Opinion
5-22-CV-01289-OLG-RBF
05-24-2023
LISA LEWIS-WATSON, Plaintiff, v. CHRISTINE E. WORMUTH, ET AL., Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RICHARD B. FARRER, UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge Orlando Garcia:
This Report and Recommendation concerns Defendants' Motion to Dismiss. See Dkt. No. 11. All pretrial matters in this action have been referred for resolution pursuant to Rules CV-72 and 1 of Appendix C to the Local Rules for the United States District Court for the Western District of Texas. See Dkt. No. 5. Authority to enter this recommendation stems from 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, the Motion to Dismiss, Dkt. No. 11, should be GRANTED. Plaintiff's social security claim should be DISMISSED without prejudice based on her voluntary dismissal. All other claims should be DISMISSED with prejudice. Accordingly, Plaintiff's request for permanent injunctive relief is MOOT.
Factual and Procedural Background
Plaintiff Lisa Lewis-Watson was previously employed by the Department of the Army as a medical-records specialist at Fort Sam Houston. Plaintiff was terminated from that position on July 18, 2013, and placed on 30-day administrative leave. Plaintiff's health insurance through her employer expired at the end of that period. In 2017, Plaintiff filed suit for wrongful termination, retaliation, and workplace discrimination based on these events. Plaintiff's claims were dismissed with prejudice on summary judgment, and those rulings were affirmed on successive appeals.
The Court draws the relevant facts from Plaintiff's Complaint, Dkt. No. 1, as well as Plaintiff's previous litigation, which is referenced therein. See Watson v. Esper, 5:17-cv-01280-OLG (filed Dec. 20, 2017, closed Mar. 18, 2019). Plaintiff has also filed a voluminous appendix on the docket in support of her claims. See Dkt. Nos. 8, 10. Because the appendix is not attached to or referenced in the pleadings, the Court does not consider those documents on the motion to dismiss.
On February 9, 2021, Plaintiff applied online for a medical-records specialist position with the Air Force Medical Readiness Agency at Kelly AFB in San Antonio. On October 7, 2021, Plaintiff then applied for a medical-records administrator position with the Defense Health Agency at Falls Church, Virginia. Plaintiff received no updates regarding either application, although she eventually found out that both positions had been filled. She then contacted the hiring agencies, but again received no response. Plaintiff also applied for medical disability in December of 2021. Her application for disability benefits was denied on October 31, 2022. Plaintiff contends that her current medical conditions are somehow related to her 2013 termination.
Plaintiff filed the instant lawsuit on December 2, 2022, against Defendant Christine E. Wormuth, in her capacity as the Secretary of the Department of the Army, and others. Defendants then moved to dismiss for lack of subject-matter jurisdiction and failure to state a claim.
Standard of Review
On a motion to dismiss for failure to state a claim, courts are limited to the contents of the pleadings, including any attachments or documents referenced in the pleadings. See Fed.R.Civ.P. 12(b)(6); Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000) (holding documents attached to motion and referenced in complaint are properly considered). Courts may supplement the complaint with other established facts in the record on a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction. See Choice Inc. of Tex. v. Greenstein, 691 F.3d 710, 714 (5th Cir. 2012). To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Fed.R.Civ.P. 8(a). But courts are not required to accept as true any “legal conclusions” or “conclusory statements” contained in the complaint. Iqbal, 556 U.S. at 678. And a whether a claim for relief is “plausible” poses a higher bar than “mere possibility,” which in turn “requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. In addition to accepting factual allegations as true, Courts must “draw all reasonable inferences in favor of the nonmoving party.” Kelson v. Clark, 1 F.4th 411, 416 (5th Cir. 2021) (quotation omitted).
Analysis
Plaintiff explicitly asserts three claims for relief in her pro se complaint: non-selection for two 2021 positions on usajobs.gov and the denial of disability benefits. Dkt. No. 1 at 4-5. Plaintiff also attempts to relitigate her 2013 termination from her previous employment with the U.S. Army. See id. at 8-9. Plaintiff then requests injunctive relief in the form of reinstatement, in addition to other demands for monetary relief. See id. at 10. Although the complaint and civil cover sheet do not specify the statutory grounds for these claims, Plaintiff's response clarifies that she asserts her employment claims under Title VII of the Civil Rights Act of 1964. See Dkt. No. 12 at 1. She also moves for a permanent injunction on her employment claims. See id. at 5-7. Plaintiff then moves to voluntarily dismiss her social-security claim for lack of subject-matter jurisdiction. Id. at 7-8. But in her sur-reply, Plaintiff clarifies that she still intends to assert a negligence claim for failure to provide health insurance. See Dkt. No. 14 at 2-3.
Based on Plaintiff's representations, styled as a cross-motion for voluntary dismissal within her response, see Dkt. No. 12 at 7-8, Plaintiff's claim for social-security benefits should be DISMISSED without prejudice. The Court, therefore, does not reach the merits of that claim. Defendants have also sought dismissal of all remaining claims as unexhausted, time-barred, or otherwise barred by various defenses, such as res judicata and sovereign immunity. See Dkt. Nos. 11, 13. The Court agrees with and adopts Defendants' arguments. The Court will also briefly explain below why Plaintiff's other claims for relief fail.
A. Res Judicata Prevents Plaintiff from Relitigating Her 2013 Termination.
To the extent Plaintiff seeks to relitigate her 2013 termination, her employment claims have already been fully litigated. There are four elements in the federal test for res judicata: “(1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded by a final judgment on the merits; and (4) the same claim or cause of action was involved in both actions.” Houston Prof'l Towing Ass'n v. City of Houston, 812 F.3d 443, 447 (5th Cir. 2016) (quotation omitted). Defendants argue, and the Court agrees, that Plaintiff's 2013 claims are fully barred by res judicata. See Watson v. Esper (Watson I), No. 5:17-CV-1280-OLG, 2019 WL 937933, at *10 (W.D. Tex. Feb. 26, 2019) (recommending dismissal of all Title VII claims pertaining to 2013 termination), report and recommendation adopted, 2019 WL 13254201 (W.D. Tex. Mar. 18, 2019). After granting summary judgment, the District Court denied Plaintiff's successive Rule 59 motions. See Watson I, 5:17-CV-1280-OLG, Dkt. Nos. 35, 37. The District Court's decisions were ultimately affirmed on appeal to the Fifth Circuit, and the Supreme Court denied certiorari. See Watson v. Esper, 793 Fed. App'x 277, 281 (5th Cir. 2019), cert. denied sub nom. Watson v. McCarthy, 140 S.Ct. 2808, reh'g denied 140 S.Ct. 2808 (2020). This is as final as a final judgment can get. Although litigants may move to set aside a final judgment for various reasons, see, e.g., Fed.R.Civ.P. 60, Plaintiff has not sought such relief in that case, nor does such relief appear warranted. Because res judicata bars Plaintiff from relitigating her 2013 termination, those claims must be dismissed.
Plaintiff essentially concedes that all elements of res judicata are met here. See Dkt. No. 12 at 8 (confirming that her “claims are actually the same” as her prior lawsuit, and only the name of the Secretary of the Army has changed). Plaintiff insists that certain rulings in her prior litigation were without prejudice-and she is therefore free to relitigate those issues-because the orders did not specify that dismissal was with prejudice. See Dkt. No. 12 at 1-2. But this is backward, as “a dismissal is presumed to be with prejudice unless the order explicitly states otherwise.” Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 n.8 (5th Cir. 1993). Contra Fed.R.Civ.P. 41(a) (noting that any voluntary dismissal is presumptively “without prejudice” unless stated otherwise). The only ruling referenced in this context is an order from early in the litigation, denying Plaintiff's motion for default due to lack of evidence that the defendants were properly served. See Dkt. No. 12-1. But whether Plaintiff can move for default judgment in her previous case has been moot for some time, as she did eventually serve the defendants and they fully defended the action. See Fed.R.Civ.P. 55(a). Plaintiff cannot now relitigate her 2013 claims, which were denied on the merits with prejudice, based on certain extraneous matters that may have been denied without prejudice.
B. Plaintiff's 2021 Non-Selection Claims Are Barred for Failure to Exhaust.
Defendants seek dismissal of Plaintiff's additional Title VII claims for failure to exhaust administrative remedies. To assert Title VII claims in federal court, a plaintiff must first file a charge with the Equal Employment Opportunity Commission (“EEOC”) within 180 days of the alleged violation, and then bring suit within 90 days of receipt of the EEOC's right-to-sue letter. See 42 U.S.C. § 2000e-5(e)(1), (f)(1); Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002). Title VII's administrative exhaustion requirements are treated as “precondition[s] to filing suit in district court,” and the deadlines are “strictly construed.” Taylor, 296 F.3d at 379. Plaintiff attaches no EEOC charge or right-to-sue letter. Indeed, Plaintiff appears to concede that she never filed an EEOC charge on her 2021 non-selection claims, suggesting that such a requirement would be “a slap at delayed justice.” Dkt. No. 12 at 24. Defendants point out additional problems with Plaintiff's employment discrimination claims, but the Court need not reach those. Because Plaintiff has failed to comply with the requirements of Title VII, her unexhausted claims must be dismissed.
C. Plaintiff Identifies No Applicable Waiver of Federal Immunity.
Defendants next argue that any negligence claims related to her 2013 termination are barred for several reasons, including federal sovereign immunity. “[E]xcept as authorized by Congress, the federal government and its agencies are immune from suit.” In re Supreme Beef Processors, Inc., 468 F.3d 248, 251 (5th Cir. 2006) (en banc); see also Loeffler v. Frank, 486 U.S. 549, 554 (1988). Any lawsuit against a federal agency must identify “a clear statement from the United States waiving sovereign immunity,” alongside at least one “claim falling within the terms of the waiver.” United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003). It is the plaintiff's burden to “show that there has been a valid waiver of sovereign immunity,” and “[t]he absence of such a waiver is a jurisdictional defect.” Lewis v. Hunt, 492 F.3d 565, 57071 (5th Cir. 2007). Plaintiff's only remaining claim at this juncture sounds in negligence, but she identifies no statutory waiver. Dismissal is therefore appropriate on grounds of federal sovereign immunity.
Defendants additionally argue that even if the Federal Tort Claims Act (“FTCA”) covered her negligence claim, Plaintiff did not comply with the FTCA's procedural requirements. See, e.g., 28 U.S.C. § 2401(b) (two-year statute of limitations); id. § 2675(a) (administrative exhaustion); Reynolds v. United States, 748 F.2d 291, 292 (5th Cir. 1984) (noting lack of jurisdiction over claims that fail to comply with the FTCA's procedural requirements). Plaintiff asserts a claim in negligence for the Army's failure to provide her with health insurance for a period of two years after her 2013 termination. There is no indication that such claims were ever presented to the appropriate federal agency. Even construing Plaintiff's negligence claim as though asserted under the FTCA, it is unexhausted and time-barred.
D. Permanent Injunctive Relief Is Unavailable at This Juncture.
Plaintiff also moves for a permanent injunction in her response. See Dkt. No. 12 at 5-7. But Plaintiff does not seek a preliminary injunction, and she acknowledges in her cross-motion that permanent injunctive relief is only available upon a showing of “actual success.” Id. at 22; see also Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 n.12 (1987) (explaining that the difference between the standards for preliminary injunctions and permanent injunctions is the need to show “actual success” on the merits). Because the Court recommends dismissal of all claims, Plaintiff cannot show “actual success.” The request for a permanent injunction is therefore moot.
Conclusion and Recommendation
For the reasons discussed above, it is recommended that Defendants' Motion to Dismiss, Dkt. No. 11, be GRANTED. Plaintiff's social security claim should be DISMISSED without prejudice, pursuant to Rule 41(a). All other claims should be DISMISSED with prejudice. As a result, Plaintiff's request for a permanent injunction is MOOT.
Having considered and acted upon all matters for which this case was referred, it is ORDERED that this case is RETURNED to the District Court for all purposes.
Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy by certified mail, return receipt requested, to those not registered. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Objections, responses, and replies must comply with the same page limits as other filings, unless otherwise excused by the district court's standing orders. See Rule CV-7. The objecting party shall file the objections with the clerk of the court, and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to timely file written objections to the proposed findings, conclusions, and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.