                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

    CAI-YEN FIRESTONE,
                Plaintiff,
           v.
                                                             Civil Action No. 16-1810 (CKK)
    FEDERAL RETIREMENT THRIFT
    INVESTMENT BOARD, et al.,
                Defendants.

                                    MEMORANDUM OPINION
                                       (March 25, 2019)

          Plaintiff Cai-Yen Firestone alleges that she is the designated beneficiary of a Thrift Savings

Plan (“TSP”) account containing retirements benefits accrued by her now-deceased brother,

Bernard Hsieh. But because Mrs. Firestone cannot show that Mr. Hsieh effectively designated her

prior to his death, she is unable to prevail. Mr. Hsieh’s surviving spouse, Defendant Melissa Wang,

shall receive the proceeds of his TSP account pursuant to the statutory order of precedence. 1

          Upon consideration of the pleadings, 2 the relevant legal authorities, and the record as a

whole, the Court GRANTS Mrs. Wang’s [29] Motion to Dismiss or, in the Alternative, for



1
 As the record reflects that both Plaintiff Firestone and Defendant Wang are, at least as of Mr.
Hsieh’s death, married, the Court refers to each by the married honorific.
2
    The Court’s consideration has focused on the following documents:
      •   Def. Wang’s Mem. of P&A in Supp. of Mot. to Dismiss or, in the Alternative, for Summ.
          J., ECF No. 29-1 (“Wang’s Mem.”); Pl.’s Opp’n to Def. Melissa Wang’s Mot. to Dismiss
          or in the Alternative Mot. for Summ. J., ECF No. 31 (“Pl.’s Opp’n to Wang’s Mot.”); Def.
          Wang’s Reply to Pl.’s Opp’n to Def. Wang’s Mot. to Dismiss/for Summ. J., ECF No. 32
          (“Wang’s Reply”); and

      •   Mem. in Supp. of Mot. to Dismiss or, Alternatively, for Summ. J., ECF No. 30 (“FRTIB’s
          Mem.”); Pl.’s Opp’n to Defs. FRTIB’s and TSP’s Mot. to Dismiss or, in the Alternative,
          Mot. for Summ. J., ECF No. 33 (“Pl.’s Opp’n to FRTIB’s Mem.”); and Federal Thrift [sic]
          Investment Board’s and Thrift Savings Plan’s Reply in Supp. of Their Mot. to Dismiss, or,
          in the Alternative, for Summ. J., ECF No. 34 (“FRTIB’s Reply”).
Summary Judgment, and GRANTS Defendants Federal Retirement Thrift Investment Board’s

(“FRTIB”) and TSP’s 3 [30] Motion to Dismiss, or, in the Alternative, for Summary Judgment.

                                       I. BACKGROUND

       To summarize the few relevant factual allegations, the Court shall rely on the [17] Amended

Complaint, as supplemented by the record where the Court indicates.

       While he was battling cancer, Bernard Hsieh prepared and submitted a Form TSP-3 to

FRTIB and TSP that purported to designate one of his sisters, Mrs. Firestone, as the 100%

beneficiary of his TSP account numbered 6801147154539. Am. Compl., ECF No. 17 (“Am.

Compl.”), ¶¶ 7, 8 10, 11. Mrs. Firestone alleges that the form was “properly signed and dated” on

November 5, 2015, by not only Mr. Hsieh but also his two witnesses. Id. ¶ 10. A copy of the

operative portion of Mr. Hsieh’s Form TSP-3 is in the record and, with one exception, it

undisputedly supports her contention. Pl.’s Opp’n to FRTIB’s Mot., Ex. 5, ECF No. 33-5 (“Hsieh

TSP-3”). 4 Although the parties dispute the significance of that exception, they do not dispute that

Carolan Bontje, one of Mr. Hsieh’s two witnesses, did not add a date to the blocks above the

language, “Date Signed (mm/dd/yyyy),” next to her signature on the first page of his Form TSP-3.

Id.; see also, e.g., [FRTIB’s] Stmt. of Material Facts as to Which There Is No Genuine Dispute,



3
  It is not clear that TSP is itself an entity subject to suit. See FRTIB’s Mem. at 2 (describing
relationship of FRTIB and TSP); Hewitt v. Thrift Saving [sic] Plan, 664 F. Supp. 2d 529, 530
(D.S.C. 2009) (finding that FRTIB was “misidentified” by plaintiff as TSP). But because the
parties do not expressly raise this issue, the Court shall not dwell on it. The Court shall continue
to refer to both FRTIB and TSP as defendants.
4
  Mr. Hsieh’s Form TSP-3 may have contained one or more additional pages, including
instructions, but the Court need not decide that issue, about which there may be some dispute. The
Court also notes that the two witnesses’ printed names on the first page of this copy of Mr. Hsieh’s
form appear to be partially blotted out, perhaps for confidentiality. See Pl.’s Opp’n to FRTIB’s
Mot., Ex. 4, ECF No. 33-4 (Aff. of Carolan Bontje ¶ 12). In any case, after Mrs. Firestone filed
her opposition brief, FRTIB and TSP submitted a version of this form that included those printed
names in full. FRTIB’s Reply, Ex. 1, ECF No. 34.


                                                 2
ECF No. 30, ¶ 3 (asserting that government received Mr. Hsieh’s Form TSP-3 that lacked date of

one witness’s signature); [Wang’s] Undisputed Stmt. of Material Facts, ECF No. 29-1, ¶ 22

(same); Pl.’s Opp’n to FRTIB’s Mot., Ex. 4, ECF No. 33-4 (Aff. of Carolan Bontje ¶ 11 (“I am

fairly certain that I did not include the numerical date in these blocks on the first page

because . . . .”)); Pl.’s Opp’n to Wang’s Mot., Ex. 4, ECF No. 31-5 (Aff. of Carolan Bontje ¶ 11

(same)). Upon Mr. Hsieh’s death, Mrs. Firestone allegedly asked FRTIB and TSP about her rights

to his account and was told that she is not a beneficiary. Am. Compl. ¶ 13.

       Mrs. Firestone filed this suit on September 9, 2016, against FRTIB and TSP. Compl., ECF

No. 1. The Court granted FRTIB’s and TSP’s motion under Federal Rule of Civil Procedure 19(a)

to join Mr. Hsieh’s surviving spouse, Mrs. Wang. Mem. Op. and Order, ECF No. 16. The Court

agreed that Mrs. Wang is a necessary party because, in short, she would be entitled to Mr. Hsieh’s

TSP funds if his designation of Mrs. Firestone were found invalid. See id. at 2. FRTIB and TSP

have evidently agreed not to make a distribution from that account until this litigation concludes.

Am. Compl. ¶ 13.

       In an Amended Complaint adding Mrs. Wang as a defendant, Mrs. Firestone pleads four

claims against some combination of the three defendants. Am. Compl. In Count I, she seeks a

Declaratory Judgment vis-à-vis all three defendants that she is the beneficiary of Mr. Hsieh’s TSP

account No. 6801147154539 and any other account where associated funds may currently be held.

Count II alleges that FRTIB and TSP have breached a putative contract they had with Mr. Hsieh

and of which Mrs. Firestone is allegedly a third-party beneficiary. In Count III, Mrs. Firestone

requests specific performance of FRTIB’s and TSP’s alleged obligation to make a distribution to

her from the subject TSP account. And Count IV asserts equitable estoppel to prevent FRTIB and




                                                3
TSP from withholding those TSP assets from Mrs. Firestone and distributing them to anyone else,

and to prevent Mrs. Wang from attempting to claim those assets.

       At Mrs. Firestone’s and Mrs. Wang’s request in June 2017, the Court postponed the

deadline for Mrs. Wang’s response to the Amended Complaint to permit those parties to engage

in mediation. Order, ECF No. 26. When mediation did not succeed, Mrs. Wang filed her motion

to dismiss, or in the alternative, for summary judgment. FRTIB and TSP followed shortly

thereafter with their own such motion. Briefing having concluded, both motions are now ripe for

resolution.

                                    II. LEGAL STANDARD

   A. Federal Rule of Civil Procedure 12(b)(1)

       A court must dismiss a case pursuant to Federal Rule 12(b)(1) when it lacks subject-matter

jurisdiction. In determining whether there is jurisdiction, “the court may consider the complaint

supplemented by undisputed facts evidenced in the record, or the complaint supplemented by

undisputed facts plus the court’s resolution of disputed facts.” Coal. for Underground Expansion

v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (quoting Herbert v. Nat’l Acad. of Scis., 974 F.2d

192, 197 (D.C. Cir. 1992)) (internal quotation marks omitted). “At the motion to dismiss stage,

counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality

to afford all possible inferences favorable to the pleader on allegations of fact.” Settles v. U.S.

Parole Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005). In spite of the favorable inferences that a

plaintiff receives on a motion to dismiss, still that “[p]laintiff bears the burden of proving subject

matter jurisdiction by a preponderance of the evidence.” Am. Farm Bureau v. EPA, 121 F. Supp.

2d 84, 90 (D.D.C. 2000). “Although a court must accept as true all factual allegations contained

in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a] plaintiff[’s]



                                                  4
factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion

than in resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance

Bd., 503 F. Supp. 2d 163, 170 (D.D.C. 2007) (internal citations and quotation marks omitted).

   B. Federal Rule of Civil Procedure 56

       Summary judgment is appropriate where “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). The mere existence of some factual dispute is insufficient on its own to bar summary

judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly disputes over

facts that might affect the outcome of the suit under the governing law will properly preclude the

entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Nor

may summary judgment be avoided based on just any disagreement as to the relevant facts; a

“genuine” dispute requires sufficient admissible evidence to support a jury verdict for the non-

movant. Id.

       A party attempting to place a fact beyond dispute, or to show that it is truly disputed, must

(a) rely on specific parts of the record, such as documentary evidence or sworn statements, or

(b) “show[ ] that the materials cited do not establish the absence or presence of a genuine dispute,

or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.

56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a

genuine dispute sufficient to survive summary judgment. See Ass’n of Flight Attendants-CWA,

AFL-CIO v. U.S. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009). Moreover, where “a

party fails to properly support an assertion of fact or fails to properly address another party’s

assertion of fact,” the district court has the discretion to “consider the fact undisputed for purposes

of the motion.” Fed. R. Civ. P. 56(e).




                                                  5
       When faced with a motion for summary judgment, the district court may not assess

credibility or weigh evidence; instead, the evidence must be analyzed in the light most favorable

to the non-movant, with “all justifiable inferences . . . drawn in his favor.” Anderson, 477 U.S. at

255. “If material facts are at issue, or though undisputed, are susceptible to divergent inferences,

summary judgment is not available.” Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (quoting

Kuo-Yun Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994)) (internal quotation marks omitted). In

the end, the district court’s task is to determine “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law.” Anderson, 477 U.S. at 251-52. In this regard, the non-movant must

“do more than simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “If the evidence

is merely colorable, or is not significantly probative, summary judgment may be granted.”

Anderson, 477 U.S. at 249-50.

                                       III. DISCUSSION

       Because Mrs. Firestone has not established subject-matter jurisdiction, all four of her

claims must be dismissed under Rule 12(b)(1). The Court need not reach Rule 12(b)(6) grounds

for dismissal. In the alternative, Defendants are entitled to summary judgment as to all four of

Mrs. Firestone’s claims.

   A. Dismissal for Lack of Subject-Matter Jurisdiction Under Rule 12(b)(1)

       Mrs. Firestone alleges that this Court has subject-matter jurisdiction over a federal question

pursuant to 5 U.S.C. § 8477(e)(7)(A). See Am. Compl. ¶ 5; 28 U.S.C. § 1331. Her additional

assertion now of jurisdiction under the Declaratory Judgment Act is unavailing; settled precedent

recognizes that this statute does not independently confer jurisdiction. See Pl.’s Opp’n to Wang’s



                                                 6
Mot. at 9-10 (citing 28 U.S.C. § 2201(a)); Pl.’s Opp’n to FRTIB’s Mot. at 4-5 (same); FRTIB’s

Reply at 5 (citing C&E Servs., Inc. of Wash. v. D.C. Water & Sewer Auth., 310 F.3d 197, 201

(D.C. Cir. 2002)); 10B Charles Alan Wright et al., Federal Practice and Procedure Civil § 2766

(4th ed.). Because Mrs. Firestone has not pled diversity jurisdiction or supplemental jurisdiction

in the alternative, the Court finds that she has waived those grounds for jurisdiction over any claims

in her Amended Complaint for which jurisdiction by federal question is unavailing.

       Mrs. Firestone’s federal question arises under the Federal Employees’ Retirement System

Act of 1986 (“FERSA”), as amended, 5 U.S.C. § 8401, et seq., which governs Mr. Hsieh’s TSP.

“A TSP is a retirement savings plan for federal employees, and it operates much like the Section

401(k) savings plans which are offered to employees by private sector employers.” Kriebel v.

Long, 994 F. Supp. 2d 674, 675 (E.D. Pa. 2014). Section 8477(e) furnishes exclusive jurisdiction

over the FERSA claims in this case to federal district courts and expressly recognizes the U.S.

District Court for the District of Columbia as an available option. 5 U.S.C. § 8477(e)(7)(A), (B). 5

       In Section 8477(e), Congress has likewise specified the types of actions that fall within this

grant of subject-matter jurisdiction:

       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
       under the provisions of subchapter III of this chapter, 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
 Section 8477(e) requires a plaintiff to serve a copy of the complaint on the Executive Director of
FRTIB, the Secretary of Labor, and the Secretary of the Treasury. 5 U.S.C. § 8477(e)(8)(A). The
record suggests that Mrs. Firestone has not served a copy of the Complaint or Amended Complaint
on the latter two officials. However, Defendants have not raised this issue, and the Court sees no
reason to pass upon it sua sponte.



                                                  7
Id. § 8477(e)(3)(C)(i). Only if Mrs. Firestone can establish that she is a participant or beneficiary

would the Court consider whether it has jurisdiction under Section 8477(e) over the four specific

claims she raises.

       It is undisputed that Mrs. Firestone is not the relevant participant for purposes of her claim

to the proceeds Mr. Hsieh’s TSP account. See id. § 8471(3) (defining “participant” as “an

individual for whom an account has been established under section 8439 of this title”). Mrs.

Firestone instead maintains that she is a beneficiary, or rather, the beneficiary. The Court shall

evaluate Mrs. Firestone’s ability to make that showing under Rule 12(b)(1) because it is crucial to

her attempt to establish federal-question jurisdiction based on Section 8477.

               1. Beneficiary Designation Requirements

       A “beneficiary” is statutorily defined as “an individual (other than a participant) entitled to

payment from the Thrift Savings Fund under subchapter III of this chapter.” Id. § 8471(1).

Subchapter III provides, inter alia, that for an employee or former employee who “dies without

having made an election under this section[,] . . . an amount equal to the value of that individual’s

account (as of death) shall . . . be paid in a manner consistent with section 8424(d) of this title.”

Id. § 8433(e)(1). Whether Mr. Hsieh was an employee or former employee at the time of his death,

there is no dispute that Mr. Hsieh was a participant with a TSP account. And there is no indication

that Mr. Hsieh made the aforementioned election by choosing to draw from his TSP account while

he lived. See, e.g., id. § 8433(b). As a result, the parties are concerned with the distribution from

Mr. Hsieh’s account after his death, pursuant to the pertinent part of the statutory order of

precedence in Section 8424(d):

       Lump-sum benefits authorized by subsections (e) through (g) shall be paid to the
       individual or individuals surviving the employee . . . 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:



                                                 8
               First, to the beneficiary or beneficiaries designated by the employee . . . in
               a signed and witnessed writing received in the Office before the death of
               such employee . . . . For this purpose, a designation . . . of beneficiary in a
               will or other document not so executed and filed has no force or effect.

               Second, if there is no designated beneficiary, to the widow or widower of
               the employee . . . .

Id. § 8424(d); see also 5 C.F.R. § 1651.2(a)(1), (2). There is no dispute that FRTIB and TSP are

to make a distribution to someone under this provision; accordingly, the Court need not evaluate

portions of Section 8424 and cross-referenced provisions that define qualifying “lump-sum

benefits.” Moreover, the Court understands that regulations identify the TSP record keeper, rather

than the Office of Personnel Management (“OPM”), as the proper recipient for these purposes.

See 5 U.S.C. § 8401(24) (defining “Office” as OPM); 5 C.F.R. § 1651.3(a) (“To designate a

beneficiary of a TSP account, a participant must complete and file a TSP designation of beneficiary

form with the TSP record keeper.”); FRTIB Mem. at 7 n.2 (citing 5 C.F.R. § 1651.3(c)(1)). The

import of Section 8424(d) is that Mrs. Firestone qualifies as a beneficiary only if Mr. Hsieh so

designated her in “a signed and witnessed writing received [by the TSP record keeper] before [Mr.

Hsieh’s] death.” Absent such a designation, the payment would go to the next individual in the

order of precedence, namely Mr. Hsieh’s widow, Mrs. Wang. 5 U.S.C. § 8424(d); 5 C.F.R.

§ 1651.2(a)(2); see also 5 C.F.R. § 1651.5(a) (recognizing participant’s spouse as “married even

if the parties are separated, unless a court decree of divorce or annulment has been entered”). 6

       FRTIB’s regulations further specified what kind of writing Mr. Hsieh was required to

submit if he wanted to designate a beneficiary. The parties agree that the version of the regulations


6
 The Court need not address the details of Mr. Hsieh’s and Mrs. Wang’s relationship. The parties
agree that the two were married, even though they undisputedly lived apart at the time Mr. Hsieh
passed away. See, e.g., [Wang’s] Undisputed Stmt. of Material Facts, ECF No. 29-1, ¶¶ 2, 3; Pl.’s
Opp’n to Wang’s Mot., Ex. 1, ECF No. 33-1 (Aff. of Cai-Yen Firestone ¶ 5).



                                                 9
in existence when Mr. Hsieh filled out his TSP designation of beneficiary form governs this case.

That version provided, inter alia, that

       (c) Validity requirements. To be valid and accepted by the TSP record keeper, a
       TSP designation of beneficiary form must: . . .

               (3) Be signed and properly dated by the participant and signed and properly
               dated by two witnesses; . . .

                       (ii) All submitted and attached pages must be signed by the
                       participant, dated by the participant, and witnessed in the same
                       manner (by the same witnesses) as the form itself and must follow
                       the format of the TSP designation of beneficiary form[.]

5 C.F.R. § 1651.3(c)(3)(ii) (2015). 7 The regulation plainly required, in pertinent part, that a valid

beneficiary designation form be “properly dated by two witnesses.”

       As discussed above, there is no dispute that one of Mr. Hsieh’s witnesses, Ms. Bontje, did

not add the date to the “Date Signed” blocks next to her signature on page one of his Form TSP-

3. Hsieh TSP-3 at 1; see also, e.g., FRTIB’s Mem. at 2; Pl.’s Opp’n to FRTIB’s Mot., Ex. 4 (Aff.

of Carolan Bontje ¶ 11). Under the plain text of the then-extant regulation, the form is not

“properly dated” by Ms. Bontje. 5 C.F.R. § 1651.3(c)(3) (2015). The simple fact is that page one

called for a date, and she omitted that date. That reading is unchanged by the undisputed fact that

Ms. Bontje did add a date to the Form TSP-3 when she signed a different section on page two.

Hsieh TSP-3 at 2. Nor is it changed by Ms. Bontje’s affidavit, submitted during briefing, in which

she suggests that she intended to “adopt[ ]” the date of the witness who signed and dated above

her own signature. Pl.’s Opp’n to FRTIB’s Mot., Ex. 4 (Aff. of Carolan Bontje ¶ 11).          For the

reasons that follow, compliance with the TSP statute and regulations must be strict, not merely



7
  The Court understands that this version of 5 C.F.R. § 1651.3(c)(3) became effective July 31,
2014, and was effective until May 14, 2017. None of the other statutory or regulatory provisions
cited in this Memorandum Opinion differed at the time Mr. Hsieh prepared his Form TSP-3.



                                                 10
substantial, and intent is insufficient to fill the gap. The Court’s application of the plain text of the

operative regulation is reinforced by a number of factors.

        First, the then-extant version of Section 1651.3(c)(3)(ii) dictated that “[a]ll submitted and

attached pages must be . . . witnessed in the same manner (by the same witnesses) as the form

itself.” The contrast between “submitted” pages and “the form itself” created some ambiguity

about whether there is a difference between the two. Presumably, “all” pages submitted to the

TSP record keeper would include the form itself. However, the Court shall conservatively assume,

arguendo, that submitted pages were in fact something that did or could differ from the form itself.

Even so, this provision about submitted pages supports the Court’s interpretation of Section

1651.3(c)(3) language that indisputably applied to the form itself. Because Section 1651.3(c)(3)

required proper dating by both witnesses on the form itself, this requirement that each submitted

page be witnessed in the same manner reaffirms the inference that each page of the form itself

likewise needed to be dated by both witnesses. Otherwise an illogical result would occur: Every

page of a participant’s change of beneficiary submission would need to be dated except for a page

in the form itself. Moreover, at the time, submitted pages had to “follow the format of the TSP

designation of beneficiary form.” 5 C.F.R. § 1651.3(c)(3) (2015). That is further reason to expect

compliance with page one itself, else the illogical outcome that “Date Signed” portions of every

page in the submission—except page one of the form—needed to be complete.

        Second, the instructions in Section III of Form TSP-3 itself required Ms. Bontje to add the

date on page one. That section instructed Mr. Hsieh that “[y]ou and your witnesses must complete

this section.” Hsieh TSP-3 at 1. Omitting a portion of Section III would mean that Section III is

not complete. Section III provided further that “[t]his entire form is valid only if this page is

witnessed by two persons.” Id. Accordingly, a failure to observe the witness requirement as to




                                                   11
this page one rendered ineffective any attempt to remedy that deficiency elsewhere in the form.

Next to the Witness 2 signature line are standard blocks above the language, “Date Signed

(mm/dd/yyyy).” Failure to add the date to those blocks plainly means that Section III is not

complete, and that defect is fatal to the remainder of Form TSP-3, notwithstanding Ms. Bontje’s

addition of a date in a different section on the next page.

        Third, instructions elsewhere on page one—immediately below Section III—made clear

beyond cavil that the date of Ms. Bontje’s signature was required in Section III. In an unnumbered

section labeled in bold capital letters, “REMEMBER TO:”, Mr. Hsieh was urged to “[p]rovide

your signature and your witnesses’ signatures above, along with the dates signed.” Hsieh TSP-3

at 1. Echoing Section 1651.3(c)(3)(ii) of the regulations, this section of Form TSP-3 reminded

Mr. Hsieh to “[h]ave the same two witnesses sign and date all pages that you submit to the TSP.”

Id. Moreover, Mr. Hsieh was to “[c]omplete each section in accordance with the instructions.” Id.

It is hard to conceive of more direct, yet concise instructions requiring the very date that Ms. Bontje

omitted. 8

        Fourth, Mrs. Firestone herself puts into the record a page from FRTIB’s website with

instructions for participants who want to designate a beneficiary. Pl.’s Opp’n to FRTIB’s Mot.,

Ex. 6, ECF No. 33-6 (containing webpage as of Sept. 29, 2017); see also Pl.’s Opp’n to FRTIB’s

Mot., Ex. 2 (Aff. of Walter E. Gillcrist, Jr. ¶ 8) (indicating that Mrs. Firestone’s counsel is unaware

“whether this website existed as such in 2015”). That webpage instructs: “Sign and witness each

page of Form TSP-3 according to the directions.” Pl.’s Opp’n to FRTIB’s Mot., Ex. 6, ECF No.



8
 Mrs. Wang also points to certain further instructions, dated October 2013, that are separate from
Form TSP-3 itself. See Wang’s Mem. at 9 (citing Wang’s Mem., Ex. 4, ECF No. 29-5). But Mrs.
Firestone identifies the lack of evidence that Mr. Hsieh had those instructions available to him.
Pl.’s Opp’n to Wang’s Mot. at 19. Accordingly, the Court need not reach those instructions, which
nevertheless do not detract from its foregoing conclusions.


                                                  12
33-6. As discussed above, those instructions dictate that “witness[ing]” each page requires dating

each page. Still, the Court does not rely too heavily on this webpage because of the uncertainty of

its existence at the time Mr. Hsieh and his witnesses prepared his Form TSP-3.

        Fifth, the Court’s interpretation of the operative version of Section 1651.3(c) is buttressed

by FRTIB’s own interpretation when it proposed to amend that provision. This is not the

traditional instance in which the Court would use pre-enactment history to interpret a given

enactment; rather, the Court considers the agency’s subsequent statements about this regulation

only insofar as they may further illuminate the Court’s foregoing analysis of a regulatory scheme

that is rather clear, albeit with somewhat peripheral ambiguity.

        The parties dispute whether it is proper to consider this post-enactment interpretation,

which Mrs. Wang brought to the Court’s attention. See Wang’s Mem. at 8-9. Mrs. Firestone

objects with case law about the limited circumstances in which a court may consult the pre-

enactment legislative history of a statute, namely, only when the text is not clear. Pl.’s Opp’n to

Wang’s Mot. at 23-24 (citing Ratzlaf v. United States, 510 U.S. 135 (1994); Consumer Elecs. Ass’n

v. FCC, 347 F.3d 291 (D.C. Cir. 2003)). But her precedent is not on point. Here the Court is

dealing with a regulation, and the parties have not cited any legislative history preceding that

regulation itself; rather, the dispute concerns subsequent history of that regulation. Moreover, the

text of the regulation at issue is rather clear, but in light of a little ambiguity about whether

requirements for the form itself are the same as those for submitted pages—assuming some

distinction between the two—the Court will consider FRTIB’s subsequent interpretation of Section

1651.3(c). 9



9
  The parties have not briefed the application of any regime of formal deference to an agency’s
interpretation of its regulations. See, e.g., Auer v. Robbins, 519 U.S. 452, 461-62 (1997) (noting,
upon analysis of agency interpretation of its rule, that under the circumstances “[t]here is simply


                                                 13
       In a proposed rule published in the Federal Register on March 30, 2017, FRTIB observed

that “Section 1651.3(c) currently requires a TSP beneficiary designation form to be witnessed by

two people and also requires each page of the form to be dated by the participant and both

witnesses.” Designation of Beneficiary, 82 Fed. Reg. 15,642, 15,642 (Mar. 30, 2017) (to be

codified at 5 C.F.R. pt. 1651.3(c)). This statement in the Federal Register affirms the Court’s

reconciliation, above, of the slight ambiguity between expectations for the form itself and

expectations for submitted pages, on the assumption, arguendo, that those submitted pages could

be something different from the form itself. The agency gives this affirmation by linking “each

page” language to the “of the form” interpretation. Although the proposed rule—eventually

enacted—expressly intended to change only the number of required witnesses from two to one,

that proposal also instituted the following clearer language about the signature requirement for the

witness who remained: “All submitted and attached pages of the form must be signed and dated

by the same witness[.]” Id.; Designation of Beneficiary, 82 Fed. Reg. 21,107 (May 5, 2017) (to

be codified at 5 C.F.R. pt. 1651.3(c). 10 This language did not change the previous requirement

that Ms. Bontje date the first page of Mr. Hsieh’s Form TSP-3. FRTIB concurred in its closing

remark that, aside from reducing the number of witnesses, “[t]he other validity requirements,

including the requirement that the same witness sign and date all pages of the beneficiary

designation form, remain unchanged.” Designation of Beneficiary, 82 Fed. Reg. at 15,642.

       The statutory order of precedence, FRTIB’s implementing regulations, the instructions on

Form TSP-3, FRTIB’s webpage during this litigation, and—to the extent proper to consider it—


no reason to suspect that the interpretation does not reflect the agency’s fair and considered
judgment on the matter in question”). For the reinforcing purpose for which the Court considers
the agency’s interpretation, the Court need not go down that road either.
10
  Although Section 1651.3(c) has been amended still further since then, the portions relevant to
this Memorandum Opinion have not changed.


                                                14
the agency’s subsequent interpretation of its then-extant regulations, all reinforce the Court’s

conclusion that the TSP regime requires strict compliance with the change of beneficiary rules that

were operative when Mr. Hsieh submitted his Form TSP-3. Moreover, this interpretation is

consistent with the agency’s own alleged response to Mr. Hsieh’s Form TSP-3. The record

contains a notice from TSP to Mr. Hsieh dated November 28, 2015, stating that the agency was

“unable to process” his Form TSP-3 because “[a] required signature date is missing or invalid.”

FRTIB’s Reply, Ex. 2, ECF No. 34. Although Mrs. Firestone argues that there is no evidence that

this rejection notice was sent to, or received by, Mr. Hsieh, the Court need not resolve that issue.

See Pl.’s Opp’n to FRTIB’s Mot. at 7; Pl.’s Opp’n to Wang’s Mot. at 3-4. A “presumption of

regularity” attaches to ordinary-course government records like this one unless the Court observes

“clear evidence to the contrary.” Miley v. Lew, 42 F. Supp. 3d 165, 171-72 (D.D.C. 2014) (Kollar-

Kotelly, J.)) (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007))

(internal quotation marks omitted); FRTIB’s Reply at 4. The Court lacks briefing about FRTIB’s

and TSP’s record-keeping practices, but the Court has no reason to believe that these agencies

fraudulently manufactured the notice for this litigation. Accordingly, the language in the notice—

whether or not it was sent—reflects the government’s strict compliance with the requirement that

Mr. Hsieh’s Form TSP-3 required a date next to Ms. Bontje’s signature.

       Mrs. Firestone has not identified any case—either in this jurisdiction or any other—that

permits less than strict compliance with the TSP statute and then-extant regulations. Although the

Court is unaware of any case interpreting the witness date requirement under Section 1651.3(c),

the few courts outside this jurisdiction that have construed other parts of Section 1651.3 have done

so strictly. In Kriebel v. Long, a district court construed Section 1651.3 to require more than simply

proof of mailing Form TSP-3; rather, FRTIB must have actually received the form, which could




                                                 15
nevertheless be established with the aid of the mailbox rule. 994 F. Supp. 2d at 677-78. Similarly,

in Hewitt v. Thrift Saving Plan, a federal district court granted summary judgment to FRTIB where

the plaintiff did not allege that the decedent had submitted his Form TSP-3 before he died, despite

some suggestion of decedent’s intent to do so.         664 F. Supp. 2d 529, 530-31, 534-35 (D.S.C.

2009).

          A couple of other cases briefly consider Section 1651.3(c) but do not imply much about

the strictness of compliance. In Faris v. Long, a district court recognized a beneficiary designation

as valid under the TSP statute and regulation because it was “signed, witnessed, and received by

[FRTIB] prior to the participant’s death.” No. 2:07-CV-102, 2008 WL 612938, at *5 (E.D. Tenn.

Mar. 4, 2008) (citing 5 U.S.C. § 8424(d); 5 C.F.R. § 1651.3(c)) (holding that FRTIB’s “series of

bureaucratic missteps” did not preclude ex post recognition of valid TSP-3). The Faris court did

not have reason to discuss the more specific requirements of what witnessing entailed. See also

Sharber v. Sharber, No. 2011-CA-000086-MR, 2013 WL 3013583, at *3-*4 (Ky. Ct. App. June

14, 2013) (deferring to TSP’s finding of a valid TSP-3 under Section 1651.3, but likewise not

addressing witness requirements). When the decedent in Faris submitted his operative Form TSP-

3, the then-extant version of Section 1651.3(c) differed; there was no express requirement that

either the participant or the witnesses date the form. See Faris, No. 2:07-CV-102, 2008 WL

612938, at *2, *5 (identifying operative Form TSP-3 as submitted in 2006); 5 C.F.R. § 1651.3(c)

(2006).

          In short, absent any case law to the contrary, this Court agrees that Section 1651.3 is part

of “a regime where anything short of strict compliance with the statutory and regulatory

requirement of submitting Form TSP-3 to the TSP record keeper is insufficient to designate or




                                                  16
change a beneficiary.” Hewitt, 664 F. Supp. 2d at 534. That strict compliance extends to the

requirement of submitting a valid Form TSP-3, which Mr. Hsieh did not do.

          Mrs. Firestone nevertheless urges the Court to rely on other out-of-circuit authority

recognizing substantial compliance in the context of the Employee Retirement Income Security

Act (“ERISA”). Pl.’s Opp’n to Def. Wang’s Mem. at 25-27 (citing, e.g., Phoenix Mut. Life Ins.

Co. v. Adams, 30 F.3d 554 (4th Cir. 1994)). But assuming, arguendo, that ERISA precedent is

closely analogous enough to rely upon, her cited case law clearly limits this doctrine to

circumstances in which ERISA does not expressly furnish a rule. See, e.g., Davis v. Combes, 294

F.3d 931, 940 (7th Cir. 2002) (“The concept of substantial compliance is part of the body of federal

common law that the courts have developed for issues on which ERISA does not speak directly.”).

Unlike in the TSP context, the ERISA context evidently lacks an “explicit requirement . . . that a

change of beneficiary form must be signed and dated in a specific manner.” Id. (citing Phoenix

Mut. Life Ins. Co., 30 F.3d at 562). In what appears to be one of the seminal cases on this issue,

the Fourth Circuit was careful to cabin its holding: “We do not hold that the federal common law

of substantial compliance is applicable in any context other than that before the court in the instant

case, the change of beneficiary provision in an ERISA plan.” Phoenix Mut. Life Ins. Co., 30 F.3d

at 565. Moreover, some courts doubt whether this application of the substantial compliance

doctrine in the ERISA context remains valid even in circuits that initially adopted it. See, e.g., Ng

v. Prudential Ins. Co. of Am., 172 F. Supp. 3d 355, 363-64 (D. Mass. 2016) (discussing Kennedy

v. Plan Adm’r for DuPont Sav. & Inv. Plan, 555 U.S. 285 (2009)). In short, neither Congress by

statute, nor FRTIB by regulation, nor case law gives any reason to import a “substantial

compliance” doctrine from ERISA into this context.11



11
     FRTIB and TSP, on the one hand, and Mrs. Firestone, on the other, draw conflicting inferences


                                                 17
       The Court has identified a different context where an affidavit has been found sufficient to

remedy a defect in compliance. In Jenkins v. Bartlett, two experts failed to sign expert disclosures

prepared by defendants’ attorney, and so they did not strictly comply with Federal Rule of Civil

Procedure 26 requiring that such a report be “prepared and signed by the witness.” 487 F.3d 482,

487-88 (7th Cir. 2007) (citing Fed. R. Civ. P. 26(a)(2)(B)) (internal quotation marks omitted).

However, the district court found the error harmless under Rule 37(c)(1) because the experts

substantially complied by expressly adopting the contents of those disclosures in affidavits

submitted after the fact. Id. at 488. The Seventh Circuit found no abuse of discretion in

recognizing substantial compliance through affidavits “cur[ing] the main defect in the expert

report, the absence of the [experts’] signatures.” Id. But even that precedent is distinguishable.

There is no TSP equivalent of the Rule 37(c)(1) safe harbor for harmless error.

       In short, Mrs. Firestone fails to persuade the Court that this is a context where substantial

compliance is permissible. Mrs. Firestone has not shown that Congress gave FRTIB and TSP the

discretion to deviate from its statutory and regulatory obligations, which in this case require

payment to the surviving spouse absent a valid Form TSP-3 designating a beneficiary. See 5

U.S.C. § 8424(d); 5 C.F.R. § 1651.2(a)(1), (2); cf. Ferguson v. Long, 885 F. Supp. 2d 294, 299

(D.D.C. 2012) (citing Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 429-30 (1990)) (finding

that, where FRTIB had valid Form TSP-3 on file, FRTIB had no discretion to make distribution to

surviving spouse even “where [FRTIB] is satisfied that the equities demand it”).




from the Federal Employees Group Life Insurance Act (“FEGLIA”). See FRTIB’s Mem. at 9-10;
Pl.’s Opp’n to FRTIB’s Mot. at 14-15. But because FRTIB and TSP are the parties aiming to draw
support from the FEGLIA context, and the Court finds grounds for strict compliance without
reaching that proposed analogue, the Court need not discuss FEGLIA further here.


                                                18
               2. Application to Mrs. Firestone’s Claims

       Because Mrs. Firestone has not established that she was a designated beneficiary of Mr.

Hsieh’s TSP account, she cannot avail herself of this Court’s jurisdiction under Section 8477(e).

That flaw is fatal to her declaratory judgment and specific performance claims, which collectively

attempt “to recover benefits of [a] . . . beneficiary under the provisions of subchapter III of this

chapter [and] to enforce any right of [a] . . . beneficiary under such provisions.” 5 U.S.C.

§ 8477(e)(3)(C)(i). 12 Accordingly, the Court shall dismiss the declaratory judgment claim against

FRTIB, TSP, and Mrs. Wang, as well as the specific performance claim against FRTIB and TSP.

       Mrs. Firestone also pleads a right to recover as third-party beneficiary for FRTIB’s and

TSP’s breach of a contract with Mr. Hsieh. Am. Compl. ¶¶ 21-25. She tries to ground this claim

in the “recover benefits” and “enforce any right” language of Section 8477(e). See Pl.’s Opp’n to

FRTIB’s Mot. at 15. But Mrs. Firestone does not furnish any authority for her argument, in effect,

that Congress intended to provide TSP participants with contractual rights enforceable by them or

their third-party beneficiaries through a breach of contract claim. Moreover, she does not identify

precedent articulating the elements of such a claim, which would presumably derive from state

common law, despite the incongruity with the federal statute from which the putative claim

springs. Nor does Mrs. Firestone discuss whether and how the statutory definition of a beneficiary

should accommodate this non-statutory notion of a third-party beneficiary.




12
   Mrs. Firestone does not invoke the Court’s jurisdiction over a beneficiary’s (or participant’s)
attempt “to clarify any such right to future benefits under” subchapter III governing the TSP. 5
U.S.C. §8477(e)(3)(C)(i). Nor has the Court found any precedent that would support an extension
of this provision to those who are seeking to establish themselves as beneficiaries. The one
relevant case identified by the Court briefly construes this provision as furnishing rights to existing
beneficiaries. See Garcia v. United States, 996 F. Supp. 39, 42 (D.D.C. 1998) (interpreting Section
8477(e)(3)(C)(i) as “creat[ing] a cause of action for beneficiaries to sue to recover lost benefits, or
to enforce or clarify rights” (emphasis added)).


                                                  19
         The Court need not puzzle further, however, about the nature of a breach of contract claim

in this setting, because Mrs. Firestone has not established that the Court would have jurisdiction

over any such claim. Section 8477(e) accords jurisdiction only over claims by participants and

beneficiaries, of which Mrs. Firestone is neither. In an apparent attempt to salvage her claim, she

argues that she is the “intended third-party beneficiary of the contract between FRTIB and Mr.

Hsieh.” Id. at 16 (emphasis added). But the Court does not accept this Trojan Horse for persuading

the Court to rely on Mr. Hsieh’s (presumed) intention. As discussed above, the TSP regime

requires strict compliance. Mr. Hsieh did not comply with the requirements for a valid Form TSP-

3; accordingly, he did not designate Mrs. Firestone as a beneficiary, and the Court would have no

jurisdiction over any otherwise-valid breach of contract claim rooted in Section 8477(e).

         That leaves Mrs. Firestone’s equitable estoppel claim. It is, of course, her burden to

establish the Court’s jurisdiction over that claim. Am. Farm Bureau, 121 F. Supp. 2d at 90. But

Mrs. Firestone does not specifically discuss the grounds for jurisdiction over an equitable estoppel

claim. Indeed, she says very little about this claim at all in her briefing. In opposing Mrs. Wang’s

motion, Mrs. Firestone briefly asserts that Mrs. Wang’s challenge to the equitable estoppel claim

“is not only premature[,] it is unsubstantiated,” in light of allegations in the Amended Complaint.

Pl.’s Opp’n to Wang’s Mot. at 13-14. Yet, elsewhere in that pleading, Mrs. Firestone effectively

ceases pursuing that claim against Mrs. Wang altogether: “Plaintiff is not aware presently of any

conduct by Mrs. Wang that would draw in the doctrine [of equitable estoppel]. However, Plaintiff

will address the merits of this claim if necessary in her response to the government’s recently filed

motion.” Id. at 27. FRTIB and TSP indeed challenge her equitable estoppel claim, but she says

nothing in response. See FRTIB’s Mot. at 11-13; see also generally Pl.’s Opp’n to FRTIB’s Mot.13



13
     Mrs. Firestone does refer to equitable estoppel once in her brief, but she does so only in


                                                 20
       Ordinarily the Court hesitates to treat an issue as conceded. See, e.g., Manning v. Esper,

Civil Action No. 12-1802 (CKK), 2019 WL 281278, at *6 (D.D.C. Jan. 22, 2019) (Kollar-Kotelly,

J.) (discussing Circuit precedent). Here, however, there is good reason to do so. Mrs. Firestone is

expressly aware that Mrs. Wang’s motion challenges her equitable estoppel claim, and she clearly

anticipated the same in FRTIB’s and TSP’s motion. Despite that awareness, the Court lacks Mrs.

Firestone’s counterarguments, if any, as to the legal merits of her equitable estoppel claim. While

in response to Mrs. Wang’s motion, Mrs. Firestone initially urges the sufficiency of the equitable

estoppel allegations in her Amended Complaint, elsewhere she concedes that “this case may not

fall neatly into equitable estoppel jurisprudence.”     Pl.’s Opp’n to Wang’s Mot. at 27 (citing

Ferguson, 885 F. Supp. 2d at 298). She offers no further argument why the Court should recognize

an equitable estoppel claim here if it is admittedly a somehow-unusual setting for such a claim.

       Even if the Court does not treat the equitable estoppel argument as conceded, the Court

still cannot identify the jurisdictional hook. Absent beneficiary status for Mrs. Firestone, there is

no obvious basis for jurisdiction over her claim under Section 8477(e). And she has not argued

that this Court has any other jurisdiction over her suit. Accordingly, Mrs. Firestone’s equitable

estoppel claims against Mrs. Wang, FRTIB, and TSP must be dismissed, if not by concession, then

under Rule 12(b)(1).

       Because Mrs. Firestone has not established that this Court has jurisdiction over any of her

claims, the Court need not address any distinct issues of Mrs. Firestone’s standing or FRTIB’s and

TSP’s sovereign immunity, nor does it need to evaluate her claims under Rule 12(b)(6).




describing a case that she distinguishes for other purposes. See Pl.’s Opp’n to FRTIB’s Mot. at 6
(citing Ferguson, 885 F. Supp. 2d at 298).


                                                 21
   B. Alternatively, Summary Judgment Under Rule 56

          Assuming, arguendo, in the alternative that Mrs. Firestone could establish this Court’s

subject-matter jurisdiction, the Court nevertheless finds that the undisputed material facts warrant

summary judgment for Mrs. Wang, FRTIB, and TSP. In their briefing, the parties comment on

each other’s (non-)compliance with the rules for statements of material fact accompanying

summary judgment pleadings. The parties’ briefing is, indeed, not a model of compliance in this

regard. However, the record shows that the vanishingly few facts that are necessary to resolve the

motion for summary judgment in the alternative are not genuinely disputed.

          As discussed above, it is undisputed that Ms. Bontje did not add a date next to her witness

signature on the first page of Mr. Hsieh’s Form TSP-3. The beneficiary designation was therefore

ineffective. Without beneficiary status, Mrs. Firestone is not entitled to a declaratory judgment or

specific performance. The foregoing discussion also shows that Mrs. Firestone did not sufficiently

plead the elements of a valid breach of contract claim, and that she has conceded the legal merits

of her equitable estoppel claim. Accordingly, Mrs. Firestone is unable to prevail, even on the

merits.

                                                   ***

          None of Mrs. Firestone’s other arguments change the outcome. For example, discovery is

unnecessary because the undisputed material facts show that she is not the beneficiary. Contra

Pl.’s Opp’n to FRTIB’s Mot. at 8 (requesting discovery for purposes exceeding scope necessary

to decide pending motions). Nor are the parties’ disputes as to any other facts material to this

outcome.

          If, as the parties seem to agree, Mr. Hsieh really did intend to designate a beneficiary, it is

unfortunate that he was unable to effectively do so. The Court understands why strict compliance




                                                    22
is necessary to ensure justice in the aggregate. As FRTIB and TSP argue, the “agencies” abide by

“strict and clear rules” in order to effectively “administer many thousands of savings plans for

current and former federal employees and . . . distribute the funds in those plans to the correct

beneficiaries.” FRTIB’s Reply at 1. The Court’s faithfulness to the mandates of Congress and

FRTIB regulations precludes recourse to any equities suggesting less than strict compliance.

                                     IV. CONCLUSION

       For the foregoing reasons, the Court GRANTS Mrs. Wang’s [29] Motion to Dismiss or, in

the Alternative, for Summary Judgment, and GRANTS FRTIB’s and TSP’s [30] Motion to

Dismiss, or, in the Alternative, for Summary Judgment.

       An appropriate Order accompanies this Memorandum Opinion.

Dated: March 25, 2019

                                                         /s/
                                                    COLLEEN KOLLAR-KOTELLY
                                                    United States District Judge




                                               23
