Coleson v. Inspector General of Dept. of Defense

• Decision Date: 28 August 1989
• Docket Number: Civ. A. No. 88-803-N.
• Citation: 721 F. Supp. 763
• Parties: James Arthur COLESON, Plaintiff, v. The INSPECTOR GENERAL OF the DEPARTMENT OF DEFENSE, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

721 F. Supp. 763

James Arthur COLESON, Plaintiff, v. The INSPECTOR GENERAL OF the DEPARTMENT OF DEFENSE, et al., Defendants.

Civ. A. No. 88-803-N.

United States District Court, E.D. Virginia, Norfolk Division.

August 28, 1989.

James Arthur Coleson, Portsmouth, Va., pro se.

J. Phillip Krajewski, Asst. U.S. Atty., Norfolk, Va. and Robin Teichman, Office of Counsel Space and Naval Warfare Systems Command, Dept. of the Navy, Washington, D.C., for defendants.

MEMORANDUM OPINION AND ORDER

DOUMAR, District Judge.

This opinion considers the defendants' motion to dismiss the complaint or for summary judgment. The plaintiff having proceeded pro se was granted a hearing in open court to present any and all reasons in opposition thereto. After a full consideration of all materials submitted, for the reasons stated below, the defendants' motion for summary judgment is GRANTED.

I. BACKGROUND

On December 1, 1988, the plaintiff, proceeding in forma pauperis, filed this action pro se. The complaint makes various claims regarding the plaintiff's former employment at the Naval Electronic Systems Engineering Center in Portsmouth, Virginia (hereinafter "NESEC"), which began in December, 1980. The plaintiff claims that he reported "fraud, waste, abuse, mismanagement and inefficiency" at NESEC to each of the defendants, in accordance with applicable regulations, but that as a result of doing so, the defendants harassed him, discriminated against him, initiated four investigations against him, persecuted him daily for eight months, and ultimately forced him to resign, this resignation constituting a constructive discharge. The time period during which these events allegedly occurred was February 14, 1987 to April 30, 1988, the date on which the plaintiff resigned from his employment at NESEC. The plaintiff further claims to have been "black balled" from employment in the Department of Defense because he was a "whistleblower," making it impossible for him to obtain employment in any government agency. As a result of the alleged misconduct of the defendants, the plaintiff claims to have suffered "severe mental, physical, emotional and economic distress."¹ As relief, the plaintiff seeks ten percent of the cost of the fraud, waste, abuse, and mismanagement which the plaintiff identified; reinstatement to his position as a "management analyst, GS-343-11, Step 5"; back pay with interest; Five Million Dollars ($5,000,000) compensatory damages for a blood clot in his left arm allegedly caused by the actions of the defendants; Ten Million Dollars ($10,000,000) in punitive damages; costs; attorney's fees; and "castigation" of the defendants who took actions against him. The defendants named in the complaint are outlined below.

Defendant NESEC in Portsmouth, Virginia, was the naval facility at which the plaintiff was employed.

Defendant Karen E. Mundie was the Head of the Management and Administrative Services Division at NESEC, beginning in September of 1987. She was the first level supervisor of the plaintiff from September, 1987 to the plaintiff's resignation on April 30, 1988. She was selected for this position over the plaintiff, who had also applied for it.

Defendant R.K. Chari was the head of the Resources Management Department at NESEC. He was the second level supervisor of the plaintiff until the plaintiff's resignation. He recommended that defendant Mundie rather than the plaintiff be given the position of Head of the Management and Administrative Services Division. He also denied to the plaintiff a within-grade promotion on the grounds that the plaintiff's performance was "marginal" rather than "satisfactory."

Defendant Eugene G. Newman was the Technical Director at NESEC. As such, he was the third level supervisor of the plaintiff. He selected defendant Mundie rather than the plaintiff for the position of Head of the Management and Administrative Services Division. He was also the reviewing official of the plaintiff's performance appraisal, said appraisal resulting in denial by defendant Chari to the plaintiff of a within-grade promotion. The plaintiff implies that Newman has libeled him by causing the publication of a certain report describing the plaintiff.

Defendant Captain Richard H. Holt was the Commanding Officer at NESEC. As such, he was the fourth level supervisor of the plaintiff. He reviewed defendant Newman's selection of defendant Mundie rather than the plaintiff for the position of Head of the Management and Administrative Services Division, and informed the plaintiff that Mundie's selection was appropriate.

Defendant Space and Naval Warfare Systems Command of the Department of the Navy (hereinafter "SPAWAR") was the headquarters activity for NESEC. The plaintiff claims that the SPAWAR commander libeled him by causing the publication of a certain report describing him as unfit.²

The plaintiff claims that defendant Inspector General of the Department of the Navy was informed of the actions taken against him by the other defendants, and not only allowed it to continue but, in fact, encouraged it.

The plaintiff makes allegations against the Inspector General of the Department of Defense similar to those made against the Inspector General of the Department of the Navy.

Several motions have been filed. On January 25, 1989, the plaintiff filed a motion for a restraining order. On February 10, 1989, the defendants filed a motion to dismiss or, in the alternative, for summary judgment. And on February 17, 1989 and on March 6, 1989, the plaintiff filed a motion for a "continuance" or, in the alternative, for summary judgment. Because the Court grants the defendants' motion for summary judgment, the other motions need not be and are not addressed. Furthermore, one of the several groups argued in support of the defendants' motion for summary judgment — the effect of a release in a settlement agreement signed by the plaintiff — is dispositive. Consequently, only that ground will be discussed.

II. JURISDICTION

The jurisdiction of the Court arises from a number of sources.

The plaintiff presented his cause of action as a claim under the False Claims Act, 31 U.S.C. §§ 3729-3733. He specifically pointed to a statutory provision which he read in a law review article, and which was identified in that article as being codified at 31 U.S.C. § 3734. While there is no 31 U.S.C. § 3734, the material to which the plaintiff refers was in substance codified at 31 U.S.C. § 3730(h). Section 3730(h) provides:

Any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by the employee on behalf of the employee or others in furtherance of an action under this section, including investigation for initiation of, testimony for, or assistance in an action filed or to be filed under this section, shall be entitled to all relief necessary to make the employee whole. Such relief shall include reinstatement with the same seniority status such employee would have had but for the discrimination, two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys' fees. An employee may bring an action in the appropriate district court of the United States for the relief provided in this subsection.

These statutory protections of section 3730(h) extend to persons who bring a quitam action, pursuant to section 3730(b), for violations of 31 U.S.C. § 3729, which provides for liability of persons making false claims upon the United States government or armed forces.

Although the plaintiff has not claimed the Court's jurisdiction under these provisions, it is also possible that the plaintiff has presented a claim under the Whistleblower Protection Act of 1989, Pub.L. No. 101-12, 103 Stat. 16-35 (1989) (to be codified at 5 U.S.C. § 1201 note). The Act provides federal employees with protections from employment practices prohibited under 5 U.S.C. § 2302(b)(8), one of which prohibited employment practices is a superior's taking or failing to take a personnel action regarding an employee as a reprisal for a disclosure of information by the employee which the employee reasonably believes evidences mismanagement, a gross waste of funds, or an abuse of authority. The Act provides to employees a private cause of action for claims under the Act, which action must be presented before the Merit Systems Protection Board, and the decision on which can be reviewed by a United States District Court. See 103 Stat. 29-31 (to be codified at 5 U.S.C. § 1221).

Finally, the Court's jurisdiction also arises under the United States Constitution, as the plaintiff appears to present a claim under Bivens v. Six Unknown Agents of the FBI, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for violation of due process by constructive discharge.

It is not necessary for the Court to consider the merits of the plaintiff's causes of action under each of these theories, because the release executed by the plaintiff in a settlement agreement bars any and all causes of action which the plaintiff may have had.

III. THE SETTLEMENT AGREEMENT

On April 28, 1988, the plaintiff entered into a settlement agreement. The settlement agreement provides by its terms that it is entered into by plaintiff Coleson and defendant NESEC. The signatories to that agreement were plaintiff Coleson, the plaintiff's attorney, defendant Holt, two agency representatives, and a labor relations specialist. The agreement states that it was entered into in settlement of the plaintiff's equal employment opportunity complaint, DCIC Case No. E-88-031 (filed Sept. 21, 1987), which charged age discrimination, sex discrimination, and reprisal, and which complaint was denied; that denial's appeal to the Merit System Protection...