Fuller v. JohnsonFuller v. Johnson
ORDER GRANTING DEFENDANT’S MOTION- FOR SUMMARY JUDGMENT
This matter comes before the Court on “Defendant’s Motion For Summary Judgment.” Dkt. # 27. Having reviewed the memoranda and exhibits submitted by the parties, the Court finds as follows.
I. BACKGROUND
Plaintiffs, proceeding pro se, are former probationary Customs Inspectors (Cl) for the United States Customs Service (now U.S. Customs and Border Protection, or “CPB” or “Agency”) who previously brought unsuccessful actions under Title VII arguing that their terminations in late-2003 were discriminatory. The Court incorporates by reference the case backgrounds provided in Fuller v. Chertoff, C05-1308RSM,
Plaintiffs’ current claims rest on allegations that the Agency interfered in plaintiffs’ EEO investigations by concealing evidence and improperly tampering with documents and witness testimony.
In their brief opposing summary judgment, plaintiffs move to amend their complaint to add constitutional and other claims. Dkt. # 31 (Pis. Resp.) at 15. Plaintiffs also allege fraud on the Court, and seek to have their prior adverse judgments vacated under Fed.R.Civ.P. 60. See Dkt. # 31 at 16. Plaintiffs have filed a surreply in support of their defacto motion to amend, Dkt. # 37-1 (Pis.’ Surreply); in the interest of considering the full record, the Court has considered the surreply and the exhibits attached therewith.
For the reasons provided infra, the Court makes the following findings. All of plaintiffs’ discrimination and retaliation claims are barred either by res judicata or due to plaintiffs’ failure to exhaust administrative remedies and timely file in federal court. Plaintiffs are not entitled to relief under Rule 60 from the judgments entered against them, and plaintiffs have neither stated viable constitutional claims nor pled facts supporting any other claims on which relief can be granted. Thus, granting plaintiffs leave to amend their complaint would be futile. Defendant is entitled to summary judgment.
II. LEGAL STANDARD
A. Summary Judgment
Summary judgment is appropriate if, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party, the moving party shows that “there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Torres v. City of Madera,
Once the moving party has satisfied its burden, the nonmoving party must then set out “specific facts showing that there is a genuine issue for trial” in order to defeat the motion. Id. at 324,
B. Res Judicata
The doctrine of res judicata “bars litigation in a subsequent action of any claims that were raised or could have been raised in [a] prior action.” Owens v. Kaiser Found. Health Plan, Inc.,
“Different theories supporting the same claim for relief must be brought in the initial action.” Id. The fact that some different evidence may be presented in the second action does not defeat the bar of res judicata.' See Int’l Union of Operating Eng’rs-Emp’rs Constr. Indus. Pension, Welfare & Training Trust Funds v. Karr,
C. Leave To Amend
Federal Rule of Civil Procedure 15(a) governs the amendment of pleadings; the Ninth Circuit has held that leave to amend should be granted with “extreme liberality.” DCD Programs, Ltd. v. Leighton,
III. DISCUSSION
A. Res Judicata May Not Apply To All Claims
Defendant argues that plaintiffs are precluded from religitating matters that plaintiffs raised in Rule 60(b) motions
It appears generally accepted that rulings on Rule 60 motions are preclusive as to subsequent Rule 60 motions and actions. See Brown v. Bureau of Reclamation,
Dismissals of actions for untimeliness are final judgments on the merits for res judicata purposes, Sidhu v. Flecto Co., 219 F.3d 896, 900 (9th Cir.2002); and denials of Rule 60(b) motions as untimely are sufficiently final to be appealed, Million (Far E.) Ltd. v. Lincoln Provisions Inc. USA
There is some basis for applying res judicata to plaintiffs’ retaliation claims without considering the Rule 60(b) motions. Plaintiffs’ previous and current claims both relate to plaintiffs’ terminations, suggesting both actions arise from the series of transactions, although the latter’s focus is Agency conduct in the EEO investigations that followed.
B. Plaintiffs’ Retaliation Claims Are Untimely
Defendant argues that plaintiffs failed to timely exhaust their administrative remedies and failed to file a timely complaint in District Court. An aggrieved federal employee must consult an EEO counselor within 45 days of an alleged discriminatory act. 29 C.F.R. § 1614.105(a)(1). This period may be extended where this employee can show that he did not know and reasonably should not have known that the action occurred. 29 C.F.R. § 1614.105(a)(2). Absent waiver, estoppel, or equitable tolling, failure to comply with this regulation is “fatal to a federal employee’s discrimination claim.” Lyons v. England,
After failing to dispute in their opposition brief that they first sought counseling in August 2009, plaintiffs argue in their surreply that they satisfied their burden under § 1614.105 when they contacted the Acting Commissioner of the Agency in April 2009 to share their grievances. Plaintiffs proffer an April 2009 letter from Hudson to the Acting Commissioner, along with the Agency’s response. Dkt. # 38-2 (Ahren Letter). This Circuit has long held that a plaintiff may comply with the regulation by initiating contact with “any agency official logically connected with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process.” Kraus v. Presidio Trust Facilities Div./Residential Mgmt. Branch,
Nevertheless, even construing Hudson’s letter in the light most favoring him, the Court finds that the letter did not evidence intent to begin the EEO process. Although Hudson details discriminatory and retaliatory conduct by Agency personnel, and invites the Commissioner to contact Hudson or his attorney “for any follow-up with respect to this letter,” the letter does not discuss what happened to plaintiffs personally, identify Fuller by name, or evidence any discernible intent on plaintiffs’ part to pursue the administrative process. Dkt. # 38-2 (Ahren Letter). While the letter may represent an attempt by plaintiffs to have the Agency address an ongoing problem affecting others, this is not enough to satisfy the regulátion. See Welsh v. Hagler,
Plaintiffs argue in their surreply that one specific allegation survives even if their others are time-barred: pursuant to Hardy’s directive, the Agency directs employees to submit their EEO declarations to legal counsel before they are shared with EEOC investigators. Dkt. # 37-1 at 5. Even if the Court saw this allegation as distinct from their previous claims that the Agency interfered with witness testimony in EEOC investigations, the fact remains that plaintiffs did not timely contact an EEO counselor regarding this claim.
C. Plaintiffs Are Not Entitled To Relief Under Rule 60
Plaintiffs seek to bring this action under Rules 60(d)(3) and 60(b)(6) and vacate the adverse judgments in their previous federal cases for fraud on the court. See Dkt. # 31 at 16. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only when extraordinary circumstances ... exist.” Harvest v. Castro,
Motions under Rule 60(b) must be made within a reasonable time, Fed. R.Civ.P. 60(c)(1); the Court finds plaintiffs’ arguments untimely under Rule 60(b)(6), just as their previous Rule 60(b) motions were found to be untimely. Rule 60(d)(3) has no time limit, although some courts would still consider plaintiffs’ attempt to invoke this Rule untimely. See Anderson,
D. Plaintiffs May Not Assert Due Process Claims
Plaintiffs attempt to assert constitutional claims, arguing that the Agency deprived them of procedural due process during them EEOC investigations and proceedings. Dkt. # 37-1 (Am. Compl.) at 25. A plaintiff pleads a procedural due process violation when he alleges that he has a life, liberty, or property interest protected by the Constitution; (2) he was deprived of that interest by a state actor; and (3) he was not afforded timely and adequate process under law. Waeschle v. Dragovic,
E. Plaintiffs’ Discovery Violation Claim Is Futile
Plaintiffs’ proposed amended complaint attempts to assert a claim based on defendant’s alleged discovery violations. The Court can identify no cause of action under
IV. CONCLUSION
For all of the foregoing reasons, defendant’s motion for, summary judgment is GRANTED. Dkt.#27.
Notes
. Hudson also alleged that his termination was retaliatory, and sued under the Americans with Disabilities Act and the Rehabilitation Act.
. Among plaintiffs’ allegations are that the Agency withheld documents showing that Fuller was not a probationary employee; concealed evidence that Fuller’s supervisor made racist remarks; and discouraged CBP employee Michael Brydie from providing testimony to the EEOC in support of Hudson's claims. Dkt. # 1 (Compl.). Plaintiffs also allege that, pursuant to a directive authored by Thomas Hardy, Director of Field Operations for the Seattle Field Office, Agency employees submitted their EEO declarations to CBP counsel before they were shared with EEOC investigators. Id.
. Furthermore, out-of-Circuit authority holds that "If ... a movant could have pursued a timely Rule 60(b)(3) motion but inexcusably failed to do so, the movant is precluded from relying on Rule 60(d) to bring [her] claims outside of Rule 60(b)(3)’s one-year statute of limitations period.” Anderson v. New York,
. To the extent that plaintiffs are attempting to relitigate their previously-defeated discrimination claims on the basis of new evidence, this attempt is certainly barred by res judicata. As explained infra, the Court will not set aside the judgments entered on plaintiffs’ cases.
. While plaintiffs suggest that the Court should apply equitable tolling, the Court fails to see why this doctrine should be applied, where plaintiffs were aware of the basis for their claims, concerning retaliatory actions taken years prior, in April 2009, but did not seek counseling until months later.
. Plaintiffs assert that the EEOC held that this allegation was timely raised when it reversed its dismissal of Fuller's latest EEO complaint; plaintiffs misquote the reversal order as stating that the "directive related back to Fuller’s timely filed EEO complaint in 2003.” Dkt. # 37-1 at 5. The order actually states, "A review of the directive shows it relates back to 2003.” Dkt. # 38-3. In context, the Court reads the order as merely noting that the directive was effective beginning in 2003, as plaintiffs have alleged. This order held that Fuller’s November 2009 complaint should be held in abeyance until the EEOC rendered a determination on whether to certify the class action Hudson had filed with the EEOC. Id. It has no bearing on the Court’s analysis of whether plaintiffs failed to exhaust their administrative remedies.