# WILSON v. DEPARTMENT OF VETERANS AFFAIRS

> District Court, D. Maine · May 7, 2021

URL: https://www.frixlaw.com/law-library/cases/10210970

## Case

- **Court:** District Court, D. Maine
- **Decided:** May 7, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10210970

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10210970. Public record. Not legal advice.