Miller v. Esper

Background

Marytherese Miller sued Lloyd J. Austin III and other federal officials, alleging violations of constitutional and statutory rights arising from her employment by the Department of the Army, including alleged discrimination and retaliation under the Rehabilitation Act. Miller proceeded without a lawyer. The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which concerns subject-matter jurisdiction, and Rule 12(b)(6), which concerns whether a complaint states a legally sufficient claim.

Miller’s complaint described workplace injuries, requested accommodations, alleged efforts to remove her from her job, reinstatement through a proceeding before the Merit Systems Protection Board, and her 2014 termination. The court also considered Miller’s three earlier federal lawsuits. The court stated that the current complaint was largely copied from her 2018 complaint, with limited additions concerning a 2019 Equal Employment Opportunity Commission ruling and a 2020 Office of Personnel Management letter.

Criminal-statute and civil-rights claims

The court dismissed Miller’s claims under 18 U.S.C. §§ 241, 245, and 1621, and under 28 U.S.C. § 1746, because private individuals cannot seek criminal remedies under those provisions. The court also dismissed her claim under 42 U.S.C. § 1983 because the defendants were federal defendants, not state or local officials sued under state law.

Claim preclusion

The court applied claim preclusion, also called res judicata, which generally prevents a party from relitigating claims that were decided or could have been raised in an earlier case. It held that the requirements for claim preclusion were met for most of Miller’s Rehabilitation Act claims: her prior cases involved final decisions, she had brought those cases, and most of the claims either had been raised or could have been raised earlier. The court treated the change in the named Department official as insufficient to avoid claim preclusion because Miller had previously sued the Department’s Secretary in the official capacity.

The court held that claim preclusion did not apply to claims based on the 2019 Equal Employment Opportunity Commission ruling or the 2020 Office of Personnel Management letter because those events occurred after the earlier complaint. Those claims were therefore considered separately.

Failure to state a Rehabilitation Act claim

The court dismissed the claims based on the 2019 ruling and 2020 letter under Rule 12(b)(6). For a Rehabilitation Act retaliation claim, the court explained that a plaintiff must allege protected activity, the employer’s awareness of that activity, an adverse employment action, and a causal connection between the protected activity and the adverse action. For discrimination, the plaintiff must allege that the adverse action occurred solely because of a disability.

The court found that Miller did not allege that either the 2019 Equal Employment Opportunity Commission ruling or the 2020 Office of Personnel Management letter was an adverse action taken by an employer. Miller did not allege that she worked for either agency, and she did not name the agency representative discussed in the complaint as a defendant. The court therefore dismissed these claims without prejudice. It did not decide the defendants’ separate argument that Rehabilitation Act claims against defendants other than Whitley should be dismissed.

Requested filing injunction

The defendants asked the court to restrict Miller from filing future actions related to her Department employment or against the defendants without court permission. The court considered Miller’s litigation history, her likelihood of success, her status as an unrepresented litigant, the burden imposed by her lawsuits, and whether other sanctions would be adequate.

The court found that the current complaint was substantially duplicative and that Miller had no objective chance of success on the nearly identical claims. But it also found that her litigation history and the burden imposed had not reached the level that warranted an injunction at that time. The court declined to issue a filing injunction, while warning that further duplicative lawsuits would almost certainly justify one and that any future injunction could apply to all lawsuits related to Miller’s employment, not only lawsuits filed without paying fees.

Disposition

The court granted the defendants’ motion to dismiss insofar as it sought dismissal of Miller’s claims. The claims that were barred by claim preclusion or otherwise dismissed as part of the prior litigation were dismissed with prejudice. The claims concerning the 2019 Equal Employment Opportunity Commission ruling and the 2020 Office of Personnel Management letter were dismissed without prejudice, and Miller was allowed 30 days to file an amended complaint. The court warned that failure to meet that deadline could result in dismissal with prejudice. The court terminated the pending motion and directed the Clerk to update the docket and mail the opinion to Miller.