Opinion
CIVIL NO. CCB-08-3121.
May 8, 2009
MEMORANDUM
Plaintiff Johnny D. Richardson, representing himself, has filed suit against the Secretary of the Army for an alleged violation of a Negotiated Settlement Agreement ("NSA") he entered into with the Army on May 24, 2008 to resolve a discrimination complaint. The Army filed a motion to dismiss or for summary judgment and attached materials outside the complaint; Mr. Richardson, having been given appropriate notice, replied and also attached documents. The Army's motion will be treated as one to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(1), or, in the alternative, one for summary judgment under Fed.R.Civ.P. 56. The motion will be granted on two grounds.
First, Mr. Richardson failed to timely exhaust his administrative remedies. He was on notice as of May 24, 2007, that the Army construed "calendar days" to mean exactly that, consecutive days on the calendar and not "work days" as Mr. Richardson now suggests. The Memorandum he signed May 24, 2007, calculates the 75 days of paid administrative leave as running from May 27, 2007 through August 9, 2007. Not until July 23, 2007, more than 30 days after that notice, did Mr. Richardson complain that the 75 days should be work days, therefore not ending until September 13, 2007. As he failed to comply with the 30-day requirement in the NSA, derived from the applicable federal regulation, 29 C.F.R. § 1614.504(a), the court lacks subject matter jurisdiction. See Sanders v. Reno, 186 F.3d 684, 685 (5th Cir. 1999).
Second, even if the complaint is deemed timely, there has been no violation of the NSA. The phrase "75 calendar days" is not ambiguous, and the terms of a contract, such as the NSA, are interpreted under an objective standard. There is no need for a hearing under these circumstances. Met Labs v. Reich, 875 F.Supp. 304, 306 (D. Md. 1995).
Finally, even if there were a breach, Mr. Richardson could not be awarded the relief he seeks — reinstatement — but rather only the additional days of leave under his calculation or reopening of the underlying complaint. Frahm v. U.S., 492 F.3d 258, 262-63 (4th Cir. 2007).
For all these reasons, the government's motion will be granted by separate Order.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:1. the defendant's motion to dismiss or for summary judgment (docket entry no. 8) is GRANTED;
2. the Clerk shall send a copy of this Memorandum and Order to the plaintiff and counsel of record; and
3. the Clerk shall CLOSE this case.