United States District Court, D. Maryland
before the Court is Defendant U.S. Office of Personnel
Management's (“OPM”) Motion to Dismiss for
Lack of Subject-Matter Jurisdiction (ECF No. 26). The Motion
is ripe for disposition, and no hearing is necessary.
See Local Rule 105.6 (D.Md. 2018). For the reasons
outlined below, the Court will grant the Motion.
Corey Douglas Ogden began working for the Social Security
Administration (“SSA”) on July 19, 2009.
(Def.'s Mem. Supp. Mot. Dismiss Lack Subj.-Matter Juris.
[“Def.'s Mot.”] Ex. 1 Merit Systems
Protection Board (“MSPB”) Initial Decision
[“MSPB Decision”] at 1, ECF No.
26-2). Ogden “began displaying disruptive
behavior in June 2015.” (Id. at 1-2). On
September 21, 2016, he was officially reprimanded and placed
on a two-day administrative leave from which he did not
return. (Id. at 2).
October 3, 2016, Ogden applied for disability retirement from
the Federal Employees' Retirement System
(“FERS”), which OPM denied in March 2018.
(Id.). On March 13, 2018, Ogden requested
reconsideration of OPM's decision. (Id. at
March 13, 2018, Ogden sued OPM in the U.S. District Court for
the Northern District of West Virginia, alleging
discrimination and gross negligence. (Compl. at 1, ECF No.
1). Ogden seeks money damages. (Id. at 3). On May
23, 2018, the U.S. District Court for the Northern District
of West Virginia transferred the case to this Court. (ECF No.
December 11, 2018, OPM filed its Motion to Dismiss for Lack
of Subject-Matter Jurisdiction. (ECF No. 26). On December 14,
2018, Ogden filed an Opposition, (ECF No. 28), which he
amended on December 17, 2018, (ECF No. 29). To date, the
Court has no record that OPM filed a Reply.
Rule of Civil Procedure 12(b)(1) governs motions to dismiss
for lack of subject-matter jurisdiction. A defendant
challenging a complaint under Rule 12(b)(1) may advance a
“facial challenge, asserting that the allegations in
the complaint are insufficient to establish subject matter
jurisdiction, or a factual challenge, asserting ‘that
the jurisdictional allegations of the complaint [are] not
true.'” Hasley v. Ward Mfg., LLC, No.
RDB-13-1607, 2014 WL 3368050, at *1 (D.Md. July 8, 2014)
(alteration in original) (quoting Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009)).
defendant raises a facial challenge, the Court affords the
plaintiff the “the same procedural protection as he
would receive under a Rule 12(b)(6) consideration.”
Kerns, 585 F.3d at 192 (quoting Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). As such, the
Court takes the facts alleged in the complaint as true and
denies the motion if the complaint alleges sufficient facts
to invoke subject matter jurisdiction. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). With a
factual challenge, the plaintiff bears the burden of proving
the facts supporting subject matter jurisdiction by a
preponderance of the evidence. U.S. ex rel. Vuyyuru v.
Jadhav, 555 F.3d 337, 347 (4th Cir. 2009). In
determining whether the plaintiff has met this burden, the
Court “is to regard the pleadings' allegations as
mere evidence on the issue, and may consider evidence outside
the pleadings without converting the proceeding to one for
summary judgment.” Richmond, Fredericksburg &
Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th
Cir. 1991) (citing Adams, 697 F.2d at 1219).
Nevertheless, the Court applies “the standard
applicable to a motion for summary judgment, under which the
nonmoving party must set forth specific facts beyond the
pleadings to show that a genuine issue of material fact
exists.” Id. (citing Trentacosta v.
Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1559
(9th Cir. 1987)). The movant “should prevail only if
the material jurisdictional facts are not in dispute and the
[movant] is entitled to prevail as a matter of law.”
Id. (citing Trentacosta, 813 F.2d at 1558).
Unlike under the summary judgment standard, however, the
Court is permitted to decide disputed issues of fact,
Kerns v. United States, 585 F.3d 187, 192 (4th Cir.
2009), and weigh the evidence, Adams, 697 F.2d at
OPM argues that the Court should dismiss Ogden's
Complaint for lack of subject-matter jurisdiction because
only the United States Court of Appeals for the Federal
Circuit has jurisdiction over Ogden's claims-a facial
challenge-and then only once Ogden has exhausted his
administrative remedies-a factual challenge. Ogden does not
address the Federal Circuit issue and, instead, argues that
he has exhausted his administrative remedies. The Court
agrees with OPM that only the Federal Circuit has
jurisdiction over Ogden's claims.
responsible for adjudicating claims for benefits under the
Civil Service Retirement System (“CSRS”), 5
U.S.C. § 8347(a)-(c) (2018), and under FERS, 5 U.S.C.
§ 8461(a)-(d) (2018). Under FERS, this includes
“determin[ing]” questions of disability and
dependency.” § 8461(d). Except for an appeal to
the MSPB under § 8461(e)(1), OPM's decisions
“concerning these matters are final and conclusive and
are not subject to review.” Id. The U.S.
Supreme Court has noted that two other statutes, 28 U.S.C.
§ 1295(a)(9) and 5 U.S.C. § 7703(b)(1), provide
that the Federal Circuit has exclusive appellate jurisdiction
over “a final order or final decision of the
[MSPB].” Lindahl v. Office of Pers.
Mgmt., 470 U.S. 768, 792 (1985). Further, these statutes
“do not admit any exceptions for disability retirement
United States Court of Appeals for the Fourth Circuit has not
considered the Civil Service Retirement System and FERS
statutory scheme, but other circuits have consistently
interpreted it to require exhaustion before the MSPB before
seeking judicial review at the Federal Circuit. In
Lampon-Paz v. Office of Personnel Management, the
United States Court of Appeals for the Third Circuit held
that “[a] beneficiary unhappy with the OPM's
determination of benefits may seek review by the [MSPB] . . .
[a]nd a beneficiary unhappy with the [MSPB's] decision
may then seek judicial review, but only in the . . . Federal
Circuit.” 732 Fed.Appx. 158, 160 (3d Cir. 2018) (first
citing 5 U.S.C. §§ 8347(d)(1), 8461(e)(1); then
citing 5 U.S.C. § 7703(b)(1)(A)), cert. denied,
139 S.Ct. 828 (2019). Similarly, the United States Court of
Appeals for the First Circuit held that “[t]he
consequence of [FERS's and the Civil Service Retirement
Act's] extensive remedial framework is that generally the
plaintiff must pursue retirement benefits claims first at
OPM, then at the MSPB, and finally at the Federal
Circuit.” Rodriguez v. United States, 852 F.3d
67, 83 (1st Cir. 2017); see also Keiger v. Sachon,
No. JKB-10-1556, 2011 WL 1213115, at *2 (D.Md. Mar. 30, 2011)
(“Authority to administer the [Civil Service Retirement
Act] is vested exclusively in OPM, and only the [MSPB] and
the . . . Federal Circuit have jurisdiction to review
OPM's decisions.” (citing Fornaro v.
James, 416 F.3d 63, 64 (D.C. Cir. 2005)).
Ogden sued OPM in the U.S. District Court for the Northern
District of West Virginia, and his case was subsequently
transferred to this Court. Because the statutory scheme
discussed above requires Ogden to seek judicial review in the
Federal Circuit, the Court concludes that it lacks
subject-matter jurisdiction over Ogden's claims. As a
result, the Court will grant OPM's Motion and dismiss the
case without prejudice to Ogden's ability to seek
judicial review at the appropriate time in the Federal
foregoing reasons, OPM's Motion to Dismiss for Lack of
Subject-Matter Jurisdiction (ECF No. 26) is GRANTED. Despite
the informal nature of this memorandum, it shall constitute
an Order of this Court, and the Clerk is directed to docket