Thompson v. Averill

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

GREGORY THOMPSON, SR., )

)

Plaintiff, )

)

v. ) Case No. 24-CV-0322-CVE-MTS

)

DANIEL P. DRISCOLL,1 )

Secretary of the Army, )

)

Defendant. )

OPINION AND ORDER

Before the Court are plaintiff’s motion for court oversight to protect due process and prevent

defendant’s improper influence over the Merit Systems Protection Board (MSPB) (Dkt. # 39), and

defendant’s response (Dkt. # 44) and attached exhibit (Dkt. # 44-1). Plaintiff’s reply was due March

8, 2025, and plaintiff has not filed a reply. As plaintiff proceeds pro se, the Court liberally construes

his pleadings. Haines v. Kerner, 404 U.S. 519, 520 (1972); Gaines v. Stenseng, 292 F.3d 1222, 1224

(10th Cir. 2002).

On January 24, 2025, defendant filed an opposed motion to stay proceedings until 60 days

following the MSPB’s entry of final decisions on plaintiff’s pending appeals, which defendant

asserted involved the same factual background, substantive witnesses, documents, and discovery as

the claims before the Court. Dkt. # 33, at 3, 4, 5. On January 28, 2025, plaintiff filed a response to

defendant’s motion to stay, arguing that the Court should not grant the stay and alleging that

defendant engaged in ex parte communications with the MSPB. Dkt. # 34, at 3-4, 7. On February

4, 2025, while defendant’s motion to stay proceedings was pending, plaintiff filed the motion for

1 Effective February 25, 2025, pursuant to FED. R. CIV. P. 25(d), Secretary of the Army Daniel

P. Driscoll is substituted as the defendant in this action.

court oversight currently before the Court. Dkt. # 39. On February 12, 2025, the Court granted in

part defendant’s opposed motion to stay proceedings, finding that a stay promoted the interest of

judicial economy, and that plaintiff’s allegation that defendant engaged in ex parte communications

was meritless. Dkt. # 41, at 5 n.9, 7. When ruling on the motion to stay, the Court did not consider

plaintiff’s motion for court oversight because the motion had not been fully briefed. Id. at 1 n.2. On

February 25, 2025, defendant filed his response to the motion for court oversight. Dkt. # 44.

Plaintiff alleges that defendant engaged in improper conduct and asks the Court “to exercise

its authority to protect his due process rights and to ensure that the judicial process remains fair,

impartial, and free from improper influence.” Dkt. # 39, at 1. Plaintiff states that “[d]efendant’s

actions in this case threaten to deprive [p]laintiff of his right to a fair hearing by manipulating

procedural timing, interfering with an independent adjudicatory body (MSPB)[,] and engaging in

deceptive litigation tactics.” Id. Plaintiff asks that the Court: (1) “[o]rder the Department of Justice

[(DOJ)] to disclose all communications between [] [d]efendant and the MSPB and the Agency2

regarding [p]laintiff’s currently pending MSPB cases[;]” (2) “[o]rder [] [d]efendant to explain how

[he] obtained private MSPB case materials in [p]laintiff’s unrelated cases outside of their

jurisdiction[;]” (3) “[p]revent [] [d]efendant from using any MSPB rulings tainted by improper

influence, ex parte communications, or procedural manipulation[;]” (4) “[d]eny [] [d]efendant’s

motion to stay these proceedings and advance this case to the discovery phase[;]” (5) “[p]rohibit []

[d]efendant from engaging in any further ex parte communications with the MSPB or Agency

2 The Court infers that plaintiff refers to the United States Army Corps of Engineers (USACE),

plaintiff’s former employer, as “the Agency.” See Dkt. # 32, at 5, 6. The USACE is the

client agency of the United States Attorney for the Northern District of Oklahoma. Dkt. #

44, at 4.

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officials regarding [p]laintiff’s pending MSPB proceedings[;]” (6) “[o]rder [d]efendant to [p]reserve

[a]ll [r]elevant [e]vidence[;]” (7) “[g]rant [e]xpedited [c]onsideration of [p]laintiff’s [c]laims[;]” (8)

“[i]ssue a [p]rotective [o]rder [a]gainst [r]etaliation . . . preventing [] [d]efendant, the Agency, and

the MSPB from retaliating against [p]laintiff in any form[;]” and (9) “[c]onsider whether sanctions

are appropriate against Assistant United States Attorney [(AUSA)] Michael Cooper . . . .” Id. at 17-

18 (emphasis added). Defendant responds that: he has not engaged in any improper actions; he is

permitted to access and use plaintiff’s MSPB records; and communications with the United States

Attorney’s client agency—the United States Army Corps of Engineers (USACE)—are protected

from production. Dkt. # 44, at 1-4.

The Court first addresses plaintiff’s specific requests for relief. Dkt. # 39, at 17-18. First,

plaintiff argues that the Court should expedite, rather than stay the proceedings, and alleges that

defendant engaged in ex parte communications and improperly influenced the MSPB. Id. at 1, 3,

4, 8-10, 11, 17. In light of the Court’s opinion and order granting in part defendant’s motion to stay

proceedings (Dkt. # 41), plaintiff’s arguments and requests for relief as to the stay, alleged ex parte

communications, and alleged improper influence are moot.3 Second, plaintiff requests that the Court

order defendant to disclose, explain, refrain from using, or preserve potential evidence. Dkt. # 39,

at 17. However, the Court stayed all proceedings, except for briefing and ruling on plaintiff’s motion

3 Similar to plaintiff’s arguments in his response to defendant’s motion to stay, plaintiff in his

motion for court oversight infers from defendant’s opinion—that the MSPB will likely

dismiss plaintiff’s pending appeals—that defendant has engaged in ex parte communications

with and exercised improper influence over the MSPB. Dkt. # 33, at 3, n.2; Dkt. # 34, at 3,

7; Dkt. # 39, at 4, 7-8, 11. The Court previously considered plaintiff’s argument in his

response to defendant’s motion to stay and found the argument to be meritless. Dkt. # 41,

at 5 n.9. Further, the Court finds plaintiff’s expansion on this argument—that the timing of

the proceedings here and with the MSPB demonstrates coordination between defendant and

the MSPB—is similarly meritless. Dkt. # 39, at 13-14, 16-17.

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for court oversight, until the MSPB renders final decisions as to plaintiff's pending MSPB appeals.

Dkt. # 41, at 7. Therefore, defendant’s discovery related requests are premature, and the Court will

not consider them. Finally, the Court is without sufficient information to consider plaintiff’s vague

request that the Court “issue an order preventing [] [d]efendant, the Agency, and the MSPB from

retaliating against [p]laintiff in any form, including the intimidation and harassment of his family

members and minor grandchildren.” Dkt. # 39, at 18.

More generally, plaintiff requests the Court’s “oversight.” Id. at 1. As plaintiff alleges that

the pending MSPB proceedings violated his due process rights, the Court infers that plaintiff asks

the Court to oversee the pending MSPB proceedings. Id. at 14-15.4 The Court has found no

authority giving it the power to oversee MSPB proceedings. The MSPB is “an independent

adjudicator of federal employment disputes” in the executive branch. Kloeckner v. Solis, 568 U.S.

41, 44 (2012); United States v. Fausto, 484 U.S. 439, 449 (1988) (explaining that the Civil Service

Reform Act of 1978 (CRSA) “enables the development, through the MSPB, of a unitary and

consistent Executive Branch position on matters involving personnel action, avoids an unnecessary

layer of judicial review in lower federal courts, and encourages more consistent judicial decisions

. . . .”) (internal quotations omitted). Under 25 U.S.C. § 7702, the MSPB has jurisdiction “[i]n the

case of any employee who—(A) has been affected by an action which the employee . . . may appeal

to the MSPB, and (B) alleges that a basis for the action was discrimination prohibited by specified

antidiscrimination statutes . . . .” Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 425 (2017). The

4 To the extent that plaintiff asks the Court to oversee its own proceedings to protect his right

to due process, the Court finds plaintiff’s request is frivolous.

4

Supreme Court has summarized the ways in which a plaintiff may seek judicial review of an MSPB

decision:

A federal employee . . . may first file a discrimination complaint with the agency

itself. ... Ifthe agency decides against her, the employee may then either take the

matter to the MSPB or... su[e] the agency in district court. Alternatively, the

employee may initiate the process by bringing her case directly to the MSPB....

If the MSPB upholds the personnel action [in either instance], the employee... may

request additional administrative process . . . with the [Equal Employment

Opportunity Commission] [(TEEOCT[)], or [] she may seek judicial review.

Kloeckner, 568 U.S. at 45 (internal citations omitted); 5 U.S.C. § 7702(a)(3) (“Any decision of the

Board... shall be a judicially reviewable action as of . . . the date of issuance of the decision if the

employee... does not file a petition with the [EEOC]....”). Therefore, until the MSPB issues final

decisions in plaintiff's pending appeals, the MSPB proceedings are not judicially reviewable, and

the Court cannot consider plaintiffs arguments regarding alleged due process violations during these

pending proceedings.’ See 5 U.S.C. § 7702; Harms v. LR.S., 321 F.3d 1001, 1009 (10th Cir. 2003)

(“[O]nce a plaintiff chooses to file a mixed case appeal with the MSPB, he must exhaust

administrative remedies in that forum prior to filing a civil action in federal district court.”); Punch

v. Bridenstine, 945 F.3d 322, 329 (Sth Cir. 2019) (interpreting § 7702 as placing clear jurisdictional

limits “on when—and in what instances— ... MSPB actions may be scrutinized by the courts”).

Even if the Court had the power to oversee the MSPB proceedings, plaintiff seeks injunctive

relief against a nonparty, but does not argue that the requirements for a nonparty injunction

are met. See Andrews v. Andrews, 160 F. App’x 798, 799-800 (10th Cir. 2005)

(unpublished) (interpreting United States v. New York Tel. Co., 434 U.S. 159 (1977)); 10th

Cir. R. 32.1(A) (The Court cites this unpublished decision for its persuasive value). Further,

plaintiff does not argue that the exception to administrative exhaustion outlined in Harline

v. Drug Enf’'t Admin., 148 F.3d 1199, 1203 (10th Cir. 1998), applies to actions against the

MSPB, or that the MSPB waived this requirement.

Plaintiff also alleges that defendant engaged in various improper conduct, but provides no

evidence to support his allegations. Dkt. # 39, at 1-2, 4-8, 13-14, 16-17. Plaintiff alleges that

defendant deliberately misrepresented an MSPB ruling in its motion to stay and improperly accessed

MSPB rulings. Id. at 5-8. However, the Court has reviewed defendant’s opposed motion to stay

proceedings and the related MSPB order, and the Court finds that defendant did not misrepresent the

ruling.6 Dkt. # 33, at 2; Dkt. # 44-1, at 15. Further, the Court finds that plaintiff’s argument that

defendant improperly obtained MSPB documents is frivolous. Dkt. # 39, at 11-12. Plaintiff placed

at issue the MSPB records pertaining to his claims here and with the MSPB by appealing an MSPB

decision that is closely related to other pending MSPB decisions. See e.g., Dkt. # 2, at 7 (notifying

the Court of plaintiff’s related pending MSPB appeals). Therefore, as the Court has no authority to

oversee pending MSPB proceedings and defendant did not engage in any improper conduct, the

Court denies plaintiff’s motion for court oversight (Dkt. # 39).

IT IS THEREFORE ORDERED that plaintiff’s motion for court oversight to protect due

process and prevent defendant’s improper influence over the MSPB (Dkt. # 39) is denied.

6 In defendant’s motion to stay proceedings, defendant stated that the MSPB administrative

law judge in her initial decision “found that [p]laintiff failed to prove that [d]efendant failed

to accommodate his disability and failed to prove that [d]efendant subjected him to

intolerable working conditions such that [p]laintiff failed to establish that he was subjected

to a constructive suspension.” Dkt. # 33, at 2. Defendant correctly represented the judge’s

initial decision in which she found that plaintiff failed to: “demonstrate the agency

constructively suspended him . . . [;]” “prove the agency took any wrongful actions that

deprived him of a meaningful choice in his decision to take leave[;]” and “prove [that] the

agency failed to accommodate his disability.” Dkt. # 44-1, at 15.

Additionally, the Court notes that plaintiff bases his request for sanctions on this meritless

argument. Dkt. # 39, at 5-7. Regardless, a motion for sanctions is not properly before the

Court, and the Court will not consider whether sanctions are appropriate. See FED. R. CIV.

P. 11(c)(2).

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IT IS FURTHER ORDERED that the Court Clerk is directed, pursuant to FED. R. CIv. P.

25(d), to substitute Daniel P. Driscoll, Secretary of the Army, as the defendant in this action.

IT IS FURTHER ORDERED that this case remains stayed per prior order (Dkt. # 41).

DATED this 26th day of March, 2025.

Chiuay Le

By lee

CLAIRE V.EAGAN

UNITED STATES DISTRICT JUDGE