The opinion of the court was delivered by: Kenneth M. Karas, District Judge:
Nancy Arce Laporte ("Plaintiff"), in her individual capacity, as administrator of the estate of her deceased husband, Adam Laporte ("the decedent"), and as mother and natural guardian of A.L., an infant, brings this action against the United States of America, the United States Department of Justice, the Drug Enforcement Administration, and the Drug Enforcement Administration Human Resources Division (collectively, "Defendants"). Plaintiff alleges that Defendants failed in their duty to inform the decedent of his right to convert his Federal Employees Group Life Insurance ("FEGLI") policy to an individual policy following his separation from service, in violation of the Federal Employees Group Life Insurance Act ("FEGLIA"), 5 U.S.C. § 8701 et seq. Plaintiff seeks equitable relief, pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(1), and 28 U.S.C. § 1361, compelling Defendants to notify her of the decedent's conversion right and to reinstate and convert the decedent's policy, and, ultimately, she seeks payment of the benefits she claims were due on the period from the decedent's separation from service until his death. Defendants move to dismiss for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that Plaintiff's claim is barred by sovereign immunity. For the reasons stated herein, Defendants' motion is granted.
I. Background A. Facts The Court assumes the following facts, as alleged in the Amended Complaint, to be true for purposes of the instant motion. The decedent, Adam Laporte, was employed by Defendant Drug Enforcement Administration ("the DEA"), a federal law enforcement agency under Defendant United States Department of Justice ("DOJ"), as an intelligence research specialist from 1998 to 2006. (Am. Compl. ¶¶ 6-7, 12-13.) While employed at the DEA, the decedent maintained a Basic life insurance plan and an Option A life insurance plan under the FEGLI program. (Id. ¶ 36.) Plaintiff, the decedent's wife, and the decedent's infant child, were the named beneficiaries under the decedent's life insurance coverage. (Id. ¶ 37.)
On February 16, 2006, John P. Gilbride, a special agent-in-charge at the DEA, served a Removal Letter on the decedent. (Id. ¶¶ 21, 38.) The purpose of the letter was to commence a disciplinary action against the decedent for alleged misconduct, and to place the decedent on administrative leave. (Id. ¶ 38.) On February 27, 2006, the decedent, through his attorney, Thomas G. Roth, Esq. ("Roth"), sent a letter to a "deciding official" at the DEA, providing notice of the decedent's legal representation in the pending disciplinary action, and requesting a 60-day extension of time to serve a written response to the Removal Letter. (Id. ¶ 39.) On March 14, 2006, Roth sent a letter to Stephen G. Griswold ("Griswold"), the DEA "deciding official," objecting to the decedent's placement on administrative leave, and suggesting that the DEA conduct a "psychological fitness for duty evaluation" for the decedent due to his "bizarre behavior." (Id. ¶ 40.) On March 21, 2006, Roth sent Griswold a letter explaining that the decedent's alleged misconduct was, in part, the result of "an emotional and psychological problem" from which he was suffering, and on April 20, 2006, Roth sent an 18-page letter brief to Griswold responding directly to the misconduct charges. (Id. ¶¶ 41, 42.) On April 25, 2006, the decedent was placed on non-pay administrative leave after exhausting his paid compensatory, annual, and sick leave time awaiting the outcome of the disciplinary proceedings against him. (Id. ¶ 43.) Griswold sent Roth a letter on May 4, 2006, advising that the charges of misconduct against the decedent had been sustained, and that the decedent's employment with the DEA was to be terminated May 5, 2006. (Id. ¶ 44.) The letter also advised that the decedent's termination could be held in abeyance pending processing of a disability retirement application on the decedent's behalf, and instructed Roth to contact the DEA Human Resources Division to obtain assistance in the application process. (Id.)
On May 8, 2006, Roth sent a memorandum to Griswold requesting postponement of the decedent's termination until June 15, 2006, and Griswold sent a return letter on May 11, 2006 granting the postponement. (Id. ¶¶ 45, 46.) In May or June 2006, the decedent was diagnosed with bipolar disorder with psychotic features, and began receiving psychiatric care, including a regimen of prescription medication. (Id. ¶ 47.) On June 2, 2006, Roth sent a memorandum to Griswold requesting further postponement of the decedent's termination until June 22, 2006, to allow for the submission of pending psychiatric and psychological evaluation reports on the decedent's medical condition in connection with the disability retirement application, and that postponement was granted by Griswold on June 11, 2006. (Id. ¶¶ 48, 49.) On June 22, 2006, Roth sent a memorandum to Griswold requesting another postponement of the decedent's termination until June 29, 2006, which Griswold granted. (Id. ¶¶ 50, 51.) On June 30, 2006, Roth sent Griswold the first of two reports on the decedent's medical condition, which evaluated the decedent's psychological state. (Id. ¶ 52.) On July 10, 2006, Griswold sent a letter to Roth granting postponement of the decedent's termination until July 14, 2006, pending submission of the second report on the decedent's condition, which was a psychiatric evaluation. (Id. ¶ 53.) Roth requested, and Griswold granted, two more postponements of the decedent's termination, until August 18, 2006, pending submission of the second report. (Id. ¶¶ 54-56.) The second report was submitted to Griswold on August 7, 2006. (Id. ¶ 57.)
On or about August 17-18, 2006, the decedent's employment with the DEA was terminated, allegedly with no notice of such termination being provided by the DEA to Roth or the decedent. (Id. ¶ 58.) On October 10, 2006, after the decedent discovered that his health insurance coverage had been terminated, Roth sent a letter to Griswold inquiring about the decedent's employment status, and about the status of the decedent's disability retirement application. (Id. ¶ 59.) On October 17, 2006, Griswold sent Roth a letter advising that the decedent's employment had been terminated on August 18, 2006, and that notice of such termination had been provided in a letter sent by Griswold to Roth and the decedent in "mid-August 2006." (Id. ¶ 60.) The following day, Roth sent a letter to Griswold requesting a copy of this letter, and the day after that, Griswold sent a letter to Roth acknowledging that no written notice of the decedent's termination had been sent to Roth or the decedent. (Id. ¶¶ 61-62.) On November 9, 2006, the decedent died as a result of a fall from the roof of his home. (Id. ¶ 65.)
Plaintiff filed the initial Complaint on August 17, 2009. (Dkt. No. 1.) On February 18, 2010, Plaintiff filed the Amended Complaint. (Dkt. No. 7.) On July 16, 2010, Defendants moved to dismiss the Amended Complaint for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1). (Dkt. No. 13.) The Court held oral argument on May 27, 2011.
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a court must dismiss a claim if the court "lacks the statutory or constitutional power to adjudicate it." Morrison v. Nat'l Austl. Bank Ltd.,547 F.3d 167, 170 (2d Cir. 2008) (internal quotation marks omitted)), aff'd, 130 S. Ct. 2869 (2010). "The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). In deciding a Rule 12(b)(1) motion to dismiss, the Court "'must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff,'" Morrison, 547 F.3d at 170 (quoting Natural Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006)) (citation and internal quotation marks omitted), but "'jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it,'" id. (quoting APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003)). In deciding the motion, the court "may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [it] may not rely on conclusory or hearsay statements contained in the affidavits." J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004); see also Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) ("In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court . . . may refer to evidence outside the pleadings.").
B. Analysis Plaintiff claims that the DEA, along with the other Defendants, violated FEGLIA and its accompanying regulations by failing to notify the decedent of the loss of his group life insurance coverage upon separation, and his right to convert his FEGLI policy to an individual policy (a right allegedly provided under 5 C.F.R. § 870.603(a)(1)), as required by 5 C.F.R. § 870.603(a)(2). (Id. ¶¶ 66-71.) Plaintiff claims that Defendants' failure to notify the decedent of this right deprived the decedent of the opportunity to make a request for conversion of his life insurance coverage, which in turn deprived his beneficiaries of the monetary benefits of a converted individual policy after the decedent's death. (Id. ¶¶ 73-74.) Plaintiff seeks an order from the Court, pursuant to the APA and 28 U.S.C. § 1361, compelling Defendants to provide notice to Plaintiff, as the decedent's estate administrator, of the decedent's conversion right, to effectuate reinstatement and conversion of the decedent's FEGLI policy, and to pay Plaintiff the benefits under the policy from the time the decedent was separated from service, on August 18, 2006, until his death on November 9, 2006. (Id. ¶¶ 75-76.)*fn1 Defendants counter that the Court lacks subject matter jurisdiction over Plaintiff's claims, because the government's waiver of sovereign immunity for FEGLIA claims only applies where the government has breached a duty created under the statute, and the government has no duty to provide notice of a conversion right under the statute.
1. Waiver of Sovereign Immunity Under FEGLIA "It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212 (1983). To find that the government has waived sovereign immunity, such waiver must be "'unequivocally expressed' in statutory text, and cannot simply be implied." Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2004) (quoting United States v. Nordic Vill., Inc., 503 U.S. 30, 33 (1992)). Further, "a [purported] waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign," Lane v. Pena, 518 U.S. 187, 192 (1996), and "not 'enlarge[d] . . . beyond what the language requires," Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-86 (1983) (quoting E. Transp. Co. v. United States, 272 U.S. 675, 686 (1927)). See also United States v. Williams, 514 U.S. 527, 531 (1995) (noting that courts "may not enlarge the waiver beyond the purview of the statutory language"). The doctrine "is jurisdictional in nature, and therefore to prevail, the plaintiff bears the burden of establishing that her claims fall within an applicable waiver." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Finally, the principle of sovereign immunity applies not just to the United States, but also to federal agencies and federal employees acting in their official capacity. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994).
Congress enacted FEGLIA "to facilitate the obtaining of insurance for Government employees on a primarily commercial basis." Kimble v. United States, 345 F.2d 951, 952 (D.C. Cir. 1965). "Under FEGLIA, the Government is not the insurer; [rather,] it is the policyholder under a policy issued by a commercial company." Argent v. Office of Pers. Mgmt., No. 96-CV-2516, 1997 WL 473975, at *2 (S.D.N.Y. Aug. 20, 1997) (alterations and internal quotation marks omitted). FEGLIA contains an explicit waiver of sovereign immunity, which provides: "The district courts of the United States have original jurisdiction, concurrent with the United States Claims Court, of a civil action or a claim against the United States founded on this chapter." 5 U.S.C. § 8715. This waiver, courts have found, is limited to actions that involve a breach of the government's duties under FEGLIA. See Argent, 1997 WL 473975, at *2; see also Lewis v. Merit Sys. Prot. Bd., 301 F.3d 1352, 1353 (Fed. Cir. 2002) (noting that sovereign immunity waiver under FEGLIA is limited to claims involving some right created by the Act, and a breach by the government of some corresponding duty); Barnes v. United States, 307 F.2d 655, 657-58 (D.C. Cir. 1962) ("The United States has consented to be sued, we conclude, to the extent that any such civil action or claim can be shown to involve some right created by [FEGLIA] and a breach by the Government of some duty with respect thereto."); Dixon v. United States Post Office, No. 09-CV-1694, 2009 WL 51255825, at *2 (N.D. Cal. Dec. 21, 2009) (noting that "the waiver contained in 5 U.S.C. § 8715 . . . pertains only to legal duties establish[ed] by [FEGLIA]"); ...