Greg MORGAN, Plaintiff, v. FEDERAL AVIATION ADMINISTRATION et al., Defendants.
Civil Action No. 07-1748 (RMU).
United States District Court, District of Columbia.
Aug. 25, 2009.
5
RICARDO M. URBINA, District Judge.
Claire M. Whitaker, United States Attorney‘s Office, Washington, DC, for Defendants.
MEMORANDUM OPINION
GRANTING THE DEFENDANTS’ MOTION FOR LEAVE TO FILE AN AMENDED ANSWER
I. INTRODUCTION
This matter is before the court on the defendants’ motion for leave to file an
II. FACTUAL & PROCEDURAL BACKGROUND
On September 30, 2005, the FAA terminated the plaintiff‘s employment. See Compl., Ex. 6 (“Morgan Decl.“) ¶ 8. Prior to his termination, the plaintiff worked as an Air Traffic Control Specialist (“ATCS“) at High Desert Terminal Radar Approach Control (“High Desert TRACON“) facility located at Edwards Air Force Base in California. See Compl. ¶ 1. Since being terminated, the plaintiff has commenced three separate actions in thrеe distinct venues regarding his employment at and termination from High Desert TRACON. Because all three impact the court‘s disposition of the instant motion, they are described below.
A. The Merit Systems Protection Board Action
On October 31, 2005, the plaintiff appealed his termination to the Merit Systems Protection Board (“MSPB“), which affirmed the DOT‘s removal action. See Morgan v. Dep‘t of Transp., 105 M.S.P.R. 647 (2007) (unpublished table decision); No. SF-0752-06-0090-I-1 at 1, slip op. (M.S.P.B. July 14, 2006). The plaintiff withdrew his request for an MSPB hearing; consequently, the administrative judge made findings based on the documents submitted by the parties. Id. at 1. In affirming the DOT‘s decision to remove the plaintiff, the MSPB made the following determinations regarding the circumstances leading to his termination: on February 16, 2005, the plaintiff was scheduled to work until 1:45 p.m., but asked his supervisor if he could leave an hour early to “‘gather information’ from his physician for his ‘medical clearance’ forms.” Id. at 18-19. The plaintiff recalls that he was informed by Marmet that he had to have his medical forms in order by the end of the day or his clearance would expire and he would be ineligible to work as an ATCS. Morgan Decl. ¶ 5. The supervisor denied this request because of a “staffing consideration.” Id. at 19. At the end of his shift, the plaintiff failed to sign out, and the supervisor of the following shift indicated that the plaintiff had worked until 1:45 p.m. Id. But when the plaintiff returned for his next shift later that evening, he altered the sign-out time to indicate that he had worked until 2:30 p.m. that afternoon, and claimed 45 minutes of overtime. Id.; Compl., Ex. 1.
The MSPB concluded that the plaintiff had violated agency policy by claiming overtime on February 16, 2005. See 105 M.S.P.R. at 18-22. Specifically, the MSPB credited the statements of the Operations Supervisor for High Desert TRACON, Richard Contatore, who maintained that the plаintiff was not authorized to take overtime that day. Id. at 19. Contatore also stated that he would have notified the plaintiff had the plaintiff‘s medical clearance been due to expire. Id. Additionally, the MSPB concluded that the plaintiff was aware of the overtime policy at High Desert TRACON: two months earlier, on December 17, 2004, Contatore had counseled the plaintiff on “overtime and shift changing aрproval policies.” Id. Moreover, Marmet, a defendant in the instant case and the Operations Manager for High Desert TRACON, stated in a declaration filed in the MSPB action that “she did not tell the [plaintiff] that he needed to have his ‘medical documents in order’ before he could work” his later shift on February 16. Id. Obtaining medical records is ordinarily considered compensable work under the collectivе bargaining agreement between the National Air Traffic Controllers Association and the DOT. Id. at 20. But to obtain pay for more than eight hours of work per day, the plaintiff was
In the MSPB action, the plaintiff contested his removal on several grounds, including procedural errors, id. at 22, and retaliation for whistleblowing, id. at 24. While the administrative judge determined that the plaintiff had made two protected disclosures1 during his employment at High Desert TRACON, the judge also concluded that those disclosures were not related to his removal. Id. at 27. The MSPB decision became final on Marсh 22, 2007. See Morgan v. Dep‘t of Transp., 300 Fed.Appx. 923, 926 (Fed.Cir. 2008). The plaintiff then appealed to the Federal Circuit, which affirmed the MSPB‘s ruling in a decision dated November 24, 2008. Id. at 928.
B. The Instant Action
On September 28, 2007, the plaintiff filed the instant action, alleging two FLSA claims for failure to pay overtime and unlawful discharge and retaliation and one FEHA claim for unlawful discharge, harassment and retaliation. See generally Compl. The facts that thе plaintiff now alleges regarding the events surrounding his termination contradict the factual findings of the administrative judge in the MSPB action. Specifically, the plaintiff states in the declaration in support of his complaint that on February 16, 2005, Marmet instructed him to obtain medical documents before his next shift, which was to begin later that evening, or he would be “sent home” and have to work an “administrative day” the following day. Mоrgan Decl. ¶ 5. By contrast, the administrative judge concluded that Marmet was not at work that day, see Morgan, 105 M.S.P.R. at 19-20, that the plaintiff‘s medical clearance would not expire until February 20, 2005, id. at 20, and that Contatore, not Marmet, would have informed him of any pending expiration of his medical clearance, id. at 19.
On February 9, 2009, almost three months after the Federal Circuit issued its opinion affirming the MSPB‘s decision, the defendants in this aсtion moved to dismiss the plaintiff‘s complaint pursuant to Rule 12(b)(6) or, in the alternative, for summary judgment, on the grounds of claim preclusion and issue preclusion. See generally Defs.’ Mot. to Dismiss. On March 5, 2009, the defendants filed a motion for leave to file an amended answer to include the affirmative defenses of claim preclusion and issue preclusion, and lodged a proposed amended answer. Seе Defs.’ Mot. for Leave to File Am. Answer (“Defs.’ Mot.“). In response, the plaintiff filed an opposition, arguing, inter alia, that the defendants have forfeited the right to amend and that amendment would be futile because the prior action does not have preclusive effect in this court. See Pl.‘s Opp‘n to Defs.’ Mot. (“Pl.‘s Opp‘n“) at 10, 12.
C. The Court of Federal Claims Action
On October 1, 2007, the plaintiff and fifty-two other named and unnamed ATCSs filed an action under the FLSA for unрaid overtime in the United States Court of Federal Claims. See Whalen v. United States, 80 Fed.Cl. 685 (2008). The Court of Federal Claims dismissed the plaintiff from that action because the case pending in this court divested it of jurisdiction under
III. ANALYSIS
A. Legal Standard for Motion to Amend a Pleading
Courts require a sufficient basis for denial of leave to amend because the purpose of pleading under the Federal Rules of Civil Procedure is “to facilitate a proper decision on the merits,” not tо set the stage for “a game of skill in which one misstep by counsel may be decisive to the outcome.” Foman, 371 U.S. at 181-82, 83 S.Ct. 227 (citing Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). To further the goal of deciding cases on their merits and avoiding adjudication by technicality,
B. The Court Grants the Defendants’ Motion for Leave to File an Amended Answer
The defendants argue that the court should grant them leave to amend their answer to include the affirmative defenses of claim preclusion and issue preclusion because facts essential to this case were adjudicated before the MSPB and the Federal Circuit. See Defs.’ Mot. at 1. The defendants first arguе that they are entitled to amend their answer as a matter of course pursuant to
The plaintiff makes several arguments in opposition to the defendants’ motion. First, he correctly observes that the defendants may not amend as a matter of course given that the time period for doing so has expired.3 Pl.‘s Opp‘n at 5. Second, the plaintiff maintains that thе defendants’ motion does not state the grounds on which it rests with
Additionally, the plaintiff argues that the court should deny defendants’ motion for leave to аmend because amendment would be futile for three reasons. See id. at 10-11, 16. First, he argues that the affirmative defense of collateral estoppel would fail because “[t]he Federal Circuit is not a district court and does not have any mechanisms to make ‘factual findings.‘” Id. at 10. Second, the plaintiff argues that because the FLSA provides that suits may be brought in a variety of forums, see
Despite the plaintiff‘s argument to the contrary, amendment would not be futile. MSPB decisions have preclusive effect in this court, see, e.g., Perry v. U.S. Postal Serv., 2008 WL 1776478, at *1 (D.D.C.2008), and the doctrines of claim preclusion and issue preclusion are appropriately aрplied here. Under the doctrine of issue preclusion, “once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.” Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C.Cir. 1992) (quoting Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980)). Amending the defendants’ answer to include the affirmative defense of issue preclusion wоuld not be futile because the factual determination underlying the administrative judge‘s ruling affirming the DOT‘s removal of the plaintiff are identical to those implicat-
Because there was a significant delay between when the defenses of claim preclusion and issue preclusion were available and when the defendants sought leave to amend, the court is compelled to address the question of whether the delay was undue despite the fact thаt the plaintiff failed to address it in his opposition. See generally Pl.‘s Opp‘n. The defendants incorrectly assert that the defenses “were not available when the answer was originally filed.” Defs.’ Mot. at 4. Although the Federal Circuit had not yet rendered its opinion at the time the original answer was filed on March 28, 2008, the MSPB decision became final over a year earlier, on March 22, 2007, Morgan, 300 Fed.Appx. at 926. The appeal pending in the Federal Circuit did not negate the preclusive effect of the MSPB decision because “a judgment otherwise final remains so despite the taking of an appeal.” Martin v. Malhoyt, 830 F.2d 237, 264 (D.C.Cir.1987) (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 13 cmt. f (1982)). Therefore, the defendants could have included the affirmative defenses in their answer.
But delay alone is not sufficient reason to deny a motion for leave to amend a pleading, and although the delay here is substantial, it must be weighed against the “time and judicial resources the court will save if indeed it disposes of the case on the basis of the proposed defenses, as opposed to engaging in lengthy proceedings that give the plaintiff a second bite of the juridical apple.” Nwachukwu v. Karl, 222 F.R.D. 208, 211 (D.D.C. 2004) (granting leave to amend despite the fact that a year and a half passed between the defendant‘s filing of the original answer and his motion for leave to file an amended answer).6 Moreover, the plaintiff does not identify, nor does the court discern, any prejudice that would result from the delay. See generally Pl.‘s Opp‘n. Moreover, the fact that the litigation is in its nascent stages militates in favor of allowing the defendants to amend their answer. Cf. Atchinson v. District of Columbia, 73 F.3d 418, 427 (D.C.Cir.1996) (holding that denial of leave to amend was aрpropriate because the plaintiff sought to amend his complaint “two years after filing his complaint—on the eve of trial, when discovery was complete“).
Finally, the plaintiff is correct that the defendants’ dispositive motions, taken alone, should fail because they incorporate affirmative defenses not set forth in their answer. See Harris, 126 F.3d at 345;
IV. CONCLUSION
For the foregoing reasons, the court grants the defendants’ motion for leave to file an amended answer. An Order consistent with this Memorandum Opinion is separately and contemporaneously issued this 25th day of August, 2009.
RICARDO M. URBINA
UNITED STATES DISTRICT JUDGE