Jeffrey Plaskett v. Christine Wormuth
18f4th1072
| 9th Cir. | 2021Background
- Jeffrey Plaskett (age 55) was not rehired for a permanent Army civilian position in 2010; EEOC administrative judge found an ADEA violation in October 2012 and ordered reinstatement and backpay.
- The administrative judge separately imposed a $7,012.50 monetary sanction (29 C.F.R. § 1614.109(f)(3)) for the Army’s discovery failures; the Army declined to pay citing sovereign immunity and an OLC opinion.
- The Army implemented hiring and paid backpay but disputed an additional $21,020.01 Plaskett claimed was owed because the Army offset alleged moonlighting earnings.
- The EEOC’s Office of Federal Operations (OFO) in October 2017 said Plaskett should be reimbursed for any improperly deducted moonlighting earnings but directed the Army to compute amounts and ordered Plaskett to cooperate; no fixed sum was determined.
- Plaskett filed a civil action (Oct. 23, 2018) invoking the Mandamus Act (28 U.S.C. § 1361) and APA § 706(1) seeking (1) $21,020.01 additional backpay and (2) enforcement of the $7,012.50 EEOC sanction.
- The district court dismissed; the Ninth Circuit affirmed: backpay claim fails for lack of a clear, nondiscretionary duty to pay a sum certain; sanction enforcement barred by sovereign immunity because Congress did not unequivocally waive immunity for agency monetary sanctions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can mandamus or APA § 706(1) compel the Army to pay $21,020.01 in additional backpay for improperly deducted moonlighting earnings? | Plaskett: OFO’s October 2017 order entitles him to a fixed sum; Army owes nondiscretionary payment. | Army: OFO left amount undetermined; Plaintiff failed to provide required documentation; no clear ministerial duty to pay a sum certain. | Held: Dismissed — no clear, nondiscretionary duty; claim not plead/ripe as a sum certain; fails under §1361 and §706(1). |
| May Plaskett enforce the EEOC’s $7,012.50 monetary sanction against the Army, or does sovereign immunity bar payment? | Plaskett: EEOC regulation and ADEA enforcement authority permit sanctions and effect a waiver of immunity. | Army: Waiver of sovereign immunity must be unequivocally expressed in statute; regulations cannot waive immunity; ADEA does not clearly authorize monetary sanctions against the Government. | Held: Dismissed — sovereign immunity not waived by statute; EEOC regulation cannot itself effect waiver; sanction unenforceable. |
Key Cases Cited
- Heckler v. Ringer, 466 U.S. 602 (mandamus limited to exhaustion and clear nondiscretionary duty)
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (APA §706(1) limited to compelling discrete, non‑discretionary agency actions)
- Lane v. Peña, 518 U.S. 187 (waiver of sovereign immunity must be unequivocally expressed in statutory text)
- Tobar v. United States, 639 F.3d 1191 (regulations cannot waive sovereign immunity)
- United States v. Woodley, 9 F.3d 774 (limits on imposing monetary sanctions against the Government)
- United States v. Sherwood, 312 U.S. 584 (sovereign immunity principle)
- Agua Caliente Tribe of Cupeño Indians of Pala Rsrv. v. Sweeney, 932 F.3d 1207 (Ninth Circuit formulation of mandamus requirements)
- Stevens v. Department of the Treasury, 500 U.S. 1 (administrative enforcement options and district court review under ADEA)