Poll v. Lew
MEMORANDUM DECISION granting 9 Motion to Dismiss for Lack of Jurisdiction. Signed by Magistrate Judge Dustin B. Pead on 7/30/15 (alt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
Case No. 1:14-cv-00090-DBP
Magistrate Judge Dustin B. Pead
JACOB J. LEW, Secretary, Department of the
The parties consented to this Court’s jurisdiction pursuant to 28 U.S.C. § 636(c). (Dkt. 13.)
Plaintiff Brent Poll (“Plaintiff”) alleges he has been improperly denied federal retirement
benefits that he was promised during settlement negotiations in the 1980s. Presently before the
Court is the government’s motion to dismiss.1 (Dkt. 9.)
Plaintiff worked for the Internal Revenue Service (“IRS”) until July 1983 when he left after
refusing an out-of-state reassignment. (Dkt. 1, Ex. A at 1.) At the time of the reassignment,
Plaintiff withdrew $18,057.00 in retirement contributions from the Civil Service Retirement
System (CSRS). (Id.) Plaintiff then applied for a job at another federal agency, Defense Depot at
Ogden, Utah (“DDOU”). (Id.; Dkt. 17 at 1–2.) Plaintiff’s former IRS supervisor made negative
comments to DDOU about Plaintiff’s performance at the IRS. (Dkt. 1, Ex. A at 1.) As a result of
these comments Plaintiff’s hiring was delayed until August 27, 1984. (Id. at 2.) Plaintiff learned
Plaintiff mailed a surreply to the undersigned’s chambers and apparently to opposing counsel.
While the Court considered this material and docketed it for Plaintiff (Dkt. 19), he is reminded
that, in the future, he must seek leave of Court before filing a surreply. D.U. Civ. R. 7-1(b)(2)(B).
in December 1984 that this delay made him ineligible to participate in CSRS because he had not
been rehired within “the prescribed one-year time frame for this benefit.” (Id.)
Plaintiff filed two claims with the IRS alleging retaliation. (Id.) As part of his requested
relief, Plaintiff sought reinstatement in the CSRS. (Id.) When the IRS found Plaintiff’s claims
were not supported by the evidence, Plaintiff requested a hearing before the Equal Employment
Opportunity Commission (“EEOC”). (Id.) During settlement negotiations in the summer of 1987,
DDOU employees told Plaintiff that he could elect a “CSRS-Offset” retirement option that
would allow him ultimately to benefit from the CSRS. (Id.) Those employees also advised
Plaintiff not to pay back his earlier CSRS withdrawal (Id. at 4.) Plaintiff then contacted the
EEOC and indicated that he would settle his claims. (Id. at 2.) On July 28, 1987, Plaintiff settled
his EEOC claims. (Id. at 3.) This settlement does not mention retirement benefits. (Id.) In 1991,
Plaintiff left federal service. In 1992 he withdrew the $2,249.57 he contributed to the CSRS
Offset program, relying on advice he had been given previously that he could withdraw
retirement contributions without affecting his eligibility in the CSRS-Offset program. (Id. at 4.)
In June 2009 Plaintiff learned that he was not entitled to CSRS retirement benefits because he
had withdrawn all of his contributions. 2 In 2011, Plaintiff wrote to the EEOC’s Phoenix Office
alleging breach of the 1987 settlement agreement. (Id. at 5.) The EEOC determined that there
had been no breach of the settlement agreement. (Id. at 7–8.)
Defendant seeks dismissal of Plaintiff’s claims for lack of subject-matter jurisdiction under
Rule 12(b)(1). Defendant argues that the Court lacks subject-matter jurisdiction over the present
suit because Plaintiff is seeking to enforce the 1987 settlement agreement and the Tenth Circuit
Plaintiff acknowledges that the advice he was given about withdrawals was correct at the time it
was provided. (Dkt. 1 at 13.)
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has held that federal courts lack jurisdiction over such claims. (Dkt. 9 at 3.) Defendant also
argues that even if subject matter jurisdiction exists, Plaintiff failed to follow the prescribed
administrative procedures for enforcing such a settlement agreement. Finally, Defendant points
out that Plaintiff has been enjoined from filing lawsuits based on his termination from the IRS or
“any events related” to that termination.
In response, Plaintiff details the events leading to his EEO complaint against the IRS and its
eventual settlement. (Dkt. 17.) Plaintiff argues that the present suit does not relate to his
termination from the IRS, but his hiring at DDOU. Plaintiff argues that his Complaint does not
allege any breach of the settlement agreement.
Plaintiff’s Complaint fails to state a viable claim for relief.
Plaintiff has been enjoined from filing suit regarding his termination from the IRS and events
related to that termination. Likewise, as Plaintiff concedes, the Court lacks jurisdiction over
claims for breach of the 1987 settlement agreement.
a. Plaintiff has been enjoined from bringing a lawsuit for any events related to
his termination from the IRS.
The portion of Defendant’s motion addressing the injunction is most properly analyzed under
Rule 12(b)(6). When evaluating such a motion, the Court must “assume the factual allegations
are true and ask whether it is plausible that the plaintiff is entitled to relief.” Gallagher v.
Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009). Further, the Court is mindful that “[a] pro se
litigant’s pleadings are to be construed liberally and held to a less stringent standard than formal
pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
The Court takes judicial notice of the injunction previously entered against Plaintiff by Judge
Campbell: “ENJOIN[ING] Plaintiff from further filings based on his firing from the IRS or any
events related to that firing.” Poll v. Paulson, No. 06-144, 2008 WL 118076, at *1 (D. Utah Jan.
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8, 2008). Plaintiff’s Complaint details the problems leading to his termination from the IRS. He
alleges “discriminatory/retaliatory” actions by his former supervisor at the IRS in each of his
causes of action. Those allegations mirror the allegations already dismissed in the District of
Utah and elsewhere. See Poll v. Paulson, No. 06-144, 2008 WL 118076, *2–3 (D. Utah Jan. 8,
2008) (“Judge Wells concluded that Plaintiff could not have reasonably thought that the present
action had any merit, especially given Plaintiff's long history of repeating his complaint in
various forms and forums over the past two decades.”).
Plaintiff attempts to avoid application of this injunction by arguing that he challenges not his
termination from the IRS, but his hiring at DDOU. This argument is unpersuasive. Plaintiff’s
prior lawsuit included allegations that the IRS interfered with Plaintiff’s subsequent employment
at DDOU. Indeed, the Complaint in this case contains much of the same substance as the
complaint in Paulson. The Court concludes that the subsequent DDOU hiring is included in the
“events related” portion of the injunction prohibiting Plaintiff from filing suit challenging his
IRS termination. Thus, the Court rejects Plaintiff’s attempt to recast his repetitive allegations as
something other than an attempt to bring a lawsuit he has been specifically instructed not to file. 3
Based on the foregoing, Plaintiff has not asserted any cause of action that does not relate to
“his firing from the IRS or any events related to that firing.” “Most of these arguments have been
offered and rejected for over twenty years.” Poll v. Paulson, 06-144, 2008 WL 118076, at *5 (D.
Utah Jan. 8, 2008).
Even absent this injunction, Plaintiff is barred from litigating the merits of the alleged
discrimination from the 1980s by virtue of the 1987 settlement agreement that he states he does
not attempt to challenge here. See Part I.b. infra.
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b. The Court lacks subject-matter jurisdiction over any alleged breach of the
As the government suggests, Plaintiff’s Complaint could be interpreted as alleging breach of
the 1987 settlement agreement. Indeed, this is how it was interpreted by the EEOC because
Plaintiff invoked the regulations governing breach of a settlement agreement. (See Dkt. 1, Ex. A
at 5.) The Tenth Circuit has held that a district court does not have subject-matter jurisdiction to
hear claims for breach of an agreement to settle employment discrimination claims against a
government entity. Lindstrom v. United States, 510 F.3d 1191, 1195 (10th Cir. 2007). The Tenth
Circuit so held because the United States is immune from suit, unless its sovereign immunity has
been explicitly waived. Id. at 1193. While Title VII provides for a limited waiver of sovereign
immunity, that waiver does not extend to suits to enforce settlement agreements. Id. at 1195.
Instead, aggrieved parties must file any claim for breach of a settlement agreement
administratively and appeal through the EEOC. See 29 C.F.R. § 1614.504. 4
The Court need not spend much time analyzing this issue because Plaintiff concedes that the
Court lacks jurisdiction over any claims for breach of the 1987 settlement agreement. (Dkt. 17 at
6.) Plaintiff insists that he is not challenging the settlement agreement here. (Id.) Presumably, he
does this to avoid the dismissal mandated by Lindstrom. Unfortunately, he does not suggest any
proper alternative basis for his claim. The only alternatives the Court can conceive have been
precluded by the injunction discussed above.
Based on the foregoing, Plaintiff’s claims are barred by the previous injunction order.
Further, even if the Court construed Plaintiff’s allegations as a breach of the 1987 settlement
agreement, the Court lacks jurisdiction.
Even if Plaintiff’s action could be construed as a proper challenge to the EEOC’s decision, the
Court would affirm the EEOC’s decision because it is clear from the text of the settlement
agreement that it does not address Plaintiff’s retirement benefits. (See Dkt. 1, Ex. F.)
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Based on the foregoing, the Court GRANTS Defendant’s motion to dismiss. (Dkt. 9.) This
case is closed. Plaintiff’s claims regarding his termination are dismissed with prejudice. To the
extent Plaintiff alleges a breach of the settlement agreement, such claims are dismissed for lack
of subject-matter jurisdiction. Plaintiff is further admonished to comply with the injunction
prohibiting successive lawsuits regarding his termination from the IRS in 1983 and any events
related to his termination.
Dated this 30th day of July, 2015.
By the Court:
Dustin B. Pead
United States Magistrate Judge
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