                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


BERNICE ALSTON,

        Plaintiff,
               v.                                         Civil Action No. 12-1038 (JEB)
JACOB J. LEW, SECRETARY OF THE
UNITED STATES DEPARTMENT OF
TREASURY,

       Defendant.


                                 MEMORANDUM OPINION

       In 2011, Plaintiff Bernice Alston sought the U.S. Department of Treasury’s review of the

denial of retirement benefits she believed she had earned while employed by the District of

Columbia Public Schools from 1970 to 1976. Specifically, she challenged a determination by

the District of Columbia Retirement Board – an independent agency responsible for managing

the assets of District retirement funds – that because she had applied for and received a refund of

$2,458.96 after leaving DCPS, she was ineligible for further benefits. Treasury denied her

appeal, finding that the records upon which the Board had based its determination were reliable.

Dissatisfied with Treasury’s decision, Alston filed this suit, and both parties have now cross-

moved for summary judgment. Because Treasury’s denial of Alston’s appeal was not arbitrary

or capricious, the Court will grant Defendant’s Motion and deny Plaintiff’s.

I.     Background

       Employees of DCPS can participate in the District of Columbia Teachers’ Retirement

Plan, overseen by the Federal Government and the District of Columbia. See Balanced Budget

Act of 1997, Pub. L. No. 105-33, 111 Stat. 251. The U.S. Department of Treasury is responsible


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for funding Plan benefits based on service performed on or before June 30, 1997, see D.C. Code

§ 1-701, et seq., while the District Government administers the Plan through the District of

Columbia Retirement Board. See BBA § 11041; D.C. Code § 1-809.01. If a Plan participant has

been denied benefits, she may request reconsideration from the DCRB. See 31 C.F.R. §

29.404(b)-(d). Additionally, if the benefits were earned prior to 1997, an individual whose claim

has been denied by the DCRB may appeal that decision to the Department of Treasury. Id. §

29.405. Treasury’s decision represents a final agency action, and a party may seek judicial

review of that decision by filing suit in this District. See BBA §§ 11022, 11071-11072; D.C.

Code § 1-805.02.

       Moving to the particulars of Alston’s case, the Court notes that, unless otherwise

specified, the facts set forth herein are undisputed and are drawn from the parties’ Statements of

Material Facts submitted pursuant to Local Civil Rule 7(h). From July 1, 1970, until her

resignation in January 12, 1976, Plaintiff was an employee of DCPS. See Defendant’s Statement

of Material Facts (SMF), ¶¶ 1-2. On March 22, 1978, she was re-hired by DCPS, and she

continued to work there until November 17, 1996, when she resigned pursuant to a reduction in

force. See id., ¶ 6. During both periods of employment, Alston made contributions to the Plan.

See Pl.’s SMF, ¶ 2. Subsequent to her employment at DCPS, Alston was hired by the National

Aeronautics and Space Administration, where she worked until she retired on September 2,

2010. See Def.’s SMF, ¶ 7.

       Upon her retirement, Alston discovered that her benefits package did not include

contributions she had made to the Plan from 1970 through 1976. See Pl.’s SMF, ¶ 6. When she

sought to remedy this, she was informed by the DCRB that those benefits had been excluded

because she had received a refund of $2,548.96 in Plan contributions on March 24, 1976, after



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she left DCPS. See id., ¶ 7. Plaintiff denied ever applying for or receiving this refund. See id.,

¶ 8.

       Because more than thirty years had passed since the refund was issued, only two records

documenting the refund could be located. The first, the Individual Retirement Record (Form

FA-103) notes that Alston applied for a refund that was “paid on voucher 110212 dtd 3/24/76.”

Administrative Record (A.R.) 0013. The second, Alston’s Separation Retain Record (Form DA-

33) documents a $2,548.96 credit, stating, “Appl for refund paid on voucher 110212 dtd

3/24/76”). See A.R. 0014. Both forms were maintained in the ordinary course of business

pursuant to the District’s processing of employee retirement-contribution refunds. See

A.R. 0003-0004. Neither form was signed or provided any other information regarding the

refund beyond the voucher number and date. See A.R. 0013-0014. The District, moreover, was

unable to locate any further documentation, such as the voucher itself or the canceled check. See

A.R. 0004. According to the District, this was because the documents date from “over thirty

years ago[, and they] would have been destroyed as the District requirements for payroll and

financial records that pertain to disbursement only require a retention period of 4 to 7 years.”

See Def.’s SMF, ¶ 5 (citing A.R. 0015). It further explained that the two records it had located,

Forms DA-33 and FA-103, are “hard cards that are easier to maintain than paper files and thus

have been retained.” See id.

       On June 2, 2011, the Board responded to Alston’s inquiry requesting an “investigation”

into the voucher and refund. See id., ¶¶ 8-9. It explained that it had conducted a search of its

records and that no additional documentation surrounding the voucher or the refund existed; it

nonetheless concluded, however, that her contributions had been refunded based on the available

documentation and the practices of the agency at the time. See id., ¶ 9. Alston appealed that



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decision by a letter dated June 6, 2011, to Treasury’s Office of D.C. Pensions. See id., ¶ 10. On

February 1, 2012, Treasury denied that appeal. See A.R. 0002-0016 (Treasury Decision).

Having conducted “a comprehensive review of the facts and the statutory language of the Plan,”

Treasury concluded: “According to Plan records, your employee contributions to the Plan of

$2,548.96 during this period were already refunded to you on March 24, 1976, and you have

failed to provide a sufficient basis on which to overcome the presumption of regularity accorded

to the District’s actions and recordkeeping.” A.R. 0002. The letter set forth the undisputed facts

that were relevant to her appeal, the procedural history surrounding the Board’s decision, and an

explanation of Treasury’s decision to deny Alston’s appeal. See A.R. 0002-0005. The letter

further noted that the decision was a final agency action and that Alston had the right to seek

judicial review of that decision. See A.R. 0004.

II.    Legal Standard

       Summary judgment may be granted if “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the

substantive outcome of the litigation. Holcomb, 433 F.3d at 895; Liberty Lobby, Inc., 477 U.S.

at 248. A dispute is “genuine” if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby,

Inc., 477 U.S. at 248; Holcomb, 433 F.3d at 895.

       In a case involving review of a final agency action under the APA, however, the standard

set forth in Rule 56(c) does not apply because of the limited role of a court in reviewing the

administrative record. See Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89-90 (D.D.C. 2006)



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(citing Nat’l Wilderness Inst. v. United States Army Corps of Eng’rs, 2005 WL 691775, at *7

(D.D.C. 2005); Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995), amended on

other grounds, 967 F. Supp. 6 (D.D.C. 1997)). “[T]he function of the district court is to

determine whether or not as a matter of law the evidence in the administrative record permitted

the agency to make the decision it did.” Id. (internal citations omitted). Summary judgment thus

serves as the mechanism for deciding, as a matter of law, whether the agency action is supported

by the administrative record and otherwise consistent with the APA standard of review. See

Richards v. INS, 554 F.2d 1173, 1177 (D.C. Cir. 1977), cited in Bloch v. Powell, 227 F. Supp.

2d 25, 31 (D.D.C. 2002), aff’d, 348 F.3d 1060 (D.C. Cir. 2003).

       The Administrative Procedure Act “sets forth the full extent of judicial authority to

review executive agency action for procedural correctness.” FCC v. Fox Television Stations,

Inc., 556 U.S. 502, 513 (2009). It requires courts to “hold unlawful and set aside agency action,

findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law.” 5 U.S.C. § 706(2)(A). This is a “narrow” standard of review as courts

defer to the agency’s expertise. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 43 (1983). An agency is required to “examine the relevant data and

articulate a satisfactory explanation for its action including a rational connection between the

facts found and the choice made.” Id. (internal quotation omitted). The reviewing court “is not

to substitute its judgment for that of the agency.” Id. Nevertheless, a decision that is not fully

explained may be upheld “if the agency’s path may reasonably be discerned.” Bowman Transp.,

Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974).




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III.   Analysis

       The sole question that Alston raises here is whether Treasury’s denial of her appeal was

arbitrary and capricious. See Pl.’s Reply at 1-4. While acknowledging the deferential standard

for this Court’s review, Plaintiff nonetheless disputes the sufficiency of the record Treasury

relied on in determining that the retirement contributions had been refunded to her. See id. at 1-

2. Finding that Defendant examined the relevant facts and articulated a rational connection

between those facts and its conclusion in its February 1, 2012, decision, the Court must side with

Treasury here.

       In its four-page Decision Letter, Treasury began its analysis by setting forth the

undisputed facts surrounding Alston’s refund claim and its procedural history, then reviewed the

Board’s June 2, 2011, decision. See A.R. 0002-0003. In so doing, Treasury “reviewed the

correspondence between [Alston] and DCRB, [the Office of D.C. Pensions], and [the District’s

Office of Pay and Retirement Services]; relevant documents that are contained in [Alston’s] file;

and the applicable statutory provisions and Plan documents.” It ultimately concluded that Alston

had

                 failed to demonstrate that you were not issued a refund of
                 employee contributions to the Plan during the period of 1970-1976.
                 The Plan records, used in the ordinary course of business, reflect
                 that a refund of contributions in the amount of $2,548.96 was
                 issued to you on March 24, 1976. Specifically, DCRB has
                 produced your Form FA 103, dated 3/24/76 (Exhibit 4), the
                 document used in the ordinary course of business in processing a
                 District employee’s refund of retirement contributions, that was
                 utilized by the benefit administrator at the time, the District’s
                 Office of Budget and Financial Management. Form DA-33, also
                 dated 3/24/76, further reflects your application for and payment for
                 a refund of this amount. (Exhibit 5).

A.R. 0003-04.




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        Treasury, moreover, expressly addressed the specific challenges that Alston re-asserts

here:

               On appeal, you assert that DCRB’s decision is based on
               insufficient records – namely, you state that the 3/24/76 voucher
               reflecting a refund of contributions “is absent any type of signature
               or initials for approval, validation or certification.” The absence of
               initials or a signature on the Form DA 33 is an insufficient basis on
               which to grant your appeal. As the Federal Circuit noted in Butler
               v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001), public officials
               are entitled to a “presumption of regularity” in the performance of
               their official duties, and in the absence of clear evidence to the
               contrary, the doctrine presumes that these duties have been
               properly discharged. At your request, the District and DCRB
               conducted an exhaustive search of their records and determined
               that no additional records exist that relate to your refund beyond
               those discussed above. As OPRS noted in its November 10, 2011
               letter to you, these records would have been over 30 years old, and
               have been destroyed in accordance with the mandatory retention
               period applicable at that time. (Exhibit 6). Because the existing
               records of the District and DCRB, maintained in the ordinary
               course of business, reflect that a refund of contributions was in fact
               issued to you, the burden shifts to you to provide evidence that you
               did not receive a refund in this amount. The absence of a signature
               on the forms is not sufficient to overcome the presumption of
               regularity accorded to the government’s actions.

               You further question the validity of the refund forms discussed
               above on the basis that your service computation has historically
               included the years of service from 1970-76. However, the
               computation of service has no relationship to the issuance of a
               refund of contributions. In either case, your employment by DCPS
               from 1970-76 would have been included in a computation of your
               service time.

A.R. 0004.

        While Alston continues to disagree with Treasury’s conclusion, she cannot show that its

decision was arbitrary or capricious. In its review, Treasury relied on the facts in the record –

both the facts specific to Alston’s refund and to the agency’s practices and procedures for

processing such refunds – and “articulate[d] a satisfactory explanation for its action including a



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rational connection between the facts found and the choice made.” Motor Vehicle Mfrs.

Ass’n, 463 U.S. at 43 (internal quotation omitted). This Court, in fact, would come to the same

conclusion even if conducting de novo review. Strong support for the Treasury’s decision lies in

the two documents that the Board was able to locate. These two hard cards contain very specific

information – namely, particular voucher numbers and actual dates on which they were issued.

The information on the two cards, moreover, was consistent. Based on the practices of the

District in processing requests for refunds at the time, Treasury sensibly determined that the

refund had been issued.

       In so concluding, Treasury found that the government was entitled to a “presumption of

regularity” in the performance of its official duties and that the “absence of a signature on the

forms is not sufficient to overcome the presumption of regularity accorded to the government’s

actions.” A.R. 0004 (citing Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001)). In

describing this presumption, the D.C. Circuit has held that “[w]hile not irrebuttable, this

presumption may only be rebutted through clear or specific evidence. ‘The presumption of

regularity supports the official acts of public officers and, in the absence of clear evidence to the

contrary, courts presume that they have properly discharged their official duties.’” Riggs Nat’l

Corp. & Subsidiaries v. Comm’r, 295 F.3d 16, 21 (D.C. Cir. 2002) (quoting United States v.

Chem. Found., 272 U.S. 1, 14-15 (1926)). The Circuit in Riggs ruled against the party who

sought to rebut the presumption by arguing that “inconsistencies in documents . . . call[ed] into

question the accuracy” of the challenged documents, finding that the inconsistencies were not

“clear evidence of anything.” Id. (internal quotations omitted).

       The “evidence” here is even less persuasive. Alston has offered nothing to call into

question Treasury’s reliance on the presumption of regularity; instead, she merely contends that



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because other employees have raised similar concerns, the Court should find that there are

sufficient “administrative problems” to rebut the presumption that the District complied with its

own procedures in processing refunds. See Pl.’s Reply at 4. Such speculation, however, is not

sufficient evidence to rebut the presumption. It was reasonable, moreover, for Treasury to

conclude that the absence of additional records did not create sufficient doubt about the refund,

as the particular records were more than thirty years old and would not have been retained

pursuant to the agency’s document-retention policies.

       Because Treasury’s decision was not “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law,” this Court cannot disturb it. 5 U.S.C. § 706(2)(A).

IV. Conclusion

       For the foregoing reasons, the Court will grant Defendant’s Motion for Summary

Judgment and deny Plaintiff’s. A separate Order consistent with this Opinion will issue this day.

                                                     /s/ James E. Boasberg
                                                     JAMES E. BOASBERG
                                                     United States District Judge
Date: June 19, 2013




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