Krantz v. Secretary, Department of Treasury

United States District Court

Southern District of Ohio

Western Division

GARY KRANTZ,

Case No: 1:19-cv-454

Plaintiff,

v. Bowman, M.J.

STEVEN T. MNUCHEN, Secretary of

the Treasury, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Proceeding pro se, Plaintiff filed this employment discrimination action and paid

the requisite filing fee in June 2019. Proceedings were briefly delayed by the Court’s

conditional grant of a referral to the Volunteer Lawyer’s Project (“VLP”); however, after

VLP was unable to secure counsel, Plaintiff’s motion for the appointment of counsel was

denied. Currently pending is a motion to dismiss, along with Plaintiff’s “Motion for

Immediate Finding in favor of the Plaintiff.” For the reasons that follow, the motion to

dismiss will be GRANTED, and Plaintiff’s motion will be DENIED.1

I. Standard of Review

The motion to dismiss has been filed under Rule 12(b)(6). In considering the

motion, the Court must “construe the complaint in the light most favorable to the

nonmoving party, accept the well-pled factual allegations as true, and determine whether

the moving party is entitled to judgment as a matter of law.” Commercial Money Ctr., Inc.

v. Illinois Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007). Under Rule 8, a claim for

1The parties have consented to final disposition by the undersigned magistrate judge. See 28 U.S.C.

§636(c).

relief should be “a short and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. Proc. Rule 8(a)(2). Based upon the liberal pleading

standards of Rule 8 and the standard of review, it is more common for cases to be

disposed of on motions for summary judgment, following discovery, than for “failure to

state a claim upon which relief can be granted” under Rule 12(b)(6). Nevertheless, a

court “need not accept the plaintiff’s legal conclusions or unwarranted factual inferences

as true.” Commercial Money Ctr., 408 F.3d at 336. Thus, a motion to dismiss will be

granted if a complaint lacks any legal basis for the claims, or if the facts alleged are so

conclusory as to be insufficient to state any claim.

“The complaint must not only include legal conclusions, but must make factual

allegations, which are accepted as true to state a plausible claim for relief.” Smith v. Tipton

County Board of Education, 916 F.3d 548, 552 (6th Cir. 2019); see also Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955 (2007) (internal citations omitted). “A

claim has facial plausibility when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009). While such

determination rests primarily upon the allegations of the complaint, “matters of public

record, orders, items appearing in the record of the case, and exhibits attached to the

complaint, also may be taken into account.” Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th

Cir. 2001) (quoting Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997)) (emphasis

omitted).

Based upon the complaint filed in this Court and exhibits attached to the pleadings,

it is clear that Plaintiff fails to state any plausible claim against any Defendant. Further,

no amendment would cure the defects in Plaintiff’s complaint because this Court lacks

jurisdiction.

II. Facts Alleged in the Pleadings and Accompanying Exhibits

Plaintiff is a former employee of the Internal Revenue Service who retired on

December 31, 2018. He filed his complaint on a form provided to assist pro se litigants

in filing claims of employment discrimination. Under “Statement of Claim,” the form asks

the litigant to state the facts of his case, including “how each defendant is involved,” and

including “the names of other persons involved, dates, and places.” Plaintiff identifies

three individual Defendants in his complaint, all presumed to be named in their official

capacities: the Secretary of the Department of Treasury, the United States Attorney, and

the Attorney General.2

None of the individual Defendants are referenced in Plaintiff’s complaint. Instead,

the entirety of Plaintiff’s Statement of Claim reads as follows:

With the closing of the Cincinnati Service Center, all qualified retirees under

age 62 will be granted a supplemental annuity. Similarly eligible older

retirees are denied this annuity. With the closing, Voluntary Early

Retirement is not voluntary. Denial of this annuity under the above

conditions constitutes age discrimination.

(Doc. 4 at 3). In the “Relief” section of the complaint, Plaintiff seeks monetary damages

equal to an award of the supplemental annuity until he attains the age of 66 and 2 months

as well as punitive damages. The complaint also seeks, on behalf of other employees

who may be impacted through “Future Service Closings” in Philadelphia and Fresno, an

2The docket reflects that both the answer and the motion to dismiss were filed on behalf of all three

Defendants. However, closer review of the text of both the answer and the motion suggests that both were

filed only on behalf of the Secretary of the Treasury. Regardless of the textual anomaly, dismissal of the

complaint remains appropriate based upon Plaintiff’s failure to state any claim against any Defendant, as

well as a lack of jurisdiction.

award of similar supplemental annuities to be provided to anyone else over the age of 62.

(Id. at 4).3

Plaintiff’s complaint indicates that he received a Notice of his right to sue on May

6, 2019. Although Plaintiff did not attach a copy of his Equal Employment Opportunity

(“EEO”) complaint as instructed on the civil complaint form, the Defendants have attached

a copy of Plaintiff’s EEO complaint as an exhibit to the answer.4 (Doc. 13-1) The

referenced administrative complaint was filed on April 22, 2019.

On or about May 6, 2019, Plaintiff received a “Department of the Treasury Final

Agency Decision” (“FAD”) in response to his EEO complaint. (Doc. 4 at 4-7). The FAD

sets forth Plaintiff’s claim as follows:

Complainant argues that in November 2018, unnamed Internal Revenue

Service (IRS) Human Resources personnel told him that under the current

regulations governing FERS, because he would be age 62 when he retired

on December 31, 2018, and because he would then be eligible to receive

Social Security retirement benefits, he would not be eligible to receive a

Special Annuity Supplement under FERS which is aimed at bridging the

monetary gap for FERS employees who retire before age 62 when they are

not yet eligible to receive Social Security benefits….

Complainant states that once he retired on December 31, 2018, OPM

discriminated against him by failing to provide him with the same FERS

Special Annuity Supplement that is available to those who retire before age

62. His complaint specifically states that the agency that discriminated

against him was OPM, not the IRS. In any event, the IRS does not control

the FERS eligibility requirements which Complainant apparently seeks to

challenge, and the IRS has no authority to change those requirements.

Under these circumstances, the Department of Treasury (IRS) is not the

correct agency to be named as the agency that discriminated against

Complainant, and thus the complaint fails to state a claim….

3In his response in opposition to dismissal, (Doc. 20), Plaintiff states that he is “withdraw[ing] my claim for

Fresno and Philadelphia as I am not sure that legally that is a possibility.” (Doc. 20 at 4). Indeed, a pro se

litigant may not represent any other individual.

4This Court may consider the EEO complaint, a matter of public record that is integral to the complaint,

within the context of Rule 12(b)(6). Plaintiff refers to his EEO proceeding within the body of his complaint

and includes a copy of the Final Agency Decision that addresses his EEO complaint.

(Doc. 4 at 4-5). Attached to the FAD dismissing his claim is a notice that informs Plaintiff

of his appeal rights. The FAD notice states that Plaintiff may further appeal to the EEOC

within 30 days, or alternatively, initiate a civil action in a U.S. District Court within 90 days.

Plaintiff elected to file his civil complaint in this Court on June 27, 2019. (Doc. 4 at 6-7).

III. Analysis

A. Defendants’ Motion to Dismiss

It is clear that Plaintiff’s complaint is based wholly upon actions taken by the Office

of Personnel Management (“OPM”). On December 31, 2018, Plaintiff retired from the

Internal Revenue Service prior to a reduction-in-force resulting from the abolishment of

the Submission Processing unit at the Cincinnati Service Center. Plaintiff was over the

age of 62 at the time. (Doc. 13-1). Plaintiff alleges that the denial of the Special Annuity

Supplement to retirees like Plaintiff who were age 62 or older, constitutes age

discrimination.

In his administrative complaint, Plaintiff explicitly identifies OPM as the agency that

is responsible for the alleged discriminatory action. (Doc. 13-1 at 2). The Final Agency

Decision (“FAD”) rendered by the Department of Treasury’s Office of Civil Rights and

Diversity dismissed Plaintiff’s complaint on grounds that Plaintiff failed to sue the correct

Defendant. This Court concludes that Plaintiff has failed to state a claim as a matter of

law for the same reason.

The law is clear that Plaintiff may sue only the agency that actually discriminated

against him: here, OPM. See 29 C.F.R. § 1614.106(a). As stated in the FAD, and as

acknowledged by Plaintiff himself in his EEO complaint, OPM and not Plaintiff’s former

agency is the entity that controls Plaintiff’s retirement benefits, including but not limited to

FERS eligibility and/or supplemental annuity requirements. Only OPM has authority to

change those requirements. Plaintiff’s failure to sue OPM is grounds for dismissal by this

Court. See 29 C.F.R. § 1614.107(a)(1).5

Accepting all of the alleged facts as true, no cause of action or remedy exists as

to any of the three named Defendants. The complaint fails to allege any wrongdoing by

any individual, including the Secretary of the Department of Treasury. Plaintiff seeks a

remedy based upon his failure to receive a supplemental annuity upon his retirement.

However, by statute, an award of annuity benefits lies exclusively within the control of

OPM. See 5 U.S.C. § 8461(b). Congress created OPM to cover the field of federal

employee claims and benefits. Filebark v. U.S. Dept. of Transportation, 555 F.3d 1009,

1014 (D.C. Cir. 2009). Thus, as a matter of law, there is no possible remedy that either

the Secretary of the Treasury, or the U.S. Attorney, or the Attorney General could offer

Plaintiff. Accordingly, Plaintiff’s complaint must be dismissed for failure to state a claim.

In his opposition to dismissal, Plaintiff attempts to refute the contention that OPM

is the agency that has discriminated against him. Plaintiff now argues that OPM is only

the “administrator” and that it actually is his former employer, the Department of Treasury,

that offers the supplemental annuity as a benefit to its employees. In support of his new

position, Plaintiff asserts that the “amount of the annuity” is calculated for each retiree

only after the retiree completes a “special form” that is submitted to OPM to allow the

proper calculation to be made. (Doc. 20 at 2). According to Plaintiff, “[t]hat form is

controlled by the Benefit Specialist” working in the employing agency: the IRS in his case.

5Unlike Title VII and the Rehabilitation Act, federal employees with ADEA claims need not administratively

exhaust their claims prior to filing suit in this Court. See 29 U.S.C. § 633a(c); see also Langford v. U.S.

Army Corps. of Engineers, 839 F.2d 1192, 1195 (6th Cir. 1988).

(Doc. 20 at 2). Plaintiff asserts that he asked for the “special form” from the IRS Benefit

Specialist but “was denied it since I was over the age of 62.” (Doc. 20 at 3). Since his

supplemental annuity benefit allegedly could not be calculated by OPM without receipt of

the form from the IRS, Plaintiff concludes: “it is my contention that the Treasury

[Department] denied me an opportunity to get the [supplemental] annuity.”

Plaintiff’s argument is fatally flawed. Not only is Plaintiff’s argument wholly

unsupported by any authority and contradicted by his own complaint, it is directly refuted

by the statutory and case authority cited above. Plaintiff’s new argument also speaks

only to the logistical calculation of the “amount” of the annuity based upon a form he

alleges the IRS refused to provide to him. However, Plaintiff was not eligible to complete

the form based upon OPM regulations over which his employing agency has no authority.

Apart from naming the wrong Defendants, Plaintiff fails to state an age

discrimination claim as a matter of law because the Age Discrimination in Employment

Act specifically exempts from its provisions certain age-based pension eligibility

determinations, such as the determination challenged in this lawsuit. See, e.g., See 29

U.S.C. § 623(l)(1)(A)(ii) (excluding “social security supplements for plan participants that

commence before the age and terminate at the age (specified by the plan) when

participants are eligible to receive reduced or unreduced old-age insurance benefits under

title II of the Social Security Act (42 U.S.C. 401 et seq.), and that do not exceed such old-

age insurance benefits.”). In short, the ADEA clearly states that a defined benefit plan

which provides for payments that constitute a subsidized portion of an early retirement

benefit or provide a social security supplement that terminates when the participant

becomes eligible to receive reduced or unreduced old-age insurance benefits under title

II of the Social Security Act “shall not constitute age discrimination under the ADEA.” Id.;

see also generally, Kentucky Retirement Sys. v. EEOC, 554 U.S. 135, 144 (2008).

Last but not least, Secretary Mnuchen persuasively argues that this Court lacks

jurisdiction. Once jurisdiction has been challenged under Rule 12(b)(1), the plaintiff bears

the burden of proving the existence of jurisdiction. See Rogers v. Stratton Indus., 798

F.2d 913, 915 (6th Cir. 1986). Plaintiff’s complaint attempts to challenge a federal

retirement benefit that is regulated by OPM. See 5 U.S.C. § 8461(b). Statutory remedies

that fall outside of Title 5 and the Civil Service Reform Act may not be brought in any

forum except as specified within the Act. See, e.g., Elgin v. Dept. of Treasury, 567 U.S.

1, 5 (2012) (constitutional claim regarding personnel law barred); Fornaro v. James, 416

F.3d 63, 67 (D.C. Cir. 2005) (extra-statutory claim to annuity benefits via the

Administrative Procedures Act barred); Jones v. TCF Nat’l Bank, 2018 WL 4095036 (E.D.

Mich. Aug. 28, 2018) (FTCA claim for payment of disability benefits to a closed bank

account barred). The annuity at issue is administered by OPM and “may not be

supplemented by the recognition of additional rights to judicial review having their

resources outside the CSRA” but rather, must proceed first through the Merit Systems

Protection Board and thereafter to the Federal Circuit. Fornaro, 416 F.3d at 66.

In his opposition to dismissal, Plaintiff complains that his case should not be

dismissed since “creditable people, agencies, and such are all claiming that different

agencies have jurisdiction.” (Doc. 20 at 3). Plaintiff asserts that he was contacted by an

IRS employee concerning his administrative complaint who “got as I got that this was an

OPM matter.” (Id.) Attempting to explain why he filed suit against his former employer

even though he knew it was an “OPM matter,” Plaintiff states:

Since I was retired at the time of this filing and I had been informed by the

OPM that ‘all’ complaints now must go through that agency, I filed

accordingly. I also directly emailed the OPM…. Still getting no relief, and

told that I could file in Court against the Treasury Department, which I did,

duly showing the clerks at the time of filing the proper paperwork.

(Id.)

It is unclear what Plaintiff means when he states that he “filed accordingly” since

the only EEO complaint of record and the only complaint he has filed in this Court both

name the IRS (via the Secretary of the Treasury) and not OPM. Plaintiff asserts that he

“tried with the Treasury and the OPM which never denied that this is age discrimination,

just their own culpability.” (Doc. 20 at 4). Plaintiff has attached three emails to his

response in an apparent attempt to prove he contacted OPM. The emails cannot be

considered in the context of a Rule 12(b)(6) motion. However, to the extent that Plaintiff

is asserting a mistake or confusion, his error does not preclude dismissal.6

B. Plaintiff’s Motion for Immediate Finding in Favor of the Plaintiff

In support of Plaintiff’s own motion, construed as a motion for judgment in his favor,

Plaintiff complains first that the Assistant U.S. Attorney who has appeared in this case

failed to file a waiver proving that Defendant Steven Mnuchen has waived any conflict of

6If Plaintiff’s evidentiary exhibits were to be considered under Rule 56, judgment would still be granted in

Defendants’ favor. The first email from an IRS employee dated April 6, 2019 clearly explains that the IRS

has “no say or control over your retirement benefits or your eligibility for the Supplemental Security Annuity,”

because the “rules were determined by OPM and all federal agencies are subject to OPM’s regulations and

policies.” (Doc. 20 at 7). The email further states that “The IRS may not be the proper venue for your

complaint, because the IRS did not create or regulate the policy regarding retirement and the Supplemental

Annuity. You may need to contact/challenge OPM.” In response, Plaintiff appears to have sent an email

on April 7, 2019 to the address of retire@opm.gov that expresses Plaintiff’s “wish that you please consider

granting me the annuity,” and his intention to file a “formal complaint…soon.” The third email dated April

10, 2019 is presumed to be OPM’s response to Plaintiff’s email. The OPM email does not contain any

specific reference to Plaintiff or to the annuity. Instead, the email contains standard general advice such

as to “contact your current personnel office for information about retirement issues,” or “your headquarters

retirement counselor” if the local office is unable to help. The email also reiterates that OPM “has

Government wide responsibility and oversight for Federal benefits administration” and encourages retirees

to “contact our office” if any other assistance is needed.

interest. Based on alleged conflicts of interest, Plaintiff argues that counsel is precluded

from appearing. Plaintiff maintains that the answer and the motion to dismiss are both

“inadmissible.” (Doc. 16 at 2). The undersigned declines to strike the answer or pending

motion on this basis.

In addition, Plaintiff contends that neither the U.S. Attorney nor the Attorney

General have submitted any defense, such that this Court must find in Plaintiff’s favor as

to those two Defendants. As noted above, see n. 2, the docket reflects that the answer

and motion to dismiss were filed on behalf of all three Defendants, notwithstanding a

discrepancy in the text that suggests representation only of Defendant Secretary of the

Department of Treasury. However, even if a default had been entered under Rule 55(a)

against the U.S. Attorney and Attorney General for failure to appear, no default judgment

could be entered under Rule 55(b), Fed. R. Civ. P., based upon the failure of the complaint

to state any claim as a matter of law.

IV. Conclusion and Order

For the reasons stated, IT IS ORDERED THAT Plaintiff’s construed motion for

judgment (Doc. 16) be DENIED, that Defendants’ Motion to Dismiss (Doc. 15) be

GRANTED and that this case be dismissed.

s/ Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge