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Vance v. Dep't of Veterans Affairs

August 18, 2006

MARVIN VANCE, PLAINTIFF,
v.
DEPARTMENT OF VETERANS AFFAIRS, DEFENDANT.



The opinion of the court was delivered by: Chief Magistrate Judge Michael R. Merz

ORDER FOR ADDITIONAL BRIEFING

This case is before the Court on Defendant's Motion to Dismiss (Doc. No. 4) and Plaintiff's Response (Doc. No. 7).

This case was removed from the Small Claims Division of the Dayton Municipal Court where Plaintiff had filed a small claims case for the maximum allowed by the jurisdictional limit of that court, $3,000, for back pay. Mr. Vance's Complaint did not state why he thought he was entitled to back pay.

The United States then filed a Motion to Dismiss. From the paucity of facts pled by Mr. Vance, the Government was led to believe this was a continuation or resurrection of the prior matter, which it had definitively settled with Mr. Vance. Mr. Vance has now filed a brief request that his case not be dismissed, supported by a number of purported personnel action forms. Those forms, at least prima facie, show that this is not the same dispute as the previous one. The prior dispute ended with Mr. Vance's being placed "permanently" in a GS 7 position. The present dispute involves at least some steps for reclassifying the GS 9 inventory management specialist position he holds or held to a GS 11 Administration Officer position.

The Government seeks dismissal under Fed. R. Civ. P. 8(a) and 12(b). While the Court agrees that Plaintiff has not made a plain statement of the facts on which he relies, he has provided sufficient proof of some bona fide dispute to survive the Rule 8 motion, at least under the liberal standards applicable to pro se litigants.

With respect to its Motion under Fed. R. Civ. P. 12(b), the Government claims first that the case is barred by res judicata. That defense is unavailing because this Complaint is founded on a different asserted cause of action than the prior case Mr. Vance had in this Court (Vance v. United States of America, Case No. 3:01-cv-380). While the Government's confusion is completely understandable since the claims look very much alike, they are for different periods of back pay.

Government's counsel also thought that perhaps Mr. Vance was bringing a tort claims action. If that had been what he intended, he would be subject to dismissal for failure to file a claim under the Tort Claims Act. This is clearly, however, not a tort claim.

It may be that with the filing of the personnel action forms, the controversy will be sufficiently sharpened to permit the Court to resolve the dispute. It is accordingly ORDERED that the United States file a reply brief in this matter with the time allowed by S. D. Ohio Civ. R. 7.2 to address the purported reclassification of position.

Michael R. Merz Chief United States Magistrate Judge

20060818

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