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Henderson v. Ratner

December 29, 2009


The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge


Before the Court is defendant Jacqueline Ratner's motion to dismiss and pro se plaintiff*fn1 David Henderson's "Response to the Order of Dismissal" ("Reponse"). The Response will be construed as a motion to reconsider and/or to amend the complaint, and will be denied as futile. Ratner's motion to dismiss will be granted, and the case will be dismissed in its entirety.


Plaintiff David E. Henderson, now a citizen of Texas, was employed with the State Department's Foreign Service from 1969 to 1981, when he was involuntarily separated from the Service. See Federal Defendant's Motion to Dismiss ("Ratner's Mot. to Dismiss"), Declaration of Patricia Nelson-Douvelis ¶ 5. In 1994, Henderson applied to the State Department for retroactive disability retirement benefits. Id. ¶ 5 & Tab 2. The State Department refused to consider Henderson's application because it was untimely filed, and so informed Henderson by letter in 1996. Id. ¶ 5 & Tab 3. Henderson did not file a grievance in connection with his 1994 application or as a result of the 1996 denial. See Ratner's Mot. to Dismiss, Declaration of Joanne Lishman ¶ 4.

In June 2006, Henderson wrote to the Foreign Service Grievance Board ("FSGB"),*fn2 enclosing a copy of his 1994 application, stating, incorrectly, that the State Department "never responded" to him, and that "after 12 years and four submissions I can consider the application denied." Ratner's Mot. to Dismiss, Ex. B. Construing Henderson's communication as an appeal, the FSGB, through its Executive Secretary,*fn3 Jacqueline Ratner, sent Henderson a letter in July 2006, stating that "[u]pon reviewing the documentation attached to your appeal, the Foreign Service Grievance Board has found that it does not have jurisdiction at this point in the grievance process, as it appears that you have not exhausted all administrative remedies available to you." Ratner's Mot. to Dismiss, Ex. C. That letter also explained that "jurisdiction transfers" to the FSGB only upon appeal from either an agency's final decision or when the agency has not issued a final decision within 90 days after a grievance is filed, that an appeal to the FSGB from a final agency decision must be filed within 60 days of the decision, and that an appeal from a non-decision must be filed within 150 days after the administrative grievance was originally filed. Id.

Henderson again wrote, pressing the FSGB to "register" his appeal. Id., Ex. D. Because Henderson still had not established that he had exhausted his available administrative remedies, a pre-requisite to the Board's jurisdiction, the Board refused to entertain his case. Id., Ex. E.

In June 2007, Henderson apparently asked the American Foreign Service Association ("AFSA")*fn4 to represent him in pursuing a claim against the State Department for retroactive disability benefits.*fn5 In October 2007, then-President of AFSA, John Naland, sent a letter to Henderson informing him that after AFSA staff had reviewed the documentation Henderson had submitted, "we find that the provisions of the Foreign Service Act preclude such a claim." Naland's Mot. to Dismiss, Ex. B.

In January 2009, Henderson filed this lawsuit against Ratner and Naland, each in both their "personal and professional capacities," Compl. at 3, seeking $12 million in damages, trebled to $36 million under a theory of a RICO conspiracy, id. at 3-4. Other than his bald reference to a RICO conspiracy, id. at 4, the only recognizable cause of action Henderson asserts in the complaint is an alleged breach of "contractual obligation" by Naland to represent him before the FSGB. See id. at 3. As to Ratner, the complaint merely states that she "refused to acknowledge any of plaintiff's letters and [parcels*fn6 ]," an allegation directly contradicted by the record evidence, see Ratner's Mot. to Dismiss, Exs. C & E, and that an unidentified staff person in Ratner's office said she "had not read any of [Henderson's] grievance decisions on related issues." Id. at 2.

Defendant Naland filed a motion to dismiss for failure to state a claim upon which relief may be granted, contending that Naland did not have any duty in any capacity to provide Henderson with representation in his belated claim against the State Department. See Naland's Mot. to Dismiss at 2; see also id. Exs. A & B. The Court issued an order directing Henderson to respond by March 31, 2009, or risk the motion being granted as conceded. See Order, Feb. 27, 2009. Although Henderson made a submission that was received on March 10, 2009 ("Opposition"), the Court denied leave to file because it was illegible.*fn7 Naland's motion to dismiss was granted as conceded by Order issued April 9, 2009. Henderson then submitted a Response, received on April 16, 2009. Henderson's handwritten Response was almost as illegible as was his Opposition; parts were so difficult to decipher that, despite numerous attempts to understand the message, they remained unintelligible until very recently, and other parts are still illegible. As now understood, the Response states that on "March 10" the Clerk of Court asked the Court to refuse to allow the Opposition to be the filed because it was illegible, explains that Henderson had been hospitalized and was dizzy, and asks "the court to allow this case to proceed on for plaintiff to have a preliminary in person hearing," and to allow the plaintiff to "file an expanded complaint." Response at 1-2. The Response did not include any rebuttal of the merits of Naland's argument that he owed Henderson no duty, and that he had breached no duty. After numerous repeated attempts over several months, the Court has been able to decipher enough of Henderson's March 10, 2009 Opposition to glean its import, and will permit the Opposition to be filed on the record and considered along with the Response.*fn8

Defendant Ratner has filed a motion to dismiss, as to which Henderson has filed both an opposition and a sur-reply, the latter of which was typed. Neither of Henderson's submissions in response to Ratner's motion to dismiss mention Ratner by name or position, or provide additional information about the unspecified claims Henderson means to make against her.


On a motion to dismiss, a pro se complaint is to be liberally construed in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520 (1972). In determining whether a complaint fails to state a claim upon which relief may be granted, a court generally "must accept as true all of the factual allegations contained in the complaint," Erickson v. Pardus, 551 U.S. 89, 94 (2007), and "grant plaintiffs the benefit of all inferences that can be derived from the facts alleged," but need not accept either a plaintiff's legal conclusions, or inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. . . . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted).

As the plaintiff has been previously advised, see Order, Feb. 27, 2009; Order, May 7, 2009, when a court considers matters outside the pleadings that have presented with a motion to dismiss under Rule 12(b)(6), "the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d). On a motion for summary judgment, "[t]he inquiry performed is the threshold inquiry of determining whether there is a need for a trial ---- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002). A material fact is one that is capable of affecting the outcome of the litigation. Anderson v. Liberty Lobby, 477 U.S. at 248. A genuine issue is one where the "evidence is such that a reasonable jury could return a verdict for the nonmoving party," id., as opposed to evidence that "is so one-sided that one party must prevail as a matter of law." Id. at 252. A court considering a motion for summary judgment must draw all "justifiable inferences" from the evidence in favor of the non-movant. Id. at 255. The nonmoving party, however, must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the non-movant must "come forward with 'specific facts ...

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