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MALCOLM v. RENO

October 19, 2000

TIMOTHY MALCOLM, PLAINTIFF,
V.
JANET RENO, ATTORNEY GENERAL, UNITED STATES DEPARTMENT OF JUSTICE, DEFENDANT



The opinion of the court was delivered by: Oberdorfer, District Judge.

MEMORANDUM

Plaintiff moves for a declaratory judgment that a May 3, 1999 Department of Justice ("Department") decision under the Rehabilitation Act, which he did not appeal, is final and binding on the Department. Plaintiff also moves for temporary and permanent injunctive relief to enforce the remedy ordered in that decision. These motions arise out of plaintiff's de novo appeal of a November 17, 1999 Department decision as to compensatory damages. An accompanying order grants plaintiff's motion for a preliminary injunction and contemplates further proceedings to resolve plaintiff's compensatory damages claim.

I.

The undisputed facts, as set forth in Department's decisions of May 3, 1999 and November 17, 1999 (attached hereto as Appendices A and B, respectively), and as related by the parties, are as follows. Plaintiff Timothy Malcolm is a 36-year-old resident of Minnesota. In 1995, after ten years in the Marine Corps, Malcolm resigned his commission as a Captain in order to become a Special Agent with the Federal Bureau of Investigation ("Bureau"). On December 7, 1995, the Bureau offered Malcolm a conditional appointment as a Special Agent subject to a medical examination and other prerequisites. May 3, 1999 decision, Appendix A at 2. In January 1996, a Bureau physician examined Malcolm and found him "qualified for strenuous physical exertion without any defects restricting or prohibiting his participation in defensive tactics and dangerous assignments." Id. During the examination, however, the doctor noticed that Malcolm had an elevated white blood cell count and ordered a follow-up evaluation. Id. After examination by a specialist, Malcolm was diagnosed with chronic lymphocytic leukemia. Id. at 3. Since the diagnosis, Malcolm has been asymptomatic and has needed no medical treatment for his condition.

As a result of the leukemia diagnosis, the Bureau rescinded Malcolm's conditional offer of employment on April 2, 1996. Id. at 3-4. One month later, Malcolm contacted an Equal Employment Opportunity (EEO) counselor. Unable to resolve the matter informally, on June 6, 1996, the counselor issued Malcolm a Notice of Right to File a Complaint. Id. at 1. On June 17, 1996, Malcolm filed a complaint with the Bureau's EEO office, and in February 1997, the Bureau's EEO office informed Malcolm of his option to request either a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge, or a final Department decision without a hearing. Id. On March 5, 1997, Malcolm requested a hearing before the EEOC Administrative Judge. After denying the Bureau's Motion for Summary Judgment, the EEOC Administrative Judge, on February 24, 1999, issued a Recommended Decision without holding a hearing, finding that the Bureau had violated Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791. Id. at 1-2. The EEOC Administrative Judge then forwarded the case to the Department's Complaint Adjudication Office ("Office") for a final agency decision. Id. at 2.

On May 3, 1999, the Office issued an agency decision, captioned, "Department of Justice Final Decision in the matter of Timothy G. Malcolm v. Federal Bureau of Investigation." Id. at 1. In the decision, the Office adopted the findings of the EEOC Administrative Judge that the Bureau's withdrawal of its offer of employment to Malcolm violated the Rehabilitation Act. Id. at 16. Specifically, the decision stated that at the time of his rejection, Malcolm was qualified and capable of performing all the essential functions of a Special Agent. Id. at 13. Nonetheless, the opinion determined that the Bureau rejected him based on speculation that he might become unable to work as an Bureau agent sometime in the future due to his leukemia. Id. at 11. The decision further explained that although Malcolm "was not an individual with a disability because there was no evidence that his cancer substantially limited a major life activity," the Bureau regarded him as disabled and, based on this perception, refused to hire him. Id. at 6-7. The decision rejected the Bureau's argument that Malcolm was not denied a class of jobs due to the Bureau's perception of disability, concluding, as did the EEOC Administrative Judge, that "since the Bureau had excluded complainant from a Special Agent position because his `need for . . . aggressive treatment in the future will very likely compromise his ability to carry out' law enforcement duties, this rationale tended to exclude complainant from all law enforcement positions requiring similar skills." Id. at 7. The decision also stated that "the concerns raised by Bureau officials about complainant's condition would effectively preclude him from working any law enforcement position, not just the position of Bureau Special Agent." Id. at 11.

To remedy the discrimination, the May 3, 1999 decision ordered the Bureau to (1) provide Malcolm with a written offer of the position of Special Agent, subject to an updated background investigation, medical examination and all other prerequisites for the position, (2) pay Malcolm back pay and benefits retroactive to the date he would have been hired but for its discriminatory conduct, (3) consider his claim for attorney's fees, and (4) consider whether he was entitled to compensatory damages (even though he had not sought them). Id. at 18-20. As to compensatory damages, the decision specifically observed that "[c]omplainant might also be entitled to pecuniary and non-pecuniary compensatory damages . . . stemming from the rescission of the conditional offer. . . . Complainant should present evidence of compensable monetary damages to the FBI's EEO office." Id. The decision further ordered that

[t]he Bureau should review and evaluate complainant's claim for compensatory damages within a reasonable time period, and if it agrees with complainant's claim for monetary relief, compensate complainant the agreed-upon sum. In the event there is a disagreement over the amount, and the parties cannot settle on a mutually agreeable sum, the parties should notify this office in writing whereupon we will issue a final decision based on the records and documents submitted by the parties as to what is an appropriate award.

Id. at 20. In its cover letter to the May 3, 1999 decision, the Office notified Malcolm of his "Rights of Appeal." Cover Letter to May 3, 1999 decision, Appendix A. Malcolm did not appeal any part of the May 3, 1999 decision. As ordered, the Bureau began Malcolm's updated background investigation and medical examination.

On November 17, 1999, after proceedings concerning Malcolm's claim for compensatory damages, the Office issued another agency decision, in which it found that the timing and basis of the Bureau's rescission of Malcolm's conditional employment offer caused Malcolm to suffer emotional and psychological distress and awarded him $15,000 in compensatory damages. The first page of the November 17, 1999 decision identified it as a "Department of Justice Final Decision." November 17, 1999, Appendix B at 1. The cover letter signed by a Department's Complaint Adjudication Officer identified the decision as final.

Under the Department of Justice's equal employment opportunity regulations, the Complaint Adjudication Officer renders the final Department of Justice decision on your complaint, including matters of relief. Enclosed is the final Department of Justice decision in the matter of compensatory damages.

Cover Letter to November 17, 1999 decision, Appendix B (emphasis added). The cover letter also set forth the procedures governing Malcolm's "Rights of Appeal." Id. The November 17, 1999 decision referred to the May 3, 1999 decision as an "FAD", or final agency decision. November 17, 1999 decision at 1.

On February 2, 2000, Malcolm filed a complaint in this Court against defendant seeking a trial de novo on the compensatory damages issues addressed by the November 17, 1999 decision. Complaint at 2. On April 18, 2000, the defendant answered and asserted that Malcolm's appeal of the November 17, 1999 decision would subject his entire case, including the May 3, 1999 decision, to de novo review. Answer at 1-2. Malcolm then filed an amended complaint on May 31, 2000, seeking, in addition to relief relating to his de novo challenge to the November 17, 1999 decision, an order declaring the May 3, 1999 decision final and binding on the Department.

In July 2000, the Bureau informed Malcolm that he had successfully completed the prerequisite medical examination and background investigation ordered under the May 3, 1999 decision. Malcolm was approved by the Bureau to attend the Special Agent training class beginning in October 2000 at Quantico, Virginia. However, the Bureau has refused to place Malcolm in a Special Agent position until the final resolution of this lawsuit.

The Bureau's next scheduled Special Agent training class begins October 23, 2000 at Quantico, Virginia. A second training session is tentatively scheduled to begin in March 2001, but may not commence until some time after that date. Malcolm, who was 32 years old when his conditional offer of employment was withdrawn, will be 37 years old on May 17, 2001. "To qualify for training as a Bureau Special Agent, you must be . . . at least 23 and not have reached your 37th birthday on appointment." http://www.fbi.gov/employment/agent2.htm; see FBI Application Checklist for the Special Agent Position, Publ. No. FD-869 (Aug. 26, 1997) ("I understand that if I reach age 37 prior to the time of appointment to the FBI Academy I will be disqualified from the applicant process.").*fn1

On September 22, 2000, Malcolm moved for a temporary restraining order, declaratory judgment and preliminary and permanent injunction to (1) declare that the May 3, 1999 decision is final and binding, (2) direct the defendant to comply fully with the terms of the May 3, 1999 decision without delay, and (3) direct the defendant to take all necessary steps to place Malcolm in the October 23, 2000 Special Agent class.

II.

On its face, it is clear that the May 3, 1999 decision was a final agency decision. The first page of the decision identified it as a "Department of Justice Final Decision in the matter of Timothy G. Malcolm v. Federal Bureau of Investigation." May 3, 1999 decision at 1. The cover letter from the Department's Complaint Adjudication Officer stated:

Under the Department of Justice's equal employment opportunity regulations, the Complaint Adjudication Office renders the final Department of Justice decision on your complaint. Enclosed is the final Department of Justice decision.

Cover Letter to May 3, 1999 decision at 1 (emphasis added). As required by 29 C.F.R. ยง 1514.110 (a) (2000), which governs final agency actions following an EEOC Administrative Judge's decision, the ...


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