Craig v. Merit Systems Protection Board, No. 2:2017cv06242 - Document 10 (E.D. La. 2017)

Court Description: ORDER AND REASONS granting 6 Motion to Dismiss for Failure to State a Claim. For the foregoing reasons, the Court GRANTS the U.S. Postal Service's motion to dismiss. Plaintiff's claims are DISMISSED WITHOUT PREJUDICE. Signed by Judge Sarah S. Vance on 12/7/2017. (cg)
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Craig v. Merit Systems Protection Board Doc. 10 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA KEITH CRAIG CIVIL ACTION VERSUS NO. 17-6242 MERIT SYSTEMS PROTECTION BOARD AND UNITED STATES POSTAL SERVICE SECTION “R” (5) ORD ER AN D REASON S Defendant U.S. Postal Service m oves to dism iss plaintiff Keith Craig’s em ploym ent discrim ination suit. 1 For the following reasons, the Court grants the m otion. I. BACKGROU N D Plaintiff was an em ployee of the U.S. Postal Service before his term ination in late 1999. 2 On May 4, 20 0 0 , he filed a com plaint with the Equal Opportunity Office of the Postal Service, alleging that he was term inated because of his race and physical disability. See Craig v. Merit Sy s. Prot. Bd., 44 F. App’x 465, 465 (Fed. Cir. 20 0 2). The Equal Opportunity Office dism issed plaintiff’s complaint on the ground that it was not tim ely 1 2 R. Doc. 5. See R. Doc. 1-2 at 38. filed under 29 C.F.R. § 1614.10 5. Id. Plaintiff appealed that decision, pro se, to the Merit System s Protection Board (MSPB or Board). Id. An Adm inistrative J udge (AJ ) of the MSPB dism issed that appeal as untim ely under both 29 C.F.R. § 1614.10 5 and 5 C.F.R. § 120 1.22, and the full Board declined review. Id. at 466. The Federal Circuit affirm ed. Id. at 467. Separately, plaintiff filed a com plaint with the Equal Em ployment Opportunity Comm ission (EEOC). After both the EEOC and the MSPB denied relief, plaintiff filed suit in this Court. The Court dism issed the suit as untim ely under 42 U.S.C. § 20 0 0 e-16(c) and 5 U.S.C. § 770 3(b)(1). Craig v. U.S. Postal Serv., No. 0 1-3643 (E.D. La. Sept. 11, 20 0 2). On February 16, 20 16, plaintiff filed his second pro se appeal with the MSPB. 3 The AJ dism issed this second appeal on the ground that plaintiff was collaterally estopped from arguing that his initial appeal was timely filed. 4 Before the Board, plaintiff argued that he was unable to file a tim ely appeal because of his m ental disability. 5 The Board rejected this argument, noting that plaintiff had an opportunity to raise it during his initial appeal, and affirm ed the AJ ’s order. 6 The MSPB’s order became final on Decem ber 3 R. Doc. 1-2 at 84-10 2. Id. at 29. 5 Id. at 40 . 6 Id. The Board also noted that plaintiff failed to show good cause for the fifteen-year delay in filing his second appeal. 2 4 12, 20 16. On February 9, 20 17, plaintiff filed a petition for review with the Federal Circuit, which transferred the case to this Court because the case involves discrim ination. 7 See Kloeckner v. Solis, 568 U.S. 41, 56 (20 12) (“A federal employee who claim s that an agency action appealable to the MSPB violates an antidiscrim ination statute . . . should seek judicial review in district court, not in the Federal Circuit.”). Defendant U.S. Postal Service now moves to dism iss plaintiff’s suit under the doctrine of collateral estoppel. 8 II. STAN D ARD OF REVIEW To survive a Rule 12(b)(6) motion to dism iss, a plaintiff m ust plead enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atlantic Corp. v. Tw om bly , 550 U.S. 544, 547 (20 0 7)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Id. at 678. A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the plaintiff. Lorm and v. U.S. Unw ired, Inc., 565 F.3d 7 8 R. Doc. 1. R. Doc. 6. 3 228, 239, 244 (5th Cir. 20 0 9). But the Court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. A legally sufficient com plaint m ust establish m ore than a “sheer possibility” that the plaintiff’s claim is true. Id. It need not contain detailed factual allegations, but it m ust go beyond labels, legal conclusions, or form ulaic recitations of the elements of a cause of action. Tw om bly , 550 U.S. at 555. In other words, the face of the com plaint m ust contain enough factual m atter to raise a reasonable expectation that discovery will reveal evidence of each elem ent of the plaintiff’s claim. Lorm and, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, Tw om bly , 550 U.S. at 555, or if it is apparent from the face of the com plaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (20 0 7); Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 20 0 7), the claim m ust be dism issed. III. D ISCU SSION Before a plaintiff m ay file an em ployment discrim ination suit in federal court, she m ust adm inistratively exhaust her claim s. See 42 U.S.C. § 20 0 0 e5(f); id. § 20 0 0 e-16(c). Failure to m eet regulatory deadlines during adm inistrative review m eans that a plaintiff’s complaint m ay be dism issed 4 for lack of adm inistrative exhaustion. See, e.g., Pacheco v. Mineta, 448 F.3d 783, 791 n.11 (5th Cir. 20 0 6) (“Generally, discrim ination claim s alleging conduct that occurred m ore than 45 days before the initiation of adm inistrative action (contacting an [Equal Em ploym ent Office] counselor) are tim e barred in a subsequent action in federal court.”); see also N iskey v. Kelly , 859 F.3d 1, 7 (D.C. Cir. 20 17) (“[I]f an employee fails to m eet any . . . statutory or regulatory deadlines, the em ployee’s federal court action m ay be dism issed for failure to adm inistratively exhaust the claim .”). The Postal Service argues that this suit should be dism issed for lack of adm inistrative exhaustion under the doctrine of collateral estoppel. Specifically, the Postal Service asserts that plaintiff is collaterally estopped from showing the tim eliness of his initial MSPB appeal. If plaintiff’s initial appeal were untimely, then his second appeal—filed fifteen years later— would also be untim ely. Thus, the Postal Service argues, the MSPB correctly dism issed the second appeal. Plaintiff’s pro se filings, though som ewhat difficult to decipher, suggest that his lack of tim eliness should be excused because of his mental disability. 9 Collateral estoppel bars “‘successive litigation of an issue of fact or law actually litigated and resolved in a valid court determ ination essential to the 9 R. Doc. 7 at 1-3. 5 prior judgm ent,’ even if the issue recurs in the context of a different claim .” Tay lor v. Sturgell, 553 U.S. 880 , 892 (20 0 8) (quoting N ew Ham pshire v. Maine, 532 U.S. 742, 748-49 (20 0 1)). To establish collateral estoppel under federal com m on law, a party m ust show: “(1) that the issue at stake [is] identical to the one involved in the prior litigation; (2) that the issue [was] actually litigated in the prior litigation; and (3) that the determ ination of the issue in the prior litigation [was] a critical and necessary part of the judgm ent in that earlier action.” Rabo Agrifinance, Inc. v. Terra XXI, Ltd., 583 F.3d 348, 353 (5th Cir. 20 0 9). Further, a party m ay invoke collateral estoppel only when the opposing party had a “full and fair opportunity” to litigate the issue in the earlier litigation. Krem er v. Chem . Constr. Corp., 456 U.S. 461, 480 (1982) (quoting Allen v. McCurry , 449 U.S. 90 , 95 (1980 )); Rabo Agrifinance, 583 F.3d 348 at 353. It is clear that the tim eliness of plaintiff’s initial appeal was litigated in the initial appeal itself. The AJ found that plaintiff’s initial appeal to the MSPB was untim ely, and noted that plaintiff did not put forth a good reason for the delay. See 5 C.F.R. § 120 1.22(c) (“If a party does not subm it an appeal [to the MSPB] within the tim e set by statute, regulation, or order of a judge, it will be dism issed as untim ely filed unless a good reason for the delay is shown.”). The AJ dism issed plaintiff’s initial appeal on this ground. The 6 MSPB denied review, and the Federal Circuit affirm ed. Craig, 44 F. App’x 465. Moreover, plaintiff had a full and fair opportunity to argue that his disability provided good cause for his delay in filing his initial appeal. In some circum stances, it m ay not be appropriate to invoke collateral estoppel against a party who was “laboring under a m ental or physical disability that im peded effective litigation and that has since been removed.” Restatement (Second) of J udgments § 28 cm t. j. But the AJ in Craig’s initial appeal gave Craig two opportunities to show the tim eliness of his appeal. According to the Federal Circuit, “Craig offered no explanation for his untim ely appeal other than his argum ent that he had tim ely filed his [Equal Em ploym ent Office] com plaint.” Craig, 44 F. App’x at 466. The Court finds that Craig’s failure to explain his disability at the tim e of his initial appeal, despite “ample opportunity” to do so, id. at 467, m eans that collateral estoppel may be invoked against him in this appeal. Because plaintiff is collaterally estopped from arguing that his initial appeal was untim ely, the Court finds that his second appeal is also untim ely. Therefore, plaintiff has failed to adm inistratively exhaust his claim s and his case m ust be dism issed. 7 IV. CON CLU SION For the foregoing reasons, the Court GRANTS the U.S. Postal Service’s m otion to dism iss. Plaintiff’s claim s are DISMISSED WITHOUT PREJ UDICE. 7th New Orleans, Louisiana, this _ _ _ _ _ day of Decem ber, 20 17. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 8