Petition for Writ of Certiorari — Rogerson v. United States (No. 09-721)
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Supreme Court, US.
rt (Ww 09-721 DEC 14 2009
No, OFFICE OF THE CLERK
In The
SUPREME COURT OF THE UNITED STATES
KAY L. ROGERSON, In propria persona,
Petitioner,
v.
UNITED STATES COURT OF APPEALS
EIGHTH CIRCUIT
Respondent,
On Petition for Writ of Certiorari
to the United States Court Of Appeals
for the Eighth Circuit
PETITION FOR A WRIT OF CERTIORARI
Kay L. Rogerson*
615 Westwind Dr.
Rapid City, SD 57702-2067
Phone: (605) 343-3262
Cell phone: (605) 484-3920
*Pro Se Petituoner of Record
1
QUESTIONS PRESENTED FOR REVIEW
The following questions are related to a complaint
filed on 7/23/2008 that disputes the validity of a Title
VII agreement drafted by the United States District
Court for the District of South Dakota, Western Divi-
sion on 1/31/1996 (Appendix, p. 55) in settlement of a
Civil Rights complaint between Petitioner and the
United States Air Force (U.S.A.F.).
a.
Whether the agreement becomes a federal crime
in itself when it does not conform to the Civil
Rights laws and includes subject matter that was
not within the jurisdiction of the Court, or
whether it becomes (or is) simply “void”, or both?
Whether the validity of said agreement, can be
deemed "valid" at the US District Court level by
the same Court that drafted and signed it, and
then be dismissed for jurisdictional reasons at the
US Court of Appeals for the same District without
telling a pro se plaintiff, who was a previous fed-
eral employee, who has jurisdiction”
Whether the agreement violates the establish-
ment of a person's right to hfe, hberty, and the
pursuit of happiness, and due process of law
clause of the Fifth Amendment to the U.S. Consti-
tution; and whether Petitioner must remain ac-
cused of a felony crime by the U.S.A.F. without a
trial by an impartial jury in accordance with the
Sixth Amendment to the Constitution?
Whether a “local rule” allowing “papers to be filed,
signed, or verified by electronic means’ is a lawful
process to dismiss the validity of this agreement
when the judge in the case 1s incapacitated and
does not (or cannot) personally sign any certificate
verifying this dismissal 1n accordance with 8th
Circuit Rule 25A?
1}
LIST OF PARTIES
1) KAY L. ROGERSON, Plaintiff , Petitioner
2) UNITED STATES OF AMERICA, Defendant,
Respondent
Including:
UNITED STATES COURT OF APPEALS,
EIGHTH CIRCUIT
UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF SOUTH DAKOTA,
Western Division
UNITED STATES AIR FORCE
UNITED STATES ATTORNEY’S OFFICE
FOR THE DISTRICT OF SOUTH DAKOTA
1)
TABLE OF CONTENTS
QUESTIONS PRESENTED ................................sessessesss 1
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Ce SEE xevicssecceecesenesseresorecssaccsosonvsvaroonesece i
TP SUE TIGL LES oc0.cccsccccccssesessecesssccoseserenensees Vv
Co cc eusebanispeubaan qaspuakenehahanl 1
SEER a Oe 2
CONSTITUTIONAL PROVISIONS, STATUTES
AND REGULATIONS AT ISSUE ......0..0..00.cccccee cece. 5
SST Aree GPE BBMM RAIMI conse esccssccscssonccvecccscensonecnes 9
Facts Giving Rise To This Case...............ccc:cccsesceeeeeeees 9
The District Court Proceedings...............0.ccc0cccceeee ees 12
The Appellate Court Proceedings ........0.......cccccceseeeeeee 14
REASONS WHY CERTIORARI SHOULD BE
SER EREEEE ASD Si SE SOSAER ASE Sh HOON C= 15
I. Review 1s Warranted Because The Courts of Fed-
eral Appeals have Territorial and Subject Matter
Jurisdiction to oversee the U.S. District Court per
the Constitution, Article III (1783) and 28 USC §
1291, and this should not exclude the Validity of
Agreements Made Under Federal Civil Rights
Statutes at the District Court Level ................. 17
Il. Review of the Validity of a Civil Rights Settlement
Agreement Is Warranted Because Of The National
Importance In Determining Whether The Civil
Rights Act Can be Used by the United States Gov-
ernment as an Unconventional Means to Dismiss
Federal Crimes within their Own Doors ........... 21
III. Review is Warranted Because of the Importance In
Determining Whether the United States Attorney’s
Office can Make Decisions to Dismiss a Complaint
when the District Court Judge Becomes Incapaci-
tated and/or After He Is Deceased, and When the
Court Has Not Appointed a New Judge to Take His
OMI ciskcnrviisscingcciusedetcdnes shies uaesdeee tae ee 25
1V
IV. Review Is Warranted Because the Title VII Civil
Rights Settlement Agreement Conflicts With The
Supreme Court’s Holding in Abermarle Paper Co.
TE Tee an =o CRI RONEN Se Se A He RON CNR EST 26
V. Review Is Warranted Because Of the Precedence
That Could Be Set In Regard to the Abuse of a US
District Court’s Electronic Filing System .............. 27
IE 0s, vaisdencneveskuaekenismagediietmnieiniaasconsh . 28
Ti iit ick vcs sii caniubiecchn Mekas usenet nbataidasanacn delat 32
ORDER Denying Petition for Panel Rehearing dated
PN ia chitiicias cncckccalstndbeibinbdalcsmaxammumiaaieiioeeens 33
MANDATE Dismissing Appeal from US District
CI I BO oo csvcanene: aiscbscccccsnnccacdssesesacsiaces 34
JUDGMENT for Dismissal of Appeal per Eighth Cir-
cuit Rule 47A(b) dated 8/31/2009 ........................cee 35
UNITED STATES’ MOTION FOR SUSPENSION
OF BRIEFING SCHEDULE OR TO EXTEND
BRIEFING DEADLINE AND FOR AFFIRMANCE
PURSUANT TO EIGHTH CIRCUIT RULE 47B
I foes cool cetcscencudous je bencduegesaedctseenses sucess 36
ORDER GRANTING MOTION TO DISMISS dated
I kcisii ot ailacs asc scuaiuaas nanlaies so hdliaa ean imiacadenls 45
STIPULATION FOR COMPROMISE SETTLE-
MENT dated 1/31/1996 (for Original case numbered
Sf 8 SESIYERER RAG Ae By ase AOE ME Ee NO Se Ce ed 55
SUMMONS mm a Civil Action (for Original case
numbered CIV 90-5038) dated 3/13/1992.............. 59
COMPLAINT (for Origirial case numbered CIV 90-
5038 that accompanied SUMMONS) dated
NEI SCORE ST RR Hee Sipe RET ee HDS eee ne 60
AMENDED COMPLAINT (for Original case num-
bered CIV 90-5238) dated 3/15/1995 ..................... 65
Vv
TABLE OF AUTHORITIES
CASES
Abermarle Paper Co. v. Moody
422 U.S. 405 (1975) under Title VII
Armstrong v. Obucino
300 Ill. 140, 143 (1921)
Austin v. Smith
312 F.2d 337, 343 (1962)
Bates v. Board of Education, Allendale
Community Consolidated School District
No. 17
136 I11.2d 260, 267 (1990)
Bindell v. City of Harvey
212 Ill.App.3d 1042, 571 N.E.2d 1017
(1st Dist. 1991)
Blassingame v. United States,
33 Fed. Cl. 504, 505
Bracey v. Warden
U.S. Supreme Court No. 96-6133
(6/9/1997)
Cohens v. Virginia
19 US (6 Wheat) 264, 404, 5 L.Ed 257
(1821)
Brown v. GSA (Supreme Court decision)
425 U.S. 820 (1976), referring to 42
U.S.C. Sections 2000e-16 and 2000e-5(f)
through (k)
12, 26,
28
20
24
19
28
23
26
vi
TABLE OF AUTHORITIES
CASES (continued)
Brown v. GSA, 425 U.S. at 828-829, 26
referring to 118 Cong. Rec. 4942 (1972)
Brown v VanKeuren 19
340 Ill. 118 122 (1930)
Editorial Photocolor Archives v Granger 19
Collection
61 NY2d 517, 523 ee
Elliott v. Peirsol 29
1 Pet. 328, 340, 26 U.S. 328, 340 (1828)
English v. English, 72 Ill.App.3c 736, 28
393 N.E.2d 18 (1st Dist. 1979)
Fiorello v. Department of Justice 9
795 F.2d 1544 (Fed. Cir. 1986
Flake v. Pretzel 24, 25
381 Ill. 498, 46 N.E.2d 375 (1943)
Hallberg v. Goldblatt Bros. 26, 26
363 Ill. 25 (1936)
Hanes v United States 19
44 Fed. Cl. 441, 449 (1999)
In Interest of M.V. 18, 19
288 Ill.App.3d 300, 681 N.E.2d 532 (1st
Dist. 1997)
vu
TABLE OF AUTHORITIES
CASES (continued)
In re TIP-PA-HANS Enterprises, Inc. 29
27 B.R. 780, 783 (1983)
Janove v. Bacon, 6 Ill.2d 245, 249, 28
128 N.E.2d 706, 708 (1955
Johnson v. Zerbst 26, 28
304 U.S. 458, 58 S.Ct. 1019 (1938)
Johnson v. Theis, 282 Ill.App. 3d 966, 20
669 N.E.2d 590 (2nd Dist. 1996)
Lee v. United States 19
33 Fed. Cl. 374, 379 (1995)
Levy v. Industrial Comm'n (1931) 20
346 Ill. 49, 51, 178 N.E. 370, 371
Library of Congress v. Shaw 26
106 S. Ct. 2957 (1986) | id
McCullough v United States, 19
76 Fed Cl. at 5
Midland Coal Co. v. Knox County 19
268 Ill.App.3d 485, 644 N.E.2d 796 (4th
Dist. 1994)
Old Wayne Mut. I. Assoc. v. McDonough 15, 16
204 U.S. 8, 27S.Ct 236 (1907)
People v. Wade 16
116 Ill.2d 1, 506 N.E.2d 954 (1987)
vill
TABLE OF AUTHORITIES
CASES (continued)
People ex rel Gowdy v Baltimore & Ohio
“RR Co
385 Ill. 86, 92, 52 N.E.2d 255 (1943)
Pure Oil Co. v. City of Northlake
10 Ill.2d 241, 245, 140 N.E.2d 289 (1956)
Rose v. Himely
4 Cranch 241, 269, 2 LEd 608, 617 (1808)
Rosenstiel v. Rosenstiel
278 F.Supp. 794 (S.D.N.Y. 1967)
State Bank of Lake Zurich v. Thill
113 Ill.2d 294, 497 N.E.2d 1156 (1986)
U.S. v. Will
449 U.S. 200, 216, 101 S.Ct. 471, 66
L.Ed.2d 392, 406 (1980)
Vallely v. Northern Fire & Marine Ins. Co.,
254 U.S. 348, 41 S.Ct. 116 (1920)
Von Kettler et.al. v. Johnson
57 Ill. 109 (1870)
Vulcan Materials Co v. Bee Const. Co., Inc.
101 Ill. App.3d 30, 40, 427 N.E.2d 797
(1st Dist. 1981)
Williamson v. Berry,
8 How 495, 540, 12 L.Ed.1170, 1189
(1850)
26, 28
15
28
24
23
15
25, 28
19
15
1X
TABLE OF AUTHORITIES
STATUTES
18 U.S.C. § 1001, Fraud and False State- 9,
ments
28 USC § 13438. Civil rights and elective
franchise
or
29 Code of Federal Regulations, Part
1614—Federa! Sector Equal Employ- 18,
ment Opportunity
42 USC § 1985 Conspiracy to interfere nd
with civil rights
Civil Rights Act of 1964 - CRA - Title VII?»
- Equal Employment Opportunities - 20,
42 US Code Chapter 21 44,
Whistleblower Protection Act -
CONSTITUTION
Fifth Amendment To The United States
Constitution s
Sixth Amendment To The United States
Constitution
16,
23
18
l
OPINIONS BELOW
The opinion of the U.S. District Court, District
of South Dakota, Western Division in regard to
the validity of a Title VII Civil Rights settlement
is reported under Rogerson v. United States of
America, CV. 08-5060-AWB, dated 5/13/2009. "As
the Court concludes as a matter of law that the
terms of the Settlement are clear and unambigu-
ous, the Court chooses to enforce the agreement.
Accordingly, it dismisses Plaintiff's claims which
relate to the conduct of the Air Force and its em-
ployees prior to January 31, 1996, as barred by
the Settlement signed by Plaintiff" (Appendix p.
53.) The "Court dismisses with prejudice Plain-
tiff's claims with regard to the validity of the set-
tlement and allegations of Defendant's breach of
the settlement" (Appendix p. 54.)
The opinion of the United States Court of Ap-
peals for the Eighth Circuit, filed on August 31,
2009 1s reported as Kay L. Rogerson v. United
States of America, 09-2506. The case was dis-
missed upon the “motion of appellee for dis-
missal" using Eighth Circuit Rule 47A(b)
(Appendix, p. 35) : "The appellee may file a mo-
tion to dismiss a docketed appeal on the
grounds the appeal is not within the court's ju-
risdiction." This was based on the United States
Attorney's Motion to dismiss dated August 12,
2009; however, the United States Attorney's
motion to dismiss was based on Eighth Circuit
Rule 47B, and not 47A(b) (Appendix, pp. 38, 43).
Appellant filed a Petition for Panel Rehear-
ing on September 18, 2009 with the United
States Court of Appeals for the Eighth Circuit.
The motion denying rehearing by the panel,
2
filed by appellant, was dated October 22, 2009
and can be found under Kay L. Rogerson v.
United States of America, No: 09-2506
(Appendix, p. 33).
JURISDICTION
On July 23, 2008, Plaintiff brought suit against
the United States of America in the United States
District Court for the Western Division of South
Dakota, alleging that Defendant had violated a T1-
tle VII Civil Rights settlement agreement which
had been drafted and signed by this same Court on
1/31/1996 while Plaintiff was depressed and receiv-
ing Federal Employees Compensation Act (FECA)
benefits. Suit was brought because Plaintiff was
terminated from her FECA benefits on 3/18/2007,
denied her right to re-employment by her previous
federal employer - the United States Air Force
(USAF), denied employment for any federal agency,
her federal retirement was demied, and her federal
medical insurance was retroactively cancelled; and
because the Civil Rights settlement agreement had
alluded to the fact that the USAF had control of her
FECA benefits and status by agreeing they would
not “act or fail to act" in regard to an adverse im-
pact to Plaintiff's FECA benefits and status. The
complaint was filed after Plaintiff had exhausted
all other administrative avenues of redress for her
complaint including the Employees Compensation
Appeals Board (who refused to answer any ques-
tions in regard to the civil rights settlement agree-
ment), the Department of Labor (LABR), the Office
of Personnel Management (OPM), and the Office of
Special Council (OSC) who advised Plaintiff to ad-
dress her issues to the Merit Systems Protection
Board (MSPB).
3
In conjunction with breaching this agreement,
Plaintiff alleged the agreement was in violation of
Civil Rights laws and Articles V and VI of the Con-
stitution because the agreement not only involved
those Civil Rights issues which were rightfully be-
fore the Court on 1/31/1996 (see original complaints,
Appendix pp. 60, 65), but 1t also dismissed Whistle-
blower Protection Act (WPA) issues and federal
crimes which Plaintiff and her attorneys had previ-
ously exposed to her superiors at Ellsworth AFB,
SD and to the Court, and were under federal inves-
tigation at the time of the signing of the agreement.
Petitioner had also filed a complaint with the Equal
Employment Opportunity Commission (EEOC) due
to the breach of contract, and the EEOC advised
her to file her complaint with the US District Court
where the agreement was drafted and signed.
MSPB also decided that the issues were out of their
jurisdiction because the settlement agreement was
made at the US District Court level.
Nine months later, on 4/22/2009, someone other
than the judge who was ordered to handle this case
(Judge Andrew Bogue) entered an ORDER DENY-
ING MOTION TO CHANGE VENUE AND DENY-
ING MOTION FOR EXPEDITION OF COM-
PLAINT AND TEMPORARY RELIEF, typing Judge
Bogue's name on the dismissal document.
On 5/13/2009, someone other than The Honor-
able Judge Andrew Bogue entered an ORDER
GRANTING MOTION TO DISMISS this complaint,
typing Judge Bogue's name on the dismissal docu-
ment.'! On page 9 of that ORDER (Appendix, p. 54)
' Please note that the Honorable Judge Andrew Bogue was at
his home in a remote area in the Black Hulls of South Dakota,
several miles from the Court, on his death bed. He died just 27
days after his name was typed on this document.
4
it states, "the Court dismisses with prejudice Plain-
tiffs claims with regard to the validity of the settle-
ment and allegations of Defendant's breach of the
settlement."
On 5/22/2009 Plaintiff Petitioned the US Court
of Appeals for the Eighth Circuit for a Writ of Man-
damus because she had been the victim of federal
crimes in which the investigations were terminated
with the agreement.
On 6/8/2009, the US Court of Appeals DENIED
the Petition for Writ of Mandamus.
Because the Court had acted on the validity and
breach of the agreement and dismissed it with
prejudice, Plaintiff filed a NOTICE OF APPEAL on
6/15/2009 in regard to the validity and breach of the
Title VII Civil Rights settlement agreement.
The US Court of Appeals, Eighth Circuit filed
their ORDER _ d§ismissing this Appeal on
8/31/2009 using Eighth Circuit Rule 47A(b)
(Appendix, p. 35).
Appellant filed a Petition for Panel Rehear-
ing on 9/18/2009. The motion denying rehear-
ing by the panel, filed by appellant, was denied
10/22/2009.
The jurisdiction of this Court to review the
Judgment of the Eighth Circuit 1s invoked under
28 U.S.C. § 1254(1). Petitioner is filing this Peti-
tion for a Writ of Certiorari within the 90 days
of the 10/22/2009 date when the motion for
Panel Rehearing was denied, in accordance
with Rule 13.1.
5
CONSTITUTIONAL PROVISIONS, STATUTES
AND POLICIES AT ISSUE
Civil Rights Act of 1964, CRA, Title VIT,
Equal Employment Opportunities
42 USC CHAPTER 21 - CIVIL RIGHTS
2000e-5 (3) “...Each United States district court
and each United States court of a place subject to
the jurisdiction of the United States shall have ju-
risdiction of actions brought under this subchap-
ter.”
2000e-16 (e) “Government agency or official not
relieved of responsibility to assure nondiscrimina-
tion in employment or equal employment opportu-
nity. Nothing contained 1n this Act shall relieve any
Government agency or official of its or his primary
responsibility to assure nondiscrimination in em-
ployment as required by the Constitution and stat-
utes or of its or his responsibilities under Executive
Order 11478 relating to equal employment opportu-
nity in the Federal Government...”
28 USC § 1343 Civil rights & elective franchise
(a) “The district courts shall have original jurisdic-
tion of any civil action authorized by law to be com-
menced by any person:
(1) To recover damages for injury to his person or
property, or because of the deprivation of any right
or privilege of a citizen of the United States, by any
act done 1n furtherance of any conspiracy mentioned
in section 1985 of Title 42;
(2) To recover damages from any person who fails to
prevent or to aid in preventing any wrongs men-
tioned in section 1985 of Title 42 which he had
knowledge were about to occur and power to pre-
vent;
(3) To redress the deprivation, under color of any
6
State law, statute, ordinance, regulation, custom or
usage, of any right, privilege or 1mmunity secured
by the Constitution of the United States or by any
Act of Congress providing for equal rights of citizens
or of all persons within the junsdiction of the
United States;
(4) To recover damages or to secure equitable or
other relief under any Act of Congress providing for
the protection of civil rights, including the right to
vote.”
42 USC § 1985 Conspiracy to interfere with
civil rights
(2) Obstructing justice; intimidating party, wit-
ness, or juror: "...1f two or more persons conspire
for the purpose of impeding, hindering, obstruct-
ing, or defeating, in any manner, the due course of
justice in any State or Territory, with intent to
deny to any citizen the equal protection of the
laws, or to injure him or his property for lawfully
enforcing, or attempting to enforce, the right of
any person, or class of persons, to the equal pro-
tection of the laws; or
(3) Depriving persons of rights or privileges in
any case of conspiracy set forth in this section, if
one or more persons engaged therein do, or cause
to be done, any act 1n furtherance of the object of
such conspiracy, whereby another ts injured 1n his
person or property, or deprived of having and ex-
ercising any right or privilege of a citizen of the
Umited States, the party so injured or deprived
may have an action for the recovery of damages
occasioned by such injury or deprivation, against
any one or more of the conspirators.
Fifth Amendment To The U.S. Constitution
No person shall be held to answer for a capital, or
7
otherwise infamous crime, unless on a presentment
or indictment of a grand jury, except 1n cases aris-
ing in the land or naval forces, or in the militia,
when 1n actual service 1n time of war or public dan-
ger; nor shall any person be subject for the same of-
fense to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a wit-
ness against himself, nor be deprived of life, liberty,
or property, without due process of law; nor shall
private property be taken for public use, without
just compensation.
Sixth Amendment To The U.S. Constitution
In all criminal prosecutions, the accused shall en-
joy the right to a speedy and public trial, by an im-
partial jury of the state and district wherein the
crime shall have been committed, which district
shall have been previously ascertained by law, and
to be informed of the nature and cause of the accu-
sation; to be confronted with the witnesses against
him; to have compulsory process for obtaining wit-
nesses 1n his favor, and to have the assistance of
counsel for his defense.
29 Code of Federal Regulations, Part 1614
Federal Sector Equal Employment Opportunity
Subpart A—Agency Program to Promote Equal
Employment Opportunity
1614.101 General policy.
(a) “It is the policy of the Government of the United
States to provide equal opportunity in employment
for all persons, to prohibit discrimination in employ-
ment because of race, color, religion, sex, national
origin, age or handicap and to promote the full re-
alization of equal employment opportunity through
a continuing affirmative program in cach agency.
8
(b) No person shall be subject to retaliation for op-
posing any practice made unlawful by title VII of
the Civil Rights Act (title VII) (42 USC 2000e et
seq.), the Age Discrimination in Employment Act
(ADEA) (29 USC 621 et seq.), the Equal Pay Act (29
USC 206(d)) or the Rehabilitation Act (29 USC 791
et seq.) or for participating 1n any stage of admunis-
trative or judicial proceedings under those statutes.
Whistleblower Protection Act
"[A]jny disclosure of information" that a covered
employee "reasonably believes” evidences "a viola-
tion of any law, rule, or regulation" or evidences
"gross mismanagement, a gross waste of funds, an
abuse of authority,..." 1s protected on the condition
that the disclosure 1s not prohibited by law nor re-
quired to be kept secret... Moreover, "any disclo-
sure" made to the Special Counsel or to the Inspec-
tor General of an agency or another employee desig-
nated by the head of the agency to receive such dis-
closures, which the employee "reasonably believes"
evidences "a violation of any law, rule, or regula-
tion," or evidences "gross mismanagement, a gross
waste of funds, an abuse of authority, or a substan-
tial and specific danger to public health or safety" 1s
also protected (5USC §2302(b)(8)(B). Agency heads
are required to inform their employees of these pro-
tections (5USC §2302(c)).
The WPA expressly provides that "any disclosure
of information" 1s protected With enactment of the
WPA, Congress amended its statutory predecessor,
the CSRA (Civil Service Reform Act of 1978, P.L. 95
-454, 92 Stat. 1114). In so doing, it changed the
phrase "a disclosure" to "any disclosure," emphasiz-
ing the point that the courts, the OSC, and the
MSPB should not erect barriers to disclosures that
will limit the necessary flow of information from
9
employees with information of government wrong-
doing (S.Rept. 100-413 (1988) at 13). In the Com-
mittee Report accompanying the WPA legislation,
the Senate specifically criticized a 1986 decision by
the US Court of Appeals for the Federal Circuit,
Fiorello v. Department of Justice (795 F.2d 1544
(Fed. Cir. 1986))..."
18 U.S.C. § 1001, Fraud and False Statements
(a) ...whoever, in any matter within the jurisdiction
of the executive, legislative, or judicial branch of the
Government of the United States, knowingly and
willfully—
(1) falsifies, conceals, or covers up by any trick,
scheme, or device a material fact;
(2) makes any materially false, fictitious, or
fraudulent statement or representation; or
(2) makes or uses any false writing or document
knowing the same to contain any materially false,
fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more
than 5 years...
STATEMENT OF THE CASE
Facts Giving Rise To This Case
On 1/31/1996, during a pre-trial settlement ne-
gotiations hearing for a Civil Rights case in US Dis-
trict Court in Rapid City, SD, while Plaintiff was
suffering from depression and receiving FECA
benefits, Assistant USA Bonnie Ulrich admitted
that criminal issues involving USAF personnel
were strictly prosecutorial in nature and not a part
of the civil rights case; however, she then helped
draft and signed an agreement that dismissed these
actions when federal Magistrate Marshall Young
10
initiated a "global settlement" to terminate the
Civil Rights lawsuit rightfully before US District
Judge Richard Battey. This was done after Judge
Battey had bifurcated the most condemning civil
rights violations from the case before the Court.
Three. of the criminal issues involving USAF
personnel which Assistant USA Ulrich had dis-
cussed and which the Court was aware of were 1)
stolen identity under investigation by the USAF's
Office of Special Investigation (OSI); 2) a money-
laundering scheme between the USAF and Rock-
well which Plaintiff had reported to USAF person-
nel, who then threatened her life if she continued to
report it, and who then wrongfully accused her of a
federal crime (an "Anti-Deficiency Act" violation);
and 3) obscene telephone calls by a military mem-
ber to her home. The Anti-Deficiency Act violation
was annotated on her performance rating and the
rating downgraded. Then, unbeknownst to Plaintiff
at the time, her Civil Service job level was down-
graded from a GS-13 to a GS-12, and her FECA
benefits were paid at the lower GS-12 level the en-
tire time she was receiving these benefits, including
the day this agreement was made. None of this 1n-
formation was relayed to Plaintiff. Instead, they
covered up this information, and tried to protect
themselves with paragraphs in the agreement
which state:
1. "That the parties... agree to settle and com-
promise the above-entitled action [which was the
Civil Rights case before the Court] involving alle-
gations of employment discrimination, including
but not limited to sex, sexual harassment, age,
and reprisal, and any and all claims relevant to
the plaintiff's past and present employment with
the United States Air Force, upon the terms ind1-
11
cated herein." (Appendix, p. 55.)
2. "This... agreement does not constitute an ad-
mission of lability or fault of the defendant, or
any past, present or future employees, represen-
tatives, servants, agents, or any other persons
standing in any representative capacity, nor shall
this agreement or any provision hereof, be used
in conjunction with any judicial, administrative,
quasi-judicial, or any other form of proceeding,
for the purpose of attempting to establish any
such liability or fault " (Appendix, p. 55.)
5.b. "Plaintiff... will withdraw any and all vend-
ing grievances, complaints and/or appeals relat-
ing to her employment with the United States Air
Force, whether or not they are discrimination re-
lated, against the Umited States Aur
Force." (Appendix, p. 57)
This agreement was never tied to Plaintiff's recov-
ery from a compensable injury, which was not the
issue before the Court; however, the judges and at-
torneys also included the following statement in re-
gard to her FECA status and benefits:
3.b. "The United States Air Force agrees that it
will not officially act, or fail to act, for the pur-
pose of adversely affecting plaintiff ,ROGER-
SON'S Department of Labor, Office of Workers
Compensation Program (OWCP) benefits or
status.” (Appendix, p. 56.)
The above statements have caused major contro-
versy 1n this case. In essence, this Civil Rights set-
tlement agreement covered subject matter/issues
which were not within the subject matter jurisdic-
tion of this Court. The matter before the Court was
strictly a Title VII Civil Rights case (see original
complaint, Appendix, pp. 60, 65.) Further, it does
12
not conform to the Civil Rights statute 29 CFR 1614
for federal employees or Supreme Court decisions in
regard to Title VII agreements (see Supreme Court's
holding in Abermarle Paper Co. v. Moody.)
The above agreements were also made under the
auspices that Plaintiff never return to her job at
Ellsworth AFB, SD or any other United States Air
Force (USAF) position "in exchange" that the USAF
would never "act or fail to act" in regard to her
FECA "status and benefits." Also, the US Attorney's
Office threatened Plaintiff with monetary sanctions
and injunctive relief should she even talk to the
USAF about re-employment. Plaintiff depended
upon the federal government to "act" in regard to
her FECA benefits, which they now admit they
have no control over, and as a result of this Civil
Rights settlement agreement has been denied a fed-
eral job, has been denied her retirement, and her
medical insurance was retroactively cancelled; and,
she remains wrongfully accused of a crime - an Anti
-Deficiency Act violation as annotated on her per-
sonnel records. She is now 65 years of age.
The District Court Proceedings
Petitioner filed a complaint in US District Court,
pro se, asking for a change of venue, expedition of
complaint, temporary relief, and that the case be
handled in accordance with 18 USC, Part II Crimi-
nal Procedure, Chapter 237, Section 3771 Crime
Victim's Rights because the Title VII agreement
dismissed the criminal activity surrounding the
USAF's wrongful accusation of Plaintiff of an Anti-
Deficiency Act violation, and which she remains
wrongfully accused of to this very day, and her life
was threatened by the USAF should she report it
further.
13
The case was first given to US District Court
Judge Karen Schrier, who recused herself. She was
the US Attorney (USA) who signed/approved the
agreement. Chief District Court Judge Lawrence
Piersol then ORDERED this case be given to Judge
Andrew Bogue, who was 90 years old and in dete-
riorating health. He never issued any ORDERS, or
made any DECISIONS himself, on this case. He
made no responses to Plaintiff's letters.
The United States (Defendant) did not respond
to the Summons and Complaint within 60 days in
accordance with Fed. R. Civ. P. 12(a)(3). Instead,
the US Attorney's office issued a document to Plain-
tiff for a different case; the service of process was not
made pursuant to statute; and they abused the elec-
tronic filing system by filing a response to the cor-
rect case with the Court.
Plaintiff wrote a letter to Judge Bogue asking
about default judgment. There was no response.
Plaintiff responded to motions by Defendant. There
was no action on the case after three months. It was
later learned from his obituary and news articles in
the Rapid City Journal that Judge Bogue quit prac-
ticing as a US District Court Judge in January
2009. No decisions were made in regard to the mo-
tions for a change of venue, expedition of complaint,
or temporary relief until 4/22/2009, when Judge
Bogue was incapacitated. The unsigned order de-
nied all Plaintiff's motions for change of venue, ex-
pedition of complaint, and temporary relief.
On 5/13/2009, someone other than Judge An-
drew Bogue entered an ORDER GRANTING MO-
TION TO DISMISS, typing Judge Bogue's name on
the dismissal document (Appendix, p. 45). This OR-
DER states:
14
"As the Court concludes as a matter of law that
the terms of the Settlement are clear and unam-
biguous, the Court chooses to enforce the agree-
ment. Accordingly, it dismisses Plaintiff's claims
which relate to the conduct of the Air Force and
its employees prior to January 31, 1996, as
barred by the Settlement signed by Plain-
tiff." (Appendix, p. 53.)
"...the Court has found that the Settlement re-
quires no affirmative conduct from Defendant to
protect Plaintiff's benefits, no breach can result
from their failure to so act. Additionally, Plaintiff
states no claim when she contends that staff of
the US Attorney's Office have informed her that
her continued attempts to gain reemployment
with the Air Force are prohibited by the Settle-
ment, as their conduct in doing so 1s 1n accor-
dance with the unambiguous terms of the Settle-
ment." (Appendix, p. 54.)
"..the Court dismisses with prejudice Plaintiff's
claims with regard to the validity of the settle-
ment and allegations of Defendant's breach of the
settlement." (Appendix, p. 54.)
The Appellate Court Proceedings
Petitioner filed a Notice of Appeal with the US
District Court on 6/15/2009. The opinion of the
United States Court of Appeals for the Eighth
Circuit, filed on 8/31/2009 is reported as Kay L.
Rogerson v. United States of America, 09-2506
(Appendix, p. 35.)
On 8/12/2009, two months after The Honor-
able Judge Bogue died, the US Attorney’s Office
issued a motion: UNITED STATES’ MOTION
FOR SUSPENSION OF BRIEFING SCHEDULE
OR TO EXTEND BRIEFING DEADLINE AND
15
FOR AFFIRMANCE PURSUANT TO 8th CIR-
CUIT RULE 47B. The USAO based their argu-
ment on (4) no error of law appears. (Appendix,
p. 36.)
The case was dismissed upon the “motion of
appellee for dismissal" using Eighth Circuit
Rule 47A(b): "The appellee may file a motion to
dismiss a docketed appeal on the ground the ap-
peal is not within the court's jurisdiction.” How-
ever, the U.S. Attorney's Motion to dismiss
dated 8/12/2009 used Rule 47B(4) “no error of
law appears.” (The case was still assigned to
Judge Bogue, who was deceased.)
Petitioner/Plaintiff filed a Petition for Panel
Rehearing on 9/18/2009 with the U.S. Court of
Appeals for the Eighth Circuit. The motion de-
nying rehearing by the panel, filed by appel-
lant, was dated October 22, 2009 and can be
found under Kay L. Rogerson v. United States
of America, No: 09-2506 (Appendix, p. 33.)
REASONS WHY CERTIORARI SHOULD BE
GRANTED
The law is well-settled that a void order or judg-
ment is void even before reversal. Vallely v. Northern
Fire & Marine Ins. Co., 254 U.S. 348, 41 S.Ct. 116
(1920) "Courts are constituted by authority and they
cannot go beyond that power delegated to them. If
they act beyond that authority, and certainly in con-
travention of it, their judgments and orders are re-
garded as nullities. They are not voidable, but simply
VOID, and this even prior to reversal”; Old Wayne
Mut. I. Assoc. v. McDonough, 204 U.S. 8, 27 S.Ct. 236
(1907); Wilhamson v. Berry, 8 How. 495, 540, 12
L.Ed.1170, 1189 (1850); Rose v. Himely,4 Cranch 241,
269, 2 L.Ed. 608, 617 (1808).
16
It is also clear and well established law that a void
order can be challenged in any court at any time. Peo-
ple v. Wade, 116 I[ll.2d 1, 506 N.E.2d 954 (1987) "A
void judgment may be attacked at any time, either
directly or collaterally;" Old Wayne Mut. L. Assoc. v.
McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907)
"jurisdiction of any court exercising authority over a
subject “mey be inquired into in every other court
when the proceedings in the former are relied upon
and brought before the latter by a party claiming the
benefit of such proceedings,' and the rule prevails
whether ‘the decree or judgment has been given, in a
court of admiralty, chancery, ecclesiastical court, or
court of common law, or whether the point ruled has
arisen under the laws of navions, the practice in chan-
cery, or the municipal laws of states."
The Defendant was prejudiced in their dismissal
of the validity and breach of this agreement as they
are the same offices that drafted, signed, and ap-
proved of this agreement, dismissing federal crimes
under investigation by federal agencies, and forever
dismissing Plaintiffs rghts to due process of law in
accordance with the Fifth Amendment to the Const1-
tution to clear her name of a wrongful felony accusa-
tion of an Anti-Deficiency Act violation by the USAF.
The record clearly shows that instead of responding
to the fact that the agreement was written outside
the subject-matter jurisdiction of the Court, the De-
fendant tries to defend their unlawful actions by stat-
ing the agreement is unambiguous and therefore, it 1s
valid.
This case began as a complex civil rights case
against the United States Air Force and has evolved
into a case about the validity of the resulting agree-
ment. It includes judges that have acted outside their
jurisdictional authority by dismissing criminal activ-
17
ity by federal agencies/personnel through a civil
rights settlement agreement, and judicial disability,
by ordering this case be given to a 90 year old judge
whose health deteriorated to the point that he was
incapacitated when the Court issued dismissal orders
in his name, was deceased at the time the U.S. Attor-
neys responded to the appeal of this case, and the
Court never appointed a judge to replace him in ac-
cordance with Federal Rules of Civil Procedure.
Petitioner will show that this case has so far de-
parted from the accepted and usual course of judicial
proceedings, and that the US Court of Appeals has
sanctioned such a departure by a lower court, that
Petitioner pleads that the Supreme Court will exer-
cise it’s supervisory power over the lower courts.
I. Review is Warranted Because The Courts of
Federal Appeals have Territorial and Subject
Matter Jurisdiction to oversee the U.S. Dis-
trict Court per the U.S. Constitution, Article
III (1783) and 28 USC § 1291, and this should
not exclude the Validity of Agreements Made
Under Federal Civil Rights Statutes at the
District Court Level.
The courts of appeals have jurisdiction of appeals
from all final decisions of the district courts per the
United States Constitution, Article III (1783) and 28
USC § 1291. Civil mghts laws and 29 CFR 1614 gave
US District Courts exclusive jurisdiction to hear civil
rights claims. Because the US District Court has the
authority to issue a Decision in this case, then the US
Court of Appeals for the Eighth Circuit should also
have jurisdiction to hear this case. If they have no ju-
risdiction in regard to District Court decisions of Civil
Rights matters, then the Civil Rights Statute denies
a previous federal employee her mght to due process
of law to appeal a final decision by a US District
18
Court in accordance with the Fifth Amendment To
The U.S. Constitution
The question becomes, “Where does a previous
federal employee go to for help in resolving the valid-
ity of a Title VII Civil Rights settlement agreement
drafted and signed at the US District Court level
which includes subject matter which was not within
the jurisdiction of the Court, nor was it ripe for any
Court action?” After exhausting all other avenues, a
complaint was filed in US District Court.
On 5/13/2009, the US District Court concluded:
"As the Court concludes as a matter of law that the
terms of the Settlement are clear and unambiguous,
the Court chooses to enforce the agreement.” There
is absolutely no way the Court can enforce this
agreement because neither the Court, nor the US
Air Force, nor the US Attorney’s Office have subject
matter jurisdiction to dismiss federal crimes which
were not properly before the Court, nor do they
have jurisdiction over the Federal Employees Com-
pensation Act, all of which became an unlawful part
of a Civil Rights settlement agreement. The subject
matter correctly before the Court was strictly a
Civil Rights case brought about in accordance with
29 CFR 1614, per order of the Equal Employment
Opportunity Commission (EEOC). The District
Court’s actions are in total disagreement with cases
in other federal circuits and with previous Supreme
Court rulings:
Subject-matter jurisdiction 1s the authority of the
court to hear and make a determination in a court
action. In Interest of M.V., 288 Ill. App.3d 300, 681
N.E.2d 532 (1st Dist. 1997). Without subject-matter
jurisdiction, all of the orders and judgments issued by
a judge are void under law, and are of no legal force
4
.
‘
19
or effect. And, "Every act of the court beyond that
power is void".
In Interest of M.V., 288 Ill.App.3d 300, 681 N.E.2d
532 (1st Dist. 1997) "Where a court's power to act 1s
controlled by statute, the court 1s governed by the
rules of limited jurisdiction, and courts exercising ju-
risdiction over such matters must proceed within the
strictures of the statute." Also, in Vulcan Materials
Co. v. Bee Const. Co., Inc., 101 Ill. App.3d 30, 40, 427
N.E.2d 797 (1st Dist. 1981) "Though a court be one of
general jurisdiction, when its power to act on a par-
ticular matter 1s controlled by statute, the court is
governed by the rules of limited jurisdiction." In the
instant case, the US District Court has exclusive ju-
risdiction in all Civil Rights matters per the Civil
Rights Act of 1964 and 29 CFR 1614 (see also McCul-
lough v United States, 76 Fed. Cl. at 5; Hanes v
United States, 44 Fed. Cl. 441, 449 (1999): Blassin-
game v United States, 33 Fed. Cl. 504, 505 affd, 73
F.3d 349 (Fed. Cir. 1995), 517 U.S. 1237 (1996); Lee
v. United States, 33 Fed. Cl 374, 379, 1995.)
"A judgment or order issued without subject mat-
ter jurisdiction 1s void, and that defect may be raised
at any tume and may not be waived." Editorial Photo-
color Archives v Granger Collection, 61 NY2d 517,
523. Therefore, a judgment from a court that did not
have subject-matter jurisdiction is forever a nullity.
Brown v_ VanKeuren 340 Ill. 118 122 (1930),
"Whatever the rank of the court exercising a special
statutory jurisdiction, 1t 1s governed by the same
rules as courts of limited jurisdiction."; Midland Coal
Co. v. Knox County, 268 Ill.App.3d 485, 644 N.E.2d
796 (4th Dist. 1994) "Special statutory jurisdiction is
lamited to the language of the act conferring it, and
the court has no powers from any other source... [T]he
authority of the court to make any order must be
20
found in the statute.” Levy v. Industrial Comm'n
(1931), 346 Ill. 49, 51, 178 N.E. 370, 371." In the in-
stant case, the authority for the Civil Rights settle-
ment agreement 1s found under The Civil Rights Act
of 1964, 29 CFR 1614, and 42 USC § 1985 Conspiracy
to interfere with civil rights. There is absolutely no
authority for the Court to include these other issues
in a Civil Rights settlement.
Johnson v. Theis, 282 [ll.App.3d 966, 669 N.E.2d
590 (2nd Dist. 1996) "A court in the exercise of special
statutory jurisdiction is limited in its power by the
language of the act conferring such jurisdiction." In
the instant case, the Court was lmited by the Civil
Rights Act of 1964, 29 CFR 1614, and 42 USC
§ 1985 .
The criminal proceedings interlaced with this
agreement should be reported to the FBI and these
matters should be prosecuted by that federal agency;
however, the validity and breach of the agreement 1s
still a civil matter that was rightfully before the
Court, giving the US Court of Appeals for the 8th Cir-
cuit subject matter and territorial jurisdiction regard-
ing the validity of the agreement, unless, of course,
they recognized it as a “void” contract without so
specifying.
Because a void order has no legal force or effect
there can be no time limit within which to challenge
the order or judgment. Further, since the order has
no legal force or effect, 1t can be repeatedly chal-
lenged, since no judge has the lawful authority to
make a void order valid. Bates v. Board of Education,
Allendale Community Consolidated School District
No. 17, 136 Ill.2d 260, 267 (1990) - a court "cannot
confer jurisdiction where none existed and cannot
make a void proceeding valid."; People ex rel. Gowdy
v. Baltimore & Ohio R.R. Co., 385 Ill. 86, 92, 52
21
N.E.2d 255 (1943). The US Court of Appeals for the
8th Circuit has a Constitutional obligation to review
the decision of the lower court.
II. Review of the Validity of a Civil Rights Settle-
ment Agreement Is Warranted Because Of The
National Importance In Determining Whether
The Civil Rights Act Can be Used by the Fed-
eral Government as an Unconventional Means
to Dismiss Federal Crimes within their Own
Doors
Federal judges, federal magistrates, and United
States attorneys take oaths of office and make code of
ethics promises to uphold the Constitution and laws
of the land. They have a judicial obligation to further
expose alleged criminal activity by federal employees
and federal agencies when it is reported to them. This
case 1s about a Title VII civil mghts settlement which
the Court and US Attorneys interlaced with criminal
issues which were under investigation by federal of-
fices, and which were divulged to the Court and US
Attorney’s Office during the course of a Civil Rights
trial. Instead of exclusively settling the Civil Rights
case before them in accordance with the Civil Rights
Act, 29 CFR 1614, and previous Supreme Court hold-
ings, a settlement agreement was drafted and signed
which included a dismissal of “any and all claims
relevant to the plaintiff's past and present employ-
ment with the United States Air Force”, and de-
manded “Plaintiff... will withdraw any and all
pending grievances, complaints and/or appeals re-
lating to her employment” with the United States
Air Force, “...whether or not they are discrimination
related...” The USAF failed to turn these criminal 1n-
vestigations over to the Federal Bureau of Investiga-
tion (FBI), and terminated the investigations and
processing through a conspiracy with the US District
22
Court and US Attorney’s office in Rapid City, SD us-
ing a Title VII Civil Rights settlement agreement—a
violation of 42 US Code § 1985. Conspiracy to inter-
fere with civil rights, the WPA, and other criminal
statutes.
The same US District Court that drafted the Civil
Rights agreement, is now stating that this same
criminal activity cannot be adjudicated because a
"private person" cannot bring criminal actions
against the federal government into US Dhistrict
Court - a complete reversal of the fact that it was the
Court and United States attorneys who included the
dismissal of these crimes with the settlement agree-
ment. A Court of Law cannot have it both ways, and
Plaintiff has a Constitutional right to due process of
law. If they have no jurisdiction to adjudicate these
criminal actions, then they are admitting the agree-
ment 1s not valid. It 1s “void” because they lacked sub-
ject-matter jurisdiction to dismiss criminal issues un-
der federal investigation with a Title VII agreement
Plaintiff 1s due relief in accordance with several regu-
lations in regard to these issues, including 18 U.S.C.
Part 1, Chapter 47 § 1031; 5 U.S.C. § 8151; the Civil
Rights Act and 29 CFR 1614; and the Whistleblower
Protection Act, among others; and the Title VII civil
rights settlement agreement is unlawfully prohibiting
her from her Constitutional rights to due process of
law, employment or re-employment with the federal
government, and her retirement. Because the agree-
ment dismissed federal crimes, there is also the ques-
tion of whether the agreement itself becomes a viola-
tion of 18 U.S.C. § 1001, Fraud and False Statements.
It appears that the US District Court and US At-
torney’s Office personnel that drafted, signed, and ap-
proved of this Title VII agreement are prejudiced and
will not make a non-biased ruling 1n regard to the va-
23
lidity of same. They have dismissed all aspects of this
case to protect themselves and members of the jud1-
cial system who were directly involved with drafting,
signing, and approving of this agreement. Petitioner/
plaintiff has been wrongfully accused of a federal
crime in retaliation for reporting federal crimes, and
it is time the federal government deals with these
matters in accordance with the law instead of con-
tinuing to cover them up with a Civil Rights agree-
ment long overdue to be deemed invalid and VOID.
The judge has a duty to continually inspect the
record of the case. Should a judge act in any case in
which he does not have subject-matter jurisdiction,
he is acting unlawfully, U.S. v. Will, 449 U.S. 200,
216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980);
Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5
L.Ed 257 (1821), and without any judicial authority.
In the original case Judge Richard Battey and Magis-
trate Marshall Young acted unlawfully by including
subject matter that was not within their jurisdiction
according to Civil Rights statutes. This is also a viola-
tion of 42 US Code § 1985. Conspiracy to interfere
with civil mnghts.
The same US District Court that wrote the origi-
nal agreement has once again deemed it to be “valid”;
thereby, contributing to, and approving of, the fraud
and unlawful actions of the previous District Judge
and Federal Magistrate who drafted and approved of
the unlawful agreement to begin with. This is an ad-
ditional violation of 18 J.S.C. § 1001, Fraud and
False Statements.
In a court of limited jurisdiction, which 1s the case
when the US District Court adjudicates a civil mghts
complaint, whenever a party denies that the court
has subject-matter jurisdiction, 1t becomes the duty
24
and the burden of the party claiming that the court
has subject-matter jurisdiction (in this case the Court
itself) to provide evidence from the record of the case
that the court holds subject-matter jurisdiction Bin-
dell _v. City of Harvey, 212 [ll App.3d 1042, 571
N.E.2d 1017 (1st Dist. 1991) "the burden of proving
jurisdiction rests upon the party asserting 1t." In the
present case, the Court wrongfully portrayed it had
subject-matter jurisdiction by including other matters
besides the civil rights issues directly before the
Court into a Title VII civil mghts settlement agree-
ment, and the record will show that neither the Court
nor the US Attorney’s Office proved differently. In
fact, they now agree they had no subject matter ju-
risdiction; however, they are still maintaining the
agreement is “valid” because it 1s unambiguous. A
judge should not proceed in any action in which he/
she does not have subject-matter jurisdiction, since
he/she has no lawful authority to act.
A court must proceed exactly according to the law
or statute under which it operates. Flake v. Pretzel,
381 Ill. 498, 46 N.E.2d 375 (1943). In State Bank of
Lake Zurich v. Thill, 113 [11.2d 294, 497 N.E.2d 1156
(1986), the Supreme Court has ruled that "Because a
court does not acquire jurisdiction by a mere recital
contrary to what is shown in the record", the record of
the case 1s the determining factor as to whether a
court has jurisdiction. The US District Court has ex-
clusive jurisdiction for all civil rights issues in accor-
dance with the Civil Rights Act and 29 CFR 1614 and
case history as previously cited. It does not have ju-
risdiction to include dismissal of criminal acts by fed-
eral agencies, nor to make promises 1n regard to the
FECA, in conjunction with a Title VII civil mghts
agreement.
25
If the US District Court and the Appeals Court for
the Eighth Circuit continue to uphold the validity of a
Title VII Civil Rights settlement agreement that
unlawfully dismisses federal crimes and makes false
promises in regard to the FECA, all of which are not
within the jurisdiction of the Civil Rights Act or 29
CFR 1614, then the integrity of the judicial system
and the US Constitution are at stake.
III. Review is Warranted Because of the Impor-
tance In Determining Whether the U.S. Attor-
ney’s Office can Make Decisions to Dismiss a
Complaint when the District Court Judge Be-
comes Incapacitated and/or After He Is De-
ceased, and When the Court Has Not Ap-
pointed a New Judge to Take His Place
Motions made by the US Attorney’s Office to the
US Appeals Court, were made two months after
Judge Bogue was deceased, and the District Court
had not appointed another judge to replace him. The
US Attorney’s O* ice used Eighth Circuit Rule 47B in
their motion to dismiss, stating that “no error of law
appears.” This agency helped draft, and signed, the
unlawful agreement. They were prejudiced and bi-
ased and tried to protect themselves. As previously
stated, a court must proceed exactly according to the
law or statute under which it operates. Flake v. Pret-
zel, 381 Ill. 498, 46 N E.2d 375 (1943). Neither the
Civil Rights Act or federal rules of court procedure
allow the US Attorney's Office to take over a civil
rights case once a judge is incapacitated or deceased.
In this instance, the US Attorney is a “trespasser of
the law” because those who advise and act with [a
judge who has no subject-matter jurisdiction], or exe-
cute his process, are trespassers", Von Kettler et.al. v.
Johnson, 57 Ill. 109 (1870).
26
Again, this entire case has so far departed from
the accepted and usual course of judicial proceedings
that Petitioner pleads that the Supreme Court will
exercise it’s supervisory power over the lower courts.
This also appears to be a violation of due process,
Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019 (1938);
Pure Oil Co. v. City of Northlake, 10 Ill.2d 241, 245,
140 N.E.2d 289 (1956); Hallberg v. Goldblatt Bros.,
363 Ill. 25 (1936).
IV. Review Is Warranted Because the Title VII
Civil Rights settlement agreement Conflicts
With The Supreme Court’s Holding in Aber-
marle Paper Co. v. Moody
The Supreme Court has provided guidance as to
the nature and scope of remedies available under T1-
tle VII. In Abermarle Paper Co. v Moody, 422 U.S.
405 (1975) under Title VII, the Court held that the
purpose of Title VII 1s to make victims of discrimina-
tion whole, and have also held that the scope of relief
available to federal employees under Title VII 1s gov-
erned by the provisions of 42 U.S.C. Sections 2000c-
16 and 2000e-5(f) through (k). In Brown v. GSA, 425
U.S. 820 (1976), referring to 42 U.S.C. Sections
2000e-16 and 2000e-5(f) through (k); and Brown,
425 U.S. at 828-829, referring to 118 Cong. Rec.
4942 (1972), the Court examined the legislative his-
tory and language of Section 717 of Title VII
(42U S.C. Section 2000e-16), and found that Congress
had intended it to create an exclusive, pre-emptive
administrative and judicial scheme for the redress of
federal employment discrimination. Further, EEOC
regulations specifically provide that a victim of dis-
crimination shall be extended an unconditional offer
of placement in the position that the person would
have occupied but for the discrimination (See e.q. Li-
brary of Congress v. Shaw, 106 S. Ct. 2957 (1986).)
27
The District Court has ignored the Supreme Court’s
ruling and has destroyed the integrity of the United
States government by failing to set the highest stan-
dards for Civil Rights and non-discriminatory em-
ployment practices.
V. Review Is Warranted Because Of the Prece-
dence That Could Be Set In Regard to the
Abuse of a US District Court’s Electronic Fil-
ing System
ALL of the dismissal orders from The Honorable
Andrew Bogue were made while the judge was inca-
pacitated and someone other than the judge submitted
the documents by using the US District Court’s Elec-
tronic Filing System, typing his name on the docu-
ments. The Court could not prove that these documents
were, in fact, the judge’s orders because the judge did
not sign any certificate in accordance with Rule 25A of
the 8th Circuit Rules for Electronic Filing. Further,
the judge was incapacitated, and neither the Court
nor the US Attorney’s office notified the plaintiff, and
no one processed the paperwork in accordance with
Fed R. Civ. P. 63 - Judge's Inability to Proceed. Also,
the US Attorney’s office provided the US District
Court with a different document than they provided
the plaintiff in answer to the Summons and
Complaint. They used the electronic filing system to
provide their response to the Court, and this differed
from the response to Petitioner/Plaintiff. The judge
was incapacitated, and the US Attorney would not
admit to his own errors of improperly responding to
the complaint. His service of process was not made
pursuant to statute. The US Attorney was given a
free ride by the Court to destroy the career of the
Plaintiff while protecting themselves and the judicial
officers of yudicial wrongdoing.
28
CONCLUSION
A few of the main elements in which the US Dis-
trict Court was without subject-matter jurisdiction in
regard to the Title VII civil rights settlement agree-
ment, and in the instant complaint questioning the
validity of the agreement, making the document void
are: (1) a judge/federal magistrate does not follow
statutory procedure, Armstrong v. Obucino, 300 III.
140, 143 (1921); (2) unlawful activity of a judge/
federal magistrate, Code of Judicial Conduct; (3) vio-
lation of due process, Johnson v. Zerbst, 304 U.S. 458,
58 S.Ct. 1019 (1938); Pure Oil Co. v. City of North-
lake, 10 Ill.2d 241, 245, 140 N.E.2d 289 (1956), Hall-
berg v. Goldblatt Bros., 363 Ill. 25 (1936); (4) the
court exceeded its statutory authority, Rosenstiel v.
Rosenstiel, 278 F. Supp. 794 (S.D.N.Y. 1967); (5)
where a response to a summons and complaint was
not properly issued by the Defendant; (6) where ser-
vice of process was not made pursuant to statute, Ja-
nove v. Bacon, 6 II].2d 245, 249, 128 N.E.2d 706, 708
(1955); (7) where the judge does not act impartially,
Bracey v. Warden, U.S. Supreme Court No. 96-6133
(June 9, 1997); and/or (8) where an order/judgment is
based on a void order/judgment, Austin v. Smith, 312
F.2d 337, 343 (1962); English v. English, 72
Ill. App.3d 736, 393 N.E 2d 18 (1st Dist. 1979).
Because of the many elements of law that were
not comphed with, the judge is without subject-
matter jurisdiction and his/her orders and judgments
are void and of no legal force or effect. Should the
judge not have subject-matter jurisdiction, then the
law states that the judge has not only violated the
law, but is also a trespasser of the law. Von Kettler
et.al. v. Johnson, 57 Ill. 109 (1870) "if the magistrate
has not such jurisdiction, then he and those who ad-
vise and act with him, or execute his process, are
29
trespassers."; Elhott v. Peirsol, 1 Pet. 328, 340, 26
U.S. 328, 340 (1828) "without authority, its judg-
ments and orders are regarded as nullities. They are
not voidable, but simply void; and form no bar to a
recovery sought, even prior to a reversal in opposition
to them. They constitute no justification; and all per-
sons concerned in executing such judgments or sen-
tences, are considered, in law, as trespassers. This
distinction runs through all the cases on the subject;
and it proves, that the jurisdiction of any court exer-
cising authority over a subject, may be inquired into
in every court, when the proceedings of the former
are relied on and brought before the latter, by the
party claiming the benefit of such proceedings."; In re
TIP-PA-HANS Enterprises, Inc., 27 B.R. 780, 783
(1983) a judge “lacks jurisdiction in a particular case
until it has been demonstrated that jurisdiction over
the subject matter exists", when a judge acts "outside
the limuts of his jurisdiction, he becomes a tres-
passer ... ". "... courts have held that where courts of
special or limuted jurisdiction exceed their mghtful
powers, the whole proceeding 1s coram non judice ... "
If a judge acts without subject-matter jurisdiction,
the judge 1s acting unlawfully, he/she has committed
an unlawful interference with one's person, property,
or rights. And all orders and judgments issued by a
judge who acts without subject-matter jurisdiction
are, as a matter of law, void.
The short and basic questions are: how far can the
federal government, including the federal judicial
system, go to deny a federal employee, or a previous
federal employee, their Constitutional rights to due
process of law in regard to Civil Rights violations and
criminal wrongs; how far can they be allowed to go to
deny an injured federal employee re-employment;
how many federal officials does 1t take for the federal
30
government to admit to a violation of 18 U.S.C. § 241
Conspiracy against rights; and how destitute does a
previous federal employee have to become before
someone in the federal government or judicial system
has the integrity to act in accordance with the law to
undo the previous wrongs”?
Plaintiff has been directly and proximately
harmed as the result of government officials commuit-
ting numerous Federal offenses throughout the entire
time she was employed at Ellsworth AFB and while
she was receiving FECA benefits. She is the victim of
major crime. The Agreement, signed by Plaintiff un-
der duress, deceit, and coercion while she was receiv-
ing FECA benefits for depression brought upon by the
very issues covered up by the Agreement, clearly gave
the federal government an illegal open book to con-
tinue to harass, threaten, and bully Plaintiff with to-
tal disregard of criminal laws or Civil Rights laws.
Federal officials acted unlawfully in drafting this
agreement while imposing additional harm to Plain-
tiff, failing to protect her in accordance with the
Whistleblowers Protection Act, the Constitution, and
other laws of the land, completely destroying her
right to a career and happiness in life. Petitioner/
plaintiff is caught in a merry-go-round of time lhmits,
prohibited personnel practices, unlawful agreements,
and corroboration of unlawful procedures between
federal agencies and federal Courts. Her case was
ORDERED to be handled by a dying, and now de-
ceased, federal judge, who the US Court of Appeals
for the Eighth Circuit deemed “able” to do his job, dis-
missing petitioner's Judicial! Disability complaint that
the judge was both mentally and physically disabled
while he was at home dying. Someone else in the
Court was signing his name to dismissal documents
using the electronic filing system. And, the US Court
31
of Appeals got around making any decisions by sim-
ply dismissing the case for some unknown
“Jurisdictional” reason.
This entire case has so far departed from the ac-
cepted and usual course of judicial proceedings that
Petitioner pleads that the Supreme Court will exer-
cise it’s supervisory power over the lower courts. The
federal government and our courts should be leading
the way in upholding the Constitution and laws of
our land.
Based on the foregoing, pro se Petitioner Kay L.
Rogerson respectfully submits that this Petition for
Writ of Certiorari should be granted. The Court
may wish to consider reversal of the decision of
the Eighth Circuit Court of Appeals to deny an ap-
peal of the validity of a Title VII Civil Rights settle-
ment agreement drafted, signed and approved of by
a lower court of law within their circuit and which
includes issues/elements outside the jurisdiction of
the judges of that court; or it may wish to order the
settlement agreement “void”, and remand this case
back to the US District Court to expedite the proc-
essing of the Civil Rights issues in this case in a
lawful manner.
Dated: __)4 Wday of December 2009.
Respectfully submitted,
Kay L Foneraen
Kay L. Rogerson,
pro se Petitioner of Record
615 Westwind Dr.
Rapid City, SD 57702-2067
Phone: (605) 343-3262
Cell phone: (605) 484-3920
APPENDIX
33
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No: 09-2506
Kay L. Rogerson,
Appellant
We
United States of America,
Appellee
Appeal from U-S. District Court
for the District of South Dakota
(5:08-cv-05060-AWB)
ORDER
The petition for rehearing by the panel filed by appel-
lant is denied.
October 22, 2009
Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
/s/ Michael E. Gans
Note: The Appeals Court did not list the names of the judges
who denied this Petition for Panel Rehearing.
34
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No: 09-2506
Kay L. Rogerson,
Appellant
v.
United States of America,
Appellee
Appeal from U.S. District Court
for the District of South Dakota
(5:08-cv-05060-AWB)
MANDATE
In accordance with the judgment of 08/31/2009, and
pursuant to the provisions of Federal Rule of Appel-
late Procedure 41(a), the formal mandate is hereby
issued 1n the above-styled matter..
October 29, 2009
(unsigned)
Clerk, U.S. Court of Appeals, Eighth Circuit.
35
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No: 09-2506
Kay L. Rogerson,
Plaintiff—Appellant
v.
United States of America,
Defendant—Appellee
Appeal from U.S. District Court
for the District of South Dakota
(5:08-cv-05060-AWB)
JUDGMENT
The motion of appellee for dismissal of this appeal
is granted. The appeal is hereby dismissed. See
Eighth Circuit Rule 47A(b)
Appellee’s motion for suspension of briefing sched-
ule or to extend briefing deadline 1s denied.
August 31, 2009
Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
/s/ Michael E. Gans
Note: The Appeals Court did not list the names of the judges
who demied this Appeal
36
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Kay L. Rogerson, No: 09-2506
Plaintiff-Appellant
V.
UNITED STATES OF AMERICA,
Defendant-Appellee
UNITED STATES’ MOTION FOR SUSPENSION
OF BRIEFING SCHEDULE OR TO EXTEND
BRIEFING DEADLINE AND FOR AFFIR-
MANCE PURSUANT TO EIGHTH CIRCUIT
RULE 47B
Appeal from the U.S. District Court for the District of
South Dakota, Western Division
The Honorable Andrew W. Bogue
United States District Judge*
This matter is before the Court upon the motion of
the United States to summarily affirm the District
Court’s Order granting Defendant’s Motion to Dis-
miss entered May 13, 2009. This motion is based
upon Eighth Circuit Rule 47B and the reasons set
forth in the following legal argument. The United
States also seeks the suspension of the current brief-
ing schedule pending the determination of this mo-
tion. Currently, the United States’ bnef is due Au-
gust 19, 2009. If this Court is not inclined to suspend
the schedule indefinitely, the Government, alterna-
tively, requests that it extend the briefing deadline by
* Note: The Honorable Andrew W. Bogue had been deceased for
over two months when the US Attorney’s office made this Mo-
tion on his behalf.
37
thirty (30) days in order to allow the disposition of
the motion for summary affirmance.
INTRODUCTION
Petitioner Kay Rogerson (“Rogerson”) 1s appealing
the District Court’s Order granting Defendant’s Mo-
tion to Dismiss her Complaint. See Addendum 1
(5/13/09 Order). Rogerson’s appeal should be summa-
rily dismissed because all of the issues presented in
this appeal have been previously litigated and dis-
posed of in several oth>: actions brought by Rogerson.
Each time Rogerson filed a Complaint against the
United States, she has alleged the same issues which
are before this Court. Each lawsuit has either been
dismissed by Rogerson or disposed of by the District
Court after a finding that Rogerson’s pro se Com-
plaints are without merit.
Rogerson initially filed a Complaint against the
United States Air Force on March 13, 1992 alleging
sexual discrimination, sexual harassment, and re-
taliation. Rogerson dismissed her Complaint pursu-
ant to the Stipulation for Compromise Settlement
filed February 8, 1996 (“Settlement Agreement”).
Rogerson received $360,000 as consideration for the
dismissal of her Complaint.
On April 3, 2000, Rogerson brought another action
against the United States Aur Force alleging the very
same issues raised in her current Complaint. Roger-
son alleged that her federal worker’s compensation
benefits were illegally terminated and challenged the
validity of the Settlement Agreement. She alleged
that she was coerced and intimidated into signing the
Settlement Agreement. In addition, Rogerson claimed
the Settlement Agreement was void because it
stripped her of her Constitutional rights, violated the
Privacy Act, and denied her due process. Finally, just
as she does 1n the present action, Rogerson claimed in
38
her prior action that the United States deprived her
the right to receive unemployment benefits, the right
to employment by the United States Aur Fore, the
right to priority placement once her worker’s compen-
sation benefits were terminated, her right to be em-
ployed in any position with the United States Aur
Force, her Vocational Rehabilitation rights, and
many other claimed rights too numerous to mention.
On November 15, 2000, Rogerson stipulated to the
dismissal of her April 3, 2000 action on the merits
with prejudice. On November 21, 2000, the District
Court entered its Order dismissing the April 3, 2000
action pursuant to the Stipulation and with preju-
dice.
Rogerson filed the action that is the subject of the
current appeal in District Court on July 23, 2009
[sic]. In her Complaint, Rogerson alleges various vio-
lations of numerous federal criminal statutes, RICO
allegations, allegations regarding her loss of health
insurance, allegations that the Settlement Agreement
is unenforceable, allegations that the United States
breached the terms of the Settlement Agreement, and
complaints of the Merit System Protection Board’s
findings regarding her re-employment and restora-
tion rights. The United States moved to dismiss
Rogerson’s Complaint on the ground that the Com-
plaint failed to state a claim for which relief could be
granted. The District Court granted the United
States’ motion and, subsequently, Rogerson filed this
appeal.
ARGUMENT
Eighth Circuit Rule 47B allows this Court to sum-
marily affirm the District Court “where a comprehen-
sive opinion from this court would add nothing of sub-
stance to the reasoning set forth by the district
court...” Barnes v. United States, 230 F3d 1362, 2000
WL 889838 (8th Cir. 2000) (unpublished). The rule
39
describes the standard in similar terms:
A judgment or order appealed may be affirmed or
enforced without opinion if the court determines
an opinion would have no precedential value and
any of the following circumstances disposes of the
matter submitted to the court for decision:
(4) no error law appears.
8th Cir. R. 47B (citing relevant excerpts).
A. Settlement Agreement
The current appeal involves issues which are un-
timely, unsupported, lacking 1n jurisdiction, and pre-
viously litigated and disposed of. The primary issue
before this Court is (1) whether the District Court
erred in holding that the Settlement Agreement is
enforceable; and, (2) whether the District Court’s ap-
plication of the terms contained in the Settlement
Agreement to Plaintiffs Complaint was an error of
law.
The District Court held that, as a matter of law, —
the terms of the Settlement Agreement were unamb1-
guous and clear and, therefore, it was unnecessary to
resolve any factual issues. The plain language of the
Settlement Agreement dictates that Rogerson waived
her right to bring any future lawsuits which are
based upon the conduct of the Air Force arid its em-
ployees regarding discrimination, sexual harassment,
age, and reprisal, as well as “any and all claims rele-
vant to the plaintiffs past and present employment
with the United States Air Force.” See Addendum 2
(Settlement Agreement filed 2/8/96)
The District Court correctly held that, as a matter
of law, the valid Settlement Agreement barred all of
Rogerson’s claims which relate to the conduct of the
Air Force and its employees prior to January 31,
1996.
40
1. Benefits Under the Office of Worker’s
Compensation Program
As it relates to Rogerson’s compiaint that the
United States breached the terms of the Settlement
Agreement affecting Rogerson’s benefits or status un-
der the Office of Worker’s Compensation Program
(““OWPC’”) [sic], the District Court held as a matter of
law that the provision in the Settlement Agreement
was not reasonably capable of being understood in
more than one sense and, therefore, 1t was unneces-
sary to hold an evidentiary hearing. The plain lan-
guage of the Settlement Agreement provides that the
United States Air Force “will not officially act, or fail
to act, for the purpose of adversely affecting” Plain-
tiffs benefits or status under the OWCP. The District
Court held there 1s no obligation on the part of the
United States to forever protect Rogerson’s FECA
status and benefits, as claimed by Rogerson.
Because Rogerson erroneously believes that the
United States Air Force has an obligation to forever
protect her FECA status and benefits, when indeed
there is no obligation to do so, the District Court cor-
rectly held, as a matter of law, the United States had
not breached the unambiguous terms of the Settle-
ment Agreement.
2. Health Insurance
Rogerson’s Complaint alleged that her health in-
surance was improperly terminated. However, Roger-
son failed to plead in her Complaint that she had pre-
viously exhausted her administrative remedies. The
District Court properly dismissed Rogerson’s claim
regarding health insurance without prejudice, be-
cause she failed to set forth the jurisdictional require-
ment, to-wit: exhaustion of administrative remedies.
3. FECA Benefits
Rogerson presented a claim regarding the termi-
nation of her Federal Employees’ Compensation Act
41
(“FECA”). The District Court also properly dismissed
this claim for lack of subject matter jurisdiction be-
cause 20 CFR § 10.600 does not authorize judicial re-
view of the Office of Worker's Compensation Pro-
gram’s decision to deny a payment under FECA.
4. MSPB Appeal
Rogerson attempted to obtain recognition of her re
-employment and restoration mghts from the Merit
Systems Protection Board (““MSPB”). The MSPB 1s-
sued an unfavorable decision to Rogerson. The Dis-
trict Court correctly concluded that 5 USC § 7703
bars the District Court from jurisdiction over com-
plaints Rogerson has regarding the MSPB’s decision.
B. Criminal Allegations
Rogerson’s Complaint alleged that the United
States violated various federal criminal statutes:
Fraud and false statements, 18 USC § 1018; Fraud in
connection with electronic mail, 18 USC § 1037; At-
tempt and conspiracy to commit mail fraud, 18 USC §
1349; Obstruction of proceedings before departments,
agencies, and committees, 18 USC § 1505; Conspir-
acy, 18 USC § 371; Conspiracy against rights, 18 USC
§ 241; Deprivation of relief benefits, 18 USC § 246;
Solicitation of employment and receipt of unapproved
fees concerning federal employees’ compensation, 18
USC § 292; contracts in excess of specific appropria-
tion, 18 USC § 435; False statement or fraud to ob-
tain federal employees’ compensation, 18 USC § 1920;
Criminal racketeering, 18 USC § 1957; Criminal
racketeering, 18 USC § 1954; and, Torture, 18 USC §
2340, 2341.
The District Court correctly concluded that, as a
matter of law, none of the above criminal statutes
create a private cause of action, based upon a review
of the factors listed in Wisdom v. First Midwest Bank
of Poplar Bluff, 167 F.3d 402, 407 (8th Cir. 1999). Be-
cause Rogerson has no private cause of action against
42
the United States for alleged violations of criminal
statutes, this Court should summarily affirm the Dis-
trict Court’s ruling.
C. RICO Allegations
Rogerson claimed that the United States violated
various provisions under the Racketeer Influenced
and Corrupt Organizations Act (RICO). The District
Court held that it lacked subject matter jurisdiction
over these claims. It 1s well established that no provi-
sion under RICO waives the sovereign immunity of
the United States. Accordingly, the District Court
correctly concluded that, because there is no waiver
of sovereign immunity, the court lacked subject mat-
ter jurisdiction.
D. Validity of District Court’s Order
Rogerson complains that the Order dismissing her
Complaint is an “unsupported conclusion” because
Judge Bogue’s original signature 1s not on the Order.
Rogerson provides no legal authority that an Order
containing a conformed signature renders it invalid.
On the contrary, Fed. R. Civ. P. 5(d)(3) specifically
provides that electronically signed documents may be
filed by the District Court.
A court may, by local rule, allow papers to be filed,
signed, or verified by electronic means that are
consistent with any technical standards estab-
lished by the Judicial Conference of the United
States... A paper filed electronically in compliance
with a local rule is a written paper for purposes of
these rules.
Fed. R. Civ. P. 5(d)(3)(citing relevant excerpts).
Local Rule 5.1 for the District of South Dakota
provides that, “documents may be filed, signed, and
verified by electronic means to the extent and in the
manner authorized by the Case Management/
43
Electronic Case Filing (CM/ECF) Administrative Pro-
cedures established by the Court.” D.S.D. Civ. LR 5.1.
This Court has rejected an argument similar to
Rogerson’s regarding the validity of an unsigned or-
der in United States v. Euge, 691 F.2d 379 (8th Cir.
1982). The Court stated, “Appellant cites no authority
for the alleged requirement that the show cause order
served upon the appellant must be an original or copy
signed by the district judge, and we know of none.
The conformed copy served bore the official seal of the
district court and the signature of the clerk. No more
was required.” Id. At 382.
The District Court’s Order contains a valid signa-
ture in accordance with Local Rule 5.1 and Fed. R.
Civ. P. 5(d)(3) and, accordingly, no error of law exists
which would render the District Court’s Order invalid
or unenforceable.
CONCLUSION
The United States submits that this appeal is well
-suited for summary affirmance under the provisions
of Rule 47B since an opinion would have no preceden-
tial value and there are no errors of law. Rogerson’s
appeal is simply a rehashing of her previous lawsuits
which have either been dismissed by Rogerson or dis-
posed of by the Court. A review of Rogerson’s brief
supports the conclusion that there are no issues
which would give rise to a decision of precedential
value and that disposition of the appeal by virtue of
Eighth Circuit Rule 47B 1s in the interests of justice
as well as judicial economy. The jurisprudence of the
Eighth Circuit would not benefit from a formal opin-
ion from the Court. Accordingly, the United States
respectfully requests that this Court summarily af-
firm the District Court’s Order and hold the current
briefing schedule in abeyance pending its determina-
tion.
44
Dated this 12th day of August, 2009.
MARTY J. JACKLEY
United States Attorney
By:
/s/
DANETA WOLLMANN
_ Assistant U.S. Attorney
515 Ninth Street, Suite 201]
Rapid City, SD 57701
(605) 342-7822
(605) 342-1108 (fax)
Daneta.Wollmann@usdo}.gov
45
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
KAY L. ROGERSON, )
Plaintiff, ) CV 08-5060-AWB
)
hie ) ORDER GRANTING
UNITED STATES, _) MOTION TO DISMISS
OF AMERICA )
Defendant. )
Pursuant to the Order Granting Defendant's Mo-
tion to Dismuss, it 1s hereby
ORDERED, ADJUDGED, AND DECREED that
judgment 1s entered in favor of defendant and against
plaintiff.
Dated: May 13, 2009
BY THE COURT:
(unsigned document, how-
ever the following 1s typed
above the judge’s name)
“/s/ Andrew W. Bogue”
ANDREW W. BOGUE
SENIOR DISTRICT
JUDGE
46
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
KAY L. ROGERSON, )
Plaintiff, ) CV 08-5060-AWB
vs )
UNITED STATES , ) ORDER GRANTING
OF AMERICA ) MOTION TO DISMISS
Defendant. )
Defendant has filed a motion to dismiss and sup-
porting documents. Docket 14, 15, 17, 20. Plaintiff
has responded. Docket 16, 21. For the reasons stated
below, the motion 1s granted.
FACTUAL BACKGROUND
On March 13, 1992, Plaintiff filed a complaint
against the United States Air Force alleging sexual
discrimination, sexual harassment, and retaliation.
CIV 92-5038, Docket 1. On February 8, 1996, a Stipu-
lation for Compromise Settlement (Settlement) was
filed, stating that it was a settlement of the action
which included “allegations of employment discrim1-
nation,...and all claims relevant to the plaintiff's past
and present employment with the United States Aiur
Force.” CIV. 92-5038, Docket 152. In the settlement
agreement, the USAF agreed to pay a monetary set-
tlement and promised that 1t would not “official act,
or fail to act, for the purpose of adversely affecting
plaintiff ROGERSON’S Department of Labor, Office
of Workers Compensation Program (OWCP) benefits
or status.” Id. at J 3. In exchange, Plaintiff agreed to
release the US4.F and its employees of all causes of
action “of every nature” which arose out of the factual
basis of that proceeding. Id. at 4 4. Rogerson also
agreed that she would not apply for employment with
the USAF “and will never work for the Air Force
47
again from this day forward.” Id. at | 5a.
In Apnl 2000, Plaintiff filed a complaint against
the United States Air Force, alleging that the USAF
discriminated against her both before and after the
Settlement was signed; was in breach of the Settle-
ment; and improperly terminated her employment,
refused to reemploy her, and ended her medical bene-
fits CV.00-5033, Docket 1. She also challenged the
validity of the Settlement and alleged that she was
coerced into signing it. Id. at 4 4] 8-11. Six months
later, Plaintiff and her attorney signed a stipulation
for dismissal with prejudice, which the Court
granted. CV.00-5033, Docket 25, 26.
Plaintiff filed this action in July 2008. CV.08-
5060, Docket 1. Her complaint contains the following
allegations:
e Allegations based on federal criminal statutes:
e Fraud and false statements, 18 USC § 1018
e Fraud in connection with electronic mail, 18
USC § 1037
e Attempt and conspiracy to commit fraud, 18
USC § 1349 (defined in § 1346)
e Obstruction of proceedings before departments,
agencies, and committees, 18 USC § 1505
Conspiracy, 18 USC § 371
Conspiracy against rights, 18 USC § 241
Deprivation of relief benefits, 18 USC § 246
Solicitation of employment and receipt of unap-
proved fees concerning federal employees’ com-
pensation 18 USC § 292
e Contracts in excess of specific appropriation,
18 USC § 435
e False statement or fraud to obtain federal em-
ployees’ compensation, 18 USC § 1920
e Criminal racketeering; Engaging in monetary
transactions in property derived from specified
48
unlawful activity, 18 USC § 1957
e Criminal racketeering’ Offer, acceptance, or
solicitation to influence operations of employee
benefit plan, 18 USC § 1954
e Torture, 18 USC § § 2340, 2341
Racketeer Influenced and Corrupt Organizations
(RICO) allegations: 18 USC § 1961 et seq.
Allegations related to the loss of health insurance,
5 USC § 8901 et al.
Allegations challenging the validity of the Settle-
ment: Specifically, Plaintiff alleges that the Settle-
ment is unenforceable as a waiver of her rights to
seek reemployment with the USAF and/or the fed-
eral government and to file subsequent lawsuits.
Further, Plaintiff alleges that the USAF promised
“under false pretenses” to “not officially act, or fail
to act, for the purpose of adversely affecting”
plaintiffs OWCP benefits or status, all the while
knowing that it did not have any control over
Plaintiffs OWCP benefits See Docket 1-3, 4 3b.
Plaintiff complains of the actions of the USAF, the
United States Attorney’s Office, and the United
States District Court in ratifying the “fraudulent”
Settlement and 1n dismissing her 2000 civil action
with prejudice.
Plaintiff alleges that the United States has
breached the terms they agreed to in the Settle-
ment. Plaintiff alleges that, since the Settlement,
the USAF and other entities have failed to act to
“uphold” her OWCP benefits, as she believes they
promised in the Settlement. Docket 1, page 13; see
also pages 7-9, 11-13. As she believes that the Set-
tlement has been breached, Plaintiff alleges that
her attempts to secure reemployment with the
USAF are not prohibited, and that actions by U.S.
employees to discourage her from seeking reem-
ployment are improper as violative of her rights,
49
including her freedom of speech. Docket 1, p12-14.
e Plaintiff also complains of the Merit Systems Pro-
tection Board’s (MSPB) findings that she was not
entitled to reemployment or restoration rights.
Docket 1, page 9-11; Docket 1-4, 1-5, 1-6 (MSPB
decisions). However, Plaintiff alleges that this ac-
tion is not an appeal of the MSPB’s decisions.
Docket 16, page 6.
Defendant filed « motion to dismiss the complaint.
Docket 14. The matter 1s now fully briefed and ripe
for disposition.
STANDARD OF REVIEW
Defendant moves to dismiss Plaintiff's complaint,
pursuant to Fed. R. Civ. P. 12(b)(1), for lack of subject
-matter jurisdiction, and Fed R. Civ. P. 12(b)(6), o the
ground that the complaint fails to state a claim
against them for which relief can be granted. A mo-
tion to dismiss pursuant to Federal Rule of Civil Pro-
cedure 12(b)(1) will be granted 1n cases where the
Court finds it lacks subject matter jurisdiction over
Plaintiffs claims. The Court may look at matters out-
side the pleadings on a motion to dismiss under Rule
12(b)({1). Osborn v. United States, 918 F.2d 724, 728
n.4(8th Cir. 1990). Whether they involve questions of
law or fact, jurisdictional issues are for the court to
decide. Id. at 729. Unlike a Rule 12(b)(6) motion, “no
presumptive truthfulness attaches to the plaintiffs
allegations and the existence of disputed material
facts will not preclude the trial court from evaluating
for itself the merits of jurisdictional claims.” Id. at
730. The plaintiff has the burden of proof to show
that the court has jurisdiction. Id
A motion to dismiss for a failure to state a claim
upon which relief can be granted pursuant to Federal
Rule of Civil Procedure 12(b)(6) requires the court to
review only the pleadings to determine whether they
50
state a claim upon which relief can be granted. “A
complaint must not be dismissed under 12(b)(6)
‘unless it appears beyond doubt that the plaintiff can
prove no set of facts that would demonstrate an enti-
tlement to relief.” Doe v. Sch. Dist. Of Norfolk, 340
F.3d 605, 613 (8th Cir. 2003) (quoting Gordon v. Han-
sen, 168 F.3d 1109, 1113 (8th Cir. 1999)). “[W]e ac-
cept the complaint’s factual allegations as true and
construe them 1n a light most favorable to the plain-
tiff.” Id. (citation omitted). The Eighth Circuit has
emphasized that
[a] complaint must be viewed 1n the light most fa-
vorable to the plaintiff and should not be dis-
missed merely because the court doubts that a
plaintiff will be able to prove all of the neces-
sary factual allegations. Thus, as a practical
matter, a dismissal under Rule 12(b)(6) 1s
likely to be granted only 1n the unusual case in
which a plaintiff includes allegations that show
on the face of the complaint that there 1s some
insuperable bar to relief.
Parnes v. Gateway 2000, Inc., 122 F.3d 539, 546 (8th
Cir. 1997).
DISCUSSION
I. The Settlement
The majority of Plaintiffs complaint challenges
the validity of the Settlement signed on February 8,
1996. Specifically, she argues that the Settlement 1s
“fraudulent” because Defendant promised things
which it knew it could not deliver, and because the
Settlement improperly restricts her nghts to seek
employment with the USAF or any United States
agency and her night to sue the United States. In its
motion to dismiss, Defendant states that these chal-
lenges to the terms of the Settlement should be dis-
missed under res judicata in light of her earlier civil
51
claim, CV. 00-5033. That action was dismissed with
prejudice, pursuant to a stipulation to dismiss signed
by Plaintiff and her attorney.
Under res judicata, “a final judgment on the mer-
its of an action precludes the partes or their privies
from relitigating issues that were or could have been
raised in that action.” Yankton Sioux Tribe v. U.S.
Dep’t of Health and Human Servs., 533 F.3d 634, 639
(8th Cir. 2008) (citing Allen v. McCurry, 449 U.S. 90,
94 (1980)). A party seeking dismissal based on res ju-
dicata must show:
(1)the first suit resulted in a final judgment on the
merits; (2) the first suit was based on proper juris-
diction; (3) both suits involve the same parties (or
those 1n privity with them); and (4) both suits are
based upon the same claims or causes of action.
Id. (citation omitted). The Eighth Circuit has stated
that res judicata does “not apply where... the issues
or causes of action sought to be precluded in a subse-
quent proceeding were allegedly determined in a
stipulation or a judgment by consent.” Gall v. South
Branch Nat’) Bank of S.D., 783 F.2d 125, 127 (8th
Cir. 1986); see also Gronseth v. Chester Rural Fire
Protection Dist., 2009 WL 983130, *3-4 (D.S.D. Apr.
9, 2009). The Court does not believe that Plaintiffs
voluntary dismissal of her previous civil case, Docket
CV.00-5033, is a judgment on the merits, even though
the stipulation provides that the case be dismissed
“with prejudice.” The Court in that case never consid-
ered the merits of the case, including a pending sum-
mary judgment motion, prior to 1ts dismissal pursu-
ant to the stipulation. Therefore, the Court concludes
that the dismissal of Plaintiffs 2000 civil case does
not render this immediate claim precluded under the
doctrine of res judicata.
Plaintiffs settlement agreement is a different
story, however. If the Settlement is found to be valid,
52
the majority of Plaintiffs claims related to the con-
duct of Defendant and its agents prior to the date of
the Settlement are not actionable, as she waived her
right to bring such claims by the terms of the Settle-
ment. See Larken v. Wray, 189 F.3d 729, 732 (8th
Cir. 1999).
“Trial courts have ‘the inherent power to summa-
rily enforce a settlement agreement as a matter of
law when the terms of the agreement are clear and
unambiguous.” Lewis v. Benjamin Moore & Co., 574
N.W.2d 887, 888 (S.D. 1998) (citing Gatz v. South-
west Bank of Omaha, 836 F.2d 1089, 1095 (8th Cir.
1988)). A settlement agreement 1s contractual in na-
ture and subject to the same rules of construction as
contracts. Id. At 889. It is a question of law as to
whether a settlement agreement is ambiguous.
“Ambiguity exists in a settlement agreement when
the language is reasonably capable of being under-
stood 1n more than one sense.” Id. “Parol or extrinsic
evidence will not be admitted to vary the terms of a
written instrument that 1s not found ambiguous.” Id.
(citations omitted). The Court must hold an eviden-
tiary hearing only when there is a “substantial fac-
tual dispute concerning the existence or terms of the
settlement agreement or when the situation presents
complex factual issues.” Id. at 888 (citing Gatz, 836
F.2d at 1095).
In this case, the Court finds that the Settlement 1s
not ambiguous. Plaintiff clearly waives her right to
bring any future lawsuits which are based upon the
conduct of the Air Force and its employees regarding
discrimination, sexual harassment, age, and reprisal,
as well as “any and all claims relevant to the plain-
tiffs past and present employment with the United
States Air Force.” Docket 1-3 94 1, 4. Plaintiff also
agreed “that she will not return to work for the Air
53
Force in her current position or any other position...
[and] will not apply for employment with the Aiur
Force in the future, and will never work for the Air
Force again from this day forward[.}” Id. at 4 5a. The
Court finds as a matter of law that these provisions
are unambiguous and clear, and the Court does not
believe that any substantial factual issues exist
which must be resolved before 1t reaches this conclu-
sion. See Gatz, 836 F.2d at 1095.
The obligations of the Air Force are equally clear
to the Court. In agreeing that “it will not officially
act, or fail to act, for the purpose of adversely affect-
ing” Plaintiffs benefits or status under the OWCP,
the Aur Force merely agreed that they would not do
anything which would harm Plaintiffs worker’s com-
pensation benefits. Id. At 4] 3b (emphasis added). The
Court finds that this provision 1s unambiguous, as
this provision 1s not “reasonably capable of being un-
derstood in more than one sense.” Lewis, 574 N.W.2d
at 889. It 1s unreasonable for Plaintiff to conclude
from this provision that the Aur Force promised in the
Settlement that her “FECA status and benefits would
be forever protected.” Docket 1, page 12. Additionally,
as no substantial factual disputes exist concerning
the terms of the settlement agreement an evidentiary
hearing is not necessary. See TCBY Systems, Inc. v.
EBG Assoc., Inc., 2 F.3d 288, 291 (8th Cir. 1993)
(finding no hearing was required to evaluate defen-
dant’s subjective understanding of the legal effect of a
dismissal with prejudice).
As the Court concludes as a matter of law that the
terms of the Settlement are clear and unambiguous,
the Court chooses to enforce the agreement. Accord-
ingly, it dismisses Plaintiffs claims which relate to
the conduct of the Aur Force and its employees prior
to January 31, 1996, as barred by the Settlement
signed by Plaintiff.
54
Further, the Court concludes that, based on the
unambiguous terms of the Settlement, Defendant has
not breached the terms of the Settlement. Plaintiff
alleges that Defendant has failed to protect her FECA
benefits and status, and that she has been damage as
a result. However, as the Court has found that the
Settlement requires no affirmative conduct from De-
fendant to protect Plaintiffs benefits, no breach can
result from their failure to so act. Additionally, Plain-
tiff states no claim when she contends that staff of
the U.S. Attorney’s Office have informed her that her
continued attempts to gain reemployment with the
Air Force are prohibited by the Settlement, as their
conduct in doing so is in accordance with the unamb1-
guous terms of the Settlement. For all of these rea-
sons, the Court dismisses with prejudice Plaintiffs
claims with regard to the validity of the settlement
and allegations of Defendant’s breach of the settle-
ment.
II. Criminal Allegations
Plaintiff alleges that Defendant and its agents vio-
lated many criminal laws. Generally, in determining
whether a criminal statute provides an implied pri-
vate right of action, the courts examine four factors to
evaluate whether Congress intended such a private
right. Wisdome v. First Midwest Bank of Poplar
Bluff, 167 F.3d 402, 407 (8th Cir. 1999).
Dated: May 13, 2009
BY THE COURT:
(unsigned document, however
the following 1s typed above the
judge’s name)
“/s/ Andrew W. Bogue”
ANDREW W. BOGUE
SENIOR DISTRICT JUDGE
55
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
KAY L. ROGERSON,
Plaintiff,
-VS- : CIV. 92-5038
SHEILA E. WIDNALL,
Defendant.
STIPULATION FOR
COMPROMISE SETTLEMENT
It is hereby agreed and stipulated by and between
the plaintiff, KAY L. ROGERSON, personally, and
the defendant, SHEILA E. WIDNALL, Secretary,
United States Air Force, by and through their respec-
tive attorneys, as follows:
1. That the parties do hereby agree to settle and
compromise the above-entitled action involving alle-
gations of employment discrimination, including but
not lmuted to sex, sexual harassment, age, and repri-
sal, and any and all claims relevant to the plaintiffs
past and present employment with the United States
Air Force, upon the terms indicated herein.
2. This settlement agreement does not constitute
an admission of habuility or fault of the defendant, or
any past, present or future employees, representa-
tives, servants, agents, or any other persons standing
in any representative capacity, nor shall this agree-
ment or any provision hereof, be used 1n conjunction
with any judicial, administrative, quasi-judicial, or
any other form of proceeding, for the purpose of at-
tempting to establish any such hiability or fault.
3. That, in consideration of the undertakings of
plaintiff ROGERSON herein,
a. The United States, on behalf of the defen-
dant Secretary, United States Air Force, agrees to
56
pay plaintiff the sum of $300,000 in compensatory
damages, and $60,000 in attorney fees and costs,
which sums represent payment in full settlement, ac-
cord and satisfaction of any and all monetary claims
by the plaintiff, including, but not hmuted to all attor-
neys’ fees and costs, paid by check made payable
jointly to plaintiff ROGERSON and Attorneys of Re-
cord, MARK S. FALK AND KENNETH E. JASPER.
b. The United States Air Force agrees that it
will not officially act, or fail to act, for the purpose of
adversely affecting plaintiff ROGERSON’S Depart-
ment of Labor, Office of Workers Compensation Pro-
gram (OWCP) benefits and status.
4. Plaintiff KAY L. ROGERSON hereby agrees to
accept said actions set forth in paragraph 3 herein in
full settlement and satisfaction of any claims or other
rights of action and does, by these premises remise,
release, acquit and forever discharge said defendant,
United States Air Force, and/or any of tts past, pre-
sent or future employees, representatives, servants,
agents or any other persons standing in any repre-
sentative capacity by virtue of law, equity, statutory
or administrative ruling or provision, of all debts, ac-
tions, suits, causes of action, damages, grievances,
any and all claims, demands and lhabulities whatso-
ever of every nature, whether in law, equity, adminis-
tratively or otherwise, specifically releasing all causes
of action, rights to recovery or other rights which
might arise out of said acs, facts, transactions and
circumstances upon which the instant proceeding was
based, or which might arise out of any acts, facts,
transactions and circumstances upon which any
pending administrative and/or judicial complaints are
based, or could have been based, and any other dis-
crimination in employment as alleged by Plaintiff in
her complaint or in the administrative process, which
formed or could have formed the basis of the instant
57
proceeding, whether known or unknown, suspected or
unsuspected, presently existent or such as might
arise in the future.
This release 1s made by plaintiff ROGERSON
for herself, and on behalf of her heirs, executors, ad-
ministrators, assigns, devisees, legatees, subrogees
and any other persons standing in any representative
capacity whatsoever by virtue of law, equity, statu-
tory or administrative ruling or provision, each and
all of whom shall be bound by the terms of this agree-
ment.
5. That in exchange for the actions enumerated in
paragraph 3:
a. plaintiff ROGERSON agrees that she will
not return to work for the Air Force in her current
position or any other position, effective the date of the
signing of this agreement. As part of this settlement
agreement plaintiff will not apply for employment
with the Air Force in the future, and will never work
for the Air Force again from this day forward. Plain-
tiff understands that this will result in her termina-
tion from employment with the Air Force pursuant to
this agreement and agrees not to challenge this invol-
untary termination in any judicial, administrative or
grievance forum.
b. plaintiff ROGERSON will withdraw with
prejudice all pending EEO complaints, both admunis-
trative and judicial, harassment, age and reprisal
complaints, and will withdraw any and all pending
grievances, complaints and/or appeals relating to her
employment with the United States Air Force,
whether or not they are discrimination related,
against the United States Aur Force.
c. plaintiff ROGERSON will file with the Clerk
of this Court, a dismissal of the above action with
prejudice, each party bearing its costs.
6. The parties to this compromise settlement rep-
58
resent that the respective undersigned parties and
counsel have full authority to approve the provisions
of this compromise settlement, to execute this com-
promise settlement and to legally bind the parties to
this compromise settlement, in full and final settle-
ment of their disputes.
7. The plaintiff Rogerson specifically warrants to
all parties and signatories to this agreement that she
is entering :nto this agreement voluntarily and with-
out any coercion or duress, that she has read this
agreement in full and discussed all of its provisions
with her undersigned attorneys of record and that
she fully understands the meaning and consequences
of all of its provisions, and further that she fully un-
derstands that by entering into this agreement she 1s
terminating her employment relationship with the
United States Air Force and terminating any and all
past and pending employment related disputes of any
kind whatsoever, with the United States Aur Force.
8. The plaintiff Rogerson specifically warrants to
all parties and signatories to this agreement that she
is mentally competent, and that she is currently suf-
fering no mental disability which prevents her from
understanding the full meaning and consequences of
entering into this agreement.
Executed this Slst day of January, 1996.
/s/ /s/
KAY L. ROGERSON, MARK E. FALK,
Plaintiff /s/
KENNETH E. JASPER
Attorneys for Plaintiff
(no signature on Plaintiffs copy)
KAREN E. SCHRIER
/s/
BONNIE P. ULRICH
Assistant U.S. Attorney
Attorneys for Defendant
59
UNITED STATES DISTRICT COURT
District of South Dakota, Western Division
KAY L. ROGERSON
PLAINTIFF,
SUMMONS
Vv IN A CIVIL ACTION
Case Number: CIV 92-5038
DONALD B. RICE,
Secretary,
United States Air Force,
DEFENDANT
TO: Secretary of the Air Force
The Honorable Donald B. Rice
The Pentagon
Washington, D.C. 20330-1000
YOU ARE HEREBY SUMMONED and required to
file with the Clerk of this Court and serve upon
Plaintiffs Attorney: Mr. Dennis H. Hill
COSTELLO, PORTER, HILL
HEISTERKAMP & BUSHNELL
P.O. Box 290
Rapid City, SD 57709
an answer to the complaint which 1s herewith served
upon you, within 60 days after service of this sum-
mons upon you, exclusive of the day of service. If you
fail to do so, judgment by default will be taken
against you for the rehef demanded 1n the complaint.
WILLIAM F. CLAYTON March 13, 1992
(Date)
/s/ Jeanne L. Faiurhead
BY DEPUTY CLERK
60
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
KAY L. ROGERSON ) Civil No. 92-5038
Plaintiff )
vs )
DONALD B. RICE ) COMPLAINT
Secretary, United States )
Department of the Air Force )
Defendant.
I.
Plaintiff, Kay Rogerson, a female civilian em-
ployee of the United States Department of the Air
Force, brings this action under 42 U.S.C. § 2000e-16
to redress the wrongs done to her by Defendant,
whose actions towards Plaintiff have constituted sex-
ual discrimination, sexual harassment, and retalia-
tion.
IT.
On February 4, 1986, Plaintiff made a formal com-
plaint of her charges to the Air Force. After extensive
administrative litigation, this complaint was settled
on January 9, 1991. Defendant, however, has contin-
ued the course of sexual discrimination, sexual har-
assment, and retaliation, and has failed to comply
with the 1991 settlement. Plaintiff timely sought to
reinstate her 1986 complaint before the agency, and
has exhausted her administrative remedies in this
regard, including an appeal before the United States
Equal Employment Opportunity Commission. On
February 17, 1992, Plaintiff received a copy of the de-
cision of the EEOC, informing Plaintiff of her right to
sue within thirty (30) days.
ITI.
Jurisdiction 1s conferred on this Court by 42
U.S.C. §§ 2000e-5, 2000e-16 and 28 U.S.C. § 1343.
61
IV.
Plaintiff 1s employed as a supervisory General En-
gineer in the Engineering and Environmental Plan-
ning Branch at Ellsworth Air Force Base, South Da-
kota. Plaintiff has at all times rendered consistently
superior performance of her duties 1n this position.
¥.
Foilowing the settlement of a previous EEO com-
plaint filed in 1981, Plaintiff was subjected to a
“counseling” conducted by Colonel Beauchemin on
October 17, 1985. In this meeting Plaintiff was
“counseled” to wear suits lke men, but without ties,
even though no civilian dress code existed; Plaintiff
was “counseled” reflecting stricter employment stan-
dards than those imposed on males of the same level
as Plaintiff; and during this meeting Colonel
Beauchemin continually referred to the short period
of time she had held her job, the “transition period”,
and her job performance, all referring to Plaintiffs
having been placed 1n her position as the result of the
outcome of her earlier complaint. Moreover, Plain-
tiffs performance rating was downgraded from
“superior” to “excellent”, resulting 1n a loss of raises
which she would have otherwise received.
VI.
Such actions constituted sexual discrimination, in
that Plaintiff is a female and received treatment dif-
ferent from that accorded similarly situated male em-
ployees.
VII.
Such actions constituted retaliation, in that Plain-
tiff had engaged in the protected activity of filing an
EEO complaint against the Air Force; the Air Force
was aware of this complaint; and the Air Force took
actions adversely impacting Plaintiff with the motive
to retaliate against her for her complaint.
62
VIII.
Such conduct constituted sexual harassment in
that it was verbal conduct of a sexual nature with the
purpose or effect of unreasonably interfering with an
individual's work performance and creating an in-
timidating, hostrle, and offensive working environ-
ment.
IX.
On January 9, 1991, Plaintiff and Defendant
agreed to a settlement of Plaintiffs administrative
complaint arising from said sexual discrimination,
sexual harassment, and retaliation, 1n which Defen-
dant agreed that:
a. The Complainant’s personnel records will reflect
a Supervision rating on her annual performance
rating for the period of 1 July 1984 through 30
June 1985. [Complainant] has previously been
awarded, on 11 September 1986, the monetary
benefits resulting from the Superior rating.
b. The Complainant’s annual performance rating for
the period of 1 July 1985 to 30 June 1986 will be
upgraded from Excellent to Superior. The Com-
plainant will be awarded appropriate adyjust-
ments to merit pay and the Performance Manage-
ment and Recognition System (PMRS) perform-
ance award based on the Superior rating.
c. The Complainant’s annual performance rating for
the period of 1 July 1988 to 30 June 1989 will be
upgraded from Fully Successful to Excellent. The
Complainant will be awarded appropriate adjust-
ments to merit pay and the PMRS performance
award based on the Excellent rating.
d. The Agency will use its best efforts to have a
Classification Specialist from either Military Air-
lift Command or Air Force Logistics Command
conduct an audit upon the Complainant’s posi-
63
tion. The Classification audit will be scheduled
for July 1991. The selected Classification Special-
ist will assist the Complainant’s rating official
(Base Civil Engineer) and the Complainant pre-
pare a position description for the Complaint’s
(sic) position. The position description will be
based upon the current duties performed by Com-
plainant as Branch Chief, Engineering and Envi-
ronmental Planning Branch, as of the date of the
Settlement Agreement. When conducting the
classification audit the Classification Specialist
will consider necessary information to determine
the proper classification of the Complainant’s po-
sition. In the event the Base Civil Engineer and
the Complainant cannot agree upon content and
terminology of the position description within 30
days after the outside Classification Specialist
commences the classification audit, the recom-
mendations and findings of the outside Classifica-
tion Specialist as to the content of the position
description will be accepted by the parties.
Defendant has failed to carry out these provisions.
X.
Throughout her employment in her position and
continuing to the present time, Plaintiff has been
subjected to extreme mental cruelty and extreme
stress; has been denied promotion and has had to
fight for her performance ratings when other simi-
larly situated male General Engineer employees were
upgraded; has had to perform at much higher stan-
dards than her male counterparts; and has been sub-
jected to continuous ridicule adversely affecting her
health, attitude, and well-being, all solely on account
of the fact that she 1s a female.
64
WHEREFORE, Plaintiff requests that the Court en-
ter its order:
1. Enjoining Defendant and Defendant’s agents,
employees and officers from further acts of sexual dis-
crimination, sexual harassment, and _ retaliation
against Plaintiff;
2. Requiring Defendant to abide by its settlement
agreement of January 9, 1991;
3. Awarding Plaintiff such promotions and 1n-
creases in pay and benefits to which she would have
been entitled in the absence of Defendants’ acts of
sexual discrimination, sexual harassment, and re-
taliation;
4. Awarding Plaintiff her attorney’s fees, costs,
and disbursements; and
5. For such other relief as this Court deems fit and
proper.
COSTELLO, PORTER, HILL
HEISTERKAMP & BUSHNELL
/s/
By: Dennis H. Hill
Attorneys for Plaintiff
PO Box 290
Rapid City, SD 57709
605-343-2410
65
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
KAY L. ROGERSON ) Civil No. 92-5038
Plaintiff )
vs ) AMENDED
DONALD B. RICE ) COMPLAINT
Secretary, United States )
Department of the Aur Force )
Defendant. )
[Please note that the first ten paragraphs of this
AMENDED COMPLAINT are exactly the same as
the first ten paragraphs of the original complaint
submitted to the Court on March 13, 1992. Therefore,
petitioner has avoided duplication of information and
is just providing the actual amendments to the com-
plaint, as follows. ]
XI.
Those acts alleged in Paragraph X, including
those constituting unwelcome sexual harassment and
retaliation, occurring subsequent to November 21,
1991, and up to the present date constitute unlawful
intentional discrimination by Defendant against
Plaintiff, and as a result she has suffered future pe-
cuniary losses in the form of future wages and fringe
benefits lost because of Defendant’s wrongful acts,
emotional pain, suffering, inconvenience, mental an-
guish, loss of enjoyment of life, and other nonpecuni-
ary losses.
WHEREFORE, Plaintiff requests that the Court
enter its order:
1. Enjoining Defendant and Defendant's agents,
employees and officers from further acts of sexual dis-
crimination, sexual harassment, and_ retaliation
against Plaintiff;
66
2. Awarding Plaintiff such promotions and 1in-
creases in pay and benefits to which she would have
been entitled in the absence of Defendants’ acts of
serual discrim:nation, sexual harassment, and re-
taliation;
3. Awarding Plaintiff compensatory damages, in
an amount to be proved at trial for those intentional
discriminatory acts by Defendant against Plaintiff
occurring subsequent to November 21, 1991 and up to
the present date for Plaintiffs future pecuniary
losses, emotional pain, suffering, inconvenience, men-
tal anguish, loss of enjoyment of hfe, and other non-
pecuniary losses;
4. Awarding Plaintiff her attorney’s fees, costs,
and disbursements; and
5. For such other relief as this Court deems fit and
proper.
Dated this 15th day of March, 1995.
COSTELLO, PORTER, HILL
HEISTERKAMP & BUSHNELL
/s/
By: Dennis H. Hull
Attorneys for Plaintiff
PO Box 290
Rapid City, SD 57709
605-343-2410
PLAINTIFF REQUESTS TRIAL BY JURY FOR HER
CLAIM FOR COMPENSARY DAMAGES FOR ACTS
OCCURRING SUBSEQUENT TO NOVEMBER 21,
1991.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.