BENNETT v. RAIMONDO et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DARLENE BENNETT,
Plaintiff,
v.
HOWARD LUTNICK,1 et al.,
Defendants.
Civil Action No. 24 - 2932 (SLS)
Judge Sparkle L. Sooknanan
MEMORANDUM OPINION
The Plaintiff Darlene Bennett was employed at the National Marine Fisheries Service,
National Oceanic and Atmospheric Administration (NOAA) for fourteen years before her
termination. She brings this action against various federal agencies to recover retirement benefits
and certain retirement records. The Government moves to dismiss Ms. Bennett’s action under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject-matter jurisdiction and
failure to state a claim upon which relief may granted. The Court grants that motion.
BACKGROUND
A. Factual Background
The Court draws the facts, accepted as true, from the Plaintiff’s Complaint and
attachments. Wright v. Eugene & Agnes E. Meyer Found., 68 F.4th 612, 619 (D.C. Cir. 2023).
Because Ms. Bennett is proceeding pro se, the Court considers the Complaint “in light of all filings,
including filings responsive to [the] motion to dismiss.” Brown v. Whole Foods Mkt. Grp., Inc.,
789 F.3d 146, 152 (D.C. Cir. 2015) (per curiam) (cleaned up). The Court also takes “judicial notice
1 Mr. Lutnick is substituted for his predecessor pursuant to Federal Rule of Civil Procedure 25(d).
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of public records from other court proceedings.” Lewis v. Drug Enf’t Admin., 777 F. Supp. 2d 151,
159 (D.D.C. 2011).
Ms. Bennett is a former Program Support Specialist with NOAA, an agency within the
Department of Commerce. Compl. at 8, ECF No. 1. She was terminated from her employment at
NOAA on December 17, 2020, after fourteen years of federal service. Compl. at 13 ¶ 1. Shortly
after her termination, on December 23, 2020, she sought benefits from the Federal Employees’
Retirement System (FERS) and Thrift Savings Plan. Compl. at 13–14 ¶¶ 3, 8.
On March 22, 2021, Ms. Bennett “was informed that she would receive a check for
$7109.23.” Compl. at 14 ¶ 7. Between February and April 2021, Ms. Bennett also emailed the
United States Office of Personnel Management (OPM) about her “Application for a Refund.”
Compl., Ex. C, at 11–22, ECF No. 1-2. OPM informed her that it was “processing [her] requested
refund of [her] FERS contribution” and that she would receive a payment, id. at 12; Compl., Ex. G,
ECF No.1-2—the amount she had paid into her retirement account during her employment,
Compl. at 10. OPM made clear that it was providing only her “FERS contributions” and that Thrift
Savings Plan contributions were handled by a “separate” entity. Compl., Ex. C, at 16.
After receiving her benefits payment, Ms. Bennett “disagree[d]” with the Government’s
calculation of her retirement benefits. Compl. 10. She alleges that she was “repeatedly told that
her record was scrubbed before the records departed the Agency,” and that she was never
“provided a copy of the [record]” upon which her benefits determination was made. Compl. at 10,
14 ¶ 14. Ms. Bennett “has no idea what the total amount of retirement she is owed” or “what her
vested portion or true employee contributions were before being terminated [in] December 2020.”
Compl. at 11, 14 ¶ 14. Nevertheless, she brings this action because she “disagrees” with the amount
of the disbursements made by the Government. Compl. at 10.
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B. Procedural Background
Ms. Bennett filed this action on October 13, 2024, against the Director of NOAA, the
Secretary of the Department of Agriculture, the Director of OPM, and the Secretary of the
Department of Commerce. Compl. at 2. She asks the Court to order “the appropriate agency [to]
provide written documentation of [her] social security benefits[,]” and “a detailed benefits
statement of all contributions” that she and the agency made “from the time of vested to
termination.” Compl. at 15–16. She also seeks a monetary award of “all her vested agency
contributions along with all interest[,]” $250,000 in compensatory damages, $300,000 in damages
for emotional distress, and punitive damages in an amount to be determined by a jury. Compl. at 4,
15–16. The Defendants move to dismiss this action for lack of subject-matter jurisdiction and
failure to state a claim under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
Mot. Dismiss, ECF No. 14. This motion is fully briefed and ripe for review. Opp’n, ECF No. 17;2
Reply, ECF No. 24; First Surreply, ECF No. 25-1; Second Surreply, ECF No. 26-1.3
LEGAL STANDARD
“A motion under Rule 12(b)(1) presents a threshold challenge to a court’s [subject-matter]
jurisdiction.” Ctr. for Biological Diversity v. U.S. Int’l Dev. Fin. Corp., 585 F. Supp. 3d 63, 69
2 Ms. Bennett filed both an Opposition, ECF No. 16, and an Errata containing a corrected version
of the Opposition with formatting changes, ECF No. 17. In the absence of an objection from the
Defendants, the Court considers the corrected Opposition as operative, ECF No. 17.
3 Ms. Bennett’s Motion for Leave to File a Surreply, ECF Nos. 25 & 26, is also fully briefed and
ripe for review. See Surreply Opp’n, ECF No. 27, Surreply Reply, ECF Nos. 28-1 & 29-1. “The
decision to grant or deny leave to file a sur-reply is committed to the sound discretion of the Court,
and in making its decision, the Court considers whether the sur-reply is helpful to the adjudication
of the motion . . . and whether the defendant will be unduly prejudiced if the court grants leave to
allow the sur-reply.” Clendenny v. Architect of the Capitol, 236 F. Supp. 3d 11, 17 n.2 (D.D.C.
2017) (cleaned up). The Court notes that Ms. Bennett filed two surreplies that raise different
issues—although the second is marked “corrected,” it is unclear if it is supplementing or replacing
the earlier filing. See ECF Nos. 25-1 & 26-1. Regardless, the Court grants Ms. Bennett’s motion
as to both filings and has considered both surreplies in making its decision.
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(D.D.C. 2022) (cleaned up). The plaintiff “bears the burden of proving by a preponderance of the
evidence that the Court has subject-matter jurisdiction over her claims.” Schmidt v. U.S. Capitol
Police Bd., 826 F. Supp. 2d 59, 69 (D.D.C. 2011) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555,
561 (1992)). When evaluating a motion under Rule 12(b)(1), “the court may consider documents
outside the pleadings to assure itself that it has jurisdiction.” Sandoval v. U.S. Dep’t of Justice, 322
F. Supp. 3d 101, 104 (D.D.C. 2018).
Under Rule 12(b)(6), a court must dismiss a complaint that does not “contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Courts “must construe the complaint in favor of the plaintiff, who must be granted the benefit of
all inferences that can be derived from the facts alleged.” Hettinga v. United States, 677 F.3d 471,
476 (D.C. Cir. 2012) (quotation omitted). But courts need not accept as true “a legal conclusion
couched as a factual allegation,” nor an “inference[] . . . unsupported by the facts set out in the
complaint.’” Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (citations omitted).
A pro se complaint, “however inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation
omitted). “This benefit is not, however, a license to ignore the Federal Rules of Civil Procedure.”
Sturdza v. United Arab Emirates, 658 F. Supp. 2d 135, 137 (D.D.C. 2009) (citation omitted).
“Although a pro se complaint must be construed liberally, the complaint must still present a claim
on which the Court can grant relief to withstand a Rule 12(b)(6) challenge.” Smith v. Scalia, 44 F.
Supp. 3d 28, 36 (D.D.C. 2014) (cleaned up).
DISCUSSION
According to Ms. Bennett, “[t]he sole issues before the Court are” her claims against the
Defendants for alleged “statutory violations [by] withholding vested retirement benefits and
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records.” Opp’n 8. Specifically, Ms. Bennett challenges the “withholding of her fully vested
Agency contributions into her FERS, Thrift Savings Plan and Social Security” accounts, and the
failure to provide certain records related to her retirement benefits. Compl. at 15. In seeking
dismissal, the Government argues (1) that this suit is barred by federal sovereign immunity and
(2) that Ms. Bennett’s Complaint fails on the merits in any event. See Mot. Dismiss 7–12. The
Court agrees that federal sovereign immunity bars Ms. Bennett’s claims to disburse retirement
benefits or disclose records unrelated to the federal Thrift Savings Program. The exclusive remedy
for those claims is an administrative action that may ultimately be appealed to the Federal Circuit.
The Court further finds that Ms. Bennett’s Complaint fails to state a plausible claim to recover
Thrift Savings Plan benefits. Accordingly, the Court grants the Motion to Dismiss.4
The doctrine of federal sovereign immunity provides that the federal government “may not
be sued without its consent and that the existence of [such] consent is a prerequisite for
jurisdiction” in a court of law. United States v. Mitchell, 463 U.S. 206, 212 (1983). The doctrine
rests on the premise “that there can be no legal right [] against the authority that makes the law on
which the right depends.” Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907) (Holmes, J.). The
doctrine bars suit either against the government itself or against government officers in their
official capacity. See Lewis v. Clarke, 581 U.S. 155, 163 (2017).
Congress can waive federal sovereign immunity but only if such a waiver is “unmistakably
clear in the language of [a] statute.” Dep’t of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 601
U.S. 42, 49 (2024) (quoting Kimel v. Florida Bd. of Regents, 528 U.S. 62, 76 (2000)). A statute
4 Although Ms. Bennett’s Complaint alleges that she was the subject of employment discrimination
and retaliation by NOAA, she clarified in her briefing (1) that she “does not challenge her
termination or allege retaliation,” (2) that her “claims are not based on ERISA,” and (3) that “[t]his
case is not an EEO matter, nor does it arise under Title VII.” Opp’n 4, 7–8; see also First Surreply
7 (affirmatively waiving ERISA and retaliation claims).
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purporting to waive immunity will be “strictly construed” with any “ambiguities” read in “favor
of immunity.” Lane v. Pena, 518 U.S. 187, 192 (1996) (cleaned up). For instance, even if a statute
expressly waives immunity, courts will not “sustain” a money damages suit against the federal
government unless the statute also “extend[s] unambiguously to [] monetary claims.” Id.
There are “two situations” where courts have found statutes sufficiently clear to waive
sovereign immunity. Kirtz, 601 U.S. at 49 (quoting Fin. Oversight & Mgmt. Bd. for P.R. v. Centro
De Periodismo Investigativo, Inc., 598 U.S. 339, 347 (2023)). First, when a statute’s language
makes “unmistakably clear” that “it is stripping immunity from a sovereign entity.” Id. (cleaned
up). Second, “when a statute creates a cause of action and explicitly authorizes suit against a
government on that claim.” Id. (cleaned up). If neither situation is present, the Court lacks subject-
matter jurisdiction and must dismiss the suit. See Kirtz, 601 U.S. at 58 (recognizing jurisdiction
must be authorized by a “clear statement in the text of the statute” (citation omitted)).
Here, Ms. Bennett argues that this Court has subject-matter jurisdiction because the suit
“arises under federal question jurisdiction pursuant to 28 U.S.C. § 1331, as it involves violations
of federal statutes” including “5 U.S.C. §§ 8401, 8410, 8412, 8432, 8461[;] 5 C.F.R. §§ 843.102,
843.202[;] Pub. L. 99-335 (FERS Act).” Opp’n 5. But “the federal question statute does not
constitute a waiver of sovereign immunity.” Runnels v. FBI, No. 25-cv-1202, 2025 WL 3089526,
at *6 (D.D.C. Nov. 5, 2025) (characterizing Swan v. Clinton, 100 F.3d 973, 981 (D.C. Cir. 1996)).
General grants of subject-matter jurisdiction, like 28 U.S.C. § 1331, do not waive immunity
because their “statutory text . . . ma[k]e[s] no mention of the government.” See Kirtz, 601 U.S.
at 55. Rather, Ms. Bennett must show that her right to sue the federal government is “clearly
evident from the language of [a] statute.” Kirtz, 601 U.S. at 49 (quoting FAA v. Cooper, 566 U.S.
284, 290 (2012)). In her briefing, Ms. Bennett does identify two causes of action in the Federal
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Employees’ Retirement System Act that she says fit the bill—5 U.S.C. §§ 8461(e) and 8477. See
First Surreply 7 (citing 5 U.S.C. § 8477); Second Surreply 2–3 (citing 5 U.S.C. § 8461(e)). The
First, Section 8461, largely governs suits by federal employees for retirement benefits not included
in the Thrift Savings Program. And the second, Section 8477, governs suits to enforce rights and
recover benefits under the Thrift Savings Program itself. The Court addresses each of these
provisions in turn.
A. Non-Thrift Savings Plan Benefits, 5 U.S.C. § 8461
Much of Ms. Bennett’s Complaint challenges the withholding of non-Thrift Savings Plan
benefits, i.e., other benefits guaranteed by the FERS or social security. See Opp’n 5 (citing 5 U.S.C.
§§ 8401, 8410, 8412, 8432, 8461; 5 C.F.R. §§ 843.102, 843.202; Pub. L. 99-335). The Federal
Employees’ Retirement System Act provides that “administrative action[s]” regarding those
benefits “may be appealed” to the “Merit Systems Protection Board,” which “shall adjudicate all
claims” regarding those benefits. 5 U.S.C. § 8461(c), (e)(1) (emphasis added). “Judicial review of
[the Merit Systems Protection Board’s] decisions may then be sought only in the Federal Circuit.”
See Eisenbeiser v. Chertoff, 448 F. Supp. 2d 106, 109 (D.D.C. 2006) (citing 5 U.S.C. § 7703(b)(1)).
This process is an “exclusiv[e] . . . remedial scheme,” and courts have consistently held that it is
the “only avenue for judicial review of retirement benefits determinations” by the federal
government. Id. at 109, 112 (first citing United States v. Fausto, 484 U.S. 439 (1988); then citing
Lindahl v. OPM, 470 U.S. 768 (1985); and then citing Fornaro v. James, 416 F.3d 63 (D.C. Cir.
2005)). Accordingly, pursuant to Section 8461, the “exclusive” remedy for Ms. Bennett’s
complaints about retirement benefits is before the “Merit Systems Protection Board” and then the
Federal Circuit—not this Court. Id. Congress has only waived sovereign immunity through that
“exclusive” scheme—so sovereign immunity bars this suit.
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Ms. Bennett resists this conclusion by suggesting that the Merit Systems Protection Board
would be unable to hear all her claims (e.g., request for records). Second Surreply 3. But this
argument misapprehends the doctrine of sovereign immunity. “To . . . sue the federal government,
a plaintiff needs two keys”—a “cause of action” and a “waive[r] [of] sovereign immunity for the
specific remedy.” Doe 1 v. United States, 37 F.4th 84, 86 (3d Cir. 2022) (citations omitted). If a
plaintiff lacks these metaphorical keys, she may not “unlock the courthouse door” another way.
Id. The federal government enjoys an “exceptional freedom from legal responsibility” when
Congress fails to specify in a statute how it can be sued. Geo Grp. v. Menocal, 146 S. Ct. 774,
784–85 (quoting Keifer & Keifer v. Reconstruction Fin. Corp., 306 U. S. 381, 388 (1939)). And
Ms. Bennett identifies no waiver of sovereign immunity permitting suit in this Court for claims
related to her retirement benefits or retirement records. Accordingly, her claims must be dismissed.
B. Thrift Savings Plan Benefits, 5 U.S.C. § 8477
On the other hand, the Federal Employees’ Retirement System Act does furnish
Ms. Bennett with a cause of action to recover benefits and enforce rights under the Thrift Savings
Plan. See 5 U.S.C. § 8477(e)(3). But her claim fails on the merits. See Fed. R. Civ. P 12(b)(6).5
The Thrift Savings Plan is an investment and “retirement savings account offered to federal
employees” under the Federal Employees’ Retirement System Act. Evans v. Diamond, 957 F.3d
5 The Government argues that Ms. Bennett forfeited any arguments regarding the Thrift Savings
Plan because she did not raise them in her Complaint and cannot use her Opposition to amend her
Complaint. See Reply 11–12. The Court disagrees. A pro se plaintiff’s pleadings “must be
construed liberally.” Smith, 44 F. Supp. 3d at 36 (cleaned up). And Ms. Bennett’s Complaint
expressly makes clear that she is seeking relief, in part, for actions related to her Thrift Savings
Plan account. See Compl. at 10, 14–15. Nothing more was required—“a complaint need not assert
legal theories, but rather must plead facts sufficient to support legal claims.” Chandler v. Berlin,
691 F. Supp. 3d 118, 126 (D.D.C. 2023). Further, in the D.C. Circuit, a pro se plaintiff can “in
effect, supplement h[er] complaint with the allegations included in h[er] opposition” and “the
district court” must “consider all of h[er] allegations” even those in the opposition brief. See
Brown, 789 F.3d at 152. So the Government’s arguments carry little weight in this Circuit.
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1098, 1099 (10th Cir. 2020) (quoting In re Woody, 494 F.3d 939, 945 n.4 (10th Cir. 2007)); see
also Wilkes v. Dep’t of Veterans Affs., 644 F. App’x 1015, 1016 n.1 (Fed. Cir. 2016). The Plan
offers a “deferred compensation” and employer contribution scheme “akin to a private sector . . .
401(k) plan.” Nowlin v. Thrift Sav. Plan, No. 10-cv-134, 2010 WL 5174933, at *1 (D. Md. Dec.
15, 2010); see also 5 U.S.C. § 8432. Section 8477 of the Federal Employees’ Retirement System
Act both “provides a cause of action and waives immunity for suits” by plan participants and
beneficiaries “to ‘recover benefits’ under the Thrift Savings Plan.” Doe 1, 37 F.4th at 86. Unlike
suits for other benefits, such actions must be brought in federal district court, not before the Merit
Systems Protection Board. See 5 U.S.C. § 8477(e)(7).
The Government contends that Section 8477 does not help Ms. Bennett because it is limited
to actions against plan fiduciaries, and she did not name those fiduciaries as Defendants. See Reply
12–13. It is true that the Defendants are not fiduciaries as that term is defined in Section 8477. See
5 U.S.C. § 8477(a)(3) (defining a “fiduciary” as “a member” or the “Executive Director” of the
Federal Retirement Thrift Investment Board, any other “person who has or exercises discretionary
authority or discretionary control over the management or disposition of the assets of the Thrift
Savings Fund,” or a plan fiduciary within the meaning of the Employee Retirement Income
Security Act, 29 U.S.C. § 1002(21)(A), which includes certain investment advisors). It is also true
that most of the remedies in Section 8477 are limited to actions against plan fiduciaries, id.
§ 8477(e)(3)(B), or for the acts of plan fiduciaries, id. § 8477(e)(3)(C)(ii). But the Government is
not correct that Section 8477 is limited to actions against plan fiduciaries.
Importantly, Section 8477(e)(3)(C)(i) of the Act provides a cause of action “to recover
benefits,” “enforce any right,” or “clarify any [] right to future benefits” under the Thrift Savings
Plan. Id. § 8477(e)(3)(C)(i). Unlike the other provisions in Section 8477, this cause of action is not
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limited to actions against plan fiduciaries. Contrast id. § 8477(e)(3)(B) (limiting remedy to actions
“against any fiduciary”), with id. § 8477(e)(3)(C)(i) (containing no such limitation); see also Doe
1, 37 F.4th at 86–87 (holding the United States may be sued under Section 8477(e)(3)(C)(i) but
only if the action seeks to “recover benefits”). And “[i]t is generally presumed that Congress acts
intentionally and purposely when it includes particular language in one section of a statute but
omits it in another.” BFP v. Resol. Tr. Corp., 511 U.S. 531, 537 (1994). Accordingly, the Court
rejects the Government’s contention that Section 8477’s waiver of sovereign immunity is limited
to suits against plan fiduciaries. Cf. 5 U.S.C. § 8477(e)(3)(C)(ii) (expressly waiving immunity for
certain suits, not at issue here, “against the United States”). Nonetheless, the Court finds that
Ms. Bennett’s claim under Section 8477(e)(3)(C)(i) fails for two reasons.
First, the Court agrees with the Government that Section 8477(e)(3)(C)(i) “contains no
explicit waiver of the government’s sovereign immunity to actions for money damages.” Garcia
v. United States, 996 F. Supp. 39, 42 (D.D.C. 1998); see Reply 14 (citing Natty v. Adm’r of Thrift
Sav. Plans, No. 2:22-CV-08926, 2023 WL 3852677, at *4 (C.D. Cal. June 5, 2023)). An action
may be brought under Section 8477(e)(3)(C)(i) to “force [an agency] to contribute” to the Thrift
Savings Plan. Doe 1, 37 F.4th at 88. But no cause of action exists for “damages flowing from” a
failure to contribute in accordance with the statute’s requirements. Id. at 87. Accordingly,
Section 8477 does not permit Ms. Bennett to recover money damages in this action—so her money
damages claims are dismissed for lack of subject-matter jurisdiction. See Compl. 15.
Second, Ms. Bennett’s allegations are too speculative and conclusory to survive a Rule
12(b)(6) motion. “A pro se complaint must be held to less stringent standards than formal pleadings
drafted by lawyers, but even it must plead factual matter that permits the court to infer more than
the mere possibility of misconduct.” Jones v. Horne, 634 F.3d 588, 596 (D.C. Cir. 2011) (internal
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quotation marks omitted) (first quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007); and then
quoting Atherton v. D.C. Off. of Mayor, 567 F.3d 672, 681– 82 (D.C. Cir. 2009)). Ms. Bennett’s
Complaint largely rests on “anecdotal evidence” from an unknown party claiming that her records
were scrubbed and her own “hypothetical[s]” for why her account balance is lower than she thinks
it should be. See Jianqing Wu v. Special Couns., No. 14-7159, 2015 WL 10761295, at *2 (D.C.
Cir. Dec. 22, 2015). Importantly, she does not “allege that [s]he is aware of any or a specific
amount of unaccounted for [] funds” in her account. Stephens v. Biden, No. 3:23-cv-00817, 2024
WL 554274, at *16 (D. Or. Jan. 26, 2024), report and recommendation adopted, 2024 WL 665177
(D. Or. Feb. 15, 2024). Ms. Bennett’s claim thus hinges on mere speculation regarding the
Government’s conduct, which is not “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Jianqing Wu, 2015 WL
10761295, at *1 (quoting Iqbal, 556 U.S. at 678). So Ms. Bennett also fails to state a claim because
her pleadings do not “raise a right to relief above the speculative level.’” Id. (quoting Twombly,
550 U.S. at 555).
* * *
Because sovereign immunity bars Ms. Bennett from raising her claims for non-Thrift
Savings Plan retirement benefits in this Court, the Court dismisses these claims for lack of subject-
matter jurisdiction pursuant to Rule 12(b)(1). Sovereign immunity also bars Ms. Bennett from
seeking monetary damages under 5 U.S.C. § 8477, so the Court dismisses her Thrift Savings Plans
claims for monetary damages under Rule 12(b)(1). And because Ms. Bennett otherwise failed to
state a claim upon which relief can be granted under 5 U.S.C. § 8477, the Court dismisses the
remaining Thrift Savings Plan claims under Rule 12(b)(6).
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CONCLUSION
For these reasons, the Court grants the Government’s motion to dismiss, ECF No. 14. A
separate order will issue.
SPARKLE L. SOOKNANAN
United States District Judge
Date: March 31, 2026
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