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Rochon v. Lynch

United States District Court, D. Columbia

October 9, 2015

DONALD ROCHON, Plaintiffs
v.
LORETTA LYNCH, in her official capacity as Attorney General of the United States, Defendant

          For DONALD ROCHON, Plaintiff: Richard L. Swick, LEAD ATTORNEY, Ellen K. Renaud, SWICK & SHAPIRO, P.C., Washington, DC.

         For LORETTA LYNCH, Attorney General of the United States, Defendant: Marian L. Borum, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

         MEMORANDUM OPINION

         KETANJI BROWN JACKSON, United States District Judge.

         Plaintiff Donald Rochon, a retired special agent of the Federal Bureau of Investigation (" FBI" ), recently spent the better part of three years trying to secure from his former employer a certain identification card that would permit him to carry a concealed weapon when he travels. First, Rochon contacted the FBI to get information about applying for the card and submitted an application to the agency, but the FBI denied his request (according to Defendant, Rochon's application was rejected after an old criminal charge surfaced during the prerequisite name check). Then, Rochon filed the instant lawsuit against the United States Attorney General, alleging that the FBI had actually refused to give him this post-employment benefit in retaliation for his previously having engaged in protected activity in violation of Title VII, and seeking a court order requiring the FBI to provide him with the card. ( See Compl., ECF No. 1, at 22.)[1] Rochon also undertook to have his record expunged, after which he re-filed his application for a card and, at long last, the FBI issued one to him. But Rochon persists nevertheless in pursuing his legal claims; he maintains that, as a result of the FBI's alleged undue delay in getting the card to him and its improper suggestion of past criminality, he is now entitled to $300,000 in compensatory damages and a court order that, among other things, generally enjoins the FBI " from discriminating and/or retaliating against [him] in the future." (Am. Compl. (" Compl." ), ECF No. 20, at 16.)

         Before this Court at present is Defendant's motion to dismiss the complaint, or in the alternative, for summary judgment. (Ren[e]wed Mot. to Dismiss or[] in the Alternative for Summ. J. (" Def.'s Mot." ), ECF No. 21, 1-2; Mem. of Law in Supp. of Def.'s Mot. (" Def.'s Mem." ), ECF No. 21, 9-27.) This Court referred Defendant's motion, along with the entire case, to a magistrate judge for full case management on September 2, 2014 ( see ECF No. 34), and the magistrate judge permitted Plaintiff to take limited discovery. Then, on May 14, 2015, that judge issued a Report and Recommendation that recommended Defendant's motion be denied. ( See Report & Recommendation, ECF No. 43.)

         On September 30, 2015, this Court issued an Order that declined to accept the recommendation of the magistrate judge. ( See ECF No. 49.) This Memorandum Opinion explains the reasons for that order. In sum, after a thorough review of the Report and Recommendation, the parties' briefs, the record, and established case law, this Court finds that Plaintiff has failed to provide any evidence from which a jury could reasonably infer that he was temporarily denied the requested card because of his lengthy history of employment-related litigation against the FBI, and thus, the Court concludes that no reasonable jury could find in Plaintiff's favor on the retaliation claim. Accordingly, and as explained fully below, this Court has treated Defendant's motion as one for summary judgment, and so construed, the motion has been GRANTED.

         I. BACKGROUND

         The FBI hired Rochon as an agent in 1981. ( See Compl. ¶ 6.) To put it mildly, the primary distinguishing feature of Rochon's employment relationship with the agency over the past 30-plus years has been the series of discrimination and retaliation claims that Rochon has made and the litigation that has resulted. ( See, e.g., id. at ¶ ¶ 6-14). Rochon's numerous lawsuits--many, if not all, of which concluded in settlement--are well-documented in prior opinions, see, e.g., Rochon v. Gonzales, 438 F.3d 1211, 370 U.S.App.D.C. 74 (D.C. Cir. 2006), and this Court need not recount that history here. It suffices to note that the first settlement was finalized in 1990, and it entitled Rochon to " front pay" as if he was continuing his work as an FBI Special Agent through May of 2007, which is the time when he would have reached the FBI's mandatory retirement age. ( See Pl.'s Mem. in Opp'n to Def.'s Mot. (" Pl.'s Opp'n" ), ECF No. 27, at 5.) Other settlements resolved allegations of retaliation stemming from later contacts with the FBI, and most importantly for present purposes, the parties finalized the most recent settlement agreement on January 5, 2010. ( See Compl. at ¶ 14.)

         Rochon alleges that, after this last settlement agreement was executed, he wished to take advantage of a federal law that exempts certain retired law enforcement officers from state laws that prohibit the carrying of concealed weapons across state lines. See 18 U.S.C. § 926C. ( See also Ex. 3 to Def.'s Mot., ECF No. 21-1, 7-13, at 8.) To access that benefit, retired officers must request a specific identification card from their former agency or employer-which is known as an " HR-218 card" -and the FBI itself has issued a policy document that addresses the circumstances under which HR-218 cards " may be issued[.]" (Ex. C to Def.'s Mot., ECF No. 21-3, 15-22, at 16-17.) The document states that, to be issued an HR-218 card, retired FBI agents must satisfy a list of criteria, including the requirement that " no issues are revealed in an NCIC III check for Agents who retired prior to the implementation date." ( Id. at 17; see also id. at 16 (explaining that the agency created the document to provide " status of availability of . . . identification (ID) cards for retired/retiring Special Agents" ).)[2]

         An NCIC III check (which is referred to in the parties' briefs and this Opinion as a " name check" ) is part of the background review that is a standard component of the FBI's process for considering an HR-218 card application. ( See id. at 18; Pl.'s Statement of Genuine Issues, ECF No. 27-29, at 4.) A division of the FBI that is known as the Criminal Justice Information Services (" CJIS" ) performs the NCIC III check ( see Decl. of Joseph McQueen (" McQueen Decl." ), ECF No. 21-4, at ¶ ¶ 7-10 (identifying CJIS as a division of the FBI and describing its role)), and when such a name check is requested, CJIS runs the applicant's name through its database to determine whether that person has been charged with, or convicted of, a criminal offense. (McQueen Decl. at ¶ 8).[3] If the check reveals a criminal charge, a verification is " conducted to ensure that the charge was actually associated with the HR-218 applicant[.]" ( Id. ) And, upon verification, CJIS generates " a communication stating that the applicant . . . [i]s not approved to proceed." ( Id. ; see also Ex. 6 to Def.'s Mot., ECF 21-1, 19-24, at 20 (the non-approval notification in this case).) This communication from CJIS is in writing; with respect to an application for an HR-218 card, the CJIS " recommendation for the disposition of the request[]" is attached to the candidate's records and " forwarded" to the FBI's Human Resources Division. (Sworn Statement of Anthony Bladen (" Bladen Statement" ), Ex. 9 to Def.'s Mot., ECF No. 21-1, 29-35, at 32; see, e.g., Ex. 6 to Def.'s Mot. at 20.)

         The Assistant Director of the FBI's Human Resources Division makes the final determination regarding whether or not to issue an HR-218 card. ( See Bladen Statement at 32.) According to Anthony Bladen, who was the Assistant Director of the Human Resources Division at all relevant times, he invariably denied applications for an HR-218 card if CJIS generated a negative name check report. ( See id. (" Every time I have received a recommendation from CJIS to discontinue a candidate's identification card processing, I have acted in the same manner and have denied the candidate an identification card." ); Id. at 33 (explaining this protocol works to ensure applications are evaluated " in a standardized manner" ).)

         Defendants maintain that such was the case here. Rochon submitted an application for an HR-218 card on or about April 19, 2010.[4] There is no genuine dispute that the CJIS name check revealed two domestic-violence charges arising from a single incident that purportedly took place in 1997-charges that had been brought against Rochon in 1998 in Utah's Kane County. ( See Ex. 6 to Def.'s Mot. at 20, 23.)[5] Given this result, and purportedly in accordance with standard procedure, CJIS generated a report stating that Rochon was " not approved to proceed with the Identification Card Process[,]" and sent that report to the Human Resources Division. ( Id. at 20.)[6] In a letter dated June 30, 2010, Bladen informed Rochon that his request for an ID card had been denied " based on a criminal name check by [CJIS][,]" which, according to Bladen, demonstrated that Rochon " d[id] not meet the established requirements necessary to receive an [HR-218] card." (Ex. 7 to Def.'s Mot., ECF 21-1, 25-26, at 26.)[7]

         Rochon subsequently challenged this denial determination in multiple letters to Bladen, asserting that there had been a mistake and that any 1998 charges had been dismissed. ( See Ex. 14 to Def.'s Mot., ECF No. 21-1, 51-60, at 52; Ex. 10 to Def.'s Mot., ECF No. 21-1, 36-37, at 37.) In response, Bladen stated that, " [i]n accordance with Bureau policy," his decision to deny the card was only appealable " to the extent that the . . . decision [was] based upon a record error or a record that does not actually belong to the individual requesting the HR-218 Card[]" (Ex. 8 to Def.'s Mot., ECF No. 21-1, 27-28, at 28), and that, in Bladen's estimation, Rochon's letters had not demonstrated either of these flaws ( see id.). Rochon then pursued an entirely different avenue to address the rejection of his HR-218 card application: on November 22, 2010, he initiated proceedings with the Kane County court to have the charges expunged. ( See Ex. 12 to Def.'s Mot., ECF 21-1, 40-48, at 48.) A Kane County official agreed to the expungement on December 7, 2010 ( see id. at 47), and a state judge signed the petition expunging the charges on January 28, 2011 ( see id. at 43, 45).

         Rochon filed a complaint against the FBI in this Court on January 31, 2013, alleging that the FBI had retaliated against him for his history of protected activity by denying him the HR-218 card. In late 2013-while the instant lawsuit was pending-Rochon reapplied for the card, and the FBI granted his request. ( See Compl. ¶ 42.) Rochon then amended his complaint to request compensatory and injunctive relief notwithstanding the fact that Defendant had issued him the requested card; he alleged that, regardless, the FBI's prior denial was a retaliatory act that had exposed him to harm because it had needlessly delayed the requested permission to carry a concealed weapon across state lines for a three-year period, which had caused him to fear that he would be unable to protect his family and had also injured him mentally and emotionally in various ways. ( See Compl. ¶ ¶ 28, 44-45.) Defendant filed a motion to dismiss, or in the alternative, a motion for summary judgment on March 31, 2014 . As mentioned above, after this Court referred the ...


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