Systems Protection Board, No. 85-0300 (E.D.N.Y. July 28, 1986).
Third, plaintiff asserts various claims relating to compensation of federal employees for work related injuries. Under 5 U.S.C. § 8124(a), the Secretary of Labor is to adjudicate all claims arising out of such compensation. The Secretary of Labor is not a party to this action.
Fourth, plaintiff alleges that the MSPB improperly approved her discharge for cause under 5 U.S.C. § 7703. This statute provides for judicial review of decisions of the MSPB and must be brought against the MSPB or "the agency responsible for taking the personnel action." 5 U.S.C. § 7703. Plaintiff seeks reinstatement to the position she held fourteen years ago so that she can then retire with benefits. Neither the MSPB nor the OPM who discharged plaintiff are parties to this action. Plaintiff has raised this exact issue against the MSPB in an earlier case. See Fabiano v. Merit Systems Protection Board, No. 85-0300 (E.D.N.Y. July 28, 1986).
Fifth, plaintiff alleges a violation of prohibited personnel practices under 5 U.S.C. § 2302. She claims that the OPM improperly reclassified her position in violation of her collective bargaining agreement. Actions against the OPM must be brought against the OPM. The OPM is not a party to this action. Plaintiff also has raised this exact issue against the OPM in an earlier case. See Fabiano v. Office of Personnel Management, No. 94-4739 (E.D.N.Y. Jan. 9, 1996).
Plaintiff has not corrected the original defects of her complaint. She still does not state a jurisdictional basis for her actions against the Secretary. Under Rule 12(h)(3) of the Federal Rules of Civil Procedure, "whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Therefore, plaintiff's amended complaint is dismissed in its entirety.
The Clerk is directed to enter judgment dismissing the action and to mail a copy of the within to all parties.
Dated : Brooklyn, New York
December 9, 1996
Charles P. Sifton
United States District Judge