Ercole v. Wilkie
- Vernon Broderick
- 1:19-cv-11961
- U.S. District Court · Southern District of New York
- 4
In Ercole v. Wilkie, Judge Broderick ordered service of the amended complaint through the Marshals Service without deciding the claims.
Joseph Ercole, who must notify the court of address changes and complete the required steps if service is not completed; Robert Wilkie and the Merit Systems Protection Board, who are to be served through the U.S. Marshals Service; and the Clerk of Court and Marshals Service, which were directed to carry out service.
What happened
Ercole v. Wilkie concerns Joseph Ercole’s claims that his federal employer discriminated against him and his request for review of personnel decisions he appealed to the Merit Systems Protection Board. He filed the action without a lawyer and later amended his complaint after the court directed him to correct deficiencies.
Because Ercole was allowed to proceed without paying filing fees, the court said he could rely on the court and the U.S. Marshals Service to serve the defendants. The court extended the service deadline until 90 days after the summons is issued and directed the Clerk of Court to prepare the service paperwork for Robert Wilkie and the Merit Systems Protection Board.
Judge Vernon S. Broderick ordered the Clerk to issue the summons and provide the necessary papers to the Marshals Service. The order did not decide Ercole’s discrimination or personnel-appeal claims, and it denied permission to appeal without paying fees because any appeal from this order would not be taken in good faith.
The detailed version
- Ercole v. Wilkie · No. 1:19-cv-11961
- Vernon Broderick
- Aug. 10, 2020
Background
Joseph Ercole brought this action without a lawyer. He alleged that his federal employer discriminated against him based on protected characteristics and sought review of personnel decisions that he had appealed to the Merit Systems Protection Board. The court had previously directed him to amend his complaint to correct deficiencies. Ercole filed an amended complaint and later submitted clearer exhibits because the exhibits originally submitted were illegible.
The court had granted Ercole permission to proceed without paying filing fees. Under the federal service rules, a plaintiff proceeding under that permission may rely on the court and the U.S. Marshals Service to serve the summons and complaint.
Service of Process
The court explained that the usual rule requires service within 90 days after the complaint is filed. Because Ercole could not serve the summons and amended complaint until the court reviewed the amended complaint and ordered a summons issued, the court extended the service period until 90 days after the summons is issued. The court stated that, if service is not completed within that period, Ercole should request an extension of time.
The Clerk of Court was instructed to prepare a U.S. Marshals Service Process Receipt and Return form for each defendant, issue a summons, and deliver the summons and other necessary paperwork to the Marshals Service. The service was directed for Robert Wilkie, Secretary of the U.S. Department of Veterans Affairs, and the Merit Systems Protection Board. Ercole was also required to notify the court in writing of any address change, and the court stated that it might dismiss the action if he failed to do so.
Disposition
Judge Vernon S. Broderick ordered the Clerk to mail Ercole a copy of the order and an information package, issue the summons, and provide the required documents to the Marshals Service. The court certified under 28 U.S.C. § 1915(a)(3) that an appeal from this order would not be taken in good faith and therefore denied permission to appeal without paying filing fees. The order addressed service and appeal-fee status; it did not decide the merits of Ercole’s discrimination allegations or his request concerning the personnel decisions.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.