United States District Court, D. Maryland
Lipton Hollander United States District Judge.
Elaine Dailey, the self-represented Debtor/Appellant, noted
an appeal to this Court from an order issued by the United
States Bankruptcy Court for the District of Maryland
(Schneider, J.), dismissing Dailey's Chapter 13
bankruptcy case, JFS-15-25464 (“Bankruptcy
Case”). ECF 1; ECF 1-1. Dailey also appeals the
Bankruptcy Court's “denial” of her emergency
motion for relief from violations of automatic stay, pursuant
to 11 U.S.C. § 362 (“Emergency Motion”).
brief is at ECF 3-1 (“Appellant
Brief”). Robert S. Thomas, II, Appellee/Trustee,
filed an opposing brief. ECF 6 (“Appellee
Brief”). No reply has been filed and the time to do
so has expired. See Fed. R. Bankr. P. 8018(a)(3);
Local Rule 105.2(a).
Court is mindful of its obligation to construe liberally the
pleadings of a pro se litigant, which are “held to less
stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007); see also White v. White, 886 F.2d 721,
722-23 (4th Cir. 1989). I note, however, that although Dailey
is self-represented, she is an attorney and a member of the
Maryland Bar. See ECF 3-1 at 7.
hearing is necessary to resolve the appeal. See
Local Rule 105.6. For the reasons that follow, I shall affirm
the Order of the Bankruptcy Court dismissing the Bankruptcy
Factual and Procedural Background
appeal is related to several other cases in this Court:
GLR-15-2527; JFM-16-0299; and JFM-16-3073.
court may properly take judicial notice of 'matters of
public record' and other information that, under Federal
Rule of Evidence 201, constitute 'adjudicative
facts.'” Goldfarb v. Mayor & City
Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015);
see also Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007); Katyle v. Penn
Nat'l Gaming, Inc., 637 F.3d 462, 466 (4th Cir.
2011), cert. denied, 565 U.S. 825 (2011);
Philips v. Pitt Cnty. Memorial Hosp., 572
F.3d 176, 180 (4th Cir. 2009). Pursuant to Fed.R.Evid. 201, a
court may take judicial notice of adjudicative facts if they
are “not subject to reasonable dispute, ” in that
they are “(1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate
and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” Of import here, in
Anderson v. Fed. Deposit Ins. Corp., 918 F.2d 1139,
1141 n. 1 (4th Cir. 1990), the Court recognized that a
district court may “properly take judicial notice of
its own records.”
JFM-16-0299 and JFM-16-3073 involved appeals from the
Bankruptcy Court's dismissal of adversary proceedings
filed by Dailey in her Bankruptcy Case. See
JFS-15-0611 (“First Adversary Proceeding”) and
JFS-16-0257 (“Second Adversary Proceeding”). In
JFM-16-0299, Judge J. Frederick Motz affirmed the Bankruptcy
Court's dismissal of the First Adversary Proceeding.
See ECF 10 (Memorandum); ECF 11 (Order). And, in
JFM-16-3073, Judge Motz affirmed the Bankruptcy Court's
dismissal of the Second Adversary Proceeding. ECF 10.
adversary proceedings are related, in turn, to an employment
discrimination case filed by Dailey in this Court on August
26, 2015. See GLR-15-2527 (“Employment
Case”). By Memorandum Opinion (ECF 42) and Order (ECF
43) of April 18, 2016, Judge George Levi Russell, III
dismissed the Employment Case. The Fourth Circuit affirmed on
November 4, 2016. ECF 48; see Dailey v. Lew, ___
Fed.App'x ___, No. 16-1464, 2016 WL 6543457 (4th Cir.
Nov. 4, 2016).
matter sub judice, Dailey's Appellant Brief (ECF
3-1) is identical to the one she filed in the Second
Adversary Proceeding. See ECF 3-4 in JFM-16-3073.
The arguments contained in the brief are largely directed to
the appeal as to the Second Adversary Proceeding.
August 26, 2015, Dailey, an attorney licensed in Maryland and
an employee of the Internal Revenue Service
(“IRS”), United States Department of the Treasury
(“Treasury” or “the Agency”), filed
suit in this Court against Jacob J. Lew, then Secretary of
the Treasury, and nine other individual federal employees who
worked at the Agency, asserting allegations of employment
discrimination and retaliation. See GLR-15-2527, ECF
1. Dailey accused the defendants of wrongfully charging her
with Away Without Leave (“AWOL”) hours “on
five specific dates in March and August 2015”
(GLR-15-2527, ECF 42 at 5), totaling 80 hours or 10 days.
Id. at 20. Dailey also claimed that her employer
withheld $3744 in salary for 72 of the AWOL hours.
Id., ECF 1 at 12-13.
filed a motion to dismiss or, in the alternative, for summary
judgment (id., ECF 24).Dailey filed a motion for
preliminary injunctive relief (id., ECF 30) and a
temporary restraining order (id.; ECF 31), seeking
to enjoin the Agency from taking any measures to prevent her
from teleworking or from charging her with AWOL. Thereafter,
on April 18, 2016, Judge Russell granted Lew's motion,
denied Dailey's motions, and dismissed the case.
GLR-15-2527, ECF 42 (Memorandum Opinion); ECF 43 (Order);
see Dailey v. Lew, et al., CV GLR-15-2527, 2016 WL
1558150 (D. Md. Apr. 18, 2016). Dailey noted an appeal to the
Fourth Circuit. GLR-15-2527, ECF 44. As indicated, the Fourth
Circuit affirmed. Id.; ECF 48.
November 6, 2015, while the Employment Case was pending,
Dailey filed a voluntary petition for bankruptcy under
Chapter 13 of the United States Bankruptcy Code. See
JFS-15-25464, ECF 1. Soon after, Dailey filed a Chapter 13
Plan, which she later amended.
days after Dailey filed for bankruptcy, Dailey filed an
adversary proceeding against three IRS employees who were
also defendants in the Employment Case -Katherine D. Heyden,
Lawrence W. Ford, and Milissa K. Riggs. She also sought,
inter alia, an injunction to prevent the Agency and
her supervisors from implementing a five-day suspension,
without pay, based on a finding that Dailey had been AWOL.
See JFS-15-0611, i.e., the First Adversary
Proceeding, ECF 1. The United States moved to substitute
itself as the sole defendant and to dismiss the adversary
proceeding on the ground that the law foreclosed Dailey from
using an adversary proceeding as an “end-run”
around her Employment Case. JFS-15-0611, ECF 11 at 2.
January 20, 2016, the Bankruptcy Court granted the United
States's motion to substitute and to dismiss the First
Adversary Proceeding, with prejudice. JFS-15-0611, ECF 13.
Dailey noted an appeal to this Court and, on May 26, 2016,
Judge Motz affirmed the Bankruptcy Court's dismissal of
the First Adversary Proceeding. See JFM-16-0299, ECF
10 (Memorandum); ECF 11 (Order). Judge Motz said,
id; ECF 10 at 1-2: “The Bankruptcy Court's
ruling was clearly correct. Employment discrimination actions
are non-core proceedings reserved for exclusive jurisdiction
by the district courts… .The Bankruptcy Court lacked
jurisdiction over the employment discrimination claim The
next day, May 27, 2016, Dailey filed the Second Adversary
Proceeding in the Bankruptcy Court against three IRS
employees: Katherine D. Heyden, Robert L. Bryant, and Milissa
K. Riggs. JFS-16-0257, ECF 1. The allegations in the Second
Adversary Proceeding were similar to those in the First
Adversary Proceeding. See id, ECF 1. The United
States again moved to substitute itself as the proper
defendant and to dismiss. Id., ECF 6.
in the Bankruptcy Case, Dailey filed a Chapter 13 Plan on
November 20, 2015. JFS-15-25464, ECF 17. The plan called for
payment to the Chapter 13 Trustee in the amount of $760 per
month for 60 months. Id., ECF 17. On December 31,
2015, the Debtor filed an Amended Chapter 13 Plan, which
called for the same proposed payments to the Trustee.
Id., ECF 25.
January 15, 2016, the Bankruptcy Court found that the
proposed plan did not fulfill the requirements for
confirmation, as set forth in 11 U.S.C. § 1325.
Accordingly, the Bankruptcy Court entered an Order denying
confirmation of the Chapter 13 Plan, with leave to amend.
Id, ECF 29.
Debtor filed an amended Chapter 13 Plan on February 23, 2016.
Id., ECF 35. At a hearing on March 23, 2016, the
Bankruptcy Court determined that the amended plan did not
fulfill the requirements for confirmation, as set forth in 11
U.S.C. § 1325. Id., ECF 39. The court entered
an Order denying confirmation, with leave to amend.
Debtor filed her fourth Chapter 13 Plan on April 6, 2016.
Id., ECF 41 (“Plan”). Consistent with
each of the previously proposed Chapter 13 plans, this Plan
proposed payments of $760 per month for 60 months.
Id. However, on May 3, 2016, the Trustee filed an
objection to the Plan. ECF 44. According to the Trustee, the
Debtor had failed to tender two of the five payments that had
come due under the terms of the proposed Plan, totaling $1,
520. Id. at 2.
Bankruptcy Court held a hearing on May 11, 2016, at which it
considered the Plan and the Trustee's objection.
JFS-15-25464, ECF 45. The hearing was continued, first until
July 27, 2016 (id., ECF 65) and then to August 22,
2016. See id., ECF 66; ECF 70.
interim, on June 1, 2016, the Debtor filed her Emergency
Motion for relief from violation of automatic stay, pursuant
to 11 U.S.C. § 362. Id., ECF 51. In the
Emergency Motion, the Debtor alleged that the IRS violated
the automatic stay by imposing a five-day suspension on her,
without pay, from April 25, 2016 through April 29, 2016, as
discipline for the charge of being AWOL. Id. Dailey
noted that after she filed for bankruptcy, the IRS filed its
proof of claim on November 19, 2015, for taxes owed.
Id. at 4. She asserted that the withheld wages are
“property of the estate” and moved that they be
turned over to the Chapter 13 Trustee. Id. at 6.
opposition to the Emergency Motion (JFS-15-25464, ECF 55),
the IRS argued that it “acted lawfully in suspending
Debtor and thus did not violate the automatic stay.”
Id. at 3.
[T]he IRS proposed to suspend Debtor for five days without
pay on November 5, 2015 - before she filed for Chapter 13
bankruptcy - based on multiple occasions of being [AWOL] and
her failure to follow proper leave procedures…The IRS
had cause to propose this discipline and the timing refutes
any suggestion that the IRS ...