Farrell v. Reno
| Decision Date | 27 October 1997 |
| Docket Number | No. 95-187-CIV-FTM-17D.,95-187-CIV-FTM-17D. |
| Citation | 983 F.Supp. 1099 |
| Parties | Edward James FARRELL, III, Plaintiff, v. Janet RENO, Attorney General of the United States, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Edward James Farrell, III, Lehigh Acres, FL, pro se.
Margaret O. Steinbeck, U.S. Attorney's Office, M.D. Fla., Ft. Myers, FL, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This cause is before the Court on Plaintiff's Motion for Summary Judgment (Dkt.51) and the Motion for Summary Judgment (Dkt.49) of Defendant Janet Reno, Attorney General of the United States, Defendant's Memorandum of Law (Dkt.50), and the parties' respective Responses in Opposition to Summary Judgment (Dkt.55, Dkt.56).
The facts are presented as stated in Plaintiff's Amended Complaint, Plaintiff's Motion for Summary Judgment, Defendant's Motion for Summary Judgment and all attached exhibits, which incorporate a substantial record from previous related matters heard by the Merit Systems Protection Board, the United States Court of Appeals for the Federal Circuit, and the final decision of a Department of Justice adjudication officer.
As a general rule, a court must read a pro se plaintiff's allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972). In its consideration of this matter, this Court has endeavored to read all of Plaintiff's allegations and submissions of facts in as liberal a manner as is possible.
Plaintiff was employed by the United States Marshal Service (hereinafter "USMS") beginning in 1977. He eventually advanced to the position of Criminal Investigator (Deputy U.S. Marshal), which carries the USMS classification of GS-1811-11. Thereafter, Plaintiff became disabled with a back injury suffered on the job, and, on November 11, 1985, retired, electing to take disabled status. Plaintiff began to collect disability benefits and workman's compensation. At the time of his injury, Plaintiff lived and worked in the Madison, Wisconsin area. However, in April, 1986, Plaintiff sought reinstatement with the USMS, claiming that he had partially recovered from his injury. The USMS denied this request.
Plaintiff took no further action until May 12, 1988, when he filed a petition for appeal of the USMS decision not to reinstate him. See Farrell v. Department of Justice, 50 M.S.P.R. 504 (M.S.P.B.1991). Plaintiff's challenge alleged, inter alia, that Plaintiff had been involuntarily separated from his position by disability retirement, and that Plaintiff was partially recovered and, therefore, entitled to immediate restoration. Id. at 508. Although numbered differently prior to 1986, 5 C.F.R. Parts 353.302 and 353.304 require an agency to restore only fully recovered employees to service. Id. at 509. Consequently, the Merit Systems Protection Board (hereinafter "MSPB") administrative judge found that Plaintiff was not entitled to restoration. Id. However, the Board did find that the Department of Justice (hereinafter "DOJ") did not make every effort to restore the plaintiff to limited duty as an employee who was only partially recovered from an injury pursuant to 5 C.F.R. § 353.306 (1986) Id. The Board further held that Plaintiff was entitled to consideration for restoration to Criminal Investigator within the entire DOJ and within his local commuting area of Madison, Wisconsin, and appointment to a Reemployment Priority List (hereinafter "RPL") retroactive to his request.
5 C.F.R. § 330.201 (1986) governs all RPLs and provides:
Accordingly, Plaintiff completed the required registration form for the USMS Priority Placement and Referral System (PPRS) on May 31, 1989. The PPRS was the USMS version of the RPL.1 On his registration form, Plaintiff designated Washington, D.C. as the location in which he was available for the positions of DOJ, GS-1811-11.
Subsequently, the DOJ/USMS filed a compliance report with the MSPB in regard to the MSPB decision requiring agency-wide consideration of the Plaintiff for reinstatement. The report stated that the DOJ had considered Plaintiff for restoration, department-wide within the local commuting area of Madison, Wisconsin, that no positions were available, and that, therefore, no award of back pay and benefits was appropriate. An administrative judge found that the DOJ appropriately used the period from May 1986, when the Plaintiff submitted his request for restoration, through May 1989. Both parties agree that Plaintiff was fully recovered from his compensable injury in May, 1989. On June 1, 1989, a medical examination conducted by a USMS doctor officially established that Plaintiff had fully recovered from his job-related back injury, and that with consideration of his age, Plaintiff was fit for the position of Criminal Investigator, as well as the U.S. Marshal positions. On June 26, 1989 the DOJ notified Plaintiff that his registration in the PPRS as a fully recovered employee had been accepted. Enclosed therewith was a DOJ memorandum explaining the workings of the PPRS.
Two days later on June 28, 1989, the DOJ offered Plaintiff the position of Deputy United States Marshal (Criminal Investigator), GS-1811-11, in Washington D.C. Plaintiff declined this offer, claiming that the GS-11 Criminal Investigator position was a demotion and alleging that his last position had been upgraded to a Grade 12 or 13, and communicated his fear of re-injuring himself. The DOJ, in response, explained to Plaintiff that the position was, in fact, equivalent to the one he had last held, and that if he did not accept the offer, he would be removed from the PPRS in accordance with applicable federal regulations.
Plaintiff never challenged the DOJ's compliance report and, it seems, abandoned his complaints based upon partial recovery. Instead, the record shows, Plaintiff asserted a new complaint alleging that the DOJ failed to consider him for placement as a fully recovered employee. On January 4, 1993, the MSPB sent Plaintiff's new claim to its Chicago regional office to be docketed as a separate appeal. See Farrell v. Department of Justice, 56 M.S.P.R. 188 (M.S.P.B.1993). The Chicago regional office docketed Plaintiff's appeal involving the restoration of rights of a fully recovered employee on January 13, 1993. However, on March 18, 1993, the parties, through their respective attorneys, executed a settlement agreement. An administrative law judge issued an initial decision on that same date accepting the agreement and dismissing the appeal.
Under paragraphs 1 through 3 of the settlement agreement, Plaintiff agreed to a final and binding resolution of all issues involving his putative restoration rights. An agreement between an agency and a petitioner settling their dispute is a final and binding resolution of an appeal in the MSPB. See Perry v. Department of Army, 992 F.2d 1575, 1577 (Fed.Cir.1993), (citing 5 C.F.R. § 1201.41(c)(2) (1992)). The agreement further set forth that the DOJ would place Plaintiff on the PPRS for a period of two years "or until such time that he is offered substantially equivalent employment to his former position with the USMS of Criminal Investigator (Enforcement), GS-1811-11." Plaintiff further agreed to comply with all terms of the PPRS.
On May 19, 1993, the DOJ sent Plaintiff a new PPRS registration form. Plaintiff completed the form and signed it on May 24, 1993. As required, he indicated his availability for the types of positions and series for which he was qualified and would accept referrals. These included GS-11 positions. Further, Plaintiff limited his geographical availability to the Fort Myers, Florida Commuting Area. By signing the PPRS registration form, Plaintiff certified his understanding that he would be removed from the PPRS should he have been offered a position for which he was registered and decline the offer.
Ten months later, on March 28, 1994, Plaintiff filed a petition for enforcement of the settlement agreement before the MSPB, stating that the DOJ had delayed to place him on the PPRS for over three months and that the DOJ had failed to offer him any position. In response, the DOJ established that any delay was inadvertent, and that there were, in fact, no positions of any kind available in Plaintiff's qualified areas in the Fort Myers geographical area during the period from March, 1993 to March 1994. Based upon the unrebutted evidence provided by the DOJ, the MSPB denied all of Plaintiff's claims, and thus, found no breach of the settlement agreement.
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Prevost v. Dep't of Children & Families, Case No: 2:14-cv-353-FtM-38DNF
...Fla. 2013) (discussing when a plaintiff voluntarily accepts a demotion, then there can be no retaliation); but see Farrell v. Reno, 983 F. Supp. 1099,1108 (M.D. Fla. 1997) (discussing similar job offer in different city may not be considered as a demotion offer). Since a reasonable jury can......