Debose v. United States

ANGELA DEBOSE, Plaintiff, v. THE UNITED STATES, Defendant.

No. 20-1435

United States Court of Federal Claims

September 7, 2021

NOT FOR PUBLICATION

Angela W. DeBose, of Tampa, FL, pro se.

Nathaniel B. Yale, Trial Attorney, with whom were Reginald T Blades, Jr., Assistant Director, Martin F. Hockey, Jr. Acting Director, Brian M. Boynton, Acting Assistant Attorney General, Commercial Litigation Branch, Civil Division, U.S Department of Justice, all of Washington, D.C., for the defendant.

ORDER

RYAN T. HOLTE JUDGE

I. Introduction

Pro se plaintiff Angela DeBose seeks compensation for property allegedly taken by the government. Pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court of Federal Claims ("RCFC"), the government moved to dismiss plaintiff's claims for lack of subject matter jurisdiction and for failure to state a claim. Plaintiff, in response to the government's motion, submitted a motion for leave to amend her complaint a second time. For the following reasons, the Court DENIES plaintiff's motion for leave to file a second amended complaint, GRANTS the government's motion to dismiss, and DISMISSES the complaint.

II. Factual and Procedural History

A. Factual History

Plaintiff is a former employee of the University of South Florida Board of Trustees ("USFBOT"). Am. Compl. at ¶ 1, ECF No. 15. Plaintiff filed a lawsuit with the United States District Court for the Middle District of Florida in December 2015 alleging race discrimination, gender discrimination, retaliation, breach of contract, tortious interference in her business relationship, and civil conspiracy to violate her rights. See DeBose v. Univ. S. Fla., No. 8:15-cv-2787-T-17AEP, 2017 WL 4381696, at *1 (M.D. Fla. Sept. 29, 2017). The facts of the suit are as follows:

DeBose worked as the University Registrar at the University of South Florida. Her position was renewed annually. In 2014, the University began receiving complaints from other employees that DeBose was difficult to collaborate with and unprofessional. On July 15, 2014, DeBose's supervisor, Paul Dosal, informed her that he had promoted another University employee, Billie Jo Hamilton, to an open Assistant Vice President role. Two weeks later, DeBose filed an internal complaint alleging discrimination, and a second complaint the following month....

During this same timeframe, the University was implementing a new software program from Ellucian, Degree Works, which helps students and faculty monitor progress toward graduation. As part of its implementation, an Ellucian consultant met with DeBose in April 2015 and issued a report criticizing the Registrar's implementation of the software, saying the office was uncollaborative and resistant to change. After receiving the Ellucian report, on May 19, 2015, University Provost Ralph Wilcox gave DeBose three months' notice that her employment would not be renewed in August 2015.

DeBose v. USF Bd. of Trs., 811 Fed.Appx. 547, 552 (11th Cir. 2020) (unpublished), cert. denied sub nom. DeBose v. U. of S. Fla. Bd. of Trs., 209 L.Ed.2d 550 (Apr. 19, 2021).

At summary judgment, the district court excluded 550 pages of evidence based on a failure to authenticate each page by affidavit, which plaintiff claims was no longer a requirement under the Federal Rules of Civil Procedure ("FRCP"). Am. Compl. at ¶¶ 21-22.^[1] The district court then granted summary judgment for the University on all but four counts of race discrimination and retaliation.^[2] DeBose, 2017 WL 4381696, at *11. Following summary judgment, plaintiff filed a motion for sanctions against the University "for concealing her employment contracts and misrepresenting that the documents did not exist." Am. Compl. at ¶ 26. The court denied plaintiff's motion. Id. at ¶ 15. Plaintiff also filed a motion for voluntary recusal of the district court judge "based on her fear of bias and that she would not receive a fair trial," which was also denied. Id. at ¶ 27.^[3]

After a jury verdict for plaintiff on the race discrimination and retaliation claims, the court granted the University's renewed motion for judgment as a matter of law ("JMOL"), overturning the jury verdict. Id. at ¶ 29. The judge ordered mediation, which plaintiff alleges "reached an impasse, tainted by an ex parte communication opposing counsel had with the mediator-magistrate in an 8-page letter." Id.

During mediation, plaintiff alleges her counsel "served a proposal for settlement on USFBOT." Id. at ¶ 160. Plaintiff claims "an enforceable agreement known to the District Court exists," Am. Compl. at ¶ 165, but "though submitted to the District Court, it does not display in the docket." Id. at ¶ 163.

Following mediation, the district court denied plaintiff's motion for a new trial. Id. at ¶ 30. Plaintiff appealed to the Eleventh Circuit, ^[4] which issued a decision in April 2020 considering five challenges to the district court's orders:

(1) granting in part and denying in part the University's motion for summary judgment and granting Ellucian's motion for summary judgment; (2) denying [plaintiff's] post-trial motion for attorney's fees and costs; (3) granting the University's post-trial motion for judgment as a matter of law and denying [plaintiff's] motion for sanctions; (4) denying [plaintiff's] motion for front pay; and (5) denying [plaintiff's] motion for a new trial.

DeBose, 811 Fed.Appx. at 553. The Eleventh Circuit affirmed each of these orders. Id. at 553, 559. The motion for new trial, the appeals court stated, "was filed well outside the 28-day time frame provided for in Federal Rule of Civil Procedure 59(b)." Id. at 559. Notably, the Eleventh Circuit identified the exclusion of evidence as harmless error, since the error "did not affect [plaintiff's] substantial rights, as a review of the documents shows that they would not have affected the outcome." Id. at 553 n.1.

On 12 May 2020, at the district court, plaintiff then filed "a Complaint and Independent Action for Relief from Judgment pursuant to Rule 60(d)."^[5] Am. Compl. at ¶ 40; see DeBose v. U. of S. Fla. Bd. of Trs., No. 8:15-CV-2787-T-33AEP, 2020 WL 3440651, at *1 (M.D. Fla. June 23, 2020), reconsideration denied, No. 8:15-CV-2787-T-33AEP, 2020 WL 3895371 (M.D. Fla. July 10, 2020), aff'd sub nom. DeBose v. USF Bd. of Trs., 844 Fed.Appx. 99 (11th Cir. 2021) (unpublished), petition for cert. filed, 89 U.S.L.W. 3383 (U.S. Apr. 20, 2021) (No. 20-1538). Plaintiff also filed a "Motion for Reassignment of a New Magistrate or Alternatively Recusal of Judge Anthony E. Porcelli" and a "Motion for Evidentiary Hearing with Witness Testimony." DeBose, 844 Fed.Appx. at 101. The court denied the 60(d) motion and the motion for evidentiary hearing and denied as moot the motion for recusal of the magistrate judge. Id. at 103.

Plaintiff filed a second appeal, and on 21 January 2021, the Eleventh Circuit affirmed the district court's orders denying plaintiff's Independent Action for Relief from Judgment, motion under Rule 60(d), motion to recuse or reassign, and motion for sanctions. See Am. Compl. at ¶ 42; see also DeBose, 844 Fed.Appx. at 103. The Eleventh Circuit then denied plaintiff's request for rehearing en banc on 2 Mar 2021. See On Petition(s) for Rehearing and Petition(s) for Rehearing En Banc, DeBose v. Univ. S. Fla. Bd. Trs., 844 Fed.Appx. 99 (11th Cir. 2021) (No. 20-12732-DD).

B. Procedural History in this Court

Plaintiff filed her initial complaint in this Court on 19 October 2020. See Compl., ECF No. 1. Plaintiff charges the government with violations of the Fifth Amendment, Fourteenth Amendment, and the Federal Torts Claims Act ("FTCA") through an unjust taking of property rights in the form of: (1) litigation costs; (2) attorney fees and costs; (3) employment contracts and accrued paid-time-off; (4) dismissed lawsuit claims; (5) jury award and judgment; (6) right to appeal; and (7) stipulated settlement proposal. Am. Compl. at ¶¶ 44-189 (plaintiff's nine counts).

On 18 December 2020, the government filed a Motion to Dismiss under Rule 12(b)(1) for lack of jurisdiction. See Def.'s Mot. to Dismiss, ECF No. 10. Plaintiff filed her Opposition to Defendant's Motion to Dismiss and Motion for Extension of Time to File an Amended Complaint on 7 January 2021. See Pl.'s Opp. to Def.'s Mot. to Dismiss and Mot. for Ext. of Time to File an Am. Compl., ECF No. 12. This Court entered a Notice of Deficiency Order on 7 January 2021, as plaintiff's Opposition to Defendant's Motion to Dismiss and Motion for Extension of Time were not served, and there was no Certificate of Service Attached. See Order, ECF No. 11. The Court allowed plaintiff until 15 January 2021 to file a corrected document. Id.

On 21 January 2021, the government filed a reply to plaintiff's opposition without opposing plaintiff's motion for extension of time. See Def.'s Reply Br., ECF No. 13. Plaintiff filed an amended complaint on 26 February 2021. See Am. Compl. Because plaintiff did not timely file the amended complaint within 21 days after being served the government's motion to dismiss pursuant to RCFC 12(b)(1), the Court treated plaintiff's motion for extension of time as a request to accept plaintiff's untimely amended complaint, which rendered the government's motion to dismiss moot. See Order, ECF No. 14 (granting plaintiff leave to amend her complaint).

On 12 March 2021, the government filed a second motion to dismiss pursuant to both RCFC 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim. See Def.'s Mot. to Dismiss Am. Compl., ECF No 16 ("Gov't's Mot."). Plaintiff filed a response on 8 April 2021, which the Court treated as an opposition to the government's motion to dismiss and, in the alternative, a motion to amend the complaint,...