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Horn v. United States Dep't of Army

September 29, 2003

DAVID A. HORN, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF ARMY, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

This lawsuit was brought by the pro se plaintiff, David A. Horn, against his former employer, the Department of the Army, and his former attorney, Jeffrey B. Henry. Before the Court at this time are the motions of the federal defendant and Mr. Henry for dismissal or, alternatively, for summary judgment. The Court will grant the defendants' motions for summary judgment for the reasons stated below.

I. Background

Plaintiff was employed at the Walter Reed Army Medical Center ("WRAMC") for over eleven and a half years. Compl. at 4.*fn1 Prior to his resignation, plaintiff was a Medical Records Technician, G-5, in WRAMC's Plastic Surgery Clinic. Id. at 10. His complaint alleges that he had to work at WRAMC"under oppression", id. at 1; that he was discriminated against for revealing"the waste, fraud and abuse" being committed by his superiors, id. at 3; and that he was"denied promotion, and discriminated against with unfair and prohibited personnel practices...." Id. at 2. Mr. Horn filed an Equal Employment Opportunity ("EEO") complaint against the agency and, through the mediation process that followed, a settlement was reached. Id. at 5-6. However, having agreed to the terms of the settlement, Mr. Horn now argues that the settlement was achieved"through collusion and deception," id. at 2, on the part of the agency and his own attorney, who he claims"failed to represent [him] properly...." Id. at 5. He seeks a plethora of relief from this Court, including two million dollars, reinstatement to his position at WMRAC; recognition"for stopping waste, fraud and abuse of power[] at the Agency[,]" an"official apolog[y], to be presented to the Honorable Congressman Albert R. Wynn, and to [himself], for the Agency being untruthful and the slanderous information provided to the Congressman[,]" and remand of his 1996 and 1999 discrimination claims to the Equal Employment Opportunity Commission ("EEOC"). Id. at 10-11.

Although plaintiff's complaint recounts an interesting story of alleged discrimination, fraud and collusion, plaintiff's tenure as a WMRAC employee, as revealed by the documents submitted by the federal defendant, tell a less intriguing story. According to the documentary evidence, on May 3, 1999, plaintiff submitted an"Inspector General Action Request[,]" in which he requested that an investigation be conducted regarding"two employees [who] were allowed to leave work early every day for over 5 years or more...." Federal Defendant's Motion to Dismiss or, Alternatively, for Summary Judgment ("Fed. Def.'s Mot."), Exhibit ("Ex.") 1 (Inspector General Action Request dated May 3, 1999). Plaintiff made the request after he was suspended for five days following the report he made to his supervisors about the alleged leave abuses. Id. As a result of Mr. Horn's request, the Inspector General conducted an investigation and referred Mr. Horn's complaint to the Office of Special Counsel, which requested review by the Merit Systems Protection Board ("MSPB"). Fed. Def.'s Mot., Ex. 2 (Department of the Army Memorandum dated September 10, 1999). On June 10, 1999, plaintiff filed"a formal administrative complaint of discrimination [with] the Equal Employment Opportunity (EEO) office at Walter Reed." Federal Defendant's Statement of Material Facts Not in Dispute ("Fed. Def.'s Facts") ¶ 4. In his administrative complaint, plaintiff alleged that he had been discriminated against on the basis of his race and sex. Fed. Def.'s Mot., Ex. 3 (Formal Complaint of Discrimination filed by David A. Horn dated June 10, 1999).*fn2 This alleged discrimination consisted, in part, of a five day suspension and demotion to the position of Medical Clerk (G-S 4/8), exclusion from a clinical staff office picture, white employees being afforded"longer lunch breaks," and entry into his"office door without first knocking... [by] persons of non-color... even after [he] had posted a sign to knock before entering," despite the fact that"[t]he Staff in the Clinic [would] knock before entering a white person's office." Id. at 1-2. Plaintiff also alleged that he had been the victim of retaliation for"filing a complaint with the EEO Office... in April of 1996[,]"; for"initiating mediation[] through the Alternative Dispute Resolution on 13 November, 1996[,]" for his Whistleblowing activities which consisted of"alerting the Walter Reed Branch Office of the 3d Military Police Group... of Fraud, Waste and Abuse of Power in November through December of 1998 that occurred... and also for initiating Mediation with (ADR) again in Dec. of 1998...." Id. at 1. On August 19, 1999, plaintiff filed an appeal with the MSPB regarding his suspension, demotion and job detail. Def.'s Mot., Ex. 13 (MSPB Petition for Appeal dated August 19, 1999). Approximately two months later, on October 20, 1999, Steve Roberson, an Office of Complaint Investigations ("OCI") Mediator, conducted a mediation session at WRAMC regarding plaintiff's EEO complaints. Fed. Def.'s Facts ¶ 7; Fed. Def.'s Mot, Ex. 14 (Declaration of Steven W. Roberson dated April 16, 2001) ("Roberson Decl.")) ¶ 1.*fn3 Prior to the mediation session, WMRAC's attorney, Eric O'Shea, informed Mr. Horn and his attorney, Jeffrey B. Henry, that"Mr. Horn's Supervisors had initiated efforts to propose Mr. Horn's removal from his position and from Federal Service for misconduct." Fed. Def.'s Mot., Ex. 17 (Declaration of Eric M. O'Shea, Labor and Employment attorney for WRAMC dated April 18, 2001) ("'O Shea Decl.") ¶ 3.

As a result of the mediation session, which lasted three to four hours,*fn4 a settlement agreement was reached. Id. ¶ 4. In the agreement, the Agency agreed to several conditions, including paying plaintiff a lump sum of $17,628; canceling plaintiff's April 7, 1999 suspension and amending plaintiff's timecard to indicate that he had been on"Leave Without Pay status" for those days; amending plaintiff's civilian evaluation report for the rating period of April 1, 1999 to March 31, 1999 to indicate more favorable ratings than plaintiff had received; and granting plaintiff paid administrative leave from the day following the execution of the settlement agreement to his effective resignation date of December 1, 1999. Fed. Def.'s Mot., Ex. 5 (Settlement Agreement dated October 20, 1999) ¶ 4 (the"Agreement"). On plaintiff's part, he agreed to withdraw"with prejudice his discrimination complaints filed against the Agency and his MSPB IRA Appeal...[,] waive his right to pursue administrative or judicial action in any forum concerning the matters raised in these complaints and [not make his claims] the subject of future litigation." Id. ¶ 5(a). Plaintiff also agreed to resign from his position and from Federal Service effective December 1, 1999;*fn5 to list WRAMC's Civilian Personnel Office as a point of contact for job references; and accept the lump sum payment as full compensation for"any and all claims for reimbursement of medical expenses, compensatory damages, and any and all other monetary claims arising out of these complaints." Id. ¶¶ 5(b), 5(c), 6. Notably, plaintiff agreed to"fully release[] and forever discharge[] the Agency... and [its] employees from any and all claims... he has held, or may now or in the future hold... arising from the facts which led to these complaints. Id. ¶ 7. In addition, the Agreement provided that plaintiff had been afforded the"full opportunity to seek advice and consultation from an attorney and after a reasonable time to consider its terms." Id. ¶ 11.*fn6

On October 22, 1999, plaintiff tendered his resignation to WMRAC, which was designated to become effective December 1, 1999. Fed. Def.'s Mot., Ex. 6. On that same date, the parties submitted a copy of the Settlement Agreement to the administrative law judge assigned to the matter, who determined that the agreement was"lawful on its face" and that"the parties understood its terms and freely and voluntarily entered into it." Fed. Def.'s Mot., Ex. 7 (Initial Decision dated November 2, 1999). Therefore, the judge dismissed plaintiff's appeal"as settled." Id. On November 2, 1999, WRAMC tendered payment to plaintiff of the agreed to sum of $17,628.00. Fed. Def.'s Mot., Ex. 6.

Although the matter appeared to have been resolved to the satisfaction of all involved, in his petition for MSPB Review, dated November 30, 1999, plaintiff alleged"that the settlement agreement that was reached on October 20, 1999[,] by the Appellant and the Agency... was done through deception..., involuntarily with fear of reprisal... [,] also [with] fraud and collusion and misconduct [and] misrepresentation on the part of the Agency, the EEO, the OCI Investigator, and the Appellant's Counsel." Fed. Def.'s Mot., Ex. 15 (Petition for MSPB review dated November 30, 1999). On December 7, 1999, plaintiff filed an appeal"of [his] suspension, demotion and detail." Fed. Def.'s Mot., Ex. 8 (Letter to Clerk of the MSPB from David A. Horn dated December 7, 1999). On April 20, 2000, the MSPB issued a final order denying plaintiff's petition on the ground that"there [was] no new, previously unavailable evidence" that would warrant reversal of the administrative judge's dismissal of plaintiff's appeal. Fed. Def.'s Mot., Ex. 9. Thereafter, on May 30, 2000, plaintiff filed his complaint in this Court.

II. Analysis

A. Jurisdictional Issues

As a preliminary matter, this Court is compelled to address the issue of whether it has subject matter jurisdiction and to take exception with the prior ruling on this subject that was made by the judge previously assigned to this matter, that this Court, and not the Court of Appeals for the Federal Circuit, has subject matter jurisdiction over plaintiff's complaint. Order file stamped November 28, 2000 ("Order") at 4. The prior Order was issued in response to the federal defendant's previously filed motion to dismiss this matter for lack of jurisdiction and failure to state a claim, or alternatively, for summary judgment. The defendant made two arguments in support of a finding that this Court was without subject matter jurisdiction: first, that this Court did not have"jurisdiction to review actions taken by the MSPB under the Wistleblower [sic] Protection Act[,]" and second, that this Court was"without jurisdiction over discrimination complaints that were settled at the administrative level." Id. In holding that the Court had jurisdiction over plaintiff's complaint, the prior judge ruled that pursuant to 5 U.S.C. § 7703(b), this Court has jurisdiction over mixed cases, i.e., cases in which"a plaintiff raises both discrimination and non-discrimination claims...." Id. The Court concluded that this is a"'mixed case' because the plain language of the settlement agreement incorporates plaintiff's retaliatory and discrimination claims." Id. at 5.*fn7 Regarding the defendant's second jurisdictional argument, the Court concluded that it had jurisdiction because it would not be"solely reviewing the validity of the settlement agreement, but rather [would] be reviewing the Administrative Judge's decision to accept the agreement." Id.*fn8

Pursuant to the Civil Service Reform Act ("CSRA"), 5 U.S.C. § 7703(b)(1) (2000),"a petition to review a final order or final decision of the [Merit System Protection] Board shall be filed in the UNITED STATES COURT OF APPEALS for the Federal Circuit." However, in cases involving claims of discrimination, the plaintiff is entitled to de novo review in federal district court. See 5 U.S.C. § 7703(b)(2). Thus while section 7703(b)(1) gives the Federal Circuit jurisdiction over final decisions of the MSPB, pursuant to section 7703(b)(2), a district court has jurisdiction over"[c]ases of discrimination subject to the provisions of section 7702...." Id.; see also Powell v. Dep't of Defense, 158 F.3d 597, 598 (D.C. Cir. 1998). For plaintiff's case to be entitled to judicial review by a district court he"must satisfy two requirements. First, he must have been'affected by an action which the employee... may appeal to the [MSPB].'" Powell, 158 F.3d at 598 (quoting 5 U.S.C. § 7702(a)(1)(A))."Second, the employee must allege'that a basis for the action was discrimination prohibited by - - (i) section 717 of the Civil Rights Act of 1964....'" Id. (quoting 5 U.S.C. § 7702(a)(1)(B)).

Merely because a plaintiff alleges claims of discrimination in his complaint, however, does not vest this Court with subject matter jurisdiction. In a case decided after the prior Order was issued, and which is remarkably similar to this case, the Federal Circuit held that it, not the district court, had jurisdiction over plaintiff's claims that she had been coerced into signing a settlement agreement, which resolved her claims of discrimination regarding the termination of her employment. Franklin v. United States Postal Service, 61 Fed. Appx. 686 (Fed. Cir. 2003). The Federal Circuit stated that although the plaintiff's"amended and substituted complaint [sought] affirmative relief under 42 U.S.C. §§ 1981 and 1983, as well as the Fourteenth Amendment, for unlawful termination of her employment[,]... the pleading of discrimination [did] not necessarily preclude the exercise of jurisdiction by [the Federal Circuit] for limited purposes." Id. at 687 (citations omitted). Because the MSPB had not decisively rendered an opinion on the plaintiff's discrimination claims, the Franklin court concluded that it had"jurisdiction to review the Board's dismissal of Franklin's appeal because the controlling issue is a threshold one that, much like the issue of timeliness, does not depend on the merits of an underlying discrimination claim. The propriety of the MSPB's dismissal turns instead on whether Franklin entered into a valid settlement agreement with the Postal Service." Id. at 687-88. See also Ballentine v. Merit Systems Protection Bd., 738 F.2d 1244, 1247 (Fed. Cir. 1984) ("[I]t is clear that the judicially reviewable action by the MSPB which makes an appeal a'case of discrimination' under § 7703(b)(2) that can be filed in district court is that the MSPB has decided'both the issue of discrimination and the appealable action....") (quoting 5 U.S.C. § 7702(a)(1)) (emphasis added). But see Downey v. Runyon, 160 F.3d 139, 144 (2d Cir. 1999) (rejecting Ballentine and holding that employee could seek review of his discrimination claims in the district court, despite the fact that the MSPB had dismissed plaintiff's appeal because it was untimely and had not reached the merits of his discrimination claims). Thus, in this case, because the MSPB never issued a ruling on the merits of plaintiff's discrimination claims, this Court would conclude, if the jurisdictional question was before it on a clean slate, that the Federal Circuit and not this Court, has proper jurisdiction over plaintiff's complaint.

However, this Court will not dismiss this matter for lack of subject matter jurisdiction for several reasons. This decision is primarily based on the law of the case doctrine, which provides that"the same issue presented a second time in the same case in the same court should lead to the same result." LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (emphasis in original). This doctrine is applicable"as much to decisions of a coordinate court in the same case as to a court's own decisions." Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988) (citations omitted).*fn9"[T]he law of the case [doctrine] turns on whether a court previously'decide[d] upon a rule of law'... - - not on whether, or how well, it explained the decision." Christianson, 486 U.S. at 817. Thus, the doctrine is applicable to"questions decided'explicitly or by necessary implication.'" LaShawn A., 87 F.3d at 1394 (citation ...


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