Bozgoz v. Blackwell
| Decision Date | 17 September 2021 |
| Docket Number | Civil Action 19-2790 (RDM) |
| Parties | MARGARET BOZGOZ, et al., Plaintiffs, v. DARRYL GLEN BLACKWELL, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Now before the Court is Defendants' motion to dismiss, Dkt 38, the supplemental complaint filed by Plaintiffs Margaret Bozgoz and Robert Bozgoz, Dkt. 1, and Plaintiffs' “Motion to Transfer the Case to the Department of Defense, Military Tribunal, ” Dkt. 50. For the following reasons, the Court will GRANT Defendants' motion and DENY Plaintiffs' motion.
Plaintiffs' claims in this case derive in part from their efforts to pursue another lawsuit, so the Court will begin with a brief overview of that suit before turning to the allegations underlying the instant dispute. See Dupree v Jefferson, 666 F.2d 606, 608 n.1 (D.C. Cir. 1981) (identifying “related proceedings in other courts” among those matters of which the Court may take judicial notice).
Plaintiffs initiated their original suit on January 29, 2019, “asserting retaliation and undue delay of reasonable accommodations on behalf of” Robert Bozgoz, who at the time was “an employee of the Department of Veterans Affairs [the “VA”].” Bozgoz v. James, No. 19-cv-0239, 2019 WL 11322842, at *1 (D.D.C. Apr. 2, 2019). Robert's wife, Margaret Bozgoz, describes herself “as her husband's ‘Americans with Disabilities Act Representative,' and in that role, she has pursued administrative relief on” behalf of Robert. Bozgoz v. James, No. 19-cv-0239, 2020 WL 4732085, at *1 (D.D.C. Aug. 14, 2020). In addition, Plaintiffs alleged that Robert Bozgoz requested, but was denied, permission to work overtime on Martin Luther King Day in January 2018. Compl. ¶¶ 1-3, Bozgoz v. James, No. 19-cv-0239 (D.D.C.) (Dkt. 41 at 32-33). Robert, who is white, alleged that Voncelle James, his “African American Supervisor, ” committed a “discriminatory [a]ct” by denying his request, and that the VA unlawfully retaliated and discriminated against him when he sought to “file an EEO complaint.” Id. at ¶¶ 2, 4 (Dkt. 41 at 32-33); see also Bozgoz, 2020 WL 4732085, at *2-3 (summarizing allegations).
On August 15, 2019, Plaintiffs filed a supplemental complaint which “included claims against Judge Amy Berman Jackson, who was the presiding judge in the matter; a Maryland state court judge; Maryland state prosecutors; and other court officials that related to, among other things, Plaintiffs' efforts to serve the complaint in that matter and various conflicts that ensued.” Bozgoz v. Blackwell, No. 19-cv-2790, 2021 WL 1518337, at *1 (D.D.C. Apr. 16, 2021). “In response, Judge Jackson severed these new claims, and, because those claims involved her, she referred the severed claims to the Calendar Committee for random reassignment.” Id. Those claims-and only those claims-were assigned to the undersigned judge. Id.
Defendants moved to dismiss Plaintiffs' remaining (non-severed) claims, and Judge Jackson granted that motion in part. Plaintiffs' “prolix and discursive complaint raise[d] a host of claims, ” as Judge Jackson explained, related to the denial of overtime in January 2018 and subsequent administrative proceedings. Bozgoz, 2020 WL 4732085, at *5; see also Id. at *3 (). Although the complaint included eleven different claims-many of which themselves contained sub-parts- Judge Jackson dismissed all but Plaintiffs' “Title VII, Rehabilitation Act, and Age Discrimination in Employment claims.” Id. at *5. “But under those laws, ” Judge Jackson held, “the only appropriate defendant is the ‘head of the . . . agency' that employs the plaintiff.” Id. at *9 (quoting 42 U.S.C. § 2000e-16(c)). Judge Jackson accordingly dismissed all defendants aside from “Robert Wilkie, in his official capacity as the Secretary of the VA.” Id.
As for the balance of Plaintiffs' suit, Judge Jackson dealt first with Plaintiffs' constitutional claims, which were “based upon violations of the First, Third, Fourth, Fifth, and Ninth Amendments.” Id. Plaintiffs' allegations under 42 U.S.C. § 1983 were insufficient because “all defendants [we]re federal employees, ” and Section 1983 “applies only to state officials acting under color of state law.” Id. And, although Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), affords courts “discretion in some circumstances to create a remedy against federal officials for constitutional violations, ” Judge Jackson concluded that under D.C. Circuit precedent “special factors counsel[ed]” against doing so based on Plaintiffs' claims. Id. at *9-10 (alterations omitted) (quoting Wilson v. Libby, 535 F.3d 697, 704 (D.C. Cir. 2008)). That left a bevy of statutory and common law claims, which Judge Jackson found were also insufficiently pled. These claims included a “common law conspiracy” claim, along with statutory claims under the Privacy Act, the Occupational Safety and Health Act, the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, the Fail Labor Standards Act, and the Civil Service Reform Act. Id. at *10-14.
Because “[a]ll of the remaining claims relate[d] solely to alleged acts of discrimination and retaliation against” Robert Bozgoz, Judge Jackson dismissed Margaret Bozgoz as a plaintiff. Id. at *16. And because “a non-lawyer cannot represent another person in a civil action, ” Judge Jackson clarified that Margaret “may not represent her husband's interests in this case, ” although Robert remained free to “proceed pro se and represent himself” or to “request[] that the Court appoint counsel to represent him.” Id.
Judge Jackson gave Robert Bozgoz several weeks to indicate whether he wished to proceed pro se, whether “he [wa]s requesting that the Court appoint counsel to represent him, ” or whether, in his view, “Rule 17 [wa]s applicable.” Order, Bozgoz v. James, 19-cv-239 (D.D.C. Aug. 14, 2020) (Dkt. 76 at 2); see also Fed. R. Civ. P. 17(c)(2) (). Robert Bozgoz did not respond to the Court's instruction, and instead Margaret Bozgoz “filed motions on behalf of Robert Bozgoz, Lance Fulgium, James Joseph Ryan, James ‘Jimmy' Anthony Koki Ryan, and herself seeking to amend the complaint and to add the Ryans-who are identified as residents of Japan-as intervenors/plaintiffs.” Order, Bozgoz v. James, 19-cv-239 (D.D.C. Jan. 4, 2021) (Dkt. 88 at 3). Judge Jackson issued a minute order noting that the claims raised in these motions were “entirely unrelated to the facts underlying Robert Bozgoz's claims of discrimination and retaliation” and that, as a result, “they must be filed as a separate action in the appropriate court.” Minute Order, Bozgoz v. James, 19-cv-239 (D.D.C. Oct. 4, 2021). Nevertheless, “the flow of duplicative and improper filings by Margaret Bozgoz, on behalf of herself and other individuals who, like her, [we]re not parties to th[e] case, continued.” Order, Bozgoz v. James, 19-cv-239 (D.D.C. Jan. 4, 2021) (Dkt. 88 at 3).
Judge Jackson therefore gave Robert Bozgoz one last opportunity “to file a notice by December 15, 2020 informing the Court whether 1) he intends to retain counsel; 2) he intends to proceed pro se; 3) he is asking the Court to appoint counsel; or 4) this Court should institute proceedings to appoint a guardian ad litem under Federal Rule of Civil Procedure 17.” Id. Although “the Clerk's Office [] continued to receive numerous proposed filings prepared and signed by Margaret Bozgoz, ” Robert Bozgoz never submitted a responsive filing. Id. at 4 n.2. Judge Jackson, accordingly, dismissed “the remaining claims . . . for want of prosecution.” Id. at 4.
Pursuant to Judge Jackson's severance order, this case includes Plaintiffs' allegations relating to “all events and claims arising between January 29, 2019 and August 7, 2019.” Dkt. 1-1 at 2. As a result, pages 93 to 186 of the Fourth Amended Complaint in Civ. No. 19-239 became the operative complaint in this matter, Civ. No. 19-2790. See Dkt. 1.
According to the severed complaint, on April 2, 2019, “Robert [Bozgoz] sent the VA a letter resigning under protest due to the ongoing acts of retaliation” by the VA, which, according to Plaintiffs, “were so intolerable that he had no other choice.” Id. at 4 (Compl. ¶ 219). Plaintiffs further claim that “the VA obstructed justice, violated the 13th Amendment[, ] and violated ADA [i]nterference law by preventing the delivery of [Robert's] letter of resignation.” Id. at 5 (Compl. ¶ 221). When Plaintiffs attempted to deliver the letter of resignation, Angela Kendrix, a VA official, “called for additional security officers, ” although the complaint does not explain why Kendrix felt the need to do so; eventually, however, Margaret Sue Bozgoz “ran out of the building, ” injuring herself in the process. Id. Plaintiffs separately allege that on the same day “Judge Jackson, VA General Counsel, VA leadership, [and] Assistant U.S. Attorney Fred Haynes conspired and hid the reasonable accommodations in the PACER system.” Id. at 6 (Compl. ¶ 224).[1]
The bulk of Plaintiffs' subsequent allegations focus on their efforts to serve the Fourth Amended Complaint in Civ. No 19-239 on the many defendants Plaintiffs named in that action. On May 31, 2019, Plaintiffs allege that Robert Bozgoz and Larry Fulgium, described as Plaintiffs' process server, “attempt[ed] service of summons on Angela Kendrix, ” but that Kendrix “dodged service.” Dkt. 1 at 8 (Compl. ¶ 231). Although the Fourth...
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