                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
_____________________________
                               )
STANLEY A. FERGUSON,           )
                               )
          Plaintiff,           )
                               )
          v.                   )    Civil Action No. 10-2113 (RWR)
                               )
GREGORY T. LONG, et al.,       )
                               )
          Defendants.          )
_____________________________ )

                        MEMORANDUM OPINION

     This case stemmed from a perfect storm of missteps on both

sides, with most of them occurring in the bureaucracy responsible

for the Thrift Savings Plan (“TSP”).   The result is that the

undisputed last wishes of a federal employee who relied upon the

repeated assurances of the bureaucracy that her husband would be

her beneficiary for a $287,000 TSP account will be wholly

dishonored.   It is a sad result for the surviving spouse of

12 years and a blot on the record of the TSP program.

     Plaintiff Stanley Ferguson filed this complaint seeking an

order directing the Federal Retirement Thrift Investment Board

(“the Board”) to provide him with the proceeds of a Thrift

Savings Plan (“TSP”) account belonging to Ferguson’s deceased

wife, Tanya Ferguson.   Gregory Long, the executive director of

the Board, has moved under Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6) to dismiss, or alternatively for summary
                                  -2-

judgment, arguing that Stanley1 is not a legal beneficiary with

standing to bring a claim for TSP benefits.2    Because the facts

are not in dispute and Stanley is not entitled to bring a claim

for his deceased wife’s TSP benefits, the complaint will be

dismissed for lack of subject matter jurisdiction.

                            BACKGROUND

     In October 1993, Tanya, an employee of the U.S. Department

of the Treasury, participated in the TSP and properly filed with

her employer a valid designation of beneficiary form (“TSP-3

form”) designating as her beneficiaries her father, defendant

Harold Koch, and defendant Marissa Shunn.3     (Def. Long’s Mem. in

Supp. of Mot. to Dismiss (“Def.’s Mem.”), Ex. A.)4     The Board

later changed its regulations to require that TSP-3 forms be

filed directly with the Board rather than with the participants’

employers.   Thus, in 1998, the Board directed Treasury and other

participating agencies to forward to the Board all TSP-3 forms

employees had previously filed.    Treasury did not do so with


     1
       The Fergusons’ first names will be used for ease of
identification.
     2
       Defendant Marissa Shunn also has moved to dismiss the
complaint. Because resolution of Long’s motion disposes of the
case, Shunn’s motion need not be addressed.
     3
       According to the Board, at the end of business on April 1,
2011, Tanya’s TSP account balance was $287,347.82. (Def.’s Mem.
in Supp. of Mot. to Dismiss, at 4.)
     4
       Stanley does not dispute the facts set forth in the
Board’s motion to dismiss. (Pl.’s Opp’n at 1.)
                                  -3-

Tanya’s form for over 12 years.    (Def.’s Mem. at 3 & n.2.)    As a

consequence, the TSP annual statement that the Board sent to

Tanya erroneously declared in January of each calendar year from

and before 2007 through 2010: “You have not designated a

beneficiary.    Upon your death, your TSP account will be paid[] to

your surviving spouse[.]”    (Compl. ¶¶ 9-10, 12, 14.)   Each annual

statement also asked: “Please review this statement for accuracy,

as the information in it is considered correct unless you notify

us.”    (Id.; Pl.’s Mem. of P. & A. in Opp. to Mots. to Dis.

(“Pl.’s Mem.”), Exs. 1, 2.)    Tanya apparently reported no errors.

       Stanley and Tanya were married in January 1998, over four

years after she filed the TSP-3 form.    (Compl. ¶ 7.)   Treasury,

twelve years late, mailed a copy of Tanya’s 1993 TSP-3 form to

the Board in May 2010.    (Def.’s Mem. at 3.)   That triggered a

string of events.    The TSP-3 form reflected Tanya’s last name

in 1993 (Koch).    The last name reflected on her TSP account

in 2010, though, was her married name (Ferguson).     Thus, the

Board sent Tanya a letter dated May 26, 2010 stating it had

received her TSP-3 Designation of Beneficiary form, but it could

not process the form.    It explained that “[t]he participant’s

name on [the form did] not match the name on the TSP account[.]”

(Pl.’s Mem., Ex. 3.)    The letter further stated that “if you do

not have a form TSP-3 on file, death benefits will be paid

according to the statutory order of precedence[,]” which,
                                    -4-

according to the previous TSP annual statements, would be her

surviving spouse.       (Compl. ¶¶ 12-14.)

       Tanya, of course, had not sent the Board any designation of

beneficiary form.       She feared that someone had stolen her

identity and was trying to steal her TSP funds by sending in a

change of beneficiary form.       (Pl.’s Mem., Ex. 4 at 3:11-15,

6:7-13.)       Tanya promptly telephoned a participant services

representative (“PSR”) of the Board on June 2, 2010.       The PSR

explained that the Board had just received Tanya’s October 1993

TSP-3 form and was notifying her why it was being rejected and

would not be processed.       Tanya asked who her current beneficiary

was.       The PSR erroneously declared that Tanya did not have a

beneficiary listed for her account, and confirmed that the

proceeds of her account would be paid to Stanley as her surviving

spouse if she died.       In discussing the question of the most

current designation of beneficiary form, Tanya said “I did one

that just said ‘Cancel all,’ so that that would just make it be

my spouse.”5      The PSR told Tanya, erroneously, that since the

form the Board had just received would not be processed, “you

don't need to worry about that.”       (Id. at 3:16-19; 4:2-13;

5:19-6:6; Compl. ¶¶ 15-16.)       So, she didn’t, even though the



       5
       The Board asserts after conducting a thorough search, and
the plaintiff does not contest, that no record of such a
designation of beneficiary form filed by Tanya exists. (See
Joint Supp. Memorandum at 1-2.)
                                -5-

Board’s May 26, 2010 letter advised her “[t]o ensure that death

benefits are paid in a timely manner and in accordance with your

current wishes, you should resubmit a corrected form TSP-3,

Designation of Beneficiary.”   (Pl.’s Mem., Ex. 3.)   In fact, the

Board did match the 1993 form’s other identifying information

with Tanya’s TSP account and, without notifying Tanya, did

process the 1993 form and recognize it as valid.

     Tanya passed away three weeks later.    (Compl. ¶ 7.)    Stanley

filed a claim for Tanya’s TSP account funds.    (Id. ¶ 18.)

In August 2010, the Board notified Stanley that Tanya in fact did

have a valid TSP-3 form in her file, and that the Board would

provide the proceeds of her account to Shunn and Koch, her

designated beneficiaries.   (Id. ¶ 17.)   Stanley protested the

denial of his claim, and the Board rejected Stanley’s protest.

(Id.. ¶¶ 18-20.)

     Stanley filed this action seeking an order prohibiting the

Board from disbursing the proceeds of Tanya’s account to Shunn

and Koch, and directing the Board to pay the proceeds of the

account to Stanley.6   The Board has moved to dismiss, arguing

that the complaint failed to allege sufficiently a waiver of




     6
       Stanley’s complaint does not allege a statutory or common
law basis for his cause of action, but his opposition to Long’s
motion to dismiss or for summary judgment asserts that 5 U.S.C.
§ 8477(e)(3)(B)(ii) and (C) allows him to file this action as a
“beneficiary” of Tanya’s TSP. (Pl.’s Opp’n at 7-8.)
                                   -6-

sovereign immunity because Stanley is not a designated

beneficiary.    Stanley opposes.

                             DISCUSSION

     Under Rule 12(b)(1), a defendant may move to dismiss a

complaint for lack of subject-matter jurisdiction.      Fed. R. Civ.

P. 12(b)(1).    “‘Before a court may address the merits of a

complaint, it must assure that it has jurisdiction to entertain

the claims.’”    Sierra Club v. U.S. Environmental Protection

Agency, Civil Action No. 08-424 (RWR), 2012 WL 1008680, at *2

(D.D.C. March 27, 2012) (quoting Cornish v. Dudas, 715 F. Supp.

2d 56, 60 (D.D.C. 2010) (internal quotation omitted)).      “A

plaintiff bears the burden to establish that the court has

subject matter jurisdiction over the claims in the complaint.”

Sierra Club, 2012 WL 1008680, at *2 (citing Shuler v. United

States, 531 F.3d 930, 932 (D.C. Cir. 2008).      “If the plaintiff

fails to do so, the court must dismiss the action.”      Sierra Club,

2012 WL 1008680, at *2 (citing Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 94 (1998) (citing Ex parte McCardle, 74 U.S.

506, 514 (1868))).    “‘Because subject-matter jurisdiction focuses

on the court’s power to hear the claim, however, the court must

give the plaintiff's factual allegations closer scrutiny when

resolving a Rule 12(b)(1) motion.’”      Nat’l Treasury Employees

Union v. Whipple, 636 F. Supp. 2d 63, 68 (D.D.C. 2009) (quoting

Jin v. Ministry of State Sec., 475 F. Supp. 2d 54, 60 (D.D.C.
                                -7-

2007)).   “The court may look beyond the complaint, but ‘must

accept as true the allegations in the complaint and consider the

factual allegations of the complaint in the light most favorable

to the non-moving party.’”   Whipple, 636 F. Supp. 2d at 68-69

(quoting Short v. Chertoff, 526 F. Supp. 2d 37, 41 (D.D.C.

2007)).

     “‘[S]overeign immunity is jurisdictional’ and ‘[a]bsent a

waiver, . . . shields the Federal Government and its agencies

from suit.’”   Cohen v. United States, 650 F.3d 717, 723

(D.C. Cir. 2011) (quoting FDIC v. Meyer, 510 U.S. 471, 475 (1994)

(citing Loeffler v. Frank, 486 U.S. 549, 554 (1988), and Federal

Housing Administration v. Burr, 309 U.S. 242, 244 (1940))).     “‘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.’”   Bloch v. United States Census Bureau, 754 F.

Supp. 2d 15, 17 (D.D.C. 2010) (quoting United States v. Mitchell,

463 U.S. 206, 212 (1983)).

     Long argues that Stanley failed to allege a viable waiver of

sovereign immunity.   According to Long, to the extent that

Stanley has alleged that the Federal Employees Retirement Systems

Act (“FERSA”) waives the Board’s sovereign immunity, that waiver

applies in limited circumstances only -- circumstances that

Stanley’s complaint fails to allege.   The statute that

purportedly provides the waiver of sovereign immunity in this
                                  -8-

case provides, in relevant part, that a “civil action may be

brought in the district courts of the United States . . . by any

participant or beneficiary . . . to recover benefits of such

participant or beneficiary . . . , to enforce any right of such

participant or beneficiary under such provisions, or to clarify

any such right to future benefits under such provisions[.]”

5 U.S.C. § 8477(e)(3)(C).   Long argues that Stanley is neither a

beneficiary nor a participant, and therefore is unable to bring

this action under that section.

     The FERSA defines beneficiary as “an individual (other than

a participant) entitled to payment from the Thrift Savings Fund

under subchapter III of this chapter [5 U.S.C. §§ 8431-8440f.]”

5 U.S.C. § 8471(1).   An employee or member designates a

beneficiary by having a “signed and witnessed writing” submitted

to the Board’s Office before the participant’s death.   5 U.S.C.

§ 8424(d).   Under § 8424(d), benefits “shall be paid to the

individual or individuals surviving the employee or Member and

alive at the date title to the payment arises in the following

order of precedence, and the payment bars recovery by any other

individual: First, to the beneficiary or beneficiaries designated

by the employee or Member in a signed and witnessed writing[.]”

5 U.S.C. § 8424(d).   If an employee or member dies “with no

designated beneficiary and is survived by a spouse, the spouse

may maintain the portion of the . . . account to which the spouse
                                  -9-

is entitled[.]”   5 U.S.C. § 8433(e)(2); see also 5 U.S.C.

§ 8424(d).

     Here, it is undisputed that the 1993 TSP-3 form designating

Shunn and Koch as beneficiaries was properly signed, witnessed

and received by the Board before Tanya’s death.7   Stanley argues

that he too should be considered a beneficiary, because he would

be entitled to payment but for the Board’s assertions that Tanya

did not have an active designation of beneficiary form on file.

He argues that the doctrine of equitable estoppel should be

applied against the Board to preclude its decision to award the

proceeds of the account to Shunn and Koch.

     “Estoppel is an equitable doctrine invoked to avoid

injustice in particular cases.”    Heckler v. Cmty. Health Svces.,

467 U.S. 51, 59 (1984).   “A party attempting to apply equitable

estoppel against the government must show that ‘(1) there was a

definite representation to the party claiming estoppel, (2) the

party relied on its adversary’s conduct in such a manner as to

change his position for the worse, (3) the party’s reliance was

reasonable[,] and (4) the government engaged in affirmative

misconduct.’”   Keating v. FERC, 569 F.3d 427, 434 (D.C. Cir.

2009) (quoting Morris Communic’ns, Inc. v. FCC, 566 F.3d 184, 189

(D.C. Cir. 2009)).   The application of equitable estoppel against



     7
       See Pl.’s Mem. at 11 (conceding that the 1993 TSP-3 form
is valid).
                               -10-

“the government must be rigid and sparing.”   ATC Petroleum Inc.

v. Sanders, 860 F.2d 1104, 1111 (D.C. Cir. 1988); see also Int’l

Union v. Clark, Civil Action No. 02-1484 (GK), 2006 WL 2598046,

at *12 (D.D.C. Sept. 11, 2006) (stating that “[t]here is a clear

presumption in this Circuit against invoking the [estoppel]

doctrine against government actors in any but the most extreme

circumstances”).

     The Board notes that it made no misleading communications

directly to Stanley.   The annual statements indicating that Tanya

had not designated a beneficiary were sent to Tanya, not Stanley.

The telephone call containing the inaccurate information about

Tanya’s TSP-3 was between a PSR and Tanya, not Stanley.   The

Board thus notes that Stanley cannot claim that he changed his

position for the worse based on any direct communication from the

Board, and that only Tanya, not he, could have changed his

putative beneficiary position one way or the other.   But with

nary an apology for the bureaucracy's bungling, the Board makes

the breezy claims that Tanya’s reliance on what the Board told

her was unreasonable, and that she did not act diligently.    It is

difficult to fathom how more diligently one could have responded

to a Board letter mailed on May 26 than to have called the Board

on June 2.   It is even harder to imagine why a reasonable person

should have distrusted annual written declarations from the Board

throughout the twelve years of her marriage - - confirmed orally
                               -11-

by a Board representative - - that her spouse would receive her

account proceeds upon her death.   There was nothing in those

declarations about which Tanya needed to take any diligent

action.

      The difficulty here is that Stanley cites to no precedent in

which a court estopped the Board from paying TSP death benefits

to a person identified in a valid TSP-3 form as a beneficiary and

directed the Board to pay the benefits to someone else.   Office

of Personnel Management v. Richmond, 496 U.S. 414, 424 (1990),

recognizes the command of the Appropriations Clause of the

Constitution that no money may be paid from the Treasury except

as authorized by Congress.   It seems equally true that no money

may be paid from federal employee savings funds established by

Congress except as authorized by Congress.   “[J]udicial use of

the equitable doctrine of estoppel cannot grant [plaintiff] a

money remedy that Congress has not authorized.   See INS v.

Pangilinan, 486 U.S. 875, 883 (1988) (‘Courts of equity can no

more disregard statutory and constitutional requirements and

provisions than can courts of law’).”   Id. at 426.   Stanley has

presented no evidence that Congress has by law vested in the

Board the discretion to make distributions contrary to valid

TSP-3 forms where the Board is satisfied that the equities demand

it.   Cf. Richmond, 496 U.S. at 429 (citing Congressional act

granting the HHS secretary the discretion to waive a statutory
                                -12-

application deadline missed by an applicant because of

misinformation provided by an HHS employee).

     Indeed, it would be most anomalous for a judicial order
     to require a Government official, such as the officers
     of OPM, to make an extrastatutory payment of federal
     funds. It is a federal crime, punishable by fine and
     imprisonment, for any Government officer or employee to
     knowingly spend money in excess of that appropriated by
     Congress. See 31 U.S.C. §§ 1341, 1350. If an
     executive officer on his own initiative had decided
     that, in fairness, [plaintiff] should receive benefits
     despite the statutory bar, the official would risk
     prosecution. That [plaintiff] now seeks a court order
     to effect the same result serves to highlight the
     weakness and novelty of his claim. The whole history
     and practice with respect to claims against the United
     States reveals the impossibility of an estoppel claim
     for money in violation of a statute.”

Richmond, 496 U.S. at 430.   Even if his estoppel claim were

possible, Stanley has presented no authority demonstrating that

the bureaucratic bungling that occurred here rises to the level

of affirmative misconduct.

                             CONCLUSION

     Sadly for him, Stanley has not demonstrated that he has

standing as a beneficiary of Tanya’s plan who would be entitled

to bring an action against the Board under FERSA, nor has he

shown that the principles of equitable estoppel can apply in this

case to make him a beneficiary.   Therefore, Stanley has not

established a waiver of sovereign immunity for the claim he

raises, and this case will be dismissed for lack of subject

matter jurisdiction.   An appropriate final order accompanies this

memorandum opinion.
                         -13-

SIGNED this 16th day of August, 2012.



                                  /s/
                          RICHARD W. ROBERTS
                          United States District Judge
