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SHERWIN v. DEPARTMENT OF THE AIR FORCE

February 26, 1997

CHARLES T. SHERWIN, Plaintiff,
v.
DEPARTMENT OF THE AIR FORCE, SHEILA WIDNALL, Secretary, and MERIT SYSTEMS PROTECTION BOARD, BEN L. ERDREICH, Chairman, Defendants.



The opinion of the court was delivered by: FRIEDMAN

 This matter is before the Court on defendants' motion to dismiss plaintiff's complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted under Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure. Plaintiff opposes the motion.

 I. BACKGROUND

 Plaintiff Charles Sherwin is a former civilian employee and reservist in the United States Air Force. On June 17, 1988, the Air Force removed him from his position as a Program Analyst based on a charge of false certification of a military pay document. Defs.' Mot. to Dismiss, Ex. 1. Plaintiff appealed his removal to the Philadelphia Regional Office of the Merit Systems Protection Board ("MSPB"). He asserted that the Air Force committed error by allowing the same individual to act as the proposing and deciding official, by charging the plaintiff with falsification where no illegal intent was shown, and by supporting its penalty determination with a suspension that was not mentioned in the proposal notice. Defs.' Mot. to Dismiss, Ex. 2. After a hearing, the Administrative Law Judge sustained the charge but mitigated the removal to a 30-day suspension and a demotion. Defs.' Mot. to Dismiss, Ex. 1.

 Both plaintiff and the Air Force petitioned the MSPB for review of the Administrative Law Judge's decision. Plaintiff argued that the Air Force had failed to prove intent to deceive and that his removal therefore should not have been sustained. Defs.' Mot. to Dismiss, Ex. 3. The Air Force challenged the mitigation of plaintiff's removal penalty, while plaintiff argued that the Administrative Law Judge's penalty determination was proper. Defs.' Mot. to Dismiss, Ex. 5; Defs.' Mot. to Dismiss, Ex. 4.

 The Board denied plaintiff's petition, granted the Air Force's petition, and affirmed the ALJ's decision as modified, sustaining the false certification charge but reinstating the penalty of removal. Defs.' Mot. to Dismiss, Ex. 5. Plaintiff appealed and the United States Court of Appeals for the Federal Circuit affirmed the MSPB's decision. Defs.' Mot. to Dismiss, Ex. 6. Plaintiff then filed a petition for rehearing, a suggestion for rehearing en banc, a motion for relief from judgment, and a second petition for rehearing and en banc rehearing, all of which the Federal Circuit denied. Defs.' Mot. to Dismiss, Ex. 7. The Federal Circuit also denied plaintiff's subsequent Petition for Writ of Error Coram Nobis and stated that any further documents submitted in the case would be placed in the file without response. Defs.' Mot. to Dismiss, Ex. 7.

 Plaintiff then sued the Air Force, the Secretary of the Air Force and several Air Force employees in the United States District Court for the Eastern District of North Carolina, alleging a violation of the Privacy Act, 5 U.S.C. § 552a, by, among other things, the inclusion of North Carolina Employment Security Commission records in his MSPB file. The district court dismissed plaintiff's complaint and the Fourth Circuit affirmed. Sherwin v. Department of the Air Force, et al., No. 90-34-CIV-3-BR (E.D.N.C. April 15, 1992), aff'd, 37 F.3d 1495 (4th Cir. 1994), cert. denied, 115 S. Ct. 1823 (1995).

 Plaintiff next filed a Bivens action in the Eastern District of North Carolina, again raising the issue of wrongful termination but this time casting it as a violation of due process. Plaintiff complained that twelve defendants, including then MSPB Chair Daniel Levinson and MSPB Vice Chair Maria Johnson, conspired to deprive him of his due process rights by removing him from his position as a civilian employee of the Air Force. The basis of his allegation was that the charge he was accused of, false certification of a military pay document, is a federal crime outside the authority or jurisdiction of his superiors to adjudicate. The district court dismissed the action for lack of subject matter jurisdiction. Sherwin v. Billmyer, No. 91-89-CIV-3-BR (E.D.N.C. April 13, 1992); Defs.' Mot. to Dismiss, Ex. 8. It also found that the defendants were protected by qualified immunity. Id. The Fourth Circuit affirmed. Sherwin v. Billmyer, 978 F.2d 1256 (4th Cir. 1992).

 Plaintiff then sued the United States, the President, the Attorney General, the Secretary of the Air Force, the Director of the Office of Personnel Management and the Chair of the MSPB in the Eastern District of North Carolina. Sherwin v. United States, No. 92-56-CIV-3-H (E.D.N.C. October 28, 1992); Defs.' Mot. to Dismiss, Ex. 9. Plaintiff sought a writ of mandamus to clear his name and alleged a violation of his constitutional rights. The district court also dismissed this complaint. Id.

 Plaintiff then filed a fourth suit in the Eastern District of North Carolina, this time against the Secretary of the Air Force. The district court granted defendant's motion to dismiss, holding that the suit was barred by the doctrine of res judicata. Sherwin v. Widnall, No. 93-68-CIV-3-BR (E.D.N.C. Mar 7, 1994); Defs.' Mot. to Dismiss, Ex. 10. It noted that each of the plaintiff's suits had arisen from exactly the same set of facts and observed that "at some point, litigation over a particular controversy must come to an end. That point has long since passed for plaintiff. Plaintiff is warned that further attempts to litigate this claim may result in sanctions." Sherwin v. Widnall, No. 93-68-CIV-3-BR, at 4 (E.D.N.C. Mar 7, 1994); Defs.' Mot. to Dismiss, Ex. 10.

 Plaintiff nevertheless filed a fifth lawsuit in the same court, this one against the United States and Lieutenant Colonel Donald L. Robinson. The district court dismissed with prejudice and enjoined plaintiff from filing, instituting, continuing or prosecuting any civil action in the United States District Court for the Eastern District of North Carolina without first obtaining leave of court and without first certifying that

 Sherwin v. United States, Civil No. 94-CV-48-BR2, at 2 (E.D.N.C. October 26, 1994); Defs.' Mot. to Dismiss, Ex. 11.

 Perhaps finally getting the message sent several times by the U.S. District Court for the Eastern District of North Carolina, plaintiff then turned to this Court. He filed a Petition for a Writ of Mandamus against the Special Counsel for the Office of Special Counsel ("OSC"), alleging that the OSC had failed to investigate a complaint plaintiff had filed with it or to seek corrective action on plaintiff's behalf. Complaint in Sherwin v. Day-Koch, Civil Action No. 95-1478(SS) (D.D.C. Dec. 22, 1995); Defs.' Mot. to Dismiss, Ex. 12. In his petition plaintiff made some of the same claims asserted in the prior lawsuits and in the present lawsuit. Id. at 2-4. On December 22, 1995, Judge Sporkin granted the government's motion to dismiss, and the court of appeals subsequently granted the government's motion ...


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