Free Answer to Amended Complaint - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JOHN R. MAYFIELD Assistant U.S. Attorney Arizona State Bar No. 4848 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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Thomas D. McCaffrey, Civ-04-0701-PHX-SMM Plaintiff ANSWER TO SECOND AMENDED COMPLAINT v.

John Snow, Secretary of the Treasury, and, Michael Chertoff, Director of the Department of Homeland Security, Defendants

Defendants, John Snow, Secretary of the Treasury and Michael Chertoff,1/ Director of the Department of Homeland Security, by and through undersigned counsel, answer the plaintiff's Second Amended Complaint as follows: 1. In answer to paragraph 1 of plaintiff's Second Amended Complaint, the defendants

admit the allegations set forth in said paragraph. 2. In answer to paragraph 2 of plaintiff's Second Amended Complaint, the defendants

admit the allegations of said paragraph.

Michael Chertoff, by operation of law, is substituted for the former Director of the Department of Homeland Security. Rule 25(d)(1), F.R.Civ.P.

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3.

In answer to paragraph 3 of plaintiff's Second Amended Complaint, the defendants

admit the allegations of said paragraph. 4. In answer to paragraph 4 of plaintiff's Second Amended Complaint, the defendants

admit the allegations of said paragraph as essentially correct for purposes of this litigation. The Homeland Security Act of 2002, 6 U.S.C. § 101 et seq. (2002), transferred operations of the former Immigration and Naturalization Service (INS) to the Department of Homeland Security (DHS). On March 1, 2003, DHS announced the reorganization of the former functions of the Immigration and Naturalization Service. Two separate entities now perform those functions. As part of the Border and Transportation Security Division of the DHS, the new Bureau of Immigration and Customs Enforcement (BICE) performs a number of functions previously performed by the INS and United States Customs Service. 5. In answer to paragraph 5 of plaintiff's Second Amended Complaint, the defendants

admit the allegations of the first sentence of said paragraph as essentially correct as the events giving rise to this dispute arose primarily prior to the effective date of the Homeland Security Act. In further response to said paragraph the defendants assert that this Court's subject matter jurisdiction is limited to the provisions of 29 U.S.C. § 633a. (ADEA federal sector) and 42 U.S.C. §2000e-16 where applicable. 6. In answer to paragraph 6 of plaintiff's Second Amended Complaint, the defendants

admit only that this Court's subject jurisdiction is limited to the provisions of 29 U.S.C. § 633a. (ADEA federal sector) and 42 U.S.C. §2000e-16 where applicable. In further response the defendants admit that the USCS and BICE are federal agencies. 7. In answer to paragraph 7 of plaintiff's Second Amended Complaint, these are

allegations regarding jurisdiction and otherwise describe the nature of his claims, and thus no admission or denial is required. To the extent the Court would require a response, the defendants admit only that this Court's subject jurisdiction is limited to the provisions of 29 U.S.C. § 633a. (ADEA federal sector) and 42 U.S.C. §2000e-16 where applicable.

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8.

In answer to paragraph 8 of plaintiff's Second Amended Complaint, the defendants

admit, on information and belief, the allegations of said paragraph.

GENERAL ALLEGATIONS

6.

In answer to paragraph 6 of plaintiff's Second Amended Complaint, the defendants

admit, on information and belief, the allegations of said paragraph. 7. In answer to paragraph 7 of plaintiff's Second Amended Complaint, the defendants

admit, on information and belief, the allegations of said paragraph. 8. In answer to paragraph 8 of plaintiff's Second Amended Complaint, the defendants

admit, on information and belief, the allegations of said paragraph. 9. In answer to paragraph 9 of plaintiff's Second Amended Complaint, the defendants

admit, on information and belief, the allegations of said paragraph. 10. In answer to paragraphs 10, of plaintiff's Second Amended Complaint, the defendants

admit, on information and belief, the allegations of said paragraph. 11. In answer to paragraph 11 of plaintiff's Second Amended Complaint, the defendants

deny, on information and belief, the allegations of said paragraph. 12. In answer to paragraph 12 of plaintiff's Second Amended Complaint, the defendants

admit only that John F. Whinery and Charley R. Graham were selected for the positions on or about May 5, 1998 and deny, on information and belief, the remaining allegations of said paragraph. 13. In answer to paragraphs 13 of plaintiff's Second Amended Complaint, the defendants

admit, on information and belief, the allegations of said paragraph. 14. In answer to paragraph 14 of plaintiff's Second Amended Complaint, the defendants

admit, on information and belief, the allegations of said paragraph. 15. In answer to paragraph 15 of plaintiff's Second Amended Complaint, the defendants

admit only that Stephen J. Leon was selected for the position and that, on information and
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belief, he was younger than the plaintiff. The defendants deny the remaining allegations of said paragraph. 16. In answer to paragraphs 16 of plaintiff's Second Amended Complaint, the defendants

admit, on information and belief, the allegations of said paragraph. 17. In answer to paragraph 17 of plaintiff's Second Amended Complaint, the defendants

admit only that the plaintiff timely applied for the position, and that he and other applicants were found to be qualified for the position. The defendants deny the remaining allegations of said paragraph. 18. In answer to paragraph 18 of plaintiff's Second Amended Complaint, the defendants

assert asserts that said paragraph contains plaintiff's conclusions of law and characterizations events in this matter to which no response is required. To the extent the Court would require a response, the defendants admit only that initially Douglas Morgan Jr. and Daniel Mikolay, who were younger than the plaintiff, were selected. However, the ultimate selectees were Morgan and Youakim who were older than the plaintiff. The defendants deny the remaining allegations of said paragraph. 19. In answer to paragraph 19 of plaintiff's Second Amended Complaint, the defendants

admit, on information and belief, the allegations of said paragraph. 20. In answer to paragraph 20 of plaintiff's Second Amended Complaint, the defendants

admit, on information and belief, the allegations of said paragraph. 21. In answer to paragraph 21 of plaintiff's Second Amended Complaint, the defendants

deny the allegations of said paragraph. 22. In answer to paragraph 22 of plaintiff's Second Amended Complaint, the defendants

deny the allegations of said paragraph. 23. In answer to paragraph 23 of plaintiff's Second Amended Complaint, the defendants

deny the allegations of said paragraph.

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24.

In answer to paragraph 24 of plaintiff's Second Amended Complaint, the defendants,

after reasonable investigation, are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 24 and therefore deny same. 25. In answer to paragraph 25 of plaintiff's Second Amended Complaint, the defendants

deny the allegations of said paragraph. 26. In answer to paragraph 26 of plaintiff's Second Amended Complaint, the defendants

deny the allegations of said paragraph. 27. In answer to paragraph 27 of plaintiff's Second Amended Complaint, the defendants,

on information and belief, deny the allegations of said paragraph. 28. In answer to paragraph 287 of plaintiff's Second Amended Complaint, the defendants,

on information and belief, deny the allegations of said paragraph. 29. In answer to paragraph 29 of plaintiff's Second Amended Complaint, the defendants,

on information and belief, admit the allegations of said paragraph.

FIRST CLAIM FOR RELIEF (Civil Rights Violation - ADEA) 30. In answer to paragraph 30 of plaintiff's Second Amended Complaint, the defendants

hereby reallege each and every response to Paragraphs 1-29 of plaintiff's Second Amended Complaint, as if fully set forth herein. 31. In answer to paragraph 31 of plaintiff's Second Amended Complaint, the defendants

deny the allegations of said paragraph.

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SECOND CLAIM FOR RELIEF (Retaliation) 32. In answer to paragraph 32 of plaintiff's Second Amended Complaint, the defendants

hereby reallege each and every response to Paragraphs 1-31 of plaintiff's Second Amended Complaint, as if fully set forth herein. 33. In answer to paragraph 33 of plaintiff's Second Amended Complaint, the defendants

deny the allegations of said paragraph. 34. In answer to paragraph 34 of plaintiff's Second Amended Complaint, the defendants

deny the allegations of said paragraph. 35. The defendants specifically deny each and every allegation of the Second Amended Complaint not otherwise expressly admitted or denied herein. RELIEF The defendants deny the allegations set forth in paragraphs, A 1 through 6, B and C under the heading "Relief" on the grounds the defendants deny that plaintiff is entitled to any relief whatsoever. Further, some requested relief is contrary to well-established law. WHEREFORE, the defendants respectfully request the Court to dismiss plaintiff's Second Amended Complaint and grant the defendants such other and further relief as the Court may deem appropriate. FIRST DEFENSE The Second Amended Complaint states claims for which no relief can be granted.

SECOND DEFENSE Some of plaintiff's claims are barred for failure to timely exhaust administrative remedies.

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THIRD DEFENSE Plaintiff is barred from bringing any claim for which he did not timely comply with the applicable statutes and regulations.

FOURTH DEFENSE Some or all of plaintiff's claims are barred by the applicable statute of limitations, laches, estoppel and waiver.

FIFTH DEFENSE All actions taken by the defendants with regard to the plaintiff were taken for legitimate nondiscriminatory business reasons, in accordance with governing law, memorandums of understanding between the defendants and the Federal Bureau of Investigation, the provisions of th Kyl-Hutchison Amendment, the Kyl Initiative, that the policies, practices and regulations of the defendants. Furthermore, those reasons were and are not pretextual.

SIXTH DEFENSE The actions of the defendants were based upon legitimate business reasons, lawful principles of personnel management and legitimate managerial and institutional needs. Further, these reasons were not discriminatory or pretextual.

SEVENTH DEFENSE The defendants assert that the plaintiff is not entitled to compensatory damages as to his ADEA claims, as a matter of law.

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EIGHTH DEFENSE The defendants assert that the plaintiff is not entitled to attorneys' fees as to his ADEA claims, as a matter of law.

NINTH DEFENSE The defendants assert that the plaintiff is not entitled to front pay damages as to his ADEA claims as a matter of law.

TENTH DEFENSE Plaintiff's allegations of violations of personnel regulations and policies are barred by his election of remedies, waiver, laches and statute of limitations. WHEREFORE, the defendants pray that: 1. The Second Amended Complaint be dismissed; 2. Plaintiff take nothing by this action; 3. The Court enters judgment in favor of the defendants, denying injunctive, declaratory, or any other form of relief on behalf of the plaintiff, and 4. The Court grant such other and further relief as it deems proper and just. Dated this 16th day of October 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney

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CERTIFICATION

I hereby certify that on October 16, 2006, I electronically transmitted the attached 3 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Jeffery F. Arbetman Attorney at Law 349 North 4th Avenue Phoenix, Arizona 85003

attorney for plaintiff s/ John R. Mayfield Office of the U.S. Attorney

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