1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Emir Dini, No. CV-21-00629-PHX-MTL
10 Plaintiff, ORDER
11 v.
12 Equal Employment Opportunity Commission, et al., 13 Defendants. 14 15 Pending before the Court is the Equal Employment Opportunity Commission et 16 al.’s (collectively, “EEOC”) Motion to Dismiss pursuant to Federal Rule of Civil 17 Procedure 12(b)(1), (5) and (6). (Doc. 23.) The motion is fully briefed. (Docs. 23, 45, 18 47.) As explained herein, the Court grants the motion. 19 I. BACKGROUND 20 In April 2021, pro se Plaintiff Emir Dini filed a complaint against the EEOC, 21 alleging two claims: violation of the Administrative Procedures Act (Count I) and ultra 22 vires agency action in violation of Constitutional separation of powers principles (Count 23 II). (Doc. 1.) Plaintiff submitted a total of three charges in the EEOC’s Denver and 24 Phoenix offices based on civil rights violations. (Id. ¶¶ 7, 11.) Plaintiff asserts that the 25 EEOC issued a notice of right-to-sue letter to him without investigating his claims. (Id. 26 ¶¶ 10, 12.) Plaintiff did not file suit in any instance. (Id. ¶ 12.) After conducting his own 27 investigation into the EEOC’s priority claims handling procedures (“PCHP”), Plaintiff 28 determined that “the policy was a scheme to hide the severe budgetary stress on the 1 agency and to serve as a policy crutch after decades of neglect by Congress to adequately 2 fund the country’s foremost civil rights agency.” (Id. ¶ 13.) Plaintiff asserts that this 3 policy was developed “in a manner and with the intent to abrogate portions of Title VII” 4 and has thus “deprived in excess of 500,000 Americans a fair proceeding before the 5 EEOC.” (Id. ¶¶ 33, 39.) Plaintiff further asserts that “the Denver field office is currently 6 on a campaign against disability discrimination” and will thus “reject other types of 7 claims.” (Id. ¶ 30.) 8 In his Count I, Plaintiff asserts that Congress withheld rulemaking authority from 9 the EEOC which the agency “unlawfully circumvented,” and it failed to follow a notice- 10 and-comment period when it created the PCHP. (Id. ¶¶ 52–53.) In his Count II, Plaintiff 11 claims the EEOC acted “in excess of its statutory authority” because it “lacks the 12 authority to promulgate substantive rule changes [and] . . . re-write and implement Title 13 VII in a manner in-consistent [sic] with statutory language.” (Id. ¶ 58, 59.) Based on 14 these allegations, Plaintiff seeks declaratory and injunctive relief vacating the PCHP. (Id. 15 ¶¶ 54, 61, 62.) 16 II. LEGAL STANDARD 17 In evaluating a motion to dismiss, the court accepts all factual allegations as true 18 and draws all reasonable inferences in favor of the plaintiff. Barker v. Riverside Cty. 19 Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009). The court liberally construes pro se 20 pleadings. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A pro se complaint is 21 “held to less stringent standards than formal pleadings drafted by lawyers.” Id. (quoting 22 Erickson v. Pardus, 551 U.S. 89, 94 (2007)). 23 Federal courts are courts of limited jurisdiction: “They possess only that power 24 authorized by Constitution and statute.” Kokkonen v. Guard. Life Ins. Co. of Am., 511 25 U.S. 375, 377 (1994). “Congress has conferred on the district courts original jurisdiction 26 in federal-question cases—civil actions that arise under the Constitution, laws, or treaties 27 of the United States.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 28 (2005) (citing 28 U.S.C. § 1331). 1 Rule 12(b)(1) allows a defendant to challenge subject matter jurisdiction. Fed. R. 2 Civ. P. 12(b)(1). A motion to dismiss under Rule 12(b)(1) may attack the complaint on 3 its face by stating that the complaint fails to allege facts upon which the court can base 4 jurisdiction. Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cty., 343 5 F.3d 1036, 1039 n.2 (9th Cir. 2003). To survive a motion to dismiss under Rule 12(b)(1), 6 the plaintiff has the burden of proving the court has jurisdiction. Thornhill Pub. Co., Inc. 7 v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). 8 To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “a 9 short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 10 R. Civ. P. 8(a)(2). The complaint must provide “more than labels and conclusions, and a 11 formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. 12 Twombly, 550 U.S. 544, 555 (2007). The complaint’s claim for relief must be plausible, 13 not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). The Court is not 14 required to accept as true all legal conclusions set forth in a pleading. Id. at 678. 15 III. ANALYSIS 16 The EEOC has sovereign immunity against suit unless it is expressly waived in 17 statutory text. James v. EEOC, No. 3:18-cv-01414-AC, 2019 WL 2453782 (D. Or. April 18 30, 2019). And “Congress did not expressly create a cause of action against the EEOC 19 by employees of third parties.” Ward v. E.E.O.C., 719 F.2d 311, 313 (9th Cir. 1983); see 20 generally 42 U.S.C. §§ 2000e–1 through 2000e–17. “Only present or former employees 21 of the EEOC (or applicants for employment) who allege an unlawful employment 22 practice committed by the EEOC as an employer may bring a Title VII action against the 23 EEOC.” Ward, 719 F.2d at 313. Plaintiff is neither a former or present employee of the 24 EEOC, nor is he alleging an unlawful employment practice committed by the EEOC. 25 (See Doc. 1.) Accordingly, Plaintiff lacks an express cause of action to sue the EEOC. 26 Similarly, an implied cause of action does not exist against the EEOC under Title 27 VII. See Hall v. EEOC, 456 F. Supp. 695, 699–700 (N.D. Cal. 1978) (declining to find 28 an implied cause of action exists for a charging party to sue the EEOC to “more fully or 1 speedily investigate or attempt to conciliate their charge” because parties may simply 2 circumvent the EEOC and file their own suit). Consequently, because “Congress did not 3 intend to imply a private cause of action against the EEOC,” the Plaintiff cannot maintain 4 an action under Title VII. Ward, 719 F.2d at 313. 5 Plaintiff contends he has standing to challenge the PCHP under the Administrative 6 Procedures Act (“APA”). But like Title VII, the APA does not authorize a suit by 7 Plaintiff against the EEOC. Not all agency actions are reviewable by the Court; to be 8 reviewable, the action must have “determinable consequences for the party to the 9 proceeding.” ITT v. Elec. Workers, 419 U.S. 428, 443 (1975). As related to the EEOC, 10 any inaction in claims processing “has no determinable consequences because . . . actions 11 are merely preparatory to a lawsuit by either the EEOC or the charging party.” Ward, 12 719 F.2d at 313.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Emir Dini, No. CV-21-00629-PHX-MTL
10 Plaintiff, ORDER
11 v.
12 Equal Employment Opportunity Commission, et al., 13 Defendants. 14 15 Pending before the Court is the Equal Employment Opportunity Commission et 16 al.’s (collectively, “EEOC”) Motion to Dismiss pursuant to Federal Rule of Civil 17 Procedure 12(b)(1), (5) and (6). (Doc. 23.) The motion is fully briefed. (Docs. 23, 45, 18 47.) As explained herein, the Court grants the motion. 19 I. BACKGROUND 20 In April 2021, pro se Plaintiff Emir Dini filed a complaint against the EEOC, 21 alleging two claims: violation of the Administrative Procedures Act (Count I) and ultra 22 vires agency action in violation of Constitutional separation of powers principles (Count 23 II). (Doc. 1.) Plaintiff submitted a total of three charges in the EEOC’s Denver and 24 Phoenix offices based on civil rights violations. (Id. ¶¶ 7, 11.) Plaintiff asserts that the 25 EEOC issued a notice of right-to-sue letter to him without investigating his claims. (Id. 26 ¶¶ 10, 12.) Plaintiff did not file suit in any instance. (Id. ¶ 12.) After conducting his own 27 investigation into the EEOC’s priority claims handling procedures (“PCHP”), Plaintiff 28 determined that “the policy was a scheme to hide the severe budgetary stress on the 1 agency and to serve as a policy crutch after decades of neglect by Congress to adequately 2 fund the country’s foremost civil rights agency.” (Id. ¶ 13.) Plaintiff asserts that this 3 policy was developed “in a manner and with the intent to abrogate portions of Title VII” 4 and has thus “deprived in excess of 500,000 Americans a fair proceeding before the 5 EEOC.” (Id. ¶¶ 33, 39.) Plaintiff further asserts that “the Denver field office is currently 6 on a campaign against disability discrimination” and will thus “reject other types of 7 claims.” (Id. ¶ 30.) 8 In his Count I, Plaintiff asserts that Congress withheld rulemaking authority from 9 the EEOC which the agency “unlawfully circumvented,” and it failed to follow a notice- 10 and-comment period when it created the PCHP. (Id. ¶¶ 52–53.) In his Count II, Plaintiff 11 claims the EEOC acted “in excess of its statutory authority” because it “lacks the 12 authority to promulgate substantive rule changes [and] . . . re-write and implement Title 13 VII in a manner in-consistent [sic] with statutory language.” (Id. ¶ 58, 59.) Based on 14 these allegations, Plaintiff seeks declaratory and injunctive relief vacating the PCHP. (Id. 15 ¶¶ 54, 61, 62.) 16 II. LEGAL STANDARD 17 In evaluating a motion to dismiss, the court accepts all factual allegations as true 18 and draws all reasonable inferences in favor of the plaintiff. Barker v. Riverside Cty. 19 Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009). The court liberally construes pro se 20 pleadings. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A pro se complaint is 21 “held to less stringent standards than formal pleadings drafted by lawyers.” Id. (quoting 22 Erickson v. Pardus, 551 U.S. 89, 94 (2007)). 23 Federal courts are courts of limited jurisdiction: “They possess only that power 24 authorized by Constitution and statute.” Kokkonen v. Guard. Life Ins. Co. of Am., 511 25 U.S. 375, 377 (1994). “Congress has conferred on the district courts original jurisdiction 26 in federal-question cases—civil actions that arise under the Constitution, laws, or treaties 27 of the United States.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 28 (2005) (citing 28 U.S.C. § 1331). 1 Rule 12(b)(1) allows a defendant to challenge subject matter jurisdiction. Fed. R. 2 Civ. P. 12(b)(1). A motion to dismiss under Rule 12(b)(1) may attack the complaint on 3 its face by stating that the complaint fails to allege facts upon which the court can base 4 jurisdiction. Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cty., 343 5 F.3d 1036, 1039 n.2 (9th Cir. 2003). To survive a motion to dismiss under Rule 12(b)(1), 6 the plaintiff has the burden of proving the court has jurisdiction. Thornhill Pub. Co., Inc. 7 v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). 8 To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “a 9 short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 10 R. Civ. P. 8(a)(2). The complaint must provide “more than labels and conclusions, and a 11 formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. 12 Twombly, 550 U.S. 544, 555 (2007). The complaint’s claim for relief must be plausible, 13 not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). The Court is not 14 required to accept as true all legal conclusions set forth in a pleading. Id. at 678. 15 III. ANALYSIS 16 The EEOC has sovereign immunity against suit unless it is expressly waived in 17 statutory text. James v. EEOC, No. 3:18-cv-01414-AC, 2019 WL 2453782 (D. Or. April 18 30, 2019). And “Congress did not expressly create a cause of action against the EEOC 19 by employees of third parties.” Ward v. E.E.O.C., 719 F.2d 311, 313 (9th Cir. 1983); see 20 generally 42 U.S.C. §§ 2000e–1 through 2000e–17. “Only present or former employees 21 of the EEOC (or applicants for employment) who allege an unlawful employment 22 practice committed by the EEOC as an employer may bring a Title VII action against the 23 EEOC.” Ward, 719 F.2d at 313. Plaintiff is neither a former or present employee of the 24 EEOC, nor is he alleging an unlawful employment practice committed by the EEOC. 25 (See Doc. 1.) Accordingly, Plaintiff lacks an express cause of action to sue the EEOC. 26 Similarly, an implied cause of action does not exist against the EEOC under Title 27 VII. See Hall v. EEOC, 456 F. Supp. 695, 699–700 (N.D. Cal. 1978) (declining to find 28 an implied cause of action exists for a charging party to sue the EEOC to “more fully or 1 speedily investigate or attempt to conciliate their charge” because parties may simply 2 circumvent the EEOC and file their own suit). Consequently, because “Congress did not 3 intend to imply a private cause of action against the EEOC,” the Plaintiff cannot maintain 4 an action under Title VII. Ward, 719 F.2d at 313. 5 Plaintiff contends he has standing to challenge the PCHP under the Administrative 6 Procedures Act (“APA”). But like Title VII, the APA does not authorize a suit by 7 Plaintiff against the EEOC. Not all agency actions are reviewable by the Court; to be 8 reviewable, the action must have “determinable consequences for the party to the 9 proceeding.” ITT v. Elec. Workers, 419 U.S. 428, 443 (1975). As related to the EEOC, 10 any inaction in claims processing “has no determinable consequences because . . . actions 11 are merely preparatory to a lawsuit by either the EEOC or the charging party.” Ward, 12 719 F.2d at 313. Here, Plaintiff could have remedied the EEOC’s alleged failure to 13 investigate his claims by directly suing his employer. 14 Plaintiff contends that he may challenge the PCHP policy under the APA as 15 outlined in Texas v. Equal Employment Opportunity Commission. 933 F.3d 433 (5th Cir. 16 2019). In that case, the state of Texas sued the EEOC based on Guidance it issued to 17 “eliminate unlawful discrimination in employment screening” in state employers. Id. at 18 446. The Fifth Circuit found that Texas suffered “an increased regulatory burden” and 19 “pressure[]” to change its state laws, which violated Texas’s sovereign interest. Id. At 20 446–47. Plaintiff’s case is inapposite. Unlike the state of Texas, Plaintiff has an 21 adequate alternative remedy—filing suit against his employer himself. Ward, 719 F.2d at 22 314. 23 Plaintiff’s ultra vires claim must also be dismissed for failing to state a claim. 24 “[A] state officer may be said to act ultra vires only when he acts ‘without any authority 25 whatever.’” Pennhurst State Sch. & Hops. v. Halderman, 465 U.S. 89, 101 n.11 (1984) 26 (quoting Florida Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 697 (1982)). An 27 ultra vires claim depends on “the officer’s lack of delegated power. A claim of error in 28 the exercise of that power is therefore not sufficient.” Larson v. Domestic & Foreign 1 Commerce Corp., 337 U.S. 682, 690 (1949). The regulations governing the EEOC 2 expressly provide that its “authority to investigate a charge is not limited to the 3 procedures outlined [herein].” 29 C.F.R. § 1601.15(d). Accordingly, Plaintiff’s assertion 4 that the agency “created PCHP to serve as a vehicle to circumvent Title VII’s 5 requirements” amounts to a claim that the EEOC overstepped its statutory authority, not 6 that it acted without authority. See id. 7 Finally, in his response brief, Plaintiff contends that his due process rights were 8 violated by the enactment of the PCHP. (Doc. 45 at 3.) “The requirements of procedural 9 due process apply only to the deprivation of interests encompassed by the Fourteenth 10 Amendment’s protection of liberty and property.” Bd. of Regents of State Colleges v. 11 Roth, 408 U.S. 564, 569 (1972). Plaintiff has not alleged a deprivation of either liberty or 12 property; Plaintiff was issued a right-to-sue letter by the EEOC. Accordingly, the Court 13 dismisses any claim related to procedural due process. See Hall, 456 F. Supp. at 702–03 14 (dismissing a due process cause of action in a case brought by private plaintiffs against 15 the EEOC because “[c]hanges made by the EEOC in the scope and extent of [its] 16 investigative and non-adjudicatory procedures are simply not within the due process 17 clause”). 18 Plaintiff does not seek leave to amend. Because the Court finds that amendment 19 would be futile, Plaintiff’s claims are dismissed with prejudice. Here, it is clear that any 20 amendments to Plaintiff’s complaint would be futile given Plaintiff’s lack of standing and 21 this Court’s lack of subject matter jurisdiction. These issues could not be saved by the 22 allegation of additional facts. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) 23 (holding that amendment shall be permitted “unless it determines that the pleading could 24 not possibly be cured by the allegation of other facts”). 25 IV. CONCLUSION 26 Accordingly, 27 IT IS ORDERED dismissing Plaintiff Emir Dini’s Complaint (Doc. 1) in its 28 entirety with prejudice. 1 IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment || and close this case accordingly. 3 Dated this 6th day of July, 2022. 4 WM clacl T. Hburde Michael T. Liburdi 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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