Holmes v. United States

92 Fed. Cl. 311, 2010 U.S. Claims LEXIS 105, 2010 WL 1634052
CourtUnited States Court of Federal Claims
DecidedApril 15, 2010
DocketNo. 09-208 C
StatusPublished
Cited by9 cases

This text of 92 Fed. Cl. 311 (Holmes v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holmes v. United States, 92 Fed. Cl. 311, 2010 U.S. Claims LEXIS 105, 2010 WL 1634052 (uscfc 2010).

Opinion

OPINION AND ORDER

HEWITT, Chief Judge.

This case is before the court on defendant’s motion to dismiss for lack of subject matter jurisdiction or, in the alternative, for failure to state a claim upon which relief may be granted, pursuant to the Rules of the United States Court of Federal Claims (RCFC) 12(b)(1) and 12(b)(6). The court has before it plaintiffs original Complaint (Original Complaint or Compl.) filed April 9, 2009, Docket Number (Dkt. No.) 1, plaintiffs First Amended Complaint (Amended Complaint or [313]*313Am. Compl.) filed August 17, 2009, Dkt. No. 26, defendant’s Motion to Dismiss First Amended Complaint (Motion or Def.’s Mot.) filed November 4, 2009, Dkt. No. 33, Plaintiffs Response to Defendant’s Motion to Dismiss the First Amended Complaint (Response or Pl.’s Resp.) filed December 2, 2009, Dkt. No. 34, and Defendant’s Reply to Plaintiffs Response to Motion to Dismiss First Amended Complaint (Reply or Def.’s Reply) filed January 27, 2010, Dkt. No. 39. For the following reasons the court GRANTS defendant’s Motion to Dismiss.

I. Background1

Plaintiff is a disabled Navy veteran honorably discharged in December 1990 following twelve years of military service. Am. Compl. ¶ 13. Plaintiff worked as a civilian mariner on the USNS Mars, a naval supply ship operated by the Military Sealift Command, Pacific Fleet, in the position of yeoman storekeeper. Id. ¶ 16. Plaintiff was terminated from his employment aboard the USNS Mars on July 22, 1994 for performance reasons. Id. ¶ 20. On October 1, 1994, plaintiff filed a complaint with the United States Equal Employment Opportunity Commission (EEOC) alleging that he was wrongfully terminated and that he had been subject to “false, malicious, and discriminatory accusations about his character and conduct aboard [the] USNS Mars.” Id. ¶21. The EEOC investigated charges of racially motivated physical and verbal harassment. See id. ¶¶ 18, 22. Pursuant to a March 2008 Freedom of Information Act (FOIA), 5 U.S.C. § 552a, request, plaintiff obtained information originally uncovered during the EEOC’s investigation of the 1994 complaint, substantiating the “unlawful discriminatory conduct by certain Navy employees aboard [the] USNS Mars.” Id. ¶22. In August 1995, plaintiff and the Navy executed an agreement (1995 Agreement) to settle the EEOC complaint. Id. ¶ 23. The 1995 Agreement required that the Navy remove from plaintiffs Official Personnel Folder (OPF) all adverse performance evaluations and references to disciplinary action taken between September 7, 1993 and July 22, 1994. Id. The 1995 Agreement also required the Navy to document plaintiffs OPF to show that he resigned on July 22, 1994 for personal reasons. Id.

In 1996, plaintiff requested and received a copy of his OPF and discovered that the Navy had failed to expunge his record as required under the 1995 Agreement. Id. ¶ 24. Following this discovery, plaintiff filed a second complaint at the EEOC on May 1, 1996. Id. ¶25. The second EEOC complaint was resolved by a settlement agreement reached on November 18, 1996 (1996 Agreement). Id. ¶26. In the 1996 Agreement, the Navy promised to re-employ plaintiff as a yeoman storekeeper, to provide transportation to his work site, and to document plaintiffs OPF to show that he had resigned on July 22, 1994 for personal reasons. Id. ¶ 27, Exhibit (Ex.) A (1996 Agreement).

After the execution of the 1996 Agreement, plaintiff was appointed as a yeoman storekeeper aboard the USNS Guadalupe where he worked between January 1997 and July 1997. Id. ¶ 28. After plaintiff left the USNS Guadalupe in July 1997, he was accused of stealing a government-owned refrigerator from his former stateroom and selling the stolen refrigerator to another crew member. Id. ¶ 29. Plaintiff maintains that he was falsely accused. Id. Between September 1997 and August 1998, plaintiff worked aboard the USNS Kilauea as a civilian storekeeper. Id. ¶ 30. Based on the refrigerator theft allegation, the Navy issued a decision on March 20, 1998 suspending plaintiff from his position on the USNS Kilauea for fourteen days. Id. ¶ 31. On July 17,1998, plaintiff filed a third EEOC complaint on the grounds that the suspension was the result of “discriminatory and retaliatory conduct against him.” Id. ¶ 32.

After his suspension, plaintiff found another civilian storekeeper position with the Navy, this time aboard the USNS Niagara Falls. Id. ¶¶ 33-34. While aboard the USNS Niagara Falls, plaintiff was accused of threatening another crew member and the [314]*314captain proposed to remove him from his position. Id. ¶ 35. Plaintiff maintains that the decision to terminate him was made after the captain’s review and consideration of plaintiffs personnel record “pertaining to the theft of government property and [the] 14-day suspension.” Id. ¶35. Upon receiving notice of his proposed removal, plaintiff resigned effective July 16, 1999, and, on December 16, 1999, withdrew his third EEOC complaint (filed on July 17, 1998). Id. ¶¶ 32, 36-37. Plaintiff filed a civil action against the Navy in the United States District Court for the Central District of California on February 22, 2000.2 Id. ¶ 37. Plaintiff and the Navy settled the district court action on April 26, 2001 on terms contained in another settlement agreement (2001 Agreement). Id. ¶38. Under the terms of the 2001 Agreement the Navy agreed to “take the necessary steps, within a reasonable time, to expunge from plaintiff’s Official Personnel File [ (OPF) ],3 the fourteen-day suspension for allegedly selling a government refrigerator” and “to provide the Marine Index Bureau (MIB) with a neutral reference for plaintiff.” Id. Ex. B (2001 Agreement),4 ¶¶ 3-4; see Am. Compl. ¶ 38. The district court retained jurisdiction “for the purposes of resolving any dispute alleging a breach of [the 2001] [A]greement” for one year. Am. Compl. Ex. B, ¶ 17. Neither the 1996 Agreement nor the 2001 Agreement specifies a compliance date on or before which the Navy must take the various actions agreed to. See Am. Compl. Exs. A, B. Only the 2001 Agreement provides a mechanism for the adjudication of disputes-the retention by the district court of jurisdiction for one year. Am. Compl. Ex. B. 5-6.

In 2008, plaintiff filed suit in the United States District Court for the Western District of New York seeking compensatory damages for the Navy’s breach of the 1996 Agreement. Am. Compl. ¶ 53. The 1996 Agreement settled an alleged breach by the Navy of the 1995 Agreement between the parties which arose from an alleged violation by the Navy of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e (2006). Am. Compl. ¶ 4. On October 31, 2008, the district court dismissed plaintiffs complaint for lack of jurisdiction and stated that “if plaintiff has any viable action, it lies with the United States Court of Federal Claims.” Holmes v. Dep’t of Navy, 583 F.Supp.2d 431, 433-34 (W.D.N.Y.2008). The district court did not issue a transfer order in the ease. See id. at 434; 28 U.S.C. § 1631

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Bluebook (online)
92 Fed. Cl. 311, 2010 U.S. Claims LEXIS 105, 2010 WL 1634052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holmes-v-united-states-uscfc-2010.