JEFFREY K. PLASKETT v. CHRISTINE WORMUTH, Sеcretary, U.S. Department of the Army
No. 19-17294
United States Court of Appeals for the Ninth Circuit
November 19, 2021
D.C. No. 5:18-cv-06466-EJD
Before: Mary M. Schroeder, Ryan D. Nelson, and Daniel P. Collins, Circuit Judges.
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the Northern District of California Edward J. Davila, District Judge, Presiding
Argued and Submitted January 15, 2021 San Francisco, California
Filed November 19, 2021
Opinion by Judge Collins; Concurrence by Judge Schroeder
Mandamus Act / Jurisdiction
The panel affirmed the district court‘s judgment dismissing for lack of jurisdiction plaintiff‘s action against the Secretary of the U.S. Department of the Army under the Mandamus Act and the Administrative Procedure Act (“APA“) seeking payment of additional claimed backpay and a sanctions award.
Regardless of whether plaintiff‘s claim was viewed as one under the Mandamus Act,
The panel held that plaintiff‘s claim to additional backpay rested on an EEOC October 2017 decision, but the order on its face expressed uncertainty as to what amount, if any, of additional backpay might be due. Plaintiff‘s complaint failed to plead sufficient facts to show that the process contemplated by the October 2017 decision had been completed and that a certain amount of additional backpay was now clearly owed to him.
Plaintiff nonetheless contended that the Army should be barred from contesting that it owed him $21,020.01 in additional backpay. First, plaintiff contended that the Army effectively conceded that it owed him that amount. On this record, the panel held that plaintiff had provided no plausible basis for concluding that the Army had waived its objections to the adequacy of plaintiff‘s documentation or to the correctness of his claim for additional backpay. Second, plaintiff asserted that the doctrine of laches barred the Army from contesting the amount of backpay due. As the district court correctly recognized, a plaintiff cannot invoke the doctrine of laches based on the premise that the plaintiff was prejudiced by his opponent‘s supposed failure to inform it abоut the plaintiff‘s own burden of proof under the law. The panel held that plaintiff failed to state a claim under
Concerning plaintiff‘s claim for payment of the sanctions award, the panel considered whether the district court correctly concluded that the Army‘s sovereign immunity had not been waived. The panel agreed with the district court‘s conclusion, but its reasoning differed.
Whether the Army‘s sovereign immunity has been waived here turns on whether an applicable waiver was unequivocally expressed in statutory text. In contending that the Army‘s immunity from monetary litigation sanctions was waived, the only statute plaintiff relied on was § 15 of the Age Discrimination in Employment Act (“ADEA“). The panel rejected plaintiff‘s contention that a sufficient waiver of the Government‘s immunity against monetary litigation sanctions could be found in § 15‘s express statement that the EEOC could impose appropriate remedies that will effectuate policies of the section. The panel rejected plaintiff‘s additional arguments, and concluded that sovereign immunity precluded enforcement of the award levied by the EEOC in this case. The district court properly dismissed plaintiff‘s second cause of action.
Judge Schroeder concurred, and agreed with the majority‘s conclusion that plaintiff was not entitled to any of the relief he sought. Plaintiff could not succeed on his claim for additional backpay because he failed to show that the amount he sought represented moonlight earnings improperly deducted as replacement income. This was true based on either looking at the allegations of the complaint, as the majority did, or looking through the record, as the district court did. With respect to sanctions, therе was no legal authority that authorized the EEOC to impose monetary sanctions against the government for discovery violations. The EEOC lacked
COUNSEL
Wendy E. Musell (argued), Law Offices of Wendy Musell, Oakland, California, for Plaintiff-Appellant.
Lewis S. Yelin (argued) and Marleigh D. Dover, Appellate Staff; David L. Anderson, United States Attorney; Ethan P. Davis, Acting Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellee.
OPINION
COLLINS, Circuit Judge:
In 2012, the Equal Employment Opportunity Commission (“EEOC“) concluded, after an administrative proceeding under the Age Discrimination in Employment Act (“ADEA“), that the U.S. Army had unlawfully discriminated against Plaintiff Jeffrey Plaskett on the basis of age when it failed to rehire him for a particular civilian position in 2010. The EEOC awarded Plaskett reinstatement and backpay, and it also ordered the Army to pay him sanctions in light of the Army‘s failure to comply with its discovery obligations during the administrative proceedings. The Army, however, refused to pay the sanctions award on the ground that it was barred by sovereign immunity. And although the Army agreed to hire Plaskett and paid him backpay, Plaskett subsequently claimed that the Army owed him additional backpay. Dissatisfied with his efforts to resolve these disputes directly with the Army or through the EEOC, Plaskett ultimately filed this civil action seeking payment of both the additional claimed backpay and the sanctions award. Plaskett alleged that the Army‘s nondiscretionary duty to pay these sums was enforceable under the Mandamus Act,
I
A
From July 4, 2006 until September 30, 2010, Jeffrey Plaskett was employed as an Engineering Equipment Operator by the U.S. Army at Fort Hunter Liggett in Jolon, California. Shortly after that term appointment expired, Plaskett applied for one of four open permanent positions for the same job. However, the 55-year-old Plaskett was not hired; instead, four younger men ranging in age from 29-45 were selected.
In November 2010, Plaskett filed an administrative complaint with the EEOC alleging that the Army had violated § 15 of the ADEA, which generally provides that “[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . in military departments . . . , in executive agencies[,]” and certain other governmental entitiеs “shall be made free from any discrimination based on age.”
In a separate order issued the next day, the administrative judge ordered the Army to pay Plaskett $7,012.50 as a sanction for its failure to produce discovery in a timely manner. The judge concluded that the Army‘s efforts to locate documents had not been sufficiently “diligеnt,” and important documents were belatedly produced “at or after” the hearing, and then only after multiple requests by Plaskett and the filing of a motion to compel. The sanction amount was determined by multiplying the “reasonable time” that Plaskett‘s attorney had spent pursuing this discovery (16.5 hours) by a reasonable hourly rate for attorneys in the relevant legal community ($425). As authority for imposing this monetary sanction, the judge cited
sanctions) or may “[t]ake such other actions as appropriate.” Id.2
Under the EEOC‘s regulations, an agency must act on an administrative judge‘s decision by “issuing a final order within 40 days,” notifying the complainant “whether or not the agenсy will fully implement the decision.”
In its appeal of the sanctions order, the Army relied solely on sovereign immunity and did not otherwise contest that the sanction was warranted and proportionate to the Army‘s violation of its discovery obligations during the administrative proceedings. In August 2015, the OFO issued an order upholding the sanction and directing the Army to pay it. The Army timely sought reconsideration of the OFO‘s decision, but reconsideration was denied in May 2016. Plaskett petitioned for enforcement of the order in July 2016, and the OFO granted that petition in July 2018.
B
Meanwhile, in May 2014, Plaskett informed the Army that he believed that his backpay had been underpaid. Specifically, Plaskett contended that the Army had improperly deducted the amount of his private employment income during the backpay period from the final backpay awarded. According to Plaskett, the private employment income at issue, arising from Plaskett‘s bulldozing work, was “moonlighting” income that should not have been deducted under the applicable regulations. See
After Plaskett did not receive a satisfactory response from the Army on this issue, Plaskett filed a formal appeal with the OFO in April 2015, asserting that the Army owed him $21,020.01 in additional backpay under the December 2012 final action. While the appeal was pending, the Army sent an email to Plaskett‘s counsel noting that, pursuant to DoD Financial Management Regulation (“FMR“) 7000.14-R, Vol. 8, Chap. 6, § 060505(C) (2013), “[t]he only earnings from other employment that are not deducted from back pay are earnings from outside employment the employee already had before the period of wrongful suspension or separation” (emphasis added).3 Accordingly, the Army requested that Plaskett provide documentation showing that he had
engaged in the asserted moonlighting employment before he left the Army‘s employment. Asserting that Plaskett did not supply such documentation, the Army subsequently declined to pay any additional backpay.
The OFO issued its decision in Plaskett‘s appeal in October 2017. The OFO noted that the Army conceded that Plaskett “should be reimbursed for the amount deducted from back pay that was moonlighting earnings,” but the OFO stated that “neither party has submitted documentation [of] the sum thereof.” Accordingly, the OFO ordered the Army to reimburse Plaskett‘s “back pay, with interest, that it incorrectly deducted as interim earnings but was moonlighting work.” Plaskett was ordered to “cooperate in the [Army‘s] efforts to compute the amount of
In January 2018, Plaskett sought enforcement of the October 2017 decision, and an EEOC Compliance Officer requested a compliance report from the Army. The Army wrote to Plaskett‘s counsel in February 2018, stating that, while it had not yet reimbursed any asserted moonlighting earnings, that was attributable to “Plaskett‘s failure to provide either time cards or other statements showing he was engaged in outside employment while still a federal employee in 2010.” Counsel responded by asserting that Plaskett had already “provided all of the information he was required” to provide. At the instructions of the Complianсe Officer, the Army‘s attorney in May 2018 sent Plaskett‘s counsel an email explaining that the only outside employment time cards the Army had received from Plaskett covered pay periods in 2012 and 2013 and were therefore inadequate to establish that Plaskett had engaged in such employment before October 2010. Plaskett‘s counsel apparently did not respond to this email.
Subsequently, on May 30, 2018, the OFO docketed Plaskett‘s formal petition for enforcement of the December 2017 order. Plaskett asserted that the Army had failed to comply with the October 2017 order and that he was owed $21,020.01 in additional backpay. In its response, the Army stated that it did not construe the October 2017 order as requiring the payment of $21,020.01 and that, without additional documentation from Plaskett, it could not determine any amount of moonlighting earnings that were improperly offset against the backpay award.
C
Before the EEOC acted on Plaskett‘s petition for enforcement of the December 2017 order, Plaskett filed this action in the district court on October 23, 2018. Plaskett‘s first cause of action sought an order directing the Army to pay him additional backpay in the amount of $21,020.01, plus interest, and his second cause of action sought an order requiring payment of the $7,012.50 sanctions award. In seeking to compel these actions by the Army, Plaskett‘s complaint relied on two sources of authority: (1) the district court‘s jurisdiction over “action[s] in the nature of mandamus” under the Mandamus Act, see
The Army moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim on which relief may be granted, see
II
Before turning to Plaskett‘s specific claims for additional backpay and for payment of the sanctions award, we first review the requirements of the particular
A
Although the common-law writ of mandamus has been abolished in the district courts, see
the nature of mandamus,‘” in light of
B
“The APA authorizes suit by ‘[a] person suffering lеgal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.‘” Norton v. Southern Utah Wilderness All., 542 U.S. 55, 61 (2004) (quoting
We have recognized that, in this respect, the showing required to support a request for an order under § 706(1) cоmpelling an agency to take a discrete action mirrors the showing that is required to obtain mandamus-type relief. See Agua Caliente Tribe, 932 F.3d at 1216 (considering the two forms of relief “together because the relief sought is essentially the same“) (simplified). That is, because a
C
It follows from these settled principles that, regardless of whether Plaskett‘s claim is viewed as one under § 1361 or under § 706(1), he was required to plead, inter alia, that the Army had a clear, certain, and mandatory duty to pay him (1) the additional backpay he sought and (2) the sanctions award that the EEOC had imposed. In reviewing whether the district court properly dismissed this action for failure to carry this burden, we confront an initial question concerning the proper procedural framework for reviewing the district court‘s decision.
The district court dismissed Plaskett‘s claims based solely on “lack of subject matter jurisdiction” under
We therefore begin by evaluating all of Plaskett‘s claims under the standards applicable to a motion to dismiss for failure to state a claim. See Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir. 2003) (“We may affirm a district court‘s judgment on any ground supported by the record.“). And because, for the reasons explained below, we conclude that all of his claims fail under those standards, we need not consider whether the application of
D
Accordingly, in reviewing Plaskett‘s claims, we consider whether, “taking all well-pleaded factual allegations as true, it contains enough facts to ‘state a claim to relief that is plausible on its face.‘” Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. In applying these standards, we “consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). The adequacy of Plaskett‘s claims under these standards raises a question of law that we consider de novo. Id. at 760. Likewise, whether the Army was entitled to sovereign immunity as to the sanctions award presents a question of law that we review de novo. Orff v. United States, 358 F.3d 1137, 1142 (9th Cir. 2004), aff‘d, 545 U.S. 596 (2005).
III
We conclude that Plaskett has failed to state a claim, under either § 1361 or § 706(1), for $21,020.01 in additional backpay.
A
Plaskett‘s claim to additional backpay ultimately rests on the EEOC‘s October 2017 decision, but that ruling does not establish a “clear and certain” claim resting on a “nondiscretionary, ministeriаl” duty to pay additional backpay that is “so plainly prescribed as to be free from doubt.” Agua Caliente Tribe, 932 F.3d at 1216 (citations and internal quotation marks omitted). On the contrary, the order on its face expresses uncertainty as to what amount, if any, of additional backpay might be due.
The October 2017 order confirms that there is no dispute that, if the Army offset its backpay award by amounts that Plaskett earned as a result of moonlighting work, then Plaskett is entitled to receive additional backpay reflecting that improperly deducted amount. See
Plaskett‘s complaint fails to plead sufficient facts to show that the process contemplated
Judicially noticeable materials in the record further underscore Plaskett‘s failure to plead facts establishing a plausible inference that the uncertain and indeterminate entitlement to additional backpay referenced in the October 2017 order has crystalized into a fixed obligation to pay a sum certain. In particular, the parties’ correspondence over this issue in the period leading up to the filing of this action confirms that the parties disagree as to whether Plaskett has supplied the necessary documents to allow a determination as to whether moonlighting income was improperly offset in calculating Plaskett‘s previous backpay award.6 Plaskett has pleaded no facts plausibly showing that he has provided the Army with the requisite documents, thereby establishing his entitlement to additional backpay. Nor has Plaskett pleaded facts showing that the EEOC has taken a position on this dispute, and the judicially noticeable materials concerning the parties’ interactions with the EEOC do not indicate that either. Rather, the dispute was presented to the EEOC in connection with Plaskett‘s petition for enforcement, which was docketed in May 2018. See supra at 12. However, the EEOC dismissed that petition in January 2020 on the ground that, “upon the filing of [this] civil action in October 2018, the Commission‘s jurisdiction over the complaint ceased.”
It is thus clear that Plaskett has failed to plead - and, if given leave to amend, he could not plead - that any inchoate entitlement to additional backpay contemplated by the October 2017 order has been reduced to a “clear and certain”
claim for performance of a “nondiscretionary, ministerial” duty to pay a determinate sum of any size. Agua Caliente Tribe, 932 F.3d at 1216 (citation omitted).
B
Plaskett nonetheless contends that, for two reasons, the Army should be barred from contesting that it owes him $21,020.01 in additional backpay. The district court properly rejected both arguments.
First, Plaskett contends that the Army effectively conceded that it owed him that amount. Plaskett notes that an Army attorney stated, in an intеrnal email in 2014, that Plaskett‘s request for additional backpay appeared to be “backed up by documentation
Second, Plaskett asserts that the doctrine of laches bars the Army from contesting the amount of backpay due. According to Plaskett, the Army “failed to seek in a timely fashion” the “documents it now claims are necessary” under the applicable regulations, and due to the passage of time, those documents “may no longer exist.” But as the party asserting an entitlement to additional backpay, Plaskett at all times had the burden to establish that he was entitled to that money in accordance with the applicable law and regulations. Here, the relevant regulations are all public documents and, before presenting a claim for additional backpay, Plaskett and his counsel would be expected to consult those regulations in order to ensure that they could satisfy all of their requirements and that Plaskett had a good-faith basis for requesting additional backpay. At least with respect to the essential elements of his own claim for relief, a claimant such as Plaskett cannot invoke laches to complain that the opposing party failed to tell him what the applicable law was for the claim he was asserting against it. It may be that laches might come into play in connection with the belated assertion of an affirmative defense. Cf. O‘Donnell v. Vencor, Inc., 465 F.3d 1063, 1067 (9th Cir. 2006) (considering whether a belated assertion of a “stаtute of limitations defense” was barred by laches but finding that the requisite prejudice was not established). But as the district court correctly recognized, a plaintiff cannot invoke the doctrine based on the premise that the plaintiff was prejudiced by its opponent‘s supposed failure to inform it about the plaintiff‘s own burden of proof under the law. See Halcon Int‘l, Inc. v. Monsanto Australia Ltd., 446 F.2d 156, 159 (7th Cir. 1971) (stating that laches “is a shield of equitable defense rather than a sword for the investiture or divestiture of legal title or right“); 30A C.J.S. Equity § 140 (2021) (“The doctrine of laches cannot be used as a means to obtain affirmative relief.“).
Accordingly, Plaskett failed to state a claim under either
IV
In contrast to his claim for additional backpay, Plaskett‘s claim for payment of the sanctions award presents only a pure question of law concerning the scope of the Government‘s sovereign immunity. If that immunity has beеn waived, it is indisputable
“The United States, as sovereign, is immune from suit save as it consents to be sued,” United States v. Sherwood, 312 U.S. 584, 586 (1941), and the courts “strictly construe” any such “waivers of sovereign immunity,” Oklevueha Native Am. Church of Haw., Inc. v. Holder, 676 F.3d 829, 840 (9th Cir. 2012). Here, the district court concluded that the Government‘s sovereign immunity from monetary sanctions imposed by the EEOC had not been waived because the applicable EEOC regulation—
It is well settled that “[o]nly Congress enjoys the power to waive the United States’ sovereign immunity.” Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1090 (9th Cir. 2007). Accordingly, the Supreme Court has long held that, as a “critical requirement firmly grounded in [its] precedents,” a “waiver of the Federal Government‘s sovereign immunity must be unequivocally expressed in statutory text.” Lane v. Peña, 518 U.S. 187, 192 (1996) (emphasis added); see also FAA v. Cooper, 566 U.S. 284, 290 (2012) (“We have said on many occasions that a waiver of sovereign immunity must be ‘unequivocally expressed’ in statutory text.” (citation omitted)). Consistent with this overwhelming authority, we have squarely held that, because a “regulation” is “not [an] act[] of Congress,” it “cannot effect a waiver of sovereign immunity.” Tobar v. United States, 639 F.3d 1191, 1195 (9th Cir. 2011); see also Heller v. United States, 776 F.2d 92, 98 n.7 (3d Cir. 1985) (holding that “government regulations alone, without the express intent of Congress, cannot waive sovereign immunity“).
Plaskett notes that we have upheld the imposition of monetary litigation sanctions by courts under the Federal Rules of Civil Procedure, see Mattingly v. United States, 939 F.2d 816, 818-19 (9th Cir. 1991) (Rule 11 sanctions); United States v. Nat‘l Med. Enters., Inc., 792 F.2d 906, 910-11 (9th Cir. 1986) (discovery sanctions under Rule 37(b)); cf. United States v. Woodley, 9 F.3d 774, 781-82 (9th Cir. 1993) (holding that neither local rules, supervisory power, nor
Accordingly, whether the Army‘s sovereign immunity has been waived here turns on whether an applicable waiver has been “unequivocally expressed in statutory text.” Lane, 518 U.S. at 192. Moreover, even when Congress has waived the Government‘s sovereign immunity by statute, the “scope” of that waiver “will be strictly construed . . . in favor of the sovereign.” Id. That means that, before a particular type of monetary exaсtion may be sought against the Government, an applicable statutory waiver must be identified that “extend[s] unambiguously to such monetary claims.” Id.
In contending that the Army‘s immunity from monetary litigation sanctions has been waived, the only statute on which Plaskett relies is § 15 of the ADEA. See
such an action the “prevailing employee may not challenge the [EEOC‘s] decision regarding either discrimination or what it found to be appropriate remedies.” Carver v. Holder, 606 F.3d 690, 696 (9th Cir. 2010).
Plaskett first claims that a sufficient waiver of the Government‘s immunity against monetary litigation sanctions may be found in § 15‘s express statement that the EEOC may impose “appropriate remedies, including reinstatement or hiring of employees with or without backpay, as will effectuate the policies of this section.”
Plaskett also notes that § 15 authorizes the EEOC to “issue such rules, regulations, orders, and instructions as it deems necessary and appropriate to carry out its responsibilities” and that it requires federal agencies to “comply with such rules, regulations, orders, and instructiоns.”
Finally, Plaskett contends that, if the EEOC cannot impose monetary litigation sanctions against the Government, then it will be unable to effectuate its authority over its own proceedings. This policy concern cannot overcome the settled caselaw cited above, but in any event, its premise is incorrect. The Government here expressly concedes that the EEOC can impose a variety of nonmonetary sanctions, “such as by drawing adverse inferences, by excluding evidence, or by taking other action during the adjudication of a claim.” This range of potent sanctions gives the agency ample authority to ensure that the Government, as a litigant in EEOC proceedings, acts in conformity with lawful rules and orders of the agency.
Because Congress has not “unequivocally expressed in statutory text” thаt the EEOC may award monetary litigation sanctions against the Government, sovereign immunity precludes enforcement of the award levied by the EEOC in this case. Lane, 518 U.S. at 192. The district court therefore properly dismissed Plaskett‘s second cause of action.
V
The district court‘s judgment dismissing this action is AFFIRMED.
I agree that the district court‘s denial of relief should be affirmed.
Plaskett cannot succeed on his claim for additional backpay because he failed to show that the amount he seeks represents moonlight earnings improperly deducted as replacement income. This is the correct result whether we look to the allegations of the complaint, as the majority does, or look through to the record before the EEOC, as the district court did.
With respect to sanctions, there is no legal authority that authorizes the EEOC to impose monetary sanctions against the government for discovery violations. There is a broad statutory waiver of sovereign immunity that subjects the government to liability for violating the ADEA, and requires it to abide by the EEOC regulations enforcing the statute. As to ADEA liability, the statute in material part provides:
All personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.
As to compliance with EEOC regulations enforcing the statute, the statute further provides:
[T]he [EEOC] is authorized to enforce the provisions of subsection (a) through appropriate remedies, including reinstatement or hiring of employees with or without backpay, . . . [and to] issue such rules, regulations, orders, and instructions as it deems necessary and appropriate to carry out its responsibilities under this section. . . .
The head of each such department agency, or unit shall comply with such rules, regulations, orders, and instructions of the [EEOC] . . . .
Under this statutory authority, the EEOC рromulgated a regulation that allows administrative law judges to sanction parties who fail to respond to discovery requests. It lists sanctions that allow ALJs to draw adverse inferences, to exclude other evidence, and to “[t]ake such other actions as appropriate.”
The EEOC thus lacks express authority under either its regulations or the statute. We therefore need not decide whether—given the broad statutory waiver of sovereign immunity authorizing the EEOC to enforce the ADEA against the government—that express authority must be by a statutory amendment or whether an amendment to the EEOC regulations would be sufficient.
For these reasons, I agree with the majority‘s conclusion that Plaskett is not entitled to any of the relief he seeks.
Notes
(3) When the complainant, or the agency against which a complaint is filed, or its employees fail without good cause shown to respond fully and in timely fashion to an order of an administrative judge, or requests for the investigative file, for documents, records, comparative data, statistics, affidavits, or the attendance of witness(es), the administrative judge shall, in appropriate circumstances:
(i) Draw an adverse inference that the requested information, or the testimony of the requested witness, would have reflected unfavorably on the party refusing to provide the requested information;
(ii) Consider the matters to which the requested information or testimony pеrtains to be established in favor of the opposing party;
(iii) Exclude other evidence offered by the party failing to produce the requested information or witness;
(iv) Issue a decision fully or partially in favor of the opposing party; or
(v) Take such other actions as appropriate.