1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BERNICE ALSTON , Plaintiff,

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

MEMORANDUM OPINION In 2011, Plaintiff Bernice Alston sought the U.S. Department of Treasury’s review of the denial of retirement benefits she believed she had earned while employed by the District of Columbia Public Schools fro m 1970 to 1976 . Specifically, she challenged a determination by the District of Columbia Retirement Boar d

– an independent agency responsible for managing the asse ts of District retirement funds

– that because she had applied for and received a refund of $2,458.96 after leaving DCPS , she was ineligible for further benefits . Treasury denied her appeal, finding that the records upon which the Board had based its determination were reliable. Dissatisfied with Treasury’s de cision, Alston filed this suit , and both parties have now cross move d for summary judgment

. Because Treasury’s denial of Alston’s appeal w as not arbitrary or capricious, the Court will grant Defendant’s Motion and deny Plaintiff’s.
I. Background Employees of DCPS can participate in the Distri ct of Columbia Teachers’ Retirement Plan, overseen by the Federal Government and the District of Columbia. See Balanced Budget Act of 1997, Pub. L. No. 105

- 33, 111 Stat. 251. The U.S. Department of Treasury is responsible2 for funding Plan benefits based on service performed on or before June 30, 1997, see D.C. Code § 1

- 701, et seq ., while the District Government administers the Plan through the District of Columbia Retirement Board. See BBA § 11041; D.C. Code § 1

- 809.01. If a Plan participant has been d enied benefits, s he may request reconsideration from the DCRB. See 31 C.F.R. § 29.404(b)

- (d). Additionally, if the benefits were earned prior to 1997, an individual whose claim has been denied by the DCRB m ay appeal that decision to the Department of Tre asury . Id. § 29.405. Treasury’s decision represents a final agency action , and a party may seek judicial review of that decision b y filing suit in this District

. See BBA § § 11022, 110 71

- 110 72 ; D.C. Code § 1

- 805.02. Moving to the particulars of Alsto n’s case, the Court notes that, u nless otherwise specified , the facts set forth herein are undisputed and are drawn from the parties ’ Statements of Material Facts submitted pursuant to Local Civil Rule 7(h). From July 1, 1970 , until her resignation in Jan uary 12, 1976, Plaintiff was an employee of DCPS. See Defendant’s Statement of Material Facts (SMF), ¶¶ 1

- 2

. On March 22, 1978, she was re - hired by DCPS, and she continued to work there until November 17, 1996, when she resigned purs uant to a reduction i n force. See id. , ¶ 6. Du ring both periods of employment , Alston made contributions to the Plan

. See Pl. ’s SMF , ¶ 2. Subsequent to her employment at DCPS, Alston was hired by the National Aeronautics and Space Administration , where she worked until she retired on September 2,
2010. See Def.’s SMF , ¶ 7

. Upon her retirement , Alston discovered that her benefits package did not include contributions she had made to the P lan from 1970 through 1976. See Pl.’s SMF, ¶ 6. When she sought to remedy this, she was informed by the DCRB that those benefits had been excluded because she had received a refund of $2,548.96 in Plan contributions on March 24, 1976, after3 she left DCPS. See id. , ¶ 7. Plaintiff denied ever applying for or receiving this refund. See i d. , ¶ 8. Because more than thirty years had passed since the refund was issued, only two record s documenting the refund could be located . The first, the Individual Retirement Record (Form
FA

- 103) notes that Alston applied for a refund that was “paid on voucher 110212 dtd 3/24/76.” Administrative Record (A.R.) 0013. The second, Alston’s Separation Retain Record (Form DA

33) documents a $2,548.96 cred it, stating, “Appl for refund paid on voucher 110212 dtd
3/24/76 ” ). See A.R. 0014. Both forms were main tained in the ordinary course of business pursuant to the District’s process ing of employee retirement

- contribution refunds

. See
A.R. 0003

- 00 04. Neither form was signed or provided any other information regarding the refund beyond the voucher number and date. See A.R. 0013

- 00 14. The District, moreover, was unable to locate any further documentation, such as the voucher itself or the cancel ed check. See
A.R. 0004. According to the District , this was because the documents date from “over thirty
years ag o[, and they] would have been destroyed as the District requirements for payroll and financial records that pertain to disbursement only require a retention period of 4 to 7 years.”
See Def.’s SMF , ¶ 5 (citing A.R. 0015). It further explained that the tw o records it had locate d , Forms DA

- 33 and FA

- 103, are “hard cards that are easier to maintain than paper files and thus have been retained.” See id.
On June 2 , 2011, the Board responded to Alston’s inquiry requesting an “investigation” into the vouch er and refund. See id. , ¶¶ 8

- 9. It explained that it had conducted a search of its records and that no additional documentation surrounding th e voucher or the refund existed; it nonetheless concluded , however, that her contributions had been refunded bas ed on the available documentation and the practices of the agency at the time. See id. , ¶ 9. Alston appealed that4 decision by a letter dated June 6, 2011, to Treasury’s Office of D.C. Pensions. See id. , ¶ 10. On February 1, 2012, Treasury denied that a ppeal

. See A.R. 0002

- 0 016 (Treasury Decision)

. Having conducted “a comprehensive review of the facts and the statutory language of the Plan,” Treasury concluded: “According to Plan records, your employee contributions to the Plan of $2,548.96 during this period were already refunded to you on March 24, 1976, and you have failed to provide a sufficient basis on which to overcome the presumption of regularity accorded to the District’s actions and recordkeeping.” A.R. 0002. The letter set forth the undisp uted facts that were relevant to her appeal, the procedural history surrounding the Board’s decision, and an explanation of Treasury’s decision to deny Alston’s appeal. See A.R. 0002

- 00 05. T he letter further noted that the decision was a final agency act ion and that Alston had the right to seek judicial review of that decision. See A.R. 0004.
II. Legal Standard Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgm ent as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247

- 48 (1986); Holcomb v. Powell , 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the substantive outcome of th e litigation. Holcomb , 433 F.3d at 895; Liberty Lobby, Inc. , 477 U.S. at 248. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris , 550 U.S. 372, 380 (2007); Liberty Lo bby,
Inc. , 477 U.S. at 248; Holcomb , 433 F.3d at 895. In a case involving review of a final agency action under the APA , however, the standard set forth in Rule 56(c) does not apply because of the limited role of a court in revie wing the administrative r ecord. See Sierra Club v. Mainella , 459 F. Supp. 2d 76, 89

- 90 (D.D.C. 2006)5 (citing Nat’ l Wilderness Inst. v. United States Army Corps of Eng’ rs , 2005 WL 691775, at *7 (D.D.C. 2005) ; Fund for Animals v. Babbitt , 903 F. Supp. 96, 105 (D.D.C. 1995) , amended on other grounds , 967 F. Supp. 6 (D.D.C. 1997) ). “[T]h e function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Id. (internal citations omitted). Summary judgment thus serves as the mechanis m for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review. See Richards v. INS , 554 F.2d 1173, 1177 (D.C. Cir. 1977), cited in Bloch v. Powell , 227 F. S upp. 2d 25, 31 (D.D.C. 2002), aff’d , 348 F.3d 1060 (D.C. Cir. 2003)

. The Administrative Procedure Act “sets forth the full extent of judicial authority to review executive agency action for procedural correctness.” FCC v. Fox Television Stations,
Inc. , 556 U.S. 502, 513 (2009). It requires courts to “ho ld unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This is a “narrow” standard of review as courts defer to the agen cy’s expertise. Motor Vehicle Mfrs. Ass’ n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co. , 463 U.S. 29, 43 (1983). An agency is required to “examine the relevant data and articulate a satisfactory explanation for its action including a rational connectio n between the facts found and the choice made.” Id. (internal quotation omitted). The reviewing court “ is not to substitute its judgment for that of the agency. ” I d. Nevertheless, a decision that is not fully explained may be upheld “ if the agency’ s pa th may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas

- Best Freight Sys

. , Inc. , 419 U.S. 281, 2 86 (1974)

.6 III. Analysis The sole question that Alston raises here is whether Treasury’s denial of her appeal was arbitrary and capricious. See Pl.’s R eply at 1

- 4. While acknowledging the deferential standard for this Court’s review, Plaintiff nonetheless disputes the sufficiency of the record Treasury relied on in determining that the retirement contributions had been refunded to her

. S ee id. at 1

- 2. Finding that Defendant examined the relevant facts and articulated a rational connection between those facts and its conclusion in its February 1, 2012 , decision, the Court must side with Treasury here

. In its four

- page Decision Letter, Treasury began its analysis by setting forth the undisputed facts surrounding Alston’s refund claim and its procedural history , then reviewed the Board’s June 2, 2011 , decision

. See A.R. 0002

- 00 03. In so doing , Treasury “reviewed the correspondence between [Alston] and DC RB, [the Office of D.C. Pensions] , and [the District’s Office of Pay and Retirement Services] ; relevant documents that are contained in [Alston’s] file; and the applicable statutor y provisions and Plan documents.” It ultimately concluded that Alston had
f ailed to demonstrate that you were not issued a refund of employee contributions to the Plan during the period of 1970

- 1976. The Plan records, used in the ordinary course of business, reflect that a refund of contributions in the amount of $2,548.96 was i ssued to you on March 24, 1976. Specifically, DCRB has produced your Form FA 103, dated 3/24/76 (Exhibit 4), the document used in the ordinary course of business in processing a District employee’s refund of retirement contributions, that was utilized by the benefit administrator at the time, the District’s Office of Budget and Financial Management. Form DA

- 33, also d ated 3/24/76, further reflects your application for and payment for a refund of this amount. (Exhibit 5).
A.R. 0003

- 04.7 Treasury , mor eover, expressly address ed the specific challenges that Alston re

- asserts here: On appeal, you assert that DCRB’ s decision is based on insufficien t records

– namely, you state that the 3/24/76 voucher reflecting a refund of contributions “ is absent any ty pe of signature or initials for approval, validation or certification. ” The absence of initials or a signature on the Form DA 33 is an insufficient basis on which to grant your appea l. As the Federal Circuit noted in Butler v. Principi , 244 F.3d 1337, 13 40 (Fed. Cir. 2001), pub lic officials are entitled to a “ presumption of regularity ” in the performance of their official duties, and in the absence of clear evidence to the contrary, the doctrine presumes that these duties have been properly discharged. A t your request, the District and DCRB conducted an exhaust ive search of their records and determined that no additional records exist that relate to your refund beyond those discussed above. As OPRS noted in its November 10, 2011 letter to you , these reco rds would have been over 30 years old, and have been destroyed in accordance with the mandatory retention period applicable at that time. (Exhibit 6). Because the existing re cords of the District and DCRB, maintained in the ordinary course of bus iness, r eflect that a refund of contributions was in fact issued to y ou, the burden shifts to you to provide evidence that you did not receive a refund in this amount. The absence of a signature on the forms is not sufficient to overcome the presumption of regula rity accorded to the government’s actions.
You further question the validity of the refund forms discussed above on the basis that your service computation has historically included the years of ser vice from 1970

- 76. However, the computation of service has no relationship to the issuance of a ref und of contributions. In either case, your employment by DCPS from 1970

- 76 would have be en included in a computation of your service time.
A.R. 0004. While Alston continues to disagr ee with Treasury’s conclu sion, she cannot show that it s decision was arbitrary or capricious. In its review, Treasury relied on the facts in the record

– both the facts specific to Alston’s refund and to the agency’s practices and procedures for processing such refunds

– and “ art iculate [d] a satisfactory explanation for its action including a8 rational connection between the facts found and the choice made.” Motor Vehicle Mfrs.
Ass’ n , 463 U.S. at 43 (internal quotation omitted)

. This Court, in fact, would come to the same conclus ion even if conducting de novo review. Strong support for the Treasury’ s decision lies in
t h e two documents that the Board was able to locate . These two hard cards contain very specific information

– namely, particular voucher numbers and actual dates on which they were issued. The inform ation on the two cards , moreover, wa s consistent. Based on the practices of the District in processing requests for refunds at the time, Treasury sensibly determined that the refund had been issued.
In so concluding, Treasury found that the government was entitled to a “presumption of regularity” in the performance of its official duties and that the “absence of a signature on the forms is not sufficient to overcome the presumption of regularity accorded to the governm ent’s actions.” A.R. 0004 (citing Butler v. Principi , 244 F.3d 1337, 1340 (Fed. Cir. 2001) ) . In describing this presumption, the D.C. Circuit has held that “[w]hile not irrebuttable, this presumption may only be rebutted throu gh clear or specific evidenc e. ‘ The presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly di scharged their official duties.’” Riggs Nat’l Corp. & Subsidiaries v. Comm’r , 295 F.3d 16, 21 (D.C. Cir. 2002) (quoting United States v. Chem. Found. , 272 U.S. 1, 14

- 15 (1 926) ). The Circuit in Riggs ruled against the party who

s ought to rebut the presumption by arg uing that “i nconsistencies in documents

. . . call[ed] into question the accuracy” of the challenged documents, finding that the inconsistencies were not

“ clear evidence of anything .” Id. (internal quotations omitted). The “ e vidence” here is even less persuasive. Alston has offered nothing to call into question Treasury ’s reliance on the presumption of regularity; instead, she merely contends that9 because other employees have raised similar concerns, the Court should find that there are sufficient “administrative p roblems” to rebut the presumption that the District compl ied with its own procedures in processing refunds. See Pl.’s Reply at 4. Such speculation , however, is not sufficient evidence to rebut the presumption. It was reasonable , moreover, for Treasury to conclude that the absence of additional records did not create suf ficient doubt about the refund,

as the particular records were more than thirty years old and would not have been re tained pursuant to the agency’s document

- retention policies.
Because Treasury’s decision was not “ arbitrary, capricious, an abu se of discretion, or other wise not in accordance with law, ” this Court can not disturb it. 5 U.S.C. § 706(2)(A).
IV. Conclusion For the foregoing reasons, the Court will grant Defendant ’ s Motion for Summ ary Judgment and deny Plaintiff’ s . A se parate Order consistent with this Opinion will issue this day. **/s/ James E. Boasberg** JAMES E. BOASBERG United States District Judge Date: June 19 , 201 3