4:97-cv-03118 | N.D. Ala. | Aug 17, 1998
§@'¢| '/.A.E, `[W_.@ TSS S@Z m______@S`QT~966`£-¢£.`[_-£1£:1__ ___“
e
tamm anna nlslnwr came FH~E D
uoamy lsmgl er lam SSAUG llc PH w ll
owills»:cieu
U." o. LJSTRICT COU
N..D OFALABAH¢}\:\T
BOBBM WR!NE KINNID!,
Plainti££,
Vl. Civil Action No. CV 97-$-3113-M
DANEIL s. G@HDIN,
Addinistr¢kor, Nutional
Aorenaumicv and Space
EWEW/£a _
munoz
Chairmaa;…Un£` d Btat¢a Horit
Systdni Pr6te tion Bo¢rd;
vvvvvvvv~vvvv`iv~`¢
De£endhnta.
mmbtu orlulou
Bobby Wayne Kennedy, appearing pro se, filed the present
action on. December l, 1997, alleging numerous acts of
discrimination and retaliation by various defendants. By order
entered March 3, 1998, this court granted defendants' motion for
more definite statement. In that motion, defendants assert that
most of the claims asserted by plaintiff were alleged, considered,
and dismissed in two prior cases: Kennedy v. Goldin (CV-94-N-0016-
M), in which United States District Judge Edwin L. Nelson entered
summary judgment in favor of defendants on all claims (”the 1994
action”);1 and Kennedy v. Goldin (CV-95-S~3323-M), in which this
court entered partial summary judgment in favor of defendants (“the
_____r_____________
The Bleventh Circuit Court of Appeals affirmed the judgment in an
unpublished opinion. Kennedy v. Goldin, 86 F.3d 1170" date_filed="1996-05-17" court="11th Cir." case_name="United States v. Allen">86 F. 3d 1170 (llth Cir. 1996). |¢7
l
¢TB/SBB'd TVLZ TSS S@E ETTlOSlNHH DGSH ST:ZT BBET-LT-BDU
S@'d 736 `Wd,@ TSS 992 `|Z§:BI BE»BI-J..T-BF]U
1995 action”).2 After reviewing plaintiff’s complaints in the 1994
and 1995 actions in conjunction with the pleadings in this case,
this court found substantial overlap between plaintiff's
allegations in prior actions and the case now before the court.
Accordingly, the court's March 3, 1998 order granting defendants'
motion for more definite statement directed plaintiff to amend his
complaint, using the Federal Rules of Civil Procedure as his guide,
and to delete any claims previously adjudicated on the merits, or
still pending in the 1995 action, CV-95-S~3323-M. Plaintiff filed
a second amended complaint, purporting to comply with the court's
order, on March 16, 1998.3 On March 30, 1998, defendants moved to
dismiss the second amended complaint, and, renewed their motion for
sanctions, for plaintiff's failure to comply with this court's
order.
I. DISCUSSION
A. standards of aniou
"In this circuit it is well established that dismissal with
prejudice is a drastic remedy to which a court may resort only in
extreme situations where there is a clear record of delay or
contumacious conduct by the plaintiff." Pardee v. Mbses, 605 F.Zd
865, 866 (Sth Cir. 1979V(citations and internal quotation marks
----Y------__`r~ . , .
The Eleventh Circuit affirmed this court's December 19, 1996 order.
granting defendants' partial summary judgment and dismissing some claims, on
erch 26, 1998. See Kennedy v. Goldin. 110 F.Sd 1043 (llth Cir. 1998). The stay
in that action has not yet been lifted.
3Kennedy filed a first amended complaint on January 23, 1958 in response
to detendnnts' letter pointing out that his original complaint reasserted claims
already adjudicated in his two prior actions.
‘rn sonner v. city of Prlcnard, 661 F.zd izos. 1209 (iith cir. 1981)(en
bano), the ileventh Circuit adopted an binding precedent all decisions of the
2
¢I@/SB@'d TV¢B T§S SBZ BTTIOSLNHH UGSN LT:BT BSST-LT-UHU
QUG-1'7-1996 lB=l'? L)SDC HUNTSUILLE 295 551 9741 P.BB4/Bl'?
iii y 0
omitted). In Pardee, the Fifth Circuit held that, where ”an effort
is made to comply with [a court's order for more definite
statement], the insufficiency of the effort does not justify
automatic dismissal of the action.” Pardee, 605 F.Zd at 866. This
principle reflects due consideration for the "extenuating
circumstance[] that it was written by a lay litigant appearing pro
se...." Id. at 866-67 (citation and internal quotation marks
omitted) .
On the other hand, Bobby Wayne Kennedy is not the average,
totally inexperienced lay litigant. He has pressed similar claims
before this court and on appeal to the Eleventh Circuit on two
prior occasions. In any event, Kennedy's pro se status cannot
breathe new life into claims that previously have been adjudicated
on the merits; the bar of res judicata is not so easily overcome.
As explained below, identical claims between identical parties
which already have been adjudicated on the merits may not be
relitigated. Twice before, plaintiff has been warned that his pro
se status is not an "impenetrable shield, for one acting pro se has
no license to harass others, clog the judicial machinery with
meritless litigation, and abuse already overcrowded court dockets."
Farguson v. Mbank Hbuston, N.A., 808 F.2d 358" date_filed="1986-12-02" court="5th Cir." case_name="Edward M. Farguson v. Mbank Houston, N.A.">808 F.2d 358, 359 (Sth Cir. 1986).
For such reasons, this court is not as inclined as it would be in
the case of the average lay litigant to indulge Mr. Kennedy's
attempt to take a third bite at the same apple.
former Fifth Circuit handed down prior to october l, 1981.
3
QUG-l'?-l‘998 18¢31 285 551 @'?41 952 P.@¢I
RUG-17-1998 1@=17 USDC HUNTSUILLE 285 551 9741 P.BBE/Bl?
(w) U
This court first will attempt to decipher the claims asserted
by Kennedy in the second amended complaint filed herein. After
doing that, the court then will compare those claims to the claims
asserted by him in the 1994 and 1995 actions, to determine whether
any are barred by the doctrine of res judicata.
B. Plninti££'l Clnims in the Prosent Action
Upon first reading, plaintiff's second amended complaint
appears markedly similar to his original and first amended
complaint: dense, conclusory, and lacking readily decipherable
claims. Kennedy alleges violations of: (1) the First, Fourth,
Fifth, Sixth, and Eourteenth Amendments to the Constitution of the
United States; (2) Title VII of the Civil Rights Act of 1964, as
amended by the Civil Rights Act of 1991l 42 U.S.C. §§ 2000e et
seq.;5 (3) 42 U.S.C. § 1983 and § 1985; (4) §§ 501, 502, and 504 of
the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, 792, and 794; (5)
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621
et seq., pursuant to 29 C.F.R. § 1614.204; (6) the Civil Service
Reform Act of 1978, 5 U.S.C. §§ 2301, et seq. (“CSRA”); (7) the
Whistleblower Protection Act, 5 U.S.C. §§ 1213 et seq.; and, (B)
state law claims of fraud and defamation. Those claims are similar
to - and, in some cases, identical to - claims disposed of in prior
litigation.
C. Doctrine of R¢l Jddicata
Under the doctrine of res judicata, "a final judgment on the
_,.__s_.,._____.___
The £qual Employment Opportunity Act of 1972 (42 U.S.C. § 2000e-16(c))
brought federal employees within the scope of 'ritle VII.
4
RUG~17~1998 10131 2@5 551 @741 962
pi
g
auc-l?-lsss 1a 17 USDC HUNTSUILLE 205 551 9741 P.@B?/al?
w l;..;l
merits bars further claims by parties or their privies based on the
same cause of action." Mbntana v. United States, 440 U.S. 147" date_filed="1979-02-22" court="SCOTUS" case_name="Montana v. United States">440 U.S. 147,
153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). Invocation of the
bar requires proof of four elements: (l) the prior judgment must
have been rendered by a court of competent jurisdiction; (2) there
must have been a final judgment on the merits; (3) the parties, or
those in privity with them, must be identical in both suits: and,
(4) the same cause of action must be involved in both suits. Ray
v. Tennessee Valley Authority, 677 F.2d 818" date_filed="1982-06-04" court="11th Cir." case_name="James D. Ray v. The Tennessee Valley Authority">677 F.2d 818, 821 (11th Cir. 1982),
(citing Stevenson v. International Feper Co., 516 F.Zd 103, 108
[Sth Cir. 1975)) cert. denied, 459 U.S. 1147" date_filed="1983-01-17" court="SCOTUS" case_name="Stevens v. North Carolina">459 U.S. 1147, 103 S. Ct. 788" date_filed="1983-01-17" court="SCOTUS" case_name="Ray v. Tennessee Valley Authority">103 S.Ct. 788.
The summary judgments rendered in CV-94-N-0016~M and CV-95-S-
3323-M constitute judgments on the merits by competent courts of
jurisdiction. See 10 Wright, Miller & Kane, Federal Practice and
Procedure: Civil 3d § 2712, at 584-85. Additionally, this action
involves the same parties as both previous actions. The only
remaining question, then, is whether the present action raises the
same causes of action as the two prior actions.
D. Comparison with 1994 and 1995 Actionl‘
Kennedy asserts numerous complaints of discrimination based
upon age, race, sex, and disability. Kennedy‘s discrimination
claims also were the subject of four administrative EEQ complaints
designated as Nos. 30J, 32J, 33, and 34. Those claims will be
_-¥___~”*._ ~ o
he noted in text on pages 1-2 supra, for purposes of simplicity and
clarity, this court sometimes will refer to the two earlier civil actions. CV-
94-N-0016»M and CV-95-S-3323-M. as the “1994 action” (or “complaint”) and the
“1995 action“ (or “complaint”), respectively.
5
RUG-17-1998 1@=31 225 551 3741 97% P.B?
9UG-1?-1998 1@¥13
QUG-17-1993 1@¥32
usDc HuNTsulLLE
(')
addressed together.
1. Claila of discrimination’
285 551 9741
QLJ
P.BBB/@l?
A comparison of paragraph ten of the present action with
paragraph seven of the complaint filed in the 1994 action is
instructive.
are identified by underlining.
PRESENT coMPLAINT
10. Plaintiff alleges that §in§g
practice, policy and conspiratorial
intent exists of illegal employment
practices within the agency whereby
qualified, non~minority, male, over
forty years of age. handicapped, more
qualified, and more experienced
employees are routinely non-selected
for advancement in favor of persons
who fulfill the agency’ s desire for a
youthful (under forty years of age)
nonhandicapped management corps and
to meet the agency's desire for
"diversity" and that those who file
grievances and court suits face
retaliation from agency management.
Furtner, when a selection for
advancement is made from within the
over forty protected class the
youngest applicant is almost
invariably selected. Younger,
nonhandicapped, less qualified
employees are promoted to supervisory
positions while older, handicapped,
more qualified and more experienced
employees are not promoted to such
positions within the agency. lng
(Sec Second Amended Complaint
(Doc. No. 11) 1 10
The only differences in the text of each paragraph
1994 CCMPLAINT
7. Plaintiff alleges that a pattern,
practice, policy and conspiratorial
intent exists of illegal employment
practices within the agency whereby
qualified, ghine, non-minority, male.
over forty years of age, handicapped,
more qualified, and more experienced
employees are routinely non-selected
for advancement in favor of persons
who fulfill the agency's desire for a
youthful (under forty years of age)
nonhandicapped management corps and
to meet the agency's desire for
"diversity" and that those who file
grievances and court suits face
retaliation from agency management
sources. Further, when a selection
for advancement is made from within
the over forty protected class the
youngest applicant is almost
invariably selected. ¥ounger.
nonhandicapped, less qualified
employees are promoted to supervisory
positions while omder, handicapped,
more qualified and more experienced
employees are not promoted to such
positions within the agency.
(emphasis
~T__*-”'_______- . . .
The analysis which follows includes plaintiff's claims under Title VII,
the ADEA, and §§ 501, 502, and 504 of the Rehabilitation ACt of 1973, 29 U.S.C.
§§ 791, 792, and 794.
2@5 551 0741
562 F.OB
nuG-l?-lssa 1@=19 USDC PUNTSUILLE 285 551 0741 P.B@s/@l?
\. w
supplied); Defendants' Motion for More Definite Statement, Exhibit
1 1 7 (emphasis supplied).)
It is readily apparent that plaintiff is attempting to render
his present complaint justiciable by adding the phrase, "since
filing for these positions that have not been adjudicated ....”
This court notes,`however, that such language - unaccompanied by
any factual allegations which identify either "these positions" or
the date(s) upon which Kennedy “filed” applications for each -
would not likely suffice to defeat a properly supported motion for
summary judgment. Indeed, plaintiff does not identify any
positions or promotions for which he applied, and was denied, after
the date on which his 1994 action was dismissed.
Similarly, paragraphs eleven, thirteen, fourteen, and fifteen
in the present action borrow substantially from paragraphs eight,
eleven, twelve, and thirteen of the 1994 complaint, respectively.
To the extent plaintiff seeks, in the present action, to reopen
claims resolved in the 1994 action, he plainly is barred from doing
so by the doctrine of res judicata. A close comparison of the
allegations in plaintiff's 1995 complaint reveals similar overlap
with the claims asserted in the present action. For example,
paragraphs nine, ten, and twelve through fifteen in the 1995
complaint are virtually identical to paragraphs ten through fifteen
in the present action. The only difference appears to be the
limiting language discussed above, which plaintiff inserted into
the opening sentence of every allegation in the present action.
QUG-l'?-lgga 1@=32 225 551 9741 97°/. P.@S
RUG-17-1998 1@¥18 USDC HUNTSUILLE 295 551 @741 P.@lB/Bl?
‘-_ ..`./ Q:")
To avoid the bar of res judicata, any claims of a pattern,
policy, or practice of discrimination based upon age, race, sex, or
disability, or an act of retaliation, must be limited to time
periods and discriminatory acts not covered by either the 1994 or
1995 actions. However, Kennedy has provided no dates on which the
discriminatory acts asserted in this action allegedly occurred.
Moreover, he does not allege that he applied for, but was denied
any promotions after the dates covered by the two prior actions.
Kennedy has failed to support his broad assertions with any
specific factual allegations which could support a claim of
discrimination, despite being ordered to file a more definite
statement of his claim. Accordingly, plaintiff's claims in
paragraphs ten through fifteen of this action based upon Title VII,
the ADEA, or the Rehabilitation Act, and asserted in administrative
EEO complaints 30J, 32J, 33, and 34, are due to be dismissed.
2. Constitutional claims pursuant to § 1983 and § 1985
Kennedy asserts defendants violated his rights under the
First, Fourth, Fifth, Sixth, and Fourteenth lAmendments to the
Constitution of the United States. He brings the claims under the
procedural vehicles of 42 U.S.C. § 1983 and § 1985.
As this court previously instructed Kennedy, however, Ӥ 1983
has no application to the federal government or its officers." See
Mays v. United $tates Postal Service, 928 F. Supp. 1552" date_filed="1996-04-08" court="M.D. Ala." case_name="Mays v. United States Postal Service">928 F. Supp. 1552, 1557 n.4
(M.D. Ala. 1996).
QUG~l?-IQSB 19132 295 551 0741 q?% P.lB
RUG-17-1998 1@=18 USDC HUNTSUILLE 295 551 9741 P.le/Bl7
‘~ ' w
Moreover, plaintiff's § 1983 and § 1985 claims are premised
upon the same conduct for which Kennedy seeks redress under Title
VII, the ADEA, and the Rehabilitation Act. "When the same set of
facts supports a Title VII claim and a non~Title VII claim against
a federal employer, Title VII preempts the non-Title VII claim."
Pfau v. Reed, 125 F.3d `927, 933 csch cir. 1997). Indeea, this
court instructed Kennedy on precisely that point in the 1995
action:
In Brown v. General Services Administration, 425 U.S.
820, 835, 96 S. Ct. 1961" date_filed="1976-06-01" court="SCOTUS" case_name="Brown v. General Services Administration">96 S.Ct. 1961, 1969 (1976), the Supreme Court
held that Title VII “provides the exclusive judicial
remedy for claims of discrimination in federal
employment.” See also Canino v. United Soates EEOC, 707
F.2d 468 (llth Cir. 1983)(holding that former federal
employees must bring all employment discrimination claims
under Title VII). Additionally, the Eieventh Circuit and
other circuits have held that the ADEA ?has similar
preemptive force because it was modeled on, and has a
similar purpose to, Title VII. See Ray v. Nimmo, 704
F.2d 1480, 1485 (llth Cir. 1983); Purtill v. Harris, 658
F.Zd 134, 137 (3d Cir. 1981), cert. denied, 462 U.S.
1131, 103 S. Ct. 3110 (1983); see also, Dodson v. United
$tates Azmy Fin. & Accounting Ctr., 636 F. Supp. 894" date_filed="1986-06-25" court="S.D. Ind." case_name="Dodson v. US Army Finance and Accounting Center">636 F. Supp. 894, 895
(S.D. Ind. 1986)(“the ADEA is the exclusive remedy for a
federal employee who claims age discrimination).8
Courts have also held that “§§ 501 and 504 of the
Rehabilitation Act adopt the remedies and procedures, and
thereby, the preclusive effect, of Title VLI; therefore,
allegations that state a claim under the Rehabilitation
Act are not cognizable under any other provision of
federal law.” Tayior v. Garrett, 1992 WL 245933, at *5
(E.D. Pa. 1992); see also, Johnson v. U.S. Postal
Service, 861 F.2d 1475" date_filed="1989-02-15" court="10th Cir." case_name="Jerrald M. Johnson v. United States Postal Service">861 F.2d 1475, 1477 (10th Cir. 1988), cert.
denied, 493 U.S. 811" date_filed="1989-10-02" court="SCOTUS" case_name="Indelicato v. United States">493 U.S. 811, 110 S. Ct. 54" date_filed="1989-10-02" court="SCOTUS" case_name="Johnson v. United States Postal Service">110 S.Ct. 54 (Rehabilitation Act is
the exclusive remedy for handicap discrimination); Boyd
v. United States\Postal Service, 752 F.Zd 410, 413 (9th
Cir. 1985)(same).
gsee also Oscar Mayer & Company v. Evans, 441 U.S. 750" date_filed="1979-05-21" court="SCOTUS" case_name="Oscar Mayer & Co. v. Evans">441 U.S. 750, 755, 99 S.Ct. 2066,
2071 (1979) (instructing that when the legislative history indicates that the
source of a section in the ADBA was a complementary section in Title VII, the two
statutes are to be construed consistently) .
9
sus-l¢-isss` ip=33 225 551 oval sex P.11
QUG-l'?-lBSB 19119 USDC HUNTSUIl_hE 295 551 9741 P.912/917
(. ~\ c )
\,.
(Kennedy v. Goldin, No. CV*95-S-3323-M, at 4-5 (N.D. Ala. Dec. 19,
1996)(unpublished opinion).)
Kennedy's § 1983 and § 1985 claims are premised on the same
conduct for which he seeks relief under Title VII, the ADEA, and
the Rehabilitation Act. Accordingly, this court determines-for
the second time-that those three statutory schemes preclude
Kennedy's § 1983 and § 1985_claims and, therefore, they are due to
be dismissed.
Significantly, plaintiff does not assert his constitutional
claims diI§Q§l¥ under the authority of Bivens v. Six Uhknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388" date_filed="1971-06-21" court="SCOTUS" case_name="Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics">403 U.S. 388, 91 S.Ct.
1999 (1971), as he did in the 1995 action. Even if he had done soj
the Bivens claims also would be barred by the availability of the
exclusive remedies set out in Title VII, the ADEA, and the
Rehabilitation Act. This court's dismissal of Kennedy's 1995
Bivens claims on similar grounds was affirmed by the Eleventh
Circuit.
3. Tort claims
Plaintiff also asserts state law claims for fraud and
defamation. Kennedy alleged similar claims for defamation,
negligence, and libel in the 1995 action. In the prior action,
this court instructed Mr. Kennedy as follows:
The Supreme Court of the United States has held that a
federal court has no subject matter jurisdiction over
tort claims against the United States unless the
plaintiff has first filed an administrative claim with
the concerned agency pursuant to 28 U.S.C. § 2675(a) of
10
eus-17-1sse 13=33 205 551 2741 sex "“ lp 12
RUG-17~1959 19119 USDC HUNTSUILLE 295 551 5741
( j fw)
\
P.913/917
the Federal Tort Claims Act,’ and that claim has been
denied or deemed denied by operation of law. McNeil v.
United sca‘ces, 508 ‘U.s. 106, 113 s.ct. 1580 (19=93); see
also Eykins v. Pointer, Inc., 725 F.2d 645" date_filed="1984-02-24" court="11th Cir." case_name="Daniel Lykins v. Pointer Incorporated">725 F.2d 645, 646-47 (11th
Cir. ISMM).
The requirement of filing an administrative claim is
a jurisdictional nprerequisite to suit and cannot be
waived. Brown v. United States, 838 F.Zd 1157, 1163
(11th Cir. 1988); Gregomy v. Mitchell, 684 F.Zd 199, 203-
04 (Sth Cir. 1981).[] Thus, Kennedy must show proof that
he has complied with § 2675(a) in order to bring his tort
claims against the United States. Employees Wblfare
Ccmmittee v. E.H. Dawe, 599 F.2d 1375" date_filed="1979-08-03" court="5th Cir." case_name="Employees Welfare Committee v. E. H. Daws, Postmaster and Area Director U. S. Postal Service">599 F.2d 1375, 1378 n.6 (Sth Cir.
1979)(“Lhere must be proof of timely written notice of
the claim to the appropriate agency, which appears of
record”)(citations omitted].
(Kennedy v. Goldin, No. CV-95-S-3323-M, at 5-6 (N.D. Ala. Dec. 19,
1996)(unpublished opinion)(footnote omitted).)
Kennedy has neither alleged, nor presented any evidence that
he filed an administrative claim with N.A.S.A., that N.A.S.A.
denied the claim, or that six months have passed since a claim was
filed, despite having been informed by this court that he must do
so in order to assert tort claims against the federal government.
Therefore, Kennedy’s state law tort claims are due to be dismissed.
4. Civil Servico Reform let claims
Ordinarily, the Merit Systems Protection Board ("MSPB") has
appellate jurisdiction only over the specific adverse employment
~‘_*_nr”_-*_____”"___ . . .
28 U.S.C. § 2675(a) provides in pertinent part:
An action shall not be instituted upon a claim against the
Enited States for money damages for injury or loss of property or
personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the
scope of his office sr employment, unless the claimant shall have
first presented the claim to the appropriate Fedoral agency and his
claim shall have been finally denied by the agency in writing and
sent by certified or registered mail. The failure of an agency to
make final disposition of a claim within six months after it is
filed shall, at the option of the claimant any time thereafter, be
deemed a final denial of the claim for purposes of this section.
ll
AUG-17~1998 19133 295 551 9741 972
RUG-l'?~l‘B‘BE lB= 19 USDC HUNTSUI |_I_E
_ r"'
t » l
285 551 B'?dl F'.@14/@1’?
actions set forth at 5 C.F.R. § 1201.3. when one of the claims
enumerated in that regulation is asserted in an individual right of
action together with a related discrimination claim, the MSPB's
review includes the merits of both claims. See 5 U.S.C. § 7701(c).
Such "mixed" cases are properly appealed to federal district court.
See 5 U.S.C. § 7702(b)(2). All other appeals from MSPB decisions,
however, must be directed to the United States Court of Appeals for
the Federal Circuit. See 5 U.S.C. § 7703(b)(1): see also
Wildberger v. Federal Labor Relations Authority, 132 F.Bd 784, 788
(D.C. Cir. 1998).
The MSPB also has limited appellate jurisdiction over an
individual right of action involving an alleged whistleblowing
reprisal. See 5 U.S.C. S 2302(b)(8). The scope of the Board's
review in such an appeal, however, includes only the
whistleblower-reprisal issue. See Thompson v- Department of
Justice, 61 M.S.P.R. 364, 367 (1994). It does not include any
related discrimination claims asserted therein.
Both AT-1221-96-0661-W-l and AT-3443-98-0119~I~l are limited
jurisdiction whistleblowing appeals whose review did not include
any related discrimination claims. Indeed, Kennedy was expressly
advised of the Board's limited review in such cases on at least one
occasion. During a telephonic prehearing conference on MSPB case
No. AT-1221-96-0661-W-1 in which Mr. Kennedy participated,
administrative law judge Ramon V. Gomez expressly stated: "I
advised the parties that the scope of the Board's review in an
12
F\UE-l'?~\l 998 131 33 285 551 @'?41
QUG~17~1993 1@=19 USDC FUNTSUILLE 295 551 8741 P.Bl$/@l?
. , pa
, y }
individual-right-of-action (IRA) appeal includes only ;hg
xhl§§l§hlggg;;;gg;i;al_issge, and no other affirmative defenses,
including discrimination and reprisal, may be asserted." (Board's
Order of November 18, 1996, at 5 (attached to Defendants' Reply
Brief)(emphasis supplied).)
Moreover, the final orders in both cases advised Mr. Kennedy
that the proper avenue for appeal of the Board's decision was
through the Federal Circuit. (See Plaintiff's Exhibit l at 4;
Plaintiff‘s Exhibit 3 at 2.) Accordingly, this court concludes
Kennedy's claims arising from MSPB cases AT-1221-96-0661-W~1 and
AT-3443-9B-0119-I-1 are not properly before this court, and are due
to be dismissed.
II. MOTION F@R SANGTI°NB
Rule ll of the Federal Rules of Civil Procedure provides for
sanctions which are designed to "discourage dilatory or abusive
tactics and help to streamline the litigation process by lessening
frivolous claims or defenses." Donaldson v. Clark, 819 F.2d 1551" date_filed="1987-06-24" court="11th Cir." case_name="Jurldine A. Donaldson v. Paul v. Clark">819 F.2d 1551,
1556 (1lth Cir. l987)(en banc)(citation omitted). The standard for
evaluating a motion for Rule ll sanctions is “reasonableness under
the circumstances." Donaldson, 819 F.2d 1551" date_filed="1987-06-24" court="11th Cir." case_name="Jurldine A. Donaldson v. Paul v. Clark">819 F.2d at 1556.
The Eleventh Circuit has upheld an award of sanctions against
a pro se plaintiff for attempting to "re-hash" claims made in prior
litigation. See Patterson v. Aiken, 841 F.2d 386" date_filed="1988-03-28" court="11th Cir." case_name="James Thomas Patterson, Sr. v. Lawrence L. Aiken">841 F.2d 386 (1lth Cir. 1988).
In Patterson, the district court held that ”a man of Patterson's
education, given a reasonable amount of time in a law library,
13
RUG‘17-1998 1@=34 235 551 9741 972 P.15
nuc-lv-lsss le=zo usoc HuNTsultLE 205 551 2741 P.e1e/el?
1" (l
could determine that once a judgment has been entered one cannot
file another lawsuit to object to the conduct of the first."
Patterson, 841 F.Zd at 387 (citing patterson v. Aiken, 111 F.R.D.
354, 357 (N.D. Ga. 1986)). The Eleventh Circuit upheld the
sanctions even though they were imposed only as to a single count
of a multiple count complaint. Id.
The court notes that Mr. Kennedy is a well-educated,
experienced lay litigant who has been given every opportunity to
correct his faulty pleadings. Indeed, he has repeatedly been
advised that claims which already have been resolved on the merits
may not be reasserted by filing a new cause of action. This court
carefully instructed Mr. Kennedy regarding the doctrine of res
judicata in his 1995 action, and once again in ordering a more
definite statement of his claims in the present action.
Nevertheless, Mr. Kennedy persists in asserting claims which
already have been adjudicated, including claims based upon alleged
violations of § 1983, § 1985, and state tort law.
Accordingly, this court finds that sanctions for Mr. Kennedy's
conduct are appropriate under the circumstances. Defendants'
motion for sanctions is due to be granted, and the costs of this
action are due to be taxed to Mr. Kennedy.
III. CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss is
due to be granted. Defendants' motion for sanctions also is due to
14
9UG-1'?-1998 118134 2@5 551 @'741 97°/. P.l$
QUG-l7-1993 19=29 USDC HUNTSUILLE
285 551 8741 P.Bl?/Bl?
, [`}
e g a ted¢ md order cofxslste!\t ulth th-l u\e!“°ra!ld'ux‘“ o ' ll shall
r
be entered contemporaneously herewlt!l.
DONB this li`4"*day of August, 1998.
15
QUG'17~1998 1@=34 225 551 B?dl
ToTnL P.aav
hiv