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Nolan v. Nicholson

July 20, 2007

MARY NOLAN, PLAINTIFF,
v.
R. JAMES NICHOLSON, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, DEFENDANT.



The opinion of the court was delivered by: Ambrose, Chief District Judge

OPINION and ORDER

SYNOPSIS

In this civil action, Plaintiff seeks to enforce several aspects of an order entered by the Office of Federal Operations ("OFO") of the Equal Employment Opportunity Commission ("EEOC"), and to recover counsel fees incurred in connection with an appeal of an initial EEOC determination. Defendant has filed a Motion to Dismiss the Complaint, under Fed. R. Civ. P. 12(b)(1) and (6), for lack of subject matter jurisdiction and failure to state a claim. Also pending is Plaintiff's Motion for Special Relief, seeking, inter alia, permission to cash Defendant's checks purportedly made for payment of counsel fees incurred in connection with the aforesaid appeal. For the following reasons, Defendant's Motion will be granted, and Plaintiff's denied.

I. BACKGROUND FACTS

The pertinent background facts are not in dispute. On May 10, 2004, the EEOC issued a decision regarding Plaintiff's complaints of Defendant's illegal employment activity, with a finding favorable to Plaintiff. That award included compensatory damages, and attorney fees and costs in the amount of $101,852.40. Defendant appealed, inter alia, the amount of attorney fees awarded by the administrative judge; Plaintiff cross-appealed certain elements of the compensatory damage award. By Decision and Order dated June 7, 2006 (the "June 7 Order"), the OFO of the EEOC determined that Plaintiff's counsel was entitled to fees related to trial work in the amount of $90,951.65. It also determined that Plaintiff was entitled to "reasonable" fees in connection with the appeal of the agency's final order and the cross-appeal, and that counsel should submit a statement of such fees directly to the agency. The June 7 Order also directed Defendant to process the claim for fees in accordance with 29 C.F.R. § 1614.501.

On December 7, 2006, Plaintiff filed a Petition for Enforcement with the EEOC, seeking enforcement of the of the June 7 Order.Plaintiff's counsel avers that an EEOC officer verbally represented that Defendant had acknowledged its obligation and failure to pay, and that Defendant promised to put the payment in the mail, but that the officer did not ask Defendant the sum of the anticipated check.*fn1 The EEOC officer wrote a letter, dated January 10, 2007, stating that "compliance monitoring has ceased," for the following reason:

The agency has provided us documentation sufficient to demonstrate that it has taken the corrective action(s) ordered in the Commission's decision. This action will not be construed as an adjudication of the merits of any claim(s) arising out of the corrective action.*fn2

In accordance with the June 7 Order, Plaintiff's counsel submitted to Defendant a statement of fees in the amount of $47,307.00. Defendant entered a Final Agency Decision ("FAD") thereon. The FAD, dated January 23, 2007, stated that Defendant was applying 29 C.F.R. § 1614.501, et al., and concluded that Plaintiff was entitled to a total award of $23,757.00 for counsel fees relating to the appeal. The FAD contains a provision advising that the complainant has the right to file a civil action in district court.

Although she alleges that they were paid in an untimely and "egregious" manner, Plaintiff avers that she received payment for all fees other than those relating to the appeal of the EEOC decision. She also attaches copies of checks from Defendant in the amount of $23,757.00. In both her Complaint and Motion for Special Relief, however, Plaintiff disputes that this is the total amount of fees properly due.

Plaintiff's Complaint now seeks to enforce several aspects of the OFO Order, in addition to the alleged failure to pay the full amount of fees due, such as failing to restore Plaintiff's tour of duty and change her supervisor, posting a Violation Notice, and other allegedly noncompliant conduct.

II. APPLICABLE STANDARDS

A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges the jurisdiction of the court to address the merits of the plaintiff's suit. A Rule 12(b)(1) attack may be directed at "the existence of subject matter jurisdiction in fact." Mortensen v. First Federal Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). In such a Rule 12( b)(1) motion, no presumption of truthfulness attaches to the allegations of the plaintiff. Id. The plaintiff bears the burden of persuading the court that it has jurisdiction as compared to the burden of the defendant under a Rule 12(b)(6) motion of convincing the court that the plaintiff has failed to state a claim. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). "[T]he trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006). If I determine that this Court does not have subject matter jurisdiction over the case, I must dismiss the action. Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997).

In deciding a motion to dismiss pursuant to Rule 12(b)(6), all factual allegations, and all reasonable inferences therefrom, must be accepted as true and viewed in a light most favorable to the plaintiff. Colburn v. Upper Darby Twp., 838 F. 2d 66, 666 (3d Cir. 1988). I will dismiss a complaint only if it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed. 2d 80 (1957). In ruling a motion for failure to state a claim, I must look to "whether sufficient facts are ...


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