UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALLAN EARL LUCAS, JR.,

Plaintiff,

v. Case No. 13-cv-143 (TFH)

DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION

Pending before the Court is the District of Columbia’s motion to dismiss plaintiff Allan

Earl Lucas, Jr.’s Second Amended Complaint (“SAC”). [ECF No. 56]. The plaintiff seeks to

recover financial damages stemming from the District of Columbia Metropolitan Police

Department’s (“MPD”) alleged failure to treat his induction into the United States Marine Corps

as a military furlough and to reemploy him upon his discharge from military service. In his

Second Amended Complaint, the plaintiff alleges federal and common law claims. In Count One,

the plaintiff claims that he is entitled to back pay pursuant to the Back Pay Act,

.

SAC ¶¶ 40-43. In Count Two, he claims that he is entitled to compensation for lost wages and

benefits pursuant to the Veterans’ Reemployment Rights Act,

(1992).

. In Counts Three and Four, he asserts claims for breach of contract and negligence,

respectively.

.

In its motion to dismiss, the District contends that the section of the Veterans’

Reemployment Rights Act that the plaintiff cites does not exist, and that the plaintiff has failed to

allege the elements of a Back Pay Act claim. The District also argues that the plaintiff’s common

1 law claims are preempted by the Comprehensive Merit Personnel Act, and that they are barred

by the statute of limitations.

I. FACTUAL BACKGROUND1

In May 1972, the plaintiff began employment with the Metropolitan Police Department.

SAC ¶ 4. He was “inducted” into the military to serve in the Vietnam War in December 1972.

. Although he gave MPD notice of his induction, he was “never offered or provided any

separation counseling” or information regarding his employment rights.

. He was also

“never informed of his employment right to a military furlough.”

Instead of being offered a

military furlough, Mr. Lucas was “coerced into submitting his resignation” from MPD in January

1973.

. The personnel form documenting his departure from MPD stated that he resigned

“to enter the armed services.”

He entered the United States Marine Corps in February 1973,

and was honorably discharged in February 1978, id ¶ 9.

Within days of his discharge, the plaintiff wrote to MPD requesting that he be reinstated

to his previous position.

. MPD denied his request and told him that it did not have a

record of his employment.

. The plaintiff then obtained work with the United States

Marshals Service.

.

MPD reemployed the plaintiff in September 1982. He was hired on a probationary status

and was placed into the District’s “post-home rule” municipal retirement plan instead of the

federal retirement plan.

. In 1994, Mr. Lucas obtained employment with the District of

Columbia Department of Corrections and was reinstated to the federal civil service law

enforcement retirement system.

. He retired on May 16, 2005.

.

1 In considering the District’s motion to dismiss, the Court accepts the plaintiff’s well-pleaded factual allegations as true. Banneker Ventures LLC v. Graham,

(D.C. Cir. 2015).

2 On the date of his retirement, he met with Ms. Wanda Moncrieff, a Human Resources

Specialist from the District of Columbia Office of Personnel. Id. ¶ 20. During the meeting, he

learned that his previous service with MPD had been recorded by the Department of Human

Resources and the Office of Personnel Management (“OPM”). Id. He alleges that his “total

service computation sheet” was changed to reflect a military furlough. Id. His federal retirement

benefits were approved by the Department of Human Resources in May 2005 and reflected his

initial employment with MPD. Id. ¶ 21.

On February 3, 2007, the plaintiff received correspondence from OPM informing him

that “[22] years of his previously credited federal service would not be eligible for annuity unless

he paid $55,419 plus interest” into the federal Civil Service Retirement System. Id. ¶ 24. OPM

informed him that his military service time “should have been redeposited and paid before

retiring, and would be deducted from his retirement.” Id. He asserts that this letter was his “first

indication an error had possibly occurred when calculating his federal benefits.” Id. ¶ 24. On

February 9, 2007, he received an additional letter from OPM stating that he owed $5,955.87

because of overpayments due to the District’s erroneous calculations. Id. ¶ 25. OPM then began

to withhold $165 from his monthly annuity. Id. ¶ 26. The plaintiff responded to OPM’s letters

and requested that an investigation be conducted. Id. ¶ 26. He does not know whether OPM

conducted an investigation. Id. On March 1, 2007, his “retirement deposit” was “drastically

reduced without explanation.” Id. ¶ 28.

On March 7, 2007, he sent a letter to Ms. Moncrieff at the District of Columbia Office of

Personnel telling her that his retirement payments were drastically reduced and that he “was

told” that because he received a military furlough, he needed to be “restored” to receive his

original federal benefits. Id. ¶ 29, Ex. 1. Because he was not restored to MPD in 1978, “none of

3 his years of public service” since 1973 were creditable to his retirement. Id. He then asked Ms.

Moncrieff “what [was] going on,” and further asked her “[w]hat does OPM mean by saying that

[he] received a furlough but was not restored” when she had already reviewed and approved his

benefits. Id. He asserted that “something [was] terribly wrong,” then formally requested that the

D.C. Office of Personnel investigate his “grievance.” Id.

Between March 2007 and March 2010, the plaintiff contacted OPM and the District of

Columbia Retirement Board approximately 52 times. Id. ¶ 30. He received “nothing but the run-

around.” Id. On March 26, 2010, the plaintiff wrote to the District of Columbia Retirement

Board requesting the correction and restoration of his benefits. SAC ¶ 31, Ex. 2. Around April

27, 2010, he received a response from the District of Columbia Retirement Board acknowledging

his grievance, but concluding that it had no responsibility to determine eligibility for retirement,

which was the responsibility of the Police and Firefighters’ Retirement and Relief Board (“the

Board”), or to determine employment rights with MPD. The District of Columbia Retirement

Board forwarded Mr. Lucas’ letter and attachments to the Board and to MPD’s Human

Resources Office. SAC ¶ 32, Ex. 3.

On August 18, 2010, the plaintiff met with Ms. Moncrieff, Sheila-Ford Haynes, an MPD

Human Resources Specialist, and Pamela Brown, an attorney who represented the Board. During

the meeting, Ms. Moncrieff “acknowledged that [the plaintiff] had not received proper separation

counseling,” and Ms. Brown then “conceded” that he should have received such counseling.

SAC ¶ 33. Ms. Brown and Ms. Ford-Hayes also acknowledged that he left employment for

military duty and had been eligible for a military furlough. Id. Ms. Brown ultimately

“demanded” that Ms. Ford-Haynes stop speaking and ended the meeting to further investigate

the grievance. Id.

4 Plaintiff’s counsel wrote follow-up letters to Ms. Brown on February 7, March 6, March

28, and September 20, 2012. SAC ¶ 34. The plaintiff received a 14-page legal opinion from the

Board dated October 9, 2012 that concluded, after conducting “an investigation of the matter,”

that “[t]he doctrine of laches bar[red] any claim in this matter because of Mr. Lucas’

unreasonable delay,” and that the Board had “no jurisdiction” to resolve his claims. Id. ¶ 35, Ex.

4 at 13-14. The plaintiff filed a complaint in this Court on February 4, 2013. [ECF No. 1].

II. LEGAL STANDARD

A complaint “must contain . . . a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Under Rule 12(b)(6) of the Federal Rules of

Civil Procedure, a party may move to dismiss a complaint for “failure to state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss based on

Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009) (internal

quotation marks omitted). A claim “has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.”

When ruling on a motion to dismiss, the Court must “accept all the well-pleaded factual

allegations of the complaint as true and draw all reasonable inferences from those allegations in

the plaintiff’s favor.” Banneker Ventures,

. The Court may consider facts

alleged in the complaint, as well as “any documents either attached to or incorporated in the

complaint and matters of which the court may take judicial notice.” Hurd v. District of

Columbia,

(D.C. Cir. 2017) (internal quotation marks omitted and edits

accepted).

5 III. DISCUSSION

A. The Plaintiff’s Federal Claims

i. The Plaintiff Has Stated a Claim Under the Veterans’ Reemployment Rights Act.

The plaintiff alleges that after he was honorably discharged from the military in 1978, he

should have been reinstated to his employment with MPD pursuant to the Veterans’

Reemployment Rights Act, which was formerly codified at

. SAC. ¶¶ 44-48.

The District contends that the Court should dismiss this claim because § 2021 no longer exists.

Mem. in Supp. Mot. Dismiss at 6. The District also argues that, even if it still existed, the statute

applies only to private employers and not to the District. Id. at 6 n.3.

Originally passed in 1974, the Veterans’ Reemployment Rights Act2 (“VRRA”) provided

that “any person . . . inducted into the Armed Forces of the United States under the Military

Selective Service Act . . . for training and service and who leaves a position” to perform that

training and service shall, if still qualified, “be restored to such position or to a position of like

seniority, status, and pay.”

(a)(A)(i)(1992),

Stat. 1594

(1974). The VRRA’s reinstatement protections apply to individuals who “satisfactorily

complete[] military service, and appl[y] for re-employment within 90 days of being discharged

from the military. . . .” Coffy v. Republic Steel Corp.,

(1980). The VRRA

should be “liberally construed for the benefit of the returning veteran.”

.

In 1992, the statutory provisions were relocated to

, et seq.; then in

1994, the VRRA was amended and renamed the Uniformed Services Employment and

Reemployment Rights Act (“USERRA”).

, et seq.,

2 The VRRA was passed as part of the broader Vietnam Era Veterans’ Readjustment Assistance Act of 1974.

, et seq. (1974);

Stat. 1578-1602 (1974). The plaintiff refers to § 2021 as the “Vietnam Veterans Reemployment Rights Act.” SAC ¶ 10. Courts often refer to that section as the “Veterans’ Reemployment Rights Act,” and the Court shall use that name throughout this opinion.

(1994). Congress amended it in order to clarify, “‘simplify, and, where necessary,

strengthen the existing veterans’ employment and reemployment rights provisions.’” Baldwin v.

City of Greensboro,

(4th Cir. 2013) (quoting H.R. Rep. No. 103-65, Pt. I, at

18 (1993)).

Despite USERRA’s existence, the VRRA continues to apply to claims that arose before

USERRA became applicable in late 1994. See

(a)(2) (stating in the section

on “Transition Rules and Effective Dates” that the “provisions of chapter 43 of tile 38 . . . in

effect on the day before” USERRA’s enactment—i.e., the VRRA—“continue to apply to

reemployments initiated before the end of [the] 60-day period” beginning Oct. 13, 1994); see,

e.g., Watters v. Tilden Mining Co.,

(6th Cir. 2010) (applying the VRRA

instead of USERRA because the court “must apply the version of the statute in effect when [the

plaintiff’s] reemployment was initiated on July 26, 1988.”); Lapine v. Town of Wellesley,

, 93 n.1 (1st Cir. 2002) (applying “the VRRA, and not the USERRA,” where the plaintiff

initially sought reemployment in 1992); Bowlds v. Gen. Motors Mfg. Div. of Gen. Motors Corp.,

(7th Cir. 2005) (finding that USERRA did not apply retroactively to claims

that arose in the 1980’s, and analyzing those claims under the VRRA). The District’s assertion

that the plaintiff cannot seek relief under the VRRA because the statute no longer exists fails.

The VRRA applies to the plaintiff’s claims.

Furthermore, contrary to the District’s argument that the VRRA only applies to private

employers, the VRRA applies to individuals employed by public entities, including the District

of Columbia. See

(a)(A)(1992) (providing for qualified employees to be

restored to their positions or positions of similar seniority, status and pay “if such [a] position

was in the employ of . . . the United States Government, its territories, or possessions, or political

7 subdivisions thereof, or the District of Columbia . . . .”). The plaintiff has alleged that he was

employed by MPD before he left for military service, and that he sought reemployment with

MPD a few days after his honorable discharge from the military. SAC ¶¶ 4-10. Given the

plaintiff’s allegations, the Court finds that the plaintiff has adequately stated a claim for relief

under the VRRA.

ii. Dismissal of the Plaintiff’s Back Pay Act Claim Would be Premature.

In addition to his VRRA claim, the plaintiff asserts that he suffered “unjustified and

unwarranted personnel actions” which resulted in the withdrawal and reduction of his pay and

benefits. SAC ¶ 41. He seeks compensation and attorney’s fees pursuant to the Back Pay Act,

.

The Back Pay Act provides that “a federal employee is entitled to back pay if he or she

‘is found by appropriate authority under applicable law, rule, regulation, or collective bargaining

agreement, to have been affected by an unjustified or unwarranted personnel action which has

resulted in the withdrawal or reduction of all or part of [his] pay, allowances, or differentials.’”

Brown v. Sec’y of Army,

(D.C. Cir. 1990) (quoting

(b)(1)).

The Back Pay Act is “an auxiliary measure that operates only at the relief stage.” Brown,

.

The District argues that the plaintiff has failed to state a claim under the Back Pay Act

because he has not alleged that an “appropriate authority” determined that he suffered an

unjustified or unwarranted personnel action. Mem. in Supp. Mot. Dismiss at 5. In response, the

plaintiff argues that the personnel who acknowledged in the August 2010 meeting that his rights

had been violated constitute an “appropriate authority” under the statute. Opp’n at 8 [ECF No.

58]. In the alternative, he requests that he be permitted to re-assert his claim after an appropriate

authority makes such a determination.

8 Although the federal regulations implementing the Back Pay Act do not apply to District

of Columbia employees, the Court looks to them for guidance on what constitutes an

“appropriate authority.” See Am. Fed’n of Gov’t Emps. v. D.C. Water & Sewer Auth.,

(D.C. 2007) (“look[ing] to the federal regulations for [its] interpretation of the Back

Pay Act” regarding attorney’s fees). The regulations define an appropriate authority as “an entity

having authority in the case at hand to correct or direct the correction of an unjustified or

unwarranted personnel action.”

(2019). Qualifying entities include “a court,”

and “the head of an employing agency or another official of the employing agency to whom such

authorization is delegated.”

Because the plaintiff does not allege that the employees in the

August 2010 meeting had the authorization to correct or direct the correction of an unjustified

personnel action, he has not sufficiently alleged that an appropriate authority determined that he

suffered an unwarranted personnel action. Even if they did have the authority, the plaintiff does

not allege that they made such a determination in writing as required by the regulations. See

(c) (“The requirement for an ‘administrative determination’ is met when an

appropriate authority determines, in writing, that an employee has been affected by an unjustified

or unwarranted personnel action . . . .”). Moreover, the Board’s 2012 letter to the plaintiff did not

determine that an unwarranted personnel action occurred; rather it concluded that the plaintiff’s

claims were barred by latches, and that it lacked jurisdiction over them. The letter did not address

the underlying merits of the plaintiff’s claims. SAC Ex. 4.

Nevertheless, it would be preemptive to dismiss the plaintiff’s Back Pay Act claim at this

stage of the litigation. This Court constitutes an “appropriate authority” under the Back Pay Act,

and could potentially make a finding as to whether the plaintiff suffered an unwarranted or

unjustified personnel action.

; see United States v. Fausto,

, 454

9 (1998) (finding that an “appropriate authority” would “include the [administrative agency itself],

. . . or the Federal Circuit where those entities have the authority to review the agency’s

determination.”); Adam v. Norton,

(9th Cir. 2011) (finding that “the district

court that rendered judgment for the plaintiffs . . . was, without question, an ‘appropriate

authority’ to make a finding of wrongful termination” under the Back Pay Act). Because the

plaintiff’s VRRA claim survives the District’s motion to dismiss and the Back Pay Act is “an

auxiliary measure that operates only at the relief stage” of litigation, the Court will deny the

District’s motion to dismiss the Back Pay Act claim without prejudice. Brown,

.

B. The Plaintiff’s Common Law Claims

i. Judicial Review of the Plaintiff’s Common Law Claims is Not Preempted by the Comprehensive Merit Personnel Act.

In addition to his federal claims, the plaintiff asserts claims for breach of contract and

negligence. In particular, the plaintiff asserts that the District had contractual obligations through

the District Personnel Manual to inform the plaintiff of his restoration rights and to restore him to

his former position upon his return from military duty. SAC ¶¶ 50-55. He alleges that the District

breached that duty. The plaintiff also asserts that the District was negligent when it failed to keep

accurate records of his employment. SAC ¶¶ 56-61.

The District argues that the Comprehensive Merit Personnel Act preempts the plaintiff’s

common law claims and that, as a result of that preemption, the Court lacks subject matter

jurisdiction over them. Mem. in Supp. Mot. Dismiss at 7. In response, the plaintiff contends that

his claims are not preempted because the District of Columbia determined that it does not have

jurisdiction to hear the plaintiff’s grievance. Opp’n at 9.

The Comprehensive Merit Personnel Act (“CMPA”),

et seq., is

with “‘few exceptions . . . the exclusive remedy for a District of Columbia public employee who

10 has a work-related complaint of any kind.’” Lucas v. District of Columbia,

(D.D.C. 2015) (quoting Robinson v. District of Columbia,

(D.C. 2000)).

The Court has already determined that the CMPA applies to the plaintiff and covers his common

law causes of action. Lucas v. District of Columbia, No. 13-cv-143,

, at *2

(D.D.C. Feb. 21, 2018).

The CMPA requires that qualifying plaintiffs exhaust administrative remedies before

pursuing cases in court. See, e.g., Lucas v. United States Gov’t,

(D.C. Cir.

2001) (finding that employees of the District of Columbia Department of Corrections “must

exhaust their administrative remedies under the [CMPA] before filing suit in court.”); Payne v.

District of Columbia,

(D.D.C. 2008) (collecting cases where courts

have dismissed common law claims for failure to exhaust under the CMPA). “Although the D.C.

Circuit has, on at least one occasion, noted that it has never resolved the question of whether the

CMPA exhaustion requirement is jurisdictional or prudential for the federal courts . . . the D.C.

Circuit nonetheless has treated the failure to exhaust CMPA administrative remedies as an

impediment to the exercise of subject-matter jurisdiction.” Lucas,

. In this

litigation, the Court has already concluded that “the appropriate disposition” for unexhausted

CMPA claims is to dismiss them under Federal Rule 12(b)(6) for failure to state a claim.

The District cites language from White v. District of Columbia and Holman v. Williams to

argue that the CMPA preempts any judicial review and deprives the Court of subject matter

jurisdiction regardless of whether the plaintiff has pursued administrative remedies. Mem. in

Supp. Mot. Dismiss at 6; Holman v. Williams,

(D.D.C. 2006); White v.

District of Columbia,

(D.C. 2004). In Holman, while considering tort claims

brought by a former director of the District of Columbia Office of Human Rights, the district

11 court stated that “[p]reemption by the CMPA divests the trial court—whether it be the Superior

Court or this Court—of subject matter jurisdiction”—language that the District cites in its

motion. Holman,

. However, the District takes this language out of context.

In Holman, the plaintiff brought tort claims directly to the district court without first following

CMPA grievance procedures.

. The court concluded that the “plaintiff was the kind of

employee entitled to avail himself of CMPA grievance procedures,” that his “employment-

related claims . . . f[e]ll within the CMPA’s expansive definition of a ‘grievance,” and that his

claims were preempted because he did not pursue his grievances through the CMPA.

.

Similarly, in White, when considering an action for fraudulent misrepresentation, the

District of Columbia Court of Appeals used language that, if read in isolation, indicates that the

CMPA provides the only relief for plaintiffs like Mr. Lucas. See White,

; 926

(agreeing that Mr. White’s “sole recourse” for the “alleged misrepresentation was to file a

grievance with the Office of Inspector General and to seek administrative relief pursuant to the

CMPA,” and that “the CMPA provid[es] the sole remedy for District employees” in common

law actions). However, the court in White made these statements while observing that White

“never filed the requisite grievance with the Office of Inspector General,” and concluding that

the court “need not decide what, if any, relief would be appropriate if he had filed a timely

grievance with the Office of the Inspector General,” because “White ha[d] not taken the

requisite steps to avail himself of his administrative remedy.”

. In both cases, the

CMPA preempted judicial review because the plaintiffs failed to exhaust their administrative

remedies. See also, e.g., Payne,

(“The CMPA makes courts the last forum

for reviewing employment-related disputes in the District of Columbia, not an alternative

forum.”) (internal quotation marks omitted); District of Columbia v. Thompson,

,

12 634 (D.C. 1991) (“It would seem, therefore, from the purpose and text of CMPA, including its

judicial review provisions, that the Council [of the District of Columbia] plainly intended CMPA

to create a mechanism for addressing virtually every conceivable personnel issue among the

District, its employees, and their unions—with a reviewing role for the courts as a last resort, not

a supplementary role for the courts as an alternative forum.”) (internal quotation marks omitted).

The plaintiff has alleged that he exhausted his administrative remedies, and the District

does not challenge that allegation, as it did in previous filings.3 Accordingly, the Court concludes

that the CMPA does not preempt judicial review of the plaintiff’s common law claims.

ii. The Statute of Limitations Does Not Conclusively Bar the Plaintiff’s Common Law Claims.

The District contends that the plaintiff’s common law claims are barred by the District of

Columbia’s three-year statute of limitations. Mem. in Supp. Mot. Dismiss at 8. The District

argues that the statute of limitations began to accrue when the plaintiff received the February 3,

2007 OPM letter notifying him of the reduction in his benefits. The plaintiff disputes these

assertions, and argues that the statute of limitations did not begin to run until October 9, 2012,

when the Board notified him that it lacked jurisdiction over his claims or, in the alternative, from

the date of the August 2010 meeting. Opp’n at 6-7.

The statute of limitations is “an affirmative defense that [the] defendant must prove.”

Firestone v. Firestone,

(D.C. Cir. 1996). “At the motion to dismiss stage,

dismissal on statute-of-limitations grounds is proper ‘only if the complaint on its face is

conclusively time-barred.’” Capitol Servs. Mgmt., Inc. v. Vesta Corp.,

(D.C.

3 In its opposition to the plaintiff’s motion to amend his amended complaint, the District argued that the plaintiff failed to exhaust his administrative remedies because he did not appeal the Board’s decision to the Office of Employee Appeals. The Court found that the CMPA “require[d] employees to appeal final agency decisions to the OEA under specific circumstances, none of which appear[ed] to apply to [the] plaintiff’s grievances.” Lucas,

, at *2.

13 Cir. 2019) (quoting Commonwealth Land Title Ins. Co. v. KCI Techs.,

(D.C.

Cir. 2019)). “‘[C]ourts should hesitate to dismiss a complaint on statute of limitations grounds

based solely on the face of the complaint because ‘statute of limitations issues often depend on

contested questions of fact.’” Momenian v. Davidson,

(D.C. Cir. 2017)

(quoting Firestone,

).

The plaintiff’s contract and negligence claims are governed by the District of Columbia’s

three-year statute of limitations.

(7); (8). “As a general rule, where the fact

of an injury can be readily determined, a claim accrues for purposes of the statute of limitations

at the time the injury actually occurs.” Mullin v. Wash. Free Weekly,

(D.C.

2001) (internal quotation marks omitted and edits accepted). However, where the relationship

between the fact of injury and the wrongful conduct is obscure at the time of injury, “D.C. courts

apply a more forgiving ‘discovery rule’ under which a claim accrues only if a plaintiff has actual

or inquiry notice of a cause of action, regardless of when the injury occurred.” Momenian,

.

The parties agree that the discovery rule is applicable here. The discovery rule provides

that “‘a cause of action accrues when a plaintiff knew or should have known through the exercise

of reasonable diligence of: (1) the existence of the injury, (2) its cause in fact, and (3) some

evidence of wrongdoing.’”

(quoting Jung v. Mundy, Holt & Mance, P.C.,

(D.C. Cir. 2004)). Under this test, the plaintiff’s claims are untimely if he knew or with

reasonable diligence should have known before February 4, 2010—three years before he filed his

complaint—that his retirement benefits had been reduced, that there was some evidence of

breach of contract and/or negligence on the part of the District of Columbia, and that there was a

14 causal relationship between that wrongdoing and his injury. See id. at 390; Capitol Serv.

Management, Inc.,

.

The District argues that the 2007 OPM letter demonstrates that the plaintiff had actual

knowledge of his injury, that he knew the District caused it, and that he had some evidence of

wrongdoing. Mem. in Supp. Mot. Dismiss at 9; Reply at 5 [ECF No. 50]. In support, the District

points to the plaintiff’s response to OPM’s letter where he asserted that “he had been given

conflicting information by the District of Columbia about the calculation of his retirement

benefits,” stated that something was “terribly wrong,” and requested an investigation.

The 2007 OPM letter provided the plaintiff with notice that his benefits were reduced,

satisfying the “injury” element of the discovery rule. According to the plaintiff’s allegations, in

2007, OPM informed him that his 22 years of federal service were not eligible for an annuity

unless he paid over $50,000 into the federal Civil Service Retirement System. SAC ¶ 24. He also

asserts that he was told “his military service time should have been re-deposited and paid for

before retiring,” and would be deducted from his retirement payments.

However, the plaintiff’s causes of action are not confined to the reduction of his benefits.

In order to satisfy the other elements of the discovery rule, the plaintiff needed “some evidence”

of the breach of contract and negligence claims for those claims to accrue, along with a causal

connection between those actions and his injury. See Buissineau v. President and Dirs. of

Georgetown Coll.,

(D.C. 1986) (commenting that a “prospective plaintiff’s

negligence cause of action did not accrue until the individual knew or should have known that

she had been injured by the alleged negligence [i.e., wrongdoing] of the defendant.”) (internal

quotation marks omitted). The District has not demonstrated what evidence the plaintiff had of

his breach of contract and/or negligence claims, or that this wrongdoing—not just the District

15 itself—caused the plaintiff’s injury. Accordingly, the Court cannot find that the plaintiff

“conclusively” had actual notice to trigger the accrual of the statute of limitations in 2007 on

either of his common law claims. Capitol Servs. Mgmt,

.

The District does not argue that the plaintiff had actual notice on another date, or that the

plaintiff had inquiry notice under the discovery rule before February 4, 2010.4 Because it is a

factual question, the Court declines to wade further into the party’s dispute as to when the statute

of limitations began to accrue. The plaintiff’s Second Amended Complaint is not conclusively

time-barred.

iii. The Plaintiff has Stated a Claim for Breach of Contract.

Finally, the District asserts that the plaintiff has failed to state a claim for breach of

contract because he failed to “assert any factual allegations establishing that [the parties] entered

into a contract or that the terms contained in the Personnel Manual were contractual.” Mem. in

Supp. Mot. Dismiss at 10. The plaintiff did not respond to this argument in his opposition to the

motion to dismiss. Citing Local Civil Rule 7(b), the District argues that the Court may treat the

plaintiff’s breach of contract claim as conceded and dismiss it. Reply at 5.

Local Civil Rule 7(b) provides that

Within 14 days of the date of service or at such other time as the Court may direct, an opposing party shall serve and file a memorandum of points and authorities in opposition to the motion. If such a memorandum is not filed within the prescribed time, the Court may treat the motion as conceded.

LCvR 7(b). In the past, courts have dismissed claims where plaintiffs did not respond to them in

their opposition to the motion to dismiss. However, the D.C. Circuit recently limited the scope of

4 Inquiry notice is “that notice which a plaintiff would have possessed after due investigation.” Capitol Servs. Mgmt,

(internal quotation marks omitted). See also

(inquiry notice refers to the “quantum of knowledge required to charge a plaintiff with knowledge of his cause of action.”) (internal quotation marks omitted and edits accepted).

16 Local Civil Rule 7(b) by concluding that “a party may rest on its complaint in the face of a

motion to dismiss if the complaint itself adequately states a plausible claim for relief.” Wash. All.

of Tech. Workers v. United States Dep’t of Homeland Sec.,

(D.C. Cir. 2018).

The Circuit emphasized that Local Rule 7(b) is “not a tool to subvert the [Federal Rules of Civil

Procedure] 12(b)(6) inquiry simply because the court finds the plaintiff’s opposition to the

motion to dismiss, although pressed, underwhelming.”

The Circuit then concluded that the

district court abused its discretion when “kicking [the plaintiff] out of court under Local Rule

7(b)” where the complaint “stated a plausible claim for relief” and the opposition to the motion

to dismiss “indicated it adhered to its position that its complaint was well-pleaded.”

Because

the plaintiff has responded to the motion to dismiss, albeit not the District’s arguments regarding

his breach of contract claim, the Court will address the adequacy of the plaintiff’s breach of

contract claim.

To state a cause of action for a breach of contract, a plaintiff must allege “(1) a valid

contract between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of

that duty; and (4) damages caused by breach.” Tsintolas Realty Co. v. Mendez,

(D.C. 2009).

The District contends that the plaintiff’s claim should be dismissed because it failed to

allege that the parties entered into a contract or that the terms in the District Personnel Manual

were contractual. However, this is too narrow a view of the requirements to plead a cause of

action in light of the plaintiff’s allegations. In support of his breach of contract claim, the

plaintiff alleges that the District Personnel Manual was applicable to him when he was employed

by MPD from 1972 to 1973, and that it was “incorporated into the terms of [his] employment.”

SAC ¶ 50. He asserts that Chapter 8 of the District Personnel Manual required the District to

17 inform employees leaving for military duty of their restoration rights, including how to exercise

them, and to restore employees who leave for military duty to the employment status they

enjoyed when they left their position. Id. ¶¶ 51-52. He asserts that MPD did neither, and that he

has suffered a loss of earnings and retirement payments as a result. Id. ¶ 53. In doing so, the

plaintiff has “give[n] the defendant fair notice” of the plaintiff’s breach of contract claim and the

“grounds upon which it rests.” Swierkiewicz v. Sorema N.A.,

(2002) (internal

quotation marks omitted). He has stated a plausible contract claim.

IV. CONCLUSION

For the foregoing reasons, the District’s motion to dismiss the plaintiff’s Second

Amended Complaint will be DENIED. An order accompanies this memorandum opinion.

Thomas F. Digitally signed by Thomas F. Hogan

October 2, 2019 Hogan Date: 2019.10.02 12:44:51 ___________________________________ -04'00' Thomas F. Hogan SENIOR UNITED STATES DISTRICT JUDGE

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