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Rogler v. U.S. Dep't of Health and Human Services

June 3, 2009


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


In this lawsuit, Edar Y. Rogler, Esq., has sued the U.S. Department of Health and Human Services and Secretary Kathleen Sebelius*fn1 under the Privacy Act, 5 U.S.C. § 552a; the Administrative Procedure Act, 5 U.S.C. § 551 et seq.; and the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.*fn2 Despite repeated extensions of time, she has failed to respond to Defendants' Motion to Dismiss the First Amended Complaint and now asks the Court to stay this case pending the appeal of a prior case, Rogler v. Biglow, Civil Action No. 07-2308, a Bivens*fn3 suit against HHS employees for alleged violations of Ms. Rogler's constitutional rights. Ms. Rogler is an attorney who is proceeding pro se and who has instituted numerous lawsuits arising from her short-term work as a chaplain at the National Institutes of Health Care Center in Bethesda, Maryland.*fn4 Defendants' pending motion [Dkt. # 20] was filed under Rules 8 and 10 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1915(e)(2)(B), and is in all material respects identical to the motion to dismiss the original Complaint [Dkt. # 10], to which Ms. Rogler filed a short response [Dkt. # 16].


A. Pending Motions

Ms. Rogler is an attorney, admitted to the bars of two states and this Court. In this action, she is proceeding pro se and in forma pauperis. The original Complaint in this matter was 53 pages long and contained 279 paragraphs or allegations. Shortly after Defendants' motion to dismiss ripened on March 31, 2009 - based, inter alia, on her failure to present a short and plain statement of her claims so that Defendants could defend themselves, see Fed. R. Civ. P. 8 - Ms. Rogler filed the First Amended Complaint. See Dkt. # 19 (filed on April 2, 2009). It is 61 pages long, contains 237 numbered paragraphs, and three exhibits, one of which is 152 pages long. See id.

Defendants moved to dismiss the First Amended Complaint on April 13, 2009. See Dkt. # 20. Ms. Rogler then filed a motion for a stay pending the appeal of Rogler v. Biglow, Civil Action No. 07-2308, the Bivens action against HHS employees. See Dkt. # 23 (filed on April 29, 2009). In that motion, Ms. Rogler "proffer[ed] that the Biglow action dismissal with prejudice ends the viability of the instant action." Id. at 1 (italics added).

When Defendants failed to respond to her motion for a stay, Ms. Rogler filed a Notice of Consent for Stay and Motion to [sic] Extension of Time. See Dkt. # 25 (filed May 15, 2009). She asserts that "Defendants have consent[ed] to stay the instant proceeding pending a decision from the appellate court on Plaintiff's appeal in Rogler v. Biglow, c.a. no. [sic] 07-2308(RMC) ('Biglow case') by failing to oppose said motion, alternatively Plaintiff moves for more time to respond and further amend her complaint." Id. at 1. Ms. Rogler says that she thought Defendants' first motion to dismiss was for a more definite statement and thus the First Amended Complaint "was an amplified version of her Complaint . . . ." Id. She moves to streamline her Complaints or to withdraw the First Amended Complaint and fall back on her original Complaint. See id.

The Court will deny Ms. Rogler's motion for a stay [Dkt. # 23] as her reasoning - that this Privacy Act lawsuit cannot proceed until the Circuit rules on the appeal in her Bivens lawsuit - is unexplained and inexplicable.*fn5 Ms. Rogler's motion at Dkt. # 25 will be granted in part and denied in part. The Court will deny the motion for an extension of time to file a Second Amended Complaint and will grant the motion to "fall back on the [original] [C]omplaint," id., as to which there is a ripe motion to dismiss already pending.

Finally, Ms. Rogler has filed an Emergency Ex Parte Motion and Memorandum to Block from Public Viewing D.E. # 24 [Dkt. # 26], which is Defendants' Notice of Intent to File Opposition, and which asserts that Ms. Rogler has earned monies as a lawyer representing a United States Department of Agriculture employee and advises that Defendants intend to file a motion challenging Ms. Rogler's eligibility for in forma pauperis status. See Dkt. # 24. Ms. Rogler complains that she has not received any such payments, that counsel representing the United States Department of Agriculture "have no legal right to disclose information on any USDA employee to attorneys representing DHHS," and that Defendants have "unlawfully collected and publicly declared that Plaintiff has received money that Plaintiff has not received." Dkt. # 26 at 2. Ms. Rogler asks the Court to block the notice and her emergency motion from public viewing. See id. The Court has no reason to review or question Ms. Rogler's IFP status. It also has no reason to strike the notice or to shield Ms. Rogler's own motion - filed on the public docket and not under seal by Ms. Rogler herself. The emergency motion [Dkt. # 26] will be denied.

B. Defendants' Motion to Dismiss

The Complaint names only HHS and the Secretary as Defendants. See Compl. ¶ 1. However, it identifies at least ten current or former federal employees and alleges violations of law by them, although they are not parties. In addition, it alleges violations of law on behalf of other HHS employees, as to which claims Ms. Rogler does not have standing to sue.*fn6 The Complaint lays out, in detail, Ms. Rogler's short term of employment with HHS and the alleged actions by chaplains, lawyers and managers that led to the termination of her employment. She has a separate suit pending in the District of Maryland, alleging that her discharge was a retaliatory act because she was a witness on behalf of a fellow chaplain in a hearing before an administrative judge of the Equal Employment Opportunity Commission. See supra note 4.


Federal Rule of Civil Procedure 8 requires that every complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief" and that "each averment of a pleading be simple, concise, and direct." Fed. R. Civ. P. 8(a), (e)(1). Federal Rule of Civil Procedure 10(b) requires a plaintiff to "state its claims . . . in numbered paragraphs, each limited as far as practicable to a single set of circumstances." Fed. R. Civ. P. 10(b). Federal Rule of Civil Procedure 41(b) permits the Court to dismiss either a claim or an action because of the plaintiff's failure to comply with the Federal Rules "or any order of [the] court." Fed. R. Civ. P. 41(b); Ciralsky v. CIA, 355 F.3d 661, 669 (D.C. Cir. 2004). Dismissal under Rule 8 " 'is usually reserved for those cases in which the complaint ...

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