Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Perry v. United States

United States District Court, D. Maryland

June 2, 2015

ANTHONY W. PERRY, Plaintiff,


THEODORE D. CHUANG, District Judge.

Plaintiff Anthony W. Perry brings this action under the Federal Tort Claims Act ("FTCA") 28 U.S.C. §§ 1346(b), 2671-80 (2012), for claims arising from the execution of a settlement agreement with the United States Census Bureau ("Census Bureau") to resolve an action before the United States Equal Employment Opportunity Commission ("EEOC"). Pending before the Court is Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction and Plaintiff's Motion for Leave to Amend Complaint. The Motions are ripe for disposition, and no hearing is necessary to resolve the issues. See Local Rule 105.6 (D. Md. 2014). Having reviewed the filings, the Court GRANTS the Motion to Dismiss and DENIES the Motion for Leave to Amend.


Perry, a 29-year employee of the Census Bureau within the United States Department of Commerce, alleges that, while he was employed by the Census Bureau in 2011, he was coerced into signing a settlement agreement (the "Settlement Agreement") that resolved pending claims he had filed with the EEOC. The Settlement Agreement required Perry to retire "voluntarily" by September 4, 2012. 1st Am. Compl. ¶¶ 39-44, ECF No. 4; 1st Am. Compl. Ex. B at 1, ECF No. 4-2. Perry alleges that the Census Bureau threatened to fire him immediately if he did not sign the Settlement Agreement. He also alleges that the Settlement Agreement contained a nondisclosure provision that violates EEOC policy.

Perry signed the Settlement Agreement on August 16, 2011. He then retired on April 2, 2012, in accordance with the Settlement Agreement. On February 18, 2014, Perry filed an administrative FTCA claim with the Census Bureau challenging the Settlement Agreement. He also filed claims with the EEOC and the United States Merit Systems Protection Board ("MSPB") challenging the Settlement Agreement. Each agency denied his administrative claims.[1] The Census Bureau determined that Perry's claims were more appropriately brought under Title VII of the Civil Rights Act of 1964. The EEOC found no coercion. After concluding that Perry failed to establish that the Census Bureau misled him into signing the Settlement Agreement by stating that he would have no right to appeal if the Census Bureau removed him, the MSPB denied his claim on jurisdictional grounds, because Perry waived his right to appeal in the Settlement Agreement.

Perry then filed the Complaint in this action on September 9, 2014, followed by an Amended Complaint on September 29, 2014. The United States moved to dismiss on November 26, 2014 on the grounds that (1) there is no subject matter jurisdiction because the original Complaint was filed more than two years after the alleged tort; and (2) Perry's claims are preempted by the Civil Service Reform Act ("CSRA"), 5 U.S.C. § 1101 et seq. (2012). Instead of filing a Memorandum in Opposition to the Motion to Dismiss, Perry filed a Motion for Leave to Amend Complaint, with a proposed Second Amended Complaint, on April 2, 2015.


I. Legal Standards

Under Federal Rule of Civil Procedure 12(b)(1), a defendant may seek dismissal of a complaint based on a lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). When a defendant asserts that the complaint fails to allege facts upon which subject matter jurisdiction can be based, the facts alleged "are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction." Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009).

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may seek dismissal based on failure to state a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(6). To defeat a motion to dismiss under Rule 12(b)(6), the complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 696 (2009). The Court must examine the complaint as a whole, consider the factual allegations in the complaint as true, and construe the factual allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of Comm'rs of Davidson Cnty., 407 F.3d 266, 268 (4th Cir. 2005). Moreover, the court may consider any documents attached to the complaint that are "integral to the complaint." Sec'y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007).

II. Timeliness of the FTCA Claim

The United States first argues that Perry's claim must be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction because Perry filed his Complaint more than two years after the alleged tort occurred. The FTCA provides that the United States only waives sovereign immunity for tort claims filed administratively with the relevant agency within two years of the date the cause of action arises, and only if the civil action is filed within six months of the denial of the administrative claim by the agency. 28 U.S.C. § 2401(b) (2012). Failure to meet both of these requirements deprives a federal court of subject matter jurisdiction. See id. (providing that a claim is "forever barred" if not raised with the appropriate agency within two years after the claim accrues); Kokotis v. United States, 223 F.3d 275, 278 (4th Cir. 2000) (explaining that the timely filing of an administrative claim is a "key jurisdictional prerequisite").

The United States asserts that the alleged tort occurred on August 16, 2011, the date that he signed the allegedly coercive settlement agreement. Because Perry's administrative claim was not filed with the Census Bureau until February 18, 2014, the Government argues, Perry did not meet the two-year requirement. It is not entirely clear, however, that the operative date for the start of the two-year period is the date that Perry signed the settlement agreement. Although neither the United States of Appeals for the Fourth Circuit nor the Court of Appeals of Maryland have addressed this issue, the United States Court of Appeals for the District of Columbia Circuit has concluded that, when a plaintiff alleges an agreement by coercion, the statute of limitations "is tolled until the duress or coercion is no longer effective." Goldman v. Bequai, 19 F.3d 666, 675 (D.C. Cir. 1994) (quoting 13 Williston on Contracts § 1627B (3d ed. 1970)). According to the Complaint, Perry signed and complied with the settlement agreement for fear of losing his job. Accepting the allegations as true, there is a plausible argument that the two-year limitations period was tolled until Perry retired on April 2, 2012, when the fear of losing his job no longer restrained him from challenging the agreement. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.