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Foster v. Department of Veteran Affairs Office of Personnel Management

United States District Court, Ninth Circuit

June 28, 2013

IDA FOSTER, Plaintiff,
v.
DEPARTMENT OF VETERAN AFFAIRS OFFICE OF PERSONNEL MANAGEMENT, Defendant.

ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT [ECF No. 41]

LAUREL BEELER, Magistrate Judge.

INTRODUCTION

Pro se Plaintiff Ida Foster, a former employee of the Department of Veterans Affairs ("VA") filed this lawsuit against the VA and the Office of Personnel Management ("OPM") to obtain life insurance benefits that she contends she is entitled to now as part of her retirement benefits. Second Amended Complaint ("SAC"), ECF No. 40 at 2. The VA and the OPM move to dismiss, arguing that the SAC fails to allege sufficient facts to state a claim for relief and that the doctrine of sovereign immunity bars Ms. Foster's tort claims. For the reasons stated below, the court GRANTS Defendants' motion to dismiss and dismisses the complaint with prejudice.

STATEMENT

I. PROCEDURAL HISTORY

Plaintiff commenced this action by filing a complaint on August 15, 2012. ECF No. 1. Defendants[1] filed a motion to dismiss on November 26, 2012, arguing that Ms. Foster's claims were barred under the doctrine of claim preclusion because they were raised or could have been raised in a lawsuit she filed against the VA in 2001. ECF No. 9. On January 14, 2013, the Court granted Defendants' motion to dismiss. Order Granting Motion to Dismiss, ECF No. 25. The Court held that:

Ms. Foster's claims as alleged are precluded because they are based on the same discrimination and retaliation alleged in the first lawsuit and the same allegedly faulty retirement advice Ms. Foster received from retirement counselor Lola Griffin. Compare Compl., ECF No. 1 at 1 with Summary Judgment Order, ECF No. 10-4 at 2. Both involve claims of discriminatory and retaliatory animus surrounding employment, the retirement, and the resulting calculation of benefits (retirement benefits in the first lawsuit and insurance benefits in this lawsuit). Compare Compl., ECF No. 1 at 1-3 with Summary Judgment Order, ECF No. 10-4 at 2-3.

Even though the life insurance benefits that Ms. Foster discovered later (and that are at issue now) are different than the retirement benefits at issue in the first lawsuit, the outcome is not different. If the claim is - as it is alleged currently - that the additional denial of benefits "verifies the truth about the entire wrong retirement that was incorrect in 1997" and "confirms the retaliation and reprisals, " then the claim is precluded because it is related to the same transactional nucleus of facts. The court also agrees that to the extent that Ms. Foster is alleging claims against the VA under Title VII based on the improper counseling in 1997, those claims are time-barred because Ms. Foster does not (and likely cannot) allege that she exhausted administrative remedies by contacting an EEO counselor within 45 days of the alleged discrimination. See 29 C.F.R. ยง 1614.105. [footnote omitted]

Id. at 8-9. The Court granted Ms. Foster leave to amend. Id. at 9.

Ms. Foster filed her first amended complaint ("FAC") on March 19, 2013. FAC, ECF No. 31. Defendants moved to dismiss the FAC because Ms. Foster failed to file it by the court-ordered deadline, and because it failed to state a claim for relief. Motion to Dismiss FAC, ECF No. 33. Although the court excused Ms. Foster's late filing, it dismissed the FAC because she could not state allegations of wrongdoing that were not barred by her previous litigation against the VA. Order Granting Motion to Dismiss FAC, ECF No. 39 at 7, 9.

Because Ms. Foster asserted new factual allegations in the documents she filed in opposition to the motion to dismiss the FAC, the court granted her leave to file "one more amended complaint." Id. at 9. The court explained that "to survive a motion to dismiss, the operative complaint (rather than the opposition briefs) must contain sufficient factual allegations to state a claim." Id. The court urged Plaintiff to "carefully explain the factual bases for her claims and to set out those facts in a clear and logically-ordered manner." Id. Having recounted Ms. Foster's practice of disregarding court deadlines, the court explained that Ms. Foster must file any amended complaint by May 24 and "[i]f the Second Amended Complaint is even one day late, the court will strike it and enter judgment against Ms. Foster and in favor of the VA." Id.

On May 23, 2013, Ms. Foster filed a document entitled "Objections to the Dismissal and Request for Second Amended Complaint." ECF No. 40. For the reasons discussed below, the court construes this as Ms. Foster's Second Amended Complaint ("SAC"). Defendants moved to dismiss the SAC on June 6, 2013. Motion to Dismiss ("Motion"), ECF No. 41. Ms. Foster opposed the motion, ECF No. 44, and Defendants replied, ECF No. 45. After the motion was fully briefed, Ms. Foster filed a document titled "Objections to Defendants Reply to Dismiss the Second Amended Complaint." ECF No. 46.[2]

II. ALLEGATIONS IN THE SAC

In the SAC, Ms. Foster makes factual allegations and legal arguments. The non-conclusory factual allegations are the following. Ms. Foster retired from the VA prior to filing the SAC. SAC, ECF No. 40 at 2. She claimed "life insurance and other insurance benefits from the OPM but did not receive the $1, 008.00 that she was entitled to." Id. The OPM was notified of this error but failed to correct it. Id. The OPM told Ms. Foster "of the other insurance options because she turned sixty five years old but it was subsequently cancelled by the [VA]." Id. at 3.

There are also two documents attached to the SAC. The first is a "Life Insurance Election" form for the Federal Employees Group Life Insurance Program that is filled out and signed by Ms. Foster. Id. at 5. Ms. Foster's signature appears in the areas indicating that she elected to receive "Basic Life Insurance, " "Standard optional insurance, " "Additional optional insurance" amounting to in the multiple of five time Ms. Foster's annual basic pay, and "Family optional insurance." Id. Each signature is dated "4/30/93." Id.

The second document is dated 12-20-1996 and appears to be one page of a computer printout calculating Ms. Foster's "Estimated' Involuntary Retirement Benefits" and life insurance coverage. Id. at 6.

The SAC also makes three legal arguments. It argues that Defendants are liable for (1) discrimination and (2) negligence, and (3) these ...


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