Morris v. McHugh

Filing 43

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION re 36 - Signed by JUDGE ALAN C KAY on 4/7/2014. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

DENNIS K. MORRIS,
Plaintiff,
vs.
JOHN MCHUGH, SECRETARY
DEPARTMENT OF U.S. ARMY,
Defendant.

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Civ. No. 13-00182 ACK-KSC

ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
For the following reasons, the Court DENIES Plaintiff
Dennis Morris’s Motion for Reconsideration and Relief from a
Judgment or Order Dated February 4, 2014. Plaintiff largely
reiterates arguments previously made and rejected in the Court’s
earlier ruling, and accordingly the Court will only address some
of these repeated arguments.
FACTUAL AND PROCEDURAL BACKGROUND1/
This matter arises from Plaintiff Dennis Morris’s
(“Plaintiff” or “Morris”) termination of employment from the
United States Army. Plaintiff alleges Defendant John McHugh in
his official capacity as United States Secretary of the Army

1/

The facts as recited in this Order are for the purpose of
disposing of the current motion and are not to be construed as
findings of fact that the parties may rely on in future
proceedings.
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(“Defendant” or “Army”) discriminated against Morris on the basis
of his age. (First Amended Complaint (“FAC”) ¶ 1.) On April 23,
2013, Plaintiff filed a First Amended Complaint and brought the
following claims against Defendant: (1) violation of the Age
Discrimination in Employment Act (“ADEA”) and (2) violation of
Plaintiff’s due process rights under the 5th and 14th amendments
to the United States Constitution and 5 U.S.C. § 7701(c)(2)(A).
(Id. ¶¶ 70-74.)
On August 9, 2013, Defendant filed a Motion to Dismiss
or in the Alternative for Summary Judgment (“Motion for Summary
Judgment”), seeking judgment as to all of Plaintiff’s claims.
(Doc. No. 10.) On February 4, 2014, this Court issued its Order
Granting Defendant’s Motion to Dismiss or in the Alternative for
Summary Judgment (“Feb. 4 Order”). (Doc. No. 35.) In the Feb. 4
Order, the Court held that it lacked jurisdiction to hear
Plaintiff’s appeal of the final Merit Systems Protection Board
(“MSPB” or “Board”) decision and, therefore, dismissed
Plaintiff’s due process claims. (Id. at 23.) Regarding his ADEA
claims, the Court found that Plaintiff failed to meet his burden
of raising a triable issue of material fact as to whether the
Army’s proffered reasons for transferring Plaintiff to a nonsupervisory position were pretextual. (Id. at 50.) The Court also
held that Plaintiff failed to meet his burden of raising a
triable issue of material fact as to whether the Army’s refusal

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to rescind the settlement agreement, even assuming it constituted
an adverse action, was mere pretext for unlawful discrimination.
(Id.)
On February 14, 2014, Plaintiff filed the instant
Motion for Reconsideration, asking the Court to reconsider its
Feb. 4 Order pursuant to Federal Rule of Civil Procedure (“Rule”)
59(e) and Rules 60(a), (b)(2) and (b)(6). (Doc. No. 36.)
Plaintiff attached the following to the Motion for
Reconsideration: (1) Declaration of Dennis K. Morris; (2) copy of
Plaintiff’s deposition transcript; (3) memorandum of law in
support of Plaintiff’s Motion for Reconsideration; and (4) copy
of the Supreme Court’s decision in Kloeckner v. Solis, 133 S. Ct.
596 (2012). (Id.) Defendant filed an Opposition on March 13,
2014. (Doc. No. 41.) Plaintiff filed his Reply on March 26, 2014.
(Doc. No. 42.)
The Court determines that this matter may be addressed
without a hearing under Local Rule 7.2(e). A more extensive
procedural and factual background to this case may be found in
this Court’s Feb. 4 Order.
STANDARD
A motion for reconsideration must (1) “demonstrate
reasons why the court should reconsider its prior decision” and
(2) “must set forth facts or law of a strongly convincing nature
to induce the court to reverse its prior decision.” Hele Ku KB,

-3-

LLC v. BAC Home Loans Servicing, LP, 873 F. Supp. 2d 1268, 1289
(D. Haw. 2012). The Ninth Circuit has held that reconsideration
is appropriate if (1) the district court is presented with “newly
discovered evidence,” (2) the district court “committed clear
error or the initial decision was manifestly unjust,” or (3) “if
there is an intervening change in controlling law.” Nunes v.
Ashcroft, 375 F.3d 805, 807 (9th Cir. 2004).2/
Mere disagreement with a previous order is an
2/

The District of Hawaii has stated that “[m]otions seeking
reconsideration of case-dispositive orders shall be governed by
Fed. R. Civ. P. 59 or 60.” D. Haw. Local Rule 60.1. Plaintiff
filed the instant Motion for Reconsideration pursuant to Federal
Rules of Civil Procedure 59(e), 60(a), (b)(2) and (b)(6). Rule
59(e) provides: “A motion to alter or amend a judgment must be
filed no later than 28 days after the entry of the judgment.”
Rule 60 further provides in relevant part:
(a) Corrections Based on Clerical Mistakes;
Oversights and Omissions. The court may
correct a clerical mistake or a mistake
arising from oversight or omission whenever
one is found in a judgment, order, or other
part of the record.
. . .
(b) Grounds for Relief from a Final Judgment,
Order, or Proceeding. On motion and just
terms, the court may relieve a party or its
legal representative from a final judgment,
order, or proceeding for the following
reasons:
. . .
(2) newly discovered evidence that, with
reasonable diligence, could not have been
discovered in time to move for a new trial
under 59(b);
. . .
(6) any other reason that justifies relief.

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insufficient basis for reconsideration. See Leong v. Hilton
Hotels Corp., 689 F. Supp. 1572 (D. Haw. 1988). “Whether or not
to grant reconsideration is committed to the sound discretion of
the court.” Navajo Nation v. Confederated Tribes and Bands of the
Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003)
(citation omitted).
DISCUSSION
I.

Whether This Court Made a Clerical Error
As a preliminary matter, Plaintiff correctly points out

that the Feb. 4 Order incorrectly stated that the Army’s “Request
for Disciplinary Action/Adverse Action” report was dated November
8, 2012, rather than December 3, 2007. (Feb. 4 Order at 45-46;
see Pl.’s CSF Ex. 14 at 1.) The Court acknowledges the error and
agrees with Plaintiff that the Army executed the report on
December 3, 2007. Nevertheless, the Court concludes that the
clerical error was harmless and did not affect the Court’s
determination that Plaintiff failed to put forth sufficient
evidence establishing his due process or ADEA claims. See Fed. R.
Civ. P. 61 (“Unless justice requires otherwise, no error in
admitting or excluding evidence - or any other error by the court
or a party - is ground for granting a new trial, for setting
aside a verdict, or for vacating, modifying, or otherwise
disturbing a judgment or order. At every stage of the proceeding,
the court must disregard all errors and defects that do not

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affect any party’s substantial rights.”).
II.

Whether This Court Should Reconsider its Ruling on
Plaintiff’s Due Process Claims
Plaintiff argues that this Court should reconsider its

ruling regarding Plaintiff’s due process claims because (1)
Plaintiff never received a hearing before a MSPB administrative
law judge on Plaintiff’s “harmful procedural error” and “age
discrimination” claims, and (2) this Court misinterpreted or
misapplied the Supreme Court’s decision in Kloeckner v. Solis,
133 S. Ct. 596 (2012). (Pl.’s Mot. at 9-11.)3/
As the Court stated in its Feb. 4 Order, a “mixed case”
appealable to the district court under 5 U.S.C. § 7703 is a case
involving “an action that is both appealable to the MSPB and
which allegedly involved discrimination.” Sloan v. West, 140 F.3d
1255, 1261 (9th Cir. 1988) (emphasis in original). The MSPB
dismissed Morris’s case on jurisdictional grounds because the
Board determined that his decision to retire was voluntary and
therefore did not constitute an “adverse action” appealable to

3/

Plaintiff also argues that he “did not raise a Bivens
Action” and that “[t]his was explained to the Defense Counsel
before Plaintiff’s deposition, during the deposition and at oral
argument.” (Pl.’s Mot. at 10.) The Court’s finding in the Feb. 4
Order that a Bivens-style claim could not be maintained against
the Army was not the basis for dismissing Plaintiff’s due process
claims. (See Feb. 4 Order at 16-23.) Rather, the Court was merely
disposing of any potential Bivens claims that Plaintiff may have
been seeking to assert. (See id. at 23-24.)
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the MSPB. (See Def.’s CSF Ex. 15.)4/ Because the Board did not
have jurisdiction over Plaintiff’s non-discrimination claim, this
Court found that Plaintiff’s case was not a “mixed case,” and any
appeal of the MSPB’s jurisdictional determination must be filed
in the Federal Circuit Court of Appeals, rather than in federal
district court. (See Feb. 4 Order at 22-23.)5/
Plaintiff argues that this Court’s holding runs
contrary to the Supreme Court’s decision in Kloeckner and quotes
the following language from that case:

4/

The Court refers to Defendant’s and Plaintiff’s concise
statement of facts that were filed to address Defendant’s Motion
to Dismiss or in the Alternative for Summary Judgment to
establish the background for Plaintiff’s Motion for
Reconsideration.
5/

Plaintiff further contends that both the Equal Employment
Opportunity Commission (“EEOC”) and the MSPB “deemed [his] case
as a mixed case.” (Pl.’s Reply at 4.) This Court observes that
the EEOC and MSPB decisions referred to Plaintiff’s “mixed case
complaint.” (See Def.’s CSF Ex. 11 at 1, Ex. 12 at 5-6, Ex. 13 at
1 & 3, Ex. 15 at 4-5.) However, Plaintiff appears to conflate the
term “mixed case complaint” with “mixed case appeal.” As the
Ninth Circuit in Sloan makes clear, “a ‘mixed case appeal’ is not
a subset of a ‘mixed case complaint.’” Sloan, 140 F.3d at 1259. A
“mixed case complaint” is merely a “complaint which alleges the
employee suffered an adverse employment action that was affected.
. . by unlawful discrimination.” Id. In contrast, a “mixed case
appeal” is “an action that is both appealable to the MSPB and
which allegedly involved discrimination.” Id. at 1261 (emphasis
in original). “The MSPB must decide it has jurisdiction over a
case before it becomes a ‘mixed case appeal.’” Id. at 1259. An
employee may seek judicial review in district court if the Board
dismisses his mixed case appeal. See 5 U.S.C. § 7703. In this
case, however, the MSPB determined that Plaintiff’s case did not
constitute a “mixed case appeal” because his resignation was
voluntary and, therefore, was not an appealable action. (See Feb.
4 Order at 22-23.)
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A federal employee who claims that an agency
action appealable to the MSPB violates an
antidiscrimination statute listed in [5
U.S.C.] § 7702(a)(1) should seek judicial
review in district court, not in the Federal
Circuit. That is so whether the MSPB decided
her case on procedural grounds or instead on
the merits. Kloeckner therefore brought her
suit in the right place.
Kloeckner, 133 S. Ct. at 607.
Citing to the Federal Circuit’s decision in Conforto,
this Court found in its Feb. 4 Order that Kloeckner does not
explicitly address whether jurisdictional dismissals by the MSPB
should go to the Federal Circuit or to a district court. Conforto
v. Merit Systems Protection Board, 713 F.3d 1111, 1117 (Fed. Cir.
2013.) In Conforto, the Federal Circuit held that the “statutory
text, the Court’s rationale in Kloeckner, our own prior
decisions, and the decisions of other courts all indicate that an
appeal from the Board’s dismissal for lack of jurisdiction
belongs in this Court.” Id. The Conforto decision comports with
Ninth Circuit case law holding that an appeal from a MSPB
jurisdictional dismissal belongs in the Federal Circuit. See,
e.g., Sloan, 140 F.3d at 1262. In the instant Motion for
Reconsideration, Plaintiff does not direct the court to any
recent Ninth Circuit or Federal Circuit cases that run contrary
to the Conforto and Sloan decisions. See Nunes, 375 F.3d at 807
(“Reconsideration is appropriate. . . if there is an intervening
change in controlling law.”)

-8-

Although the Court agrees with Plaintiff that all of
the acts giving rise to his claims appear to have occurred in
Hawaii, any appeal of the final MSPB decision must be filed with
the Federal Circuit, pursuant to the Ninth Circuit and Federal
Circuit’s holdings in Sloan and Conforto. Indeed, as the Court
noted in the Feb. 4 Order, the MSPB expressly notified Plaintiff
that his right to judicial review of the Board’s final decision
lay with the Federal Circuit. (Feb. 4 Order at 23.) Accordingly,
this Court did not make a manifest error of law when it dismissed
Plaintiff’s due process claims and, therefore, DENIES Plaintiff’s
Motion for Reconsideration with respect to his due process
claims.6/
III.

Whether This Court Should Reconsider its Ruling on
Plaintiff’s ADEA Claims
Plaintiff argues that this Court should reconsider its

ruling regarding Plaintiff’s ADEA claims because, inter alia, (1)

6/

The Court notes that the MSPB in its February 14, 2013
decision notified Plaintiff that any appeal should be filed with
the Federal Circuit. (Def.’s CSF Ex. 15 at 12-13.) However,
Plaintiff adamantly refuses to file an appeal with the Federal
Circuit even though this Court in its Feb. 4 Order ruled that his
due process claims should be heard before the Federal Circuit.
(See Feb. 4 Order at 22-23.) In fact, Plaintiff argued this
matter on a motion for reconsideration and, therefore, it is
clear that Plaintiff has not sought to have his due process
claims transferred to the Federal Circuit, pursuant to 28 U.S.C.
§ 1631. See Powell v. Dep’t of Defense, 158 F.3d 597, 600 n.3
(D.C. Cir. 1998) (“Even if this were a case in which the
‘interests of justice’ required such a transfer, [plaintiff] has
not sought such relief in this court.”) (internal citation
omitted).
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Plaintiff has not had sufficient time to complete discovery; (2)
Plaintiff’s deposition transcript was unavailable at the time he
filed his Opposition to Defendant’s Motion for Summary Judgment;
and (3) an issue of material fact exists over whether Plaintiff’s
retirement was voluntary. (Pl.’s Mot. at 4-9.) For the following
reasons, the Court DENIES Plaintiff’s Motion for Reconsideration
with respect to his ADEA claims.
A.

Plaintiff Had Sufficient Time to Conduct Discovery

Plaintiff’s first argument is that the Summary Judgment
Order failed to note that Defendant never answered Plaintiff’s
complaint,7/ the discovery deadline was May 30, 2014, and
Plaintiff indicated in his Memorandum in Opposition and at the
January 23, 2014 hearing that he wanted additional time to
conduct discovery. (Id. at 4.) As such, Plaintiff requests the
Court to reconsider its Feb. 4 Order and allow Plaintiff to
complete discovery. (Id.)
This Court found in its Feb. 4 Order, and continues to
7/

Contrary to Plaintiff’s assertion, there is no requirement
under the Federal Rules that a plaintiff must file an answer
before filing a motion to dismiss or a motion for summary
judgment. See Underhill v. Porter, 35 F.3d 560 (5th Cir. 1994)
(finding that defendant “was not required to file an answer
before the district court ruled on his motions”) and Rivera v.
AuthorHouse, Civ. No. 3:07cv268, 2008 WL 131046 at *12 (N.D. Ind.
Jan. 10, 2008) (concluding that “defendants [were] not required
to file an answer because they filed motions to dismiss”).
Moreover, Defendant filed a detailed Concise Statement of Facts
with sixteen attached exhibits. Defendant’s Concise Statement of
Facts was sufficient to notify Plaintiff as to which factual
allegations in the FAC the Army admitted or denied.
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find, that Plaintiff has had sufficient time and opportunity to
submit any material that might controvert the exhibits and
statements set forth in Defendant’s Concise Statement of Facts.
(Feb. 4 Order at 48, n. 15.) Defendant’s Motion for Summary
Judgment and Concise Statement of Facts were filed on August 9,
2013. (Doc. Nos. 10-11.) Plaintiff argues that the hearing date
for Defendant’s Motion for Summary Judgment was originally
scheduled for February 10, 2014, but “[f]or reasons unknown to
Plaintiff, the hearing was advanced to January 23, 2014, thereby
advancing the time Plaintiff had to oppose the Defendant’s
Motion.” (Pl.’s Mot. at 5.) However, Plaintiff ignores the fact
that this Court granted two joint requests for continuances; the
hearing for Defendant’s Motion for Summary Judgment was
originally set for November 4, 2013, but was eventually continued
to January 23, 2014. (Doc. Nos. 17, 19 & 23.) Because the
deadline for Plaintiff’s Opposition was January 2, 2014,
Plaintiff had nearly five months to conduct discovery prior to
the filing of his Opposition. See D. Haw. Local Rule 7.4 (“An
opposition to a motion set for hearing shall be served and filed
not less than twenty-one days prior to the date of hearing.”)
Further, and importantly, Plaintiff failed to abide by
Federal Rule of Civil Procedure 56(d)8/ by filing a motion for
8/

Rule 56(d) provides that “[i]f a nonmovant shows by
affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify [continued on next page]
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continuance with an attached affidavit stating specifically what
significant facts could be presented through further discovery in
support of Plaintiff’s ADEA claims. See Fed. R. Civ. P. 56(d).
Instead, Plaintiff’s Memorandum in Opposition to the Army’s
Motion for Summary Judgment vaguely asserted that “Plaintiff is
still obtaining discovery from Defendant” and more “evidence of
age discrimination is forthcoming.” (Feb. 4 Order at 48.) As this
Court previously stated, “[f]ailure to comply with the
requirements of Rule 56(d) is a proper ground for denying
discovery and proceeding to summary judgment.” Uy v. Wells Fargo
Bank, N.A., Civ. No. 10-00204 ACK-RLP, 2011 WL 1235590 at *3 (D.
Haw. Mar. 28, 2011) (quoting Brae Transp., Inc. v. Coopers &
Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986)); see State of Cal.,
on Behalf of California Dept. of Toxic Substances Controls v.
Campbell, 138 F.3d 772, 779 (9th Cir. 1998) (“References in
memoranda and declarations to a need for discovery do not qualify
as motions under Rule [56(d)].”); see also U.S. Alpine Land &
Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993) (holding that
Rule 60(b)(6) “relief may not be had where the party seeking
reconsideration has ignored normal legal recourses”).
Accordingly, this Court’s decision to grant Defendant’s Motion

its opposition, the court may: (1) defer considering the motion
or deny it; (2) allow time to obtain affidavits or declarations
or to take discovery; or (3) issue any other appropriate order.”
Fed. R. Civ. P. 56(d).
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for Summary Judgment notwithstanding Plaintiff’s assertion that
he was still obtaining discovery was not manifestly unjust.
See Nunes, 375 F.3d at 807.
B.

Consideration of Attached Deposition Transcript
and Declaration

In addition to requesting reconsideration in order to
conduct more discovery, Plaintiff asks this Court to consider his
attached deposition transcript9/ and declaration.10/ (Pl.’s Mot. at
4.) Pursuant to Federal Rule of Civil Procedure 60(b)(2),
Plaintiff must establish that the declaration and deposition
constitute “newly discovery evidence.” Feature Realty, Inc. v.
City of Spokane, 331 F.3d 1082, 1093 (9th Cir. 2003) (citing
Coastal Transfer Co. v. Toyota Motor Sales, Inc., 833 F.2d 208,
211 (9th Cir. 1987)). Plaintiff must also have “exercised due
diligence to discover the evidence,” and “the newly discovered
evidence must be of such magnitude that production of it earlier
would have been likely to change the disposition of the case.”
Id.
Preliminarily, and as discussed more in detail below,
Plaintiff obviously could have set forth in a declaration in
9/

The Court notes that Defendant had attached a portion of
Plaintiff’s deposition transcript, roughly 15 pages, to its Reply
in Support of the Motion for Summary Judgment.
10/

The declaration attached to the instant Motion for
Reconsideration is an entirely new declaration; Plaintiff’s
Concise Statement of Facts also contained a declaration by
Morris. (See Pl.’s CSF.)
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opposition to Defendant’s Motion whatever he had stated in his
deposition.
Under the Federal Rules, evidence is not “newly
discovered” if it was in the moving party’s possession before the
judgment was rendered. Id. Plaintiff contends that his own
deposition testimony constitutes newly discovered evidence
because it was not obtained until after December 27, 2013, the
date upon which Plaintiff filed his Opposition to Defendant’s
Motion for Summary Judgment and Concise Statement of Facts. (Doc.
Nos. 25-26.) However, the Ninth Circuit has held that a party
possessing evidence for as little as eight days prior to a
court’s summary judgment ruling could not invoke Rule 60(b)(2).
See Feature Realty, 331 F.3d at 1093 (affirming district court’s
denial of Rule 60(b)(2) motion); see also Gonzalez-Pina v.
Rodriguez, 407 F.3d 425, 433-34 (1st Cir. 2005) (affirming
district court’s denial of Rule 60(b)(2) motion where movant had
obtained deposition testimony two weeks prior to summary
judgment). Plaintiff cannot now seek refuge under Rule 60(b)(2)
because he obtained the deposition at the very latest on January
13, 2014, three weeks before the Court’s issuance of the Feb. 4
Order. Moreover, as explained above, Plaintiff did not file a
Rule 56(d) motion requesting an extension of time to submit a
copy of the deposition transcript. See Fed. R. Civ. P. 56(d).
Similarly, Plaintiff’s attached declaration does not

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constitute “newly discovered evidence” because Plaintiff’s own
testimony was clearly always in his possession. See Feature
Realty, 331 F.3d at 1093. Plaintiff’s declaration is also not
based on newly discovered evidence; instead, Plaintiff’s
declaration discusses evidence that was already before the Court
on Defendant’s Motion for Summary Judgment. See, e.g., Decl. of
Morris at 6 (“I presented evidence showing that. . . persons who
worked under me submitted letters to Colonel Margotta and the
letters supported me as a good worker and supervisor who should
be kept.”)
Even assuming Plaintiff’s attached declaration and
deposition constitute “newly discovered evidence” within the
meaning of Rule 60(b)(2), he must also have “exercised due
diligence to discover the evidence,” and “the newly discovered
evidence must be of such magnitude that production of it earlier
would have been likely to change the disposition of the case.”
Feature Realty, 331 F.3d at 1093.
Here, Plaintiff has not argued that he exercised due
diligence in obtaining the deposition transcript and simply
states that he did not receive a copy of the transcript until
January 13, 2014. (Pl.’s Mot. at 5.) Plaintiff does not explain
his inability to obtain the transcript before January 13, 2014,
even though he was deposed on December 16, 2013. (Id.)
Furthermore, as discussed below, a copy of the deposition

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transcript would not have changed the Court’s determination that
Plaintiff did not produce sufficient evidence establishing that
the Army discriminated against him on the basis of his age.
Accordingly, Plaintiff fails to meet any of the requirements of
Feature Realty.
C.

Plaintiff’s Intentions to Retire

Plaintiff’s next argument is that the Court erred when
it found that Morris “had intentions to retire based upon [a]
single sentence in a letter he sent dated January 7, 2008.”
(Pl.’s Mot. at 5.)11/
This Court’s finding that Plaintiff had intentions to
retire was in response to his argument that the settlement
agreement effectuating his retirement was not made voluntarily.
(Feb. 4 Order at 40.) As stated in the Feb. 4 Order, an employee
must show the following in order to establish that a retirement
decision was involuntary and a product of coercion: the agency
effectively imposed the terms of the employee’s resignation, the
employee had no realistic alternative but to resign or retire,
and the employee’s resignation was the result of improper acts by

11/

Plaintiff also repeats his previous argument that he was
never given a “direct verbal order” to change the annual
performance appraisals. (Pl.’s Reply at 7; Pl.’s Dep. Transcript
at 140-41.) This argument is a distinction without a difference
because Plaintiff admits in his own amended complaint that he
received several written and oral directives from his superiors
instructing him to change the appraisals or face disciplinary
action. (Feb. 4 Order at 3-4, 44 n. 13; FAC ¶¶ 12-13.)
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the agency. Staats v. U.S. Postal Service, 99 F.3d 1120, 1124
(Fed. Cir. 1996).
Because Plaintiff expressly stated in the January 7,
2008 memorandum to Director Debra Zedalis that his “career plan
was to retire from this job in mid 2008,” this Court found that
Morris was planning to retire around the same time as the
retirement date listed in the settlement agreement and,
therefore, failed to establish that his “decision to retire was
the result of improper acts by the Army.” (Feb. 4 Order (emphasis
added).) Although Plaintiff directs the Court to several actions
that he claims indicate he had no intention of retiring,
Plaintiff’s statement in the January 7, 2008 memorandum that his
career plan was to retire in mid-2008 was unequivocal. In this
memorandum, Plaintiff offered to “submit a formal written intent
to retire” if the Army allowed him to remain in as Operations
Officer until he retired in late April. (Def.’s CSF Ex. 4.) These
terms were incorporated into the settlement agreement that the
Army prepared. Pursuant to the settlement agreement, Morris
agreed to “resign effective [April 26, 2008] and apply for
retirement benefits” in exchange for the Army “allow[ing] Morris
to remain in his position as Supervisory Operations Officer. . .
until April 26, 2008.” (Id. Ex. 5.) Plaintiff had sufficient time
to review the settlement agreement. As noted below, Morris signed
the settlement agreement on February 1, 2008, three days after he

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was first told that the document was ready for review and two
days before he was to be reassigned. (Feb. 4 Order at 40-41.)
Plaintiff also had ample opportunity to obtain advice from an
attorney. Specifically, Plaintiff could have sought legal advice
from December 13, 2007, the date upon which he received the
“Notice of Directed Reassignment” from Lieutenant Colonel Michael
Wallace, to February 1, 2008, the date upon which he signed the
settlement agreement effectuating his retirement. Accordingly,
this Court did not commit an error when it found that Plaintiff
had intentions to retire. Nunes, 375 F.3d at 807.
Nevertheless, Plaintiff now argues that this Court’s
finding runs contrary to Perlman v. United States, 490 F.2d 928
(Ct. Cl. 1974), and Scharf v. Dep’t of the Air Force, 710 F.2d
1572 (Fed. Cir. 1983). These cases, which Plaintiff did not cite
previously, do not change the Court’s determination that the
Army’s refusal to accept Plaintiff’s rescission of the settlement
agreement was not an adverse action.
In Perlman, a Civil Service employee’s decision to
retire was held involuntary because the employee attempted to
seek verification that retirement would void his appeal rights,
but had fewer than eight hours to contact the Civil Service
Commission and confirm the information integral to his retirement
decision. Perlman, 490 F.2d at 930-31. Here, Plaintiff was not
faced with same time constraints as the employee in Perlman:

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Morris signed the settlement agreement on February 1, 2008, three
days after he was first notified that the document was ready for
review and two days before he was to be reassigned to a nonsupervisory position. (Feb. 4 Order at 40-41.) Further, and in
contrast to Perlman, Plaintiff does not argue that he was
uncertain of the effect of signing the settlement agreement. In
addition, the employee in Perlman sought to withdraw his
retirement application a week after he submitted it whereas
Morris waited six weeks to attempt to rescind the settlement
agreement. Perlman, 490 F.2d at 931.
Plaintiff also relies on the Federal Court of Claim’s
decision in Scharf to argue that Plaintiff did not sign the
settlement agreement voluntarily. Specifically, Plaintiff directs
the Court to the following language from Scharf:
With freedom of choice as the guiding
principle, it has been held that the element
of voluntariness is vitiated when (1) an
employee resigns under duress brought on by
government action; (2) an employee
unsuccessfully tries to withdraw his
resignation before its effective date; (3) an
employee submits a resignation under time
pressure; or (4) an employee fails to
understand the situation due to mental
incompetence. Several other cases have also
indicated that a resignation will be held
involuntary if obtained by agency
misrepresentation or deception.
. . .
An employee is not required to show an intent
to deceive on the part of the agency in order
for his retirement to be held involuntary.
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Rather, it is sufficient if the employee
shows that a reasonable person would have
been misled by the agency's statements. We
have in the past applied an objective test in
situations involving duress or coercion. We
believe that an objective test is equally
applicable to situations involving
misrepresentations or deception.
Scharf, 710 F.2d at 1574-75 (internal citations omitted).
The facts in Scharf are clearly distinguishable from
this case. Here, Plaintiff alleges that he spoke with Joseph
Rozmiarek, Director of Civilian Personnel, after he received his
notice of reassignment, and Rozmiarek “put the idea in [his]
head” that he should offer a compromise. (Pl.’s Dep. Transcript
at 113-14.) According to Plaintiff, Rozmiarek told him that “one
possibility would be to retire at a certain date in exchange” for
the Army allowing him to remain in his supervisory position. (Id.
at 114) However, unlike the employee in Scharf, Plaintiff does
not allege that, based on Rozmiarek’s statements, he failed to
understand the consequences of submitting a voluntary
resignation. See Scharf, 710 F.2d at 1575 (“In this case, the
petitioner contends that his optional retirement was involuntary
because he was misled and failed to understand that he could not
return to the rolls to exhaust his accumulated sick leave if his
optional retirement preceded his disability retirement. The
record clearly indicates that petitioner’s failure to understand
was due to the fact that he was misled as to the consequences of

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his optional retirement by the agency counselor, Mr. Tanner.”) In
particular, Plaintiff does not assert that Rozmiarek misled him
to believe that he would have the ability to rescind his
retirement offer and remain as Supervisory Operations Officer.
Furthermore, Plaintiff in the instant Motion for
Reconsideration does not argue that he failed to understand the
situation due to mental incompetence. Plaintiff also does not
establish that he was forced to sign the settlement agreement
under time pressure. As noted above, Plaintiff had almost a week
in which to review and sign the settlement agreement. (Feb. 4
Order at 40-41.) Moreover, the settlement agreement provided the
essential terms he had proposed.
Accordingly, the only remaining issues are whether
Plaintiff signed the settlement agreement “under duress brought
on by government action” and whether Plaintiff “unsuccessfully
trie[d] to withdraw his resignation before its effective date.”
Scharf, 710 F.2d at 1574.
With respect to the first issue, Plaintiff cites to
page 143 of his deposition transcript and argues that he felt
that he “signed the Agreement under duress.” (Decl. of Morris at
4.) The deposition transcript provides, in relevant part:
A: But that memorandum that I was
handed, that settlement agreement, I signed
it under duress, I was in a situation where I
wanted to remain in my job, and I would not
have signed that agreement if I had known
that my ADEA rights were being violated, I
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would not have signed it if they said to me:
Here’s the agreement, you have 21 days to
think about it, go see a lawyer, I would
never have signed that agreement in the form
that it was, but I didn’t realize it was
legally flawed and, per se, age
discrimination at the time.
(Pl.’s Dep. Transcript at 143-44.) The mere fact that Plaintiff
“wanted to remain in [his] job” does not overcome the presumption
that his decision to sign the settlement agreement was voluntary.
See Christie v. U.S., 518 F.2d 584, 587 (Ct. Cl. 1975) (“Employee
resignations are presumed to be voluntary.”) In order to show
that he signed the settlement agreement under duress, Plaintiff
must demonstrate “that circumstances permitted no other
alternative” and “that said circumstances were the result of
coercive acts of the opposite party.” Id. Plaintiff contends that
he “felt pressured” to sign the settlement agreement because his
only other alternatives were to accept the transfer to the nonsupervisory position or “be considered AWOL.” (Decl. of Morris at
4.) However, the mere “fact that an employee is faced with an
unpleasant situation or that his choice is limited to two
unattractive options does not make the employee’s decision any
less voluntary.” Staats, 99 F.3d at 1124. Moreover, COL Margotta
expressly informed Morris of his right to challenge the
reassignment through a grievance procedure, but he declined to
grieve this matter. (See Def.’s CSF Ex. 3.) Rather than
challenging, rejecting, or accepting the reassignment, Plaintiff

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chose to sign the settlement agreement and agree to retire in
exchange for the Army allowing him to remain in the supervisory
position.12/
Plaintiff also appears to argue that his decision was
made under duress because he would not have signed the settlement
agreement had he known it violated the Older Workers Benefit
Protection Act (“OWBPA”). The Feb. 4 Order directly addressed
Plaintiff’s argument that the settlement agreement was invalid
because it violated the OWBPA. (Feb. 4 Order at 41-43.) As this
Court previously stated, the Army is not defending against
Plaintiff’s ADEA claims by arguing his ADEA claim was waived
under the settlement agreement. (Id. at 42.) The settlement
agreement’s failure to comply with the OWBPA would only
invalidate any waiver of federal claims under the ADEA and,
therefore, does not invalidate the entire agreement. See, e.g.,
Oubre v. Entergy Operations, Inc., 522 U.S. 422, 427-28 (1998)
(“Since Oubre’s release did not comply with the OWBPA’s stringent
safeguards, it is unenforceable against her insofar as it
purports to waive or release her ADEA claim. As a statutory
12/

The Court also finds that the settlement agreement was a
contract and, as such, there is no evidence or argument that the
Army failed to fulfill its obligations under the settlement
agreement. See Greco v. Dep’t of Army, 852 F.2d 558, 560 (Fed.
Cir. 1988) (“It is axiomatic that a settlement agreement is a
contract.”). The record clearly indicates that, pursuant to the
terms of the settlement agreement, Morris remained in the
Supervisory Operations Officer position until his effective
retirement date, April 26, 2008.
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matter, the release cannot bar her ADEA suit, irrespective of the
validity of the contract as to other claims.”); Harmon v. Johnson
& Johnson, No. 11-56898, 2013 WL 6501354 (9th Cir. Dec. 12, 2013)
(holding that “the failure to comply with the OWBPA did not
invalidate the release as to Harmon’s state law claims because
the OWBPA applies only to federal claims under the [ADEA]”);
Lange v. DOI, 94 M.S.P.R. 371, 376 (2003) (“Since the appellant
has shown no basis for invalidating the entire settlement
agreement, we find that the settlement agreement is still in
effect with respect to all but the appellant’s ADEA-related
claim.”). Consequently, the Court determines that Plaintiff fails
to raise a genuine issue of material fact as to whether Plaintiff
signed the settlement agreement under duress.
With respect to the second issue, Scharf held that the
“element of voluntariness is vitiated when. . . an employee
unsuccessfully tries to withdraw his resignation before its
effective date.” Scharf, 710 F.2d at 1574 (citing Cunningham v.
United States, 423 F.2d 1379, 1384-85 (Ct. Cl. 1970)). However,
the Scharf court never discussed this holding because the
plaintiff-employee in that case never attempted to withdraw his
resignation. See id. at 1572-74. This Court must therefore
examine the Court of Claim’s decision in Cunningham v. United
States, the case cited by Scharf.
In Cunningham, an Air Force civilian employee submitted

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a written resignation on May 23, 1959, with an effective
retirement date of June 12, 1959. Cunningham, 423 F.2d at 1380. A
mere eight hours after submitting it, she attempted to orally
withdraw the resignation. Id. After her oral request was denied,
she wrote two letters to her Commanding General requesting a
grievance hearing pursuant to Air Force regulations and asserting
that her resignation letter was a product of duress. Id. at 138081. The Air Force refused to allow the employee to withdraw the
resignation despite her request for a grievance hearing and claim
of duress. Id. at 1381-82. The Court of Claims found that there
was no valid determination by the Air Force that her resignation
was voluntary and not a product of duress, and that she was not
provided with a procedurally valid grievance hearing as mandated
by Air Force regulations. Id. at 1382. Accordingly, the court
found that the employee’s separation from the Air Force was an
“adverse action” taken by the agency that resulted in her
“removal.” Id.
In this case, it is undisputed that Morris attempted to
rescind the settlement agreement prior to the effective date of
his retirement. As discussed below, the Court has distinguished
the ruling in Cunningham as not applicable to the facts of this
case. Moreover, Plaintiff has enjoyed the benefits of the
settlement agreement by being allowed to remain in his position
for some six weeks before he attempted to rescind the agreement;

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he had received a substantial portion of the quid pro quo for the
settlement. Plaintiff signed the settlement agreement on February
1, 2008, and only attempted to rescind it six weeks later.
Because the retirement date listed in the settlement agreement
was April 26, 2008, Plaintiff had received roughly one-third of
the consideration offered by the Army before he attempted to
rescind the settlement agreement.
In Cunningham, the court found that the Air Force
did not make a valid determination that the employee’s
resignation was voluntary because it “ignored her clear assertion
of duress.” Id. Here, Morris did not attempt to notify Army
personnel that he signed the settlement agreement under duress
when he asked them to rescind the agreement; rather, he simply
stated in the March 14, 2008 memorandum that it was a “drastic
mistake” to sign the settlement agreement. (Def.’s CSF Ex. 6 at
1.) Although Plaintiff now argues in the declaration attached to
the instant Motion for Reconsideration that he “signed the
Agreement under duress,” his conclusory statement lacks detailed
facts and supporting evidence demonstrating that he notified the
Army that he signed the agreement under duress. See F.T.C. v.
Neovi, Inc., 604 F.3d 1150, 1159 (9th Cir. 2010) (finding that a
conclusory, uncorroborated, or self-serving affidavit may not
create a genuine issue of material fact). As such, the Army was
not required under Cunningham to determine whether Morris’s

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resignation was a product of duress and therefore involuntary. In
fact, the Army had little reason to question whether the
Plaintiff’s retirement was voluntary since he proposed the
material terms of the settlement agreement.
Additionally, there is nothing in the record that
indicates that the Army has regulations similar to the Air Force
regulations in Cunningham requiring the Army to grant Morris a
grievance hearing if he requested one after he sought to rescind
the settlement agreement.
Moreover, Plaintiff waited six weeks to attempt to
rescind the settlement agreement, while the employee in
Cunningham sought to withdraw the settlement agreement eight
hours after she sent the resignation letter. Finally, Plaintiff
ignores the fact that the Army, unlike the Air Force in
Cunningham, presented several legitimate reasons for not
rescinding the settlement agreement. (See Feb. 4 Order at 45.)
The Court also notes that several MSPB cases have
held that a separation pursuant to a retirement is deemed
involuntary when the agency improperly denied the employee’s
request to withdraw his retirement before its effective date. See
Schwartz v. U.S. Postal Service, 68 M.S.P.R. 142, 145 (1995);
Jostsons v. U.S. Postal Service, 58 M.S.P.R. 74, 79 (1993),
aff’d, 26 F.3d 139 (Fed. Cir. 1994). These cases have further
held that an employee has the right to rescind his decision to

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retire at any time before it is to be effective, unless the
agency has a valid reason for refusing to permit such a
rescission. See id. “The agency [bears] the burden of proving
that it had” such a reason. Olsen v. Dep’t of Army, 65 M.S.P.R.
60, 63 (1994). If “the agency improperly denies the request, the
employee’s separation is deemed involuntary and tantamount to an
appealable removal.” Douglas v. Dep’t of Defense, 108 M.S.P.R.
244, 248 (2008). Here, the Army refused to permit Morris to
rescind the settlement agreement effectuating his retirement.
However, Plaintiff’s retirement cannot be deemed involuntary
because the Federal Circuit has held that an employee’s
commitment to resign under the terms of a settlement agreement is
a valid reason for an agency to refuse to accept his withdrawal
of that resignation. Green v. General Services Administration,
220 F.3d 1313, 1317 (Fed. Cir. 2000); Tretchick v. Dep’t of
Transp., 109 F.3d 749, 751 (Fed. Cir. 1997). Furthermore, as
discussed above and herein below, the Army has established
several other valid reasons for declining to grant Plaintiff’s
request to rescind the settlement agreement and his agreement to
retire.
In any event, even assuming (but not finding) the
Army’s refusal to rescind the settlement agreement was an adverse
action, Plaintiff still fails to rebut the Army’s showing of nondiscriminatory intent by establishing that its proffered reasons

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for its employment actions were “mere pretext for unlawful
discrimination.” Hawn v. Executive Jet Management, Inc., 615 F.3d
1151, 1155 (9th Cir. 2010). Morris essentially repeats arguments
that he previously made and which were previously rejected by the
Court in its Feb. 4 Order. See Wereb v. Maui County, 830 F. Supp.
1026, 1031 (D. Haw. 2011) (“Mere disagreement with a previous
order is an insufficient basis for reconsideration.”).
Plaintiff first argues that COL Margotta’s statement
that Plaintiff did not “take care of his employees” was not made
in good faith because Morris produced letters of support from his
co-workers and employees whom he supervised. (Pl.’s Mot. at 8.)
Plaintiff further argues that COL Margotta chose to “disregard
the letters [without] contacting anyone who wrote the letters”
and “hinted that Plaintiff forced them to write letters which was
untrue.” (Pl.’s Reply at 8.)13/ However, as this Court found its
Feb. 4 order, COL Margotta had several reasonable grounds for his
statement. As pointed out by Defendant, COL Margotta concluded
that refusing to provide additional support for his employees’
performance appraisals did not constitute taking care of one’s

13/

The Court notes that Plaintiff’s allegation that COL
Margotta “hinted that Plaintiff forced [his employees] to write
letters” does not include any citation as to the source of such
allegation, and the Court has not found such a source in the
record. In any event, even assuming COL Margotta made this
statement, it would not change this Court’s holding that
Plaintiff failed to produce sufficient evidence establishing that
the Army’s reasons for its employment actions were pretextual.
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employees. Specifically, COL Margotta found “that [Morris’s]
refus[al] to go back and readjust the ratings. . . resulted in
his employees being downgraded on their ratings because the write
ups did not justify the ratings that [Morris] gave them.” (Pl.’s
CSF Ex. 12.) Additionally, COL Margotta was likely aware of
statements made by other Army personnel indicating that
Plaintiff’s refusal to modify the performance appraisals was
detrimental to his employees since such statements would
presumably be in the record that COL Margotta reviewed prior to
making his decision. For instance, Deputy Commander Bryson Jhung
stated on December 3, 2007 that Plaintiff’s “misconduct adversely
affected their organization by [c]ompletely stopping the pay pool
process and wasting the valuable man hours associated with
[Plaintiff’s] intentional, deliberate delay” and “affected the
employees which represented the USAG-HI Pay Pool by delaying
their ability to close out the board and return to their
appointed places of duty.” (Pl.’s CSF Ex. 14 at 3, ¶ 6.) Also,
Deputy Commander Jhung and LTC Michael Wallace stated on December
13, 2007 that allowing Plaintiff to remain in his Supervisory
Operations Officer position even though he refused to abide by
his superiors’ directives was not in the “best interest of this
Organization” and its employees. (Def.’s CSF Ex. 2 at 2, ¶ 2.)
Although Plaintiff notes that Morris received several
letters of support from his employees, the question is not

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whether COL Margotta’s statement was “objectively false,” but
rather whether he “honestly believed [his] reason for [his]
actions, even if [his] reason is foolish or trivial or even
baseless.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054,
1063 (9th Cir. 2002) (emphasis in original). Here, Plaintiff has
made no showing that COL Margotta did not act in good faith when
he stated that Morris did not “take care of his employees.” While
Plaintiff points out that COL Margotta gave Morris a Commander’s
Award for Civilian Service; this does not controvert the fact
that, among other serious concerns mentioned above, Morris
“demonstrated [an] inability to follow supervisory standards
[which] negatively effected” his employees and “caus[ed]
irreparable damage” to the trust placed in him by his commanding
officers. (Def.’s CSF Ex. 2 at 2, ¶ 2.)
Next, Plaintiff renews his argument that the two
supervisors who were responsible for originally transferring him
to a non-supervisory position were no longer in his chain of
command and, consequently, COL Margotta’s statement that “there
was nothing new[,] no factors to consider” was pretextual. (Pl.’s
Mot. at 9.) However, as Defendant points out, the absence of Mr.
Brown and Lieutenant Colonel Wallace did not provide any reason
for the Army to change its position and rescind the settlement
agreement. (Summary Judgment Order at 49.) As COL Margotta
explained, “one of the things [Plaintiff] was asking for was

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essentially to go back into his old position, which would have
meant for me as the commander to basically say that he did
nothing wrong. . . There was no new compelling evidence or
anything that [Plaintiff] could bring to the table that would
want me to go back on the agreement.” (Feb. 4 Order at 36, n.
11). As such, Plaintiff continues to fail to establish that the
Army’s articulated reasons are pretextual “by showing that the
employer’s proffered explanation is unworthy of credence.” See
Villiarimo, 281 F.3d at 1062. Accordingly, Plaintiff does not
meet his burden of showing that the Army’s reasons for not
rescinding the settlement agreement were pretextual.
In sum, Plaintiff does not set forth facts or law of a
strongly convincing nature to induce this Court to reverse its
prior finding that his decision to retire was voluntary or that
he failed to produce sufficient evidence of pretext. See Hele Ku
KB, 873 F. Supp. 2d at 1289. Therefore, the Court DENIES
Plaintiff’s Motion for Reconsideration with respect to his ADEA
claims.
CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s
Motion for Reconsideration and Relief from a Judgment or Order
Dated February 4, 2014.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, April 7, 2014.
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________________________________
Alan C. Kay
Senior United States District Judge

Morris v. McHugh, Civ No. 13-00182 ACK-KSC: ORDER DENYING
PLAINTIFF’S MOTION FOR RECONSIDERATION

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