(Tennessee) The chief judge for the United States District Court located in Nashville has dismissed a lawsuit by an employee of the VA Medical Center there. The lawsuit alleged corrupt activities by the center’s police chief and assistant director. The employee had been a target of the police chief’s abuse of power, and had been denied a promotion opportunity by the improper actions of the assistant director.
The judge sided with a team of six government lawyers, one from the VA, and five from the Justice Department) that defended the case against the pro se employee. The defense argued that the employee had “failed to exhaust his administrative remedies”, even though the lawsuit documented several administrative steps that the employee had taken, during a period of more than three years, to resolve the situation before filing the lawsuit.
Those steps included the employee’s chain of command, the employee union, the employee relations section of the Human Resources office at the medical center, and the VA Office of Inspector General. Having attempted to get each of those entities, in turn, to resolve the matter, the employee then served a Notice of Claim upon the attorney for the VA. (A notice of claim is a legal “warning” that a plaintiff is contemplating a lawsuit. The step is often required before a private person may sue a government agency.) The lawyer for the VA not only did not respond to the Notice of Claim, but also actively refused to negotiate a settlement with the employee. Only after all of the above steps were accomplished, in order, did the employee file a lawsuit.
Tom Kovach is a clerk in the engineering section of the VA Medical Center in Nashville. He is also a former staff sergeant in the US Air Force, where he was a patrol supervisor in the Security Police*. (They have been called Security Forces since 1998, but Kovach got out in 1991.)
The plaintiff is an experienced pro se activist, who once stopped a NAMBLA* fundraiser at a state university campus in New York, and whose courtroom activities got him hand-picked for 1998 membership on a NY State Assembly legislative task force on court reform. (* NAMBLA is the North American Man-Boy Love Association — a homosexual group that advocates men having sex with young boys. Their motto is “Sex before eight, or it’s too late”.) Kovach also won twice at the appellate level against his first wife’s lawyer, who had been practicing law for 20 years, and against whom the Appellate Division upheld sanctions (a courtroom fine and reprimand) for the lawyer’s courtroom harassment of Mr. Kovach. That case was one of the few in the history of the State of New York in which a pro se party won sanctions against a licensed attorney, and then the sanctions were upheld by the Appellate Division. Kovach moved to Tennessee in 2001, remarried there in 2002, and has worked at the VA hospital in Nashville since 2010.
In May of 2010, the hospital’s emergency preparedness coordinator learned about the military background of Tom Kovach, and asked him for assistance in doing a threat assessment of the facility. During a period of several days, Kovach and the emergency preparedness coordinator (who also worked in the Engineering section) developed a threat assessment report, which included photographs of the facility. Taking photos had been approved by the Engineering section, and the photos did not contain views of any patient-care areas (thus, there were no privacy issues). During the course of the assessment, Kovach observed a young man of Middle Eastern appearance carrying a satchel and standing near a vulnerable part of the hospital. Kovach attempted to photograph the man, but the camera malfunctioned. The man made some suspicious moves, and so Kovach followed him. When the man got into a car and drove off of VA property, Kovach phoned a Nashville detective (who had the same military background, and whom Kovach had befriended years prior) and reported the suspicious person. The detective then put out an alert for the man and the vehicle. Kovach then went inside the hospital and attempted to report the incident to the VA Police. But, because they had already received the alert from the Nashville Police, the VA Police turned away Kovach without asking him for any further details.
Weeks later, the emergency preparedness coordinator learned of a potential threat against several VA facilities, and he suggested that report his observations to the national VA coordination center. That report came back down the chain to the Nashville VA Police. The police chief then stormed into Kovach’s office, accused Kovach of “self-aggrandizement” and “trying to embarrass me”, threatened Kovach with an investigation under the Stolen Valor Act, and then ordered an investigator to issue a citation for Kovach to appear in court to answer a criminal charge of “unauthorized photography”. While the criminal charge was pending, the VA Police chief later sent an officer to Kovach’s office to convey an order that Kovach must wash the chief’s car. Kovach represented himself in court against the criminal charge, which was dismissed. Kovach then began his quest to get justice for having been harassed by Chief James Foster.
The attempts at justice, as documented above, were fruitless. Three years after the incident, in an ironic twist of events, the emergency preparedness coordinator got offered a higher job with a different Federal agency. Before leaving, he recommended that Kovach replace him. But, the facility’s assistant director, Gary Trende, instead moved Foster into the emergency preparedness coordinator job, without any job announcement, because Foster’s eyesight was failing and so he no longer qualified to be a police officer.
Persons familiar with the incident said that Foster had asked Trende for an “easy” job, because Foster had a daughter in college and was within a year of retirement eligibility. Trende not only slid Foster into the position without any competitive announcement (as required by Federal regulations), but also ordered Foster’s new boss, the facility’s safety manager, to do Foster’s work for him while Foster surfed the Internet for a year. During the year that Foster was being paid approximately $65,000 to do no work, the facility came under a Joint Commission inspection that focused upon emergency preparedness Foster’s boss thus worked many extra hours, doing Foster’s job, to get ready for the inspection.
Kovach’s lawsuit was based upon a violation of his civil rights (false criminal charge), and felony witness intimidation (sending a police officer to order Kovach to wash the police chief’s car) by Foster, plus unfair employment practices and intentional waste of government resources by Trende. Kovach based his claim for monetary damages upon the salary that he would’ve made if he had gotten the job as emergency preparedness coordinator. (In addition to his law enforcement and security duties in the Air Force, the plaintiff was also a former Ranger instructor and rescue team commander in the Civil Air Patrol.) Kovach made several attempts to get the Federal attorneys to negotiate a settlement, but they actively refused.
It is interesting to note that, during a year-long exchange of legal papers, the defense team never once denied the allegations in Kovach’s complaint. Instead, they argued only legal technicalities. And, in a strategy that most attorneys would consider quite risky, the defense team also never filed an answer to the complaint. On the last day before the defense went into default*, they filed only a motion to dismiss. (* Default is when the defense essentially surrenders the case by not filing an answer by the deadline.) The motion to dismiss did not qualify as an answer under Rule 12 of the Federal Rules of Civil Procedure. With no answer by the deadline, the defendants should have been in default. But, the judge kept the case alive after the default date, and then granted the motion to dismiss.
Because the case was dismissed on the ground that the plaintiff had “failed to exhaust his administrative remedies”, even though the complaint documented several attempted remedies, Kovach plans to file an appeal. In addition to the filing fee, Kovach must incur extra costs, because the Sixth Circuit appeals court does not allow pro se parties to file electronically. (It is one of the few Federal courts with such a restriction.) The appeals court is located in Cincinnati, Ohio. Because he cannot file electronically, the plaintiff must have his appellate briefs professionally printed and bound in a specific format, and then shipped to the court, while the defense can file electronically. Kovach attempted to get the services of an attorney that is not only a former Air Force lawyer, but also experienced with white-collar crime cases, but that attorney has not replied. Kovach has only 30 days from the dismissal to file an appeal, so he has decided to continue to represent himself.