WILSON v. DEPARTMENT OF VETERANS AFFAIRS

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

LYNETT S. WILSON, )

)

Plaintiff, )

)

v. ) Docket No. 2:20-cv-00019-NT

)

DEPARTMENT OF VETERANS )

AFFAIRS, )

)

Defendant. )

ORDER ON DEFENDANT’S MOTION TO DISMISS

Before me is the Defendant’s motion to dismiss the Plaintiff’s Complaint

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (“Def.’s Mot.”)

(ECF No. 33). For the reasons stated below, the motion to dismiss is GRANTED.

BACKGROUND

In September 2017, Plaintiff Lynett Wilson was suspended from her position

at the Medical Center in Augusta, Maine, run by the U.S. Department of Veterans

Affairs. Compl. ¶ 1 (ECF No. 29). Ms. Wilson appealed this suspension to the Merit

Systems Protection Board (“MSPB”), which denied her claim. Compl. ¶ 3. And on

August 19, 2019, Ms. Wilson appealed this MSPB decision to the U.S. Court of

Appeals for the Federal Circuit. Notice of Docketing (ECF No. 1-2).

The Defendant moved to dismiss or transfer the case from the Federal Circuit

to this Court, arguing that because Ms. Wilson alleged, in part, a discrimination

claim, her appeal contained “mixed claims” that were properly appealed to a district

court rather than the Federal Circuit. Mot. to Dismiss or Transfer for Lack of

Jurisdiction 1, 5–7 (ECF No. 1-20). Ms. Wilson opposed the motion, insisting that she

had “waive[d] her discrimination claim to the extent required for this Court to

exercise jurisdiction and [that] transfer or dismissal [was] inappropriate.” Pet’r’s Obj.

to Resp’t’s Mot. to Dismiss or Transfer 3 (ECF No. 1-21). The Federal Circuit

acknowledged Ms. Wilson’s contention that “she only [sought] review of the Board’s

dismissal for lack of jurisdiction” but found that doing so “would require the court to

consider the merits of her discrimination claim, which [was] beyond [its] jurisdiction.”

Wilson v. Dep’t of Veterans Affs., No. 19-2283, slip op. at 2 (Fed. Cir. Jan. 17, 2020).

The Federal Circuit thus ordered that the case be transferred to this Court. Id.

After some proceedings in this Court that are not germane to this Order, Ms.

Wilson filed an unopposed motion to send her case back to the Federal Circuit.

Appellant’s Unopposed Mot. to Remand to U.S. Court of Appeals for the Federal

Circuit (ECF No. 21). I granted this motion, finding that Ms. Wilson had “clearly

indicated that [s]he is bringing no claim of discrimination to this court” and that I

therefore lacked jurisdiction. Order (ECF No. 22).

Once again before the Federal Circuit, Ms. Wilson informed the court that she

believed that her case was “erroneously transferred to the District of Maine to

dampen her desire to proceed with this case.” Pet’r’s Statement of How She Believes

this Case Should Proceed, No. 19-2283, at 3 (Fed. Cir. ECF No. 22-1). In light of this

filing, the Federal Circuit concluded:

While a petitioner in a mixed case can ordinarily decide to abandon a

discrimination claim to seek review of only the personnel action in this

court, here that would leave nothing for this court to review: she would

lack any allegation capable of supporting her claim that her absence

from work was the result of improper acts by the agency.

Wilson v. Dep’t of Veterans Affs., No. 19-2283, slip op. at 2–3 (Fed. Cir. Sept. 25, 2020).

The court thus concluded that because the Plaintiff, “who ha[d] been represented by

counsel through the entirety of the proceedings, effectively pled herself out of” the

district court, the interests of justice warranted outright dismissal rather than

transferring the case back to this Court, “given her continued refusal to proceed with

the claim in that proper forum.” Id.

The Plaintiff next sought to have the Federal Circuit vacate its prior order. She

acknowledged that she had sought to abandon her discrimination claims, claiming

that she thought that if she had done so, then the Federal Circuit would have

jurisdiction over her case. Unopposd [sic] Mot. to Vacate, Modify or Otherwise Change

the Order Dismissing the Appeal and for Other Relief (“Pl.’s Mot.”), No. 19-2283, at

2–3 (Fed. Cir. ECF No. 28). However, the Plaintiff acknowledged that she was

incorrect and contended that the interests of justice warranted that the case be

transferred back to this Court. Pl.’s Mot. 3–6. The Federal Circuit obliged, vacating

its prior order and transferring the case back to this Court. Wilson v. Dep’t of Veterans

Affs., No. 19-2283, slip op. at 2 (Fed. Cir. Nov. 17, 2020).

With the case now returned to this Court (and with the parties now agreeing

that it should stay here), on December 18, 2020, the Plaintiff filed a four-count

Complaint and Administrative Appeal (the “Complaint”), asserting disability

discrimination and retaliation claims (Counts One and Two), a whistleblower claim

(Count Three), and a claim of procedural error (Count IV). Compl. & Admin. Appeal

(ECF No. 29). On February 23, 2021, the Defendant moved to dismiss the Complaint.

Def.’s Mot. (ECF No. 33).

ANALYSIS

The Defendant argues that the entire Complaint should be dismissed for two

primary reasons: (1) the Court lacks subject matter jurisdiction to decide this case

because the Plaintiff waived her discrimination claim (which was the only basis for

this Court’s jurisdiction), and (2) the Complaint is untimely and equitable tolling is

not warranted.1 Def.’s Mot. 9–15. The Plaintiff only cursorily addresses the argument

that she waived her discrimination claim, and she offers no response to the timeliness

argument. Pl.’s Obj. & Resp. to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”) (ECF No. 37).

As to subject matter jurisdiction, the Defendant argues that this Court lacks

subject matter jurisdiction because the Plaintiff “has clearly and repeatedly waived

her discrimination claim, both before this Court and in the Federal Circuit.” Def.’s

Mot. 9. “Where a party assumes a certain position in a legal proceeding, and succeeds

in maintaining that position, [she] may not thereafter, simply because [her] interests

have changed, assume a contrary position, especially if it be to the prejudice of the

party who has acquiesced in the position formerly taken by [her].” New Hampshire v.

Maine, 532 U.S. 742, 749 (2001) (quoting Davis v. Wakelee, 156 U.S. 680, 689 (1895)).

This includes holding a party to a prior argument that a court lacked jurisdiction to

1 The Defendant also argues that Count II of the Complaint was not properly exhausted and

that Counts II through IV of the Complaint fail to state a claim. Def.’s Mot. to Dismiss 15–20 (ECF

No. 33). Because I rely on timeliness and lack of subject matter jurisdiction, I need not address any of

the Defendant’s remaining arguments.

hear her case. See Valentine-Johnson v. Roche, 386 F.3d 800, 811–12 (6th Cir. 2004)

(finding that the Air Force was judicially estopped from arguing in district court that

the plaintiff’s case should be heard before the MSPB after previously arguing before

the MSPB that her case should be heard in district court).

The Plaintiff responds to the Defendant’s jurisdictional argument with a

single, confusing sentence: “The Defendant erroneously argues Plaintiff ‘pled she [sic]

out of court by abandoning her discrimination claims’ jurisdiction [sic] as in her

Federal Circuit Motion to Remand (MTR) back to the jurisdiction of [sic] District of

Maine.” Pl.’s Opp’n 5 (footnote omitted). The Plaintiff never explains why the

Defendant’s argument is erroneous or even whether her disagreement is a factual or

a legal one. Stating one’s strong disagreement with an argument is insufficient to

preserve an argument for resolution. See González-Bermúdez v. Abbott Lab’ys P.R.

Inc., 990 F.3d 37, 46–47 (1st Cir. 2021).

As to timeliness, the Defendant points out that the Plaintiff was required to

file any appeal of the MSPB decision that involved claims of discrimination in this

Court by July 20, 2019, but she did not file her Complaint until December 18, 2020.

Def.’s Mot. 10–12. The Defendant also argues that no equitable tolling exception

applies, Def.’s Mot. 10–15 (“Notwithstanding any other provision of law, any such

case (of discrimination) filed under any such section must be filed within 30 days after

the date the individuals filing the case received notice of the judicially reviewable

action under such section 7702.” (quoting 5 U.S.C. § 7703(b)(2))). The Plaintiff makes

no response to this argument.

When arguing its position, a party must fully develop the argument on which

it relies. “[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived.” United States v. Zannino, 895 F.2d

1, 17 (1st Cir. 1990). “It is not enough merely to mention a possible argument in the

most skeletal way, leaving the court to do counsel’s work, create the ossature for the

argument, and put flesh on its bones.” Id.; accord Furniture, Mattresses & More LLC

v. Tex. Rustic, Inc., No. 1:19-CV-00154-NT, 2019 WL 4674307, at *9 (D. Me. Sept. 25,

2019). “Judges are not expected to be mindreaders,” so “a litigant has an obligation

to spell out its arguments squarely and distinctly, or else forever hold its peace.”

Zannino, 895 F.2d at 17 (quoting Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st

Cir. 1988)). Accordingly, I conclude that the Plaintiff has waived her right to respond

to either of these two arguments and concedes the Defendant’s points.

The Plaintiff spends the bulk of her opposition arguing that the Defendant’s

arguments are precluded by res judicata, claim preclusion, and collateral estoppel

because the Defendant previously filed a motion to dismiss before the Federal Circuit

that did not raise all of the arguments that the Defendant now makes. Pl’s Opp’n 2–

3, 5–7. This argument, too, is entirely undeveloped. The Plaintiff cites only one case

in support of her definition of res judicata, Pl.’s Opp’n 2 n.6, but she makes no effort

to explain how the Defendant’s failure to assert its timeliness argument before the

Federal Circuit (where her suit was timely) would bar the Defendant from asserting

its timeliness argument in her suit in this Court (where her suit is untimely). This

argument is also waived as undeveloped.

Finally, the Plaintiff’s failure to comply with Local Rule 7(b) also supports

granting the Defendant’s motion. A party opposing a motion is required to file a

written objection within twenty-one days after the filing of the motion. D. Me. Loc. R.

7(b). If an opposing party fails to raise an objection by that deadline, that party “shall

be deemed to have waived objection” to the motion. D. Me. Loc. R. 7(b). Local Rule

7(b) also requires any objection to a motion to “include citations and supporting

authorities and affidavits and other documents setting forth or evidencing facts on

which the objection is based.” D. Me. Loc. R. 7(b). The Plaintiff’s response to the

Defendant’s motion was due, pursuant to Local Rule 7(b), no later than March 16,

2021. That deadline was noted on the docket. See ECF No. 33. The Plaintiff filed her

response to the Defendant’s motion thirty days after this deadline passed (fifty-one

days after the Defendant’s motion was filed). Because the Plaintiff failed to raise her

objections, as required by local rule, she is “deemed to have waived” any objection at

all. The Plaintiff’s failure to comply with Local Rule 7(b) separately justifies granting

the Defendant’s motion. See Pomerleau v. W. Springfield Pub. Sch., 362 F.3d 143, 145

(1st Cir. 2004) (“[I]t is within the district court’s discretion to dismiss an action based

on a party’s unexcused failure to respond to a dispositive motion when such response

is required by local rule, at least when the result does not clearly offend equity.”

(quoting NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 7 (1st Cir. 2002))).

CONCLUSION

For the reasons stated above, the Court GRANTS the Defendant’s motion to

dismiss and DISMISSES the Complaint for lack of jurisdiction.

SO ORDERED.

/s/ Nancy Torresen

United States District Judge

Dated this 7th day of May, 2021.