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.
Upon consideration of the pleadings,
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.
*105Compl., 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").
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 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 *106parties 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 ,
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.
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. ,
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 ,
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
Mrs. Firestone's federal question arises under the Federal Employees' Retirement System Act of 1986 ("FERSA"), as amended,
*108In 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[.]
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
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."
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:
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....
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 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[.]
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.
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."
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."
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."
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. 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 ,
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 *112also requires each page of the form to be dated by the participant and both witnesses." Designation of Beneficiary,
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-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 ,
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), *113the 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 nevertheless be established with the aid of the mailbox rule.
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,
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 change a beneficiary." Hewitt ,
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 ,
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."
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
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."
*115Accordingly, 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.
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."
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 ,
*116Ordinarily the Court hesitates to treat an issue as conceded. See, e.g. , Manning v. Esper , Civil Action No. 12-1802 (CKK),
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).
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 *117FRTIB'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 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.
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.
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").
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 ,
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.
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.
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).
The Court understands that this version of
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.
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 ,
Although Section 1651.3(c) has been amended still further since then, the portions relevant to this Memorandum Opinion have not changed.
FRTIB and TSP, on the one hand, and Mrs. Firestone, on the other, draw conflicting inferences 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.
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.
Mrs. Firestone does refer to equitable estoppel once in her brief, but she does so only in describing a case that she distinguishes for other purposes. See Pl.'s Opp'n to FRTIB's Mot. at 6 (citing Ferguson ,