Plaskett v. McCarthy

• Court: District Court, N.D. California
• Decided: September 10, 2019
• Docket: 5:18-cv-06466
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 JEFFREY K PLASKETT, 8 Case No. 5:18-cv-06466-EJD Plaintiff, 9 ORDER GRANTING DEFENDANT’S v. MOTION TO DISMISS 10 RYAN D. MCCARTHY, Re: Dkt. No. 21 11 Defendant. 12

13 14 Plaintiff Jeffrey K. Plaskett (“Plaintiff”) filed this lawsuit against Defendant, Dr. Mark 15 Esper, former Secretary of the United States Department of the Army (“Defendant”),1 bringing 16 two causes of action. Compl. ¶ 1. Plaintiff seeks two Writs of Mandamus: (1) a Writ of 17 Mandamus ordering Defendant to pay Plaintiff back wages allegedly owed under the 18 Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., and the Mandamus Act, 28 U.S.C. 19 § 1361; and (2) a Writ of Mandamus ordering payment of monetary sanctions in the form of 20 attorney’s fees. Id. at ¶¶ 30-37. Defendant moves to dismiss Plaintiff’s claims under Federal Rule 21 of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and under Federal Rule of Civil 22 Procedure 12(b)(6) for failure to state a claim. Dkt. No. 21. For the reasons below, Defendant’s 23 motion is GRANTED. 24 25

26 1 Pursuant to Federal Rule of Civil Procedure 25(d), Ryan D. McCarthy, Acting United 27 States Secretary of the Army, is automatically substituted for his predecessor in office, Mark Esper. Dkt. No. 33. 1 I. BACKGROUND 2 For approximately four years, Plaintiff worked for the U.S. Army at Fort Hunter Liggett in 3 Monterey County, California, in a term position that expired on September 30, 2010. See id. at ¶¶ 4 3, 8; see also id. at Ex. A. Around this time, Plaintiff applied for a permanent position with the 5 Army as an Engineering Equipment Operator. Compl. ¶ 4; id. at Ex. A. But, the Army did not 6 select Plaintiff for the permanent position. Id. In November 2010, Plaintiff, who was fifty-five 7 years old when he applied for the permanent position, filed an administrative complaint which 8 alleged age discrimination. Decl. of Mr. D. Michael Tucker (“Tucker Decl.”) ¶ 5. 9 In October 2012, an Administrative Judge (“AJ”) for the Equal Employment Opportunity 10 Commission (“EEOC”) (also referred to as “Commission”) issued a decision finding that the 11 Army committed age discrimination in violation of the Age Discrimination in Employment Act 12 (“ADEA”) when the Army did not select Plaintiff for the permanent position. Compl. ¶¶ 1, 9; 13 Tucker Decl. ¶ 6. The AJ ordered the Army: (1) to hire Plaintiff into an equivalent position; and 14 (2) to “award back pay (including pay increases) with interest, less interim earnings, and all 15 benefits the complainant would have received if he had been hired on October 24, 2010, through 16 his entry on duty date.” Compl. ¶¶ 4, 10; id. at Ex. A. In a separate order, the AJ ordered the 17 Army to pay $7,012.50 in sanctions “for the agency’s failure to timely and fully produce discovery 18 and comply with [the AJ’s] orders.” Compl. ¶ 22; id. at Ex. H. 19 In December 2012, the Army notified Plaintiff’s counsel, Ms. Wendy Musell, that pursuant 20 to the AJ’s order, the Army would hire Plaintiff into an equivalent position and pay back pay. 21 Compl. Ex. B. But, the Army stated that it would not comply with the sanctions order because the 22 Army was “bound to follow” guidance from the Office of Legal Counsel at the U.S. Department 23 of Justice, which “expressly opined that there has been no express waiver of sovereign immunity 24 that would authorize the payment of sanctions in administrative cases before the EEOC.” Id. 25 From December 2012 to April 2013, the Army provided the Defense Finance and 26 Accounting Service (“DFAS”) with documentation in an effort to get Plaintiff the ordered back 27 pay. Tucker Decl. ¶ 7. In April 2013, a DFAS pay technician confirmed that DFAS had paid the 1 ordered back pay to Plaintiff. Id. at Ex. 4. 2 Over a year later, in May 2014, Plaintiff contested the amount of back pay he had received, 3 “claim[ing] that his private employment income offset should not have included what he described 4 as moonlighting hours.” Tucker Decl. ¶ 8. Plaintiff claimed this income was non-deductible 5 based on a regulatory exception which provides that moonlighting pay2 – or pay earned from dual 6 employment – is not deductible. At this time, Mr. Douglas Hales, an Army contract attorney, also 7 assumed legal representation of the Army in this matter. Id. at ¶ 2. 8 In late June 2014, Plaintiff provided the Army with “what appeared to be time cards” from 9 2012 and 2013 to support Plaintiff’s claim for the disputed back pay. Id. at ¶ 9; id. at Exs. 7-10. 10 In July 2014, Mr. Hales stated in an internal email to Ms. Carol Lange, an Army Human 11 Resources Specialist, that Plaintiff’s time cards supported Plaintiff’s request for the disputed back 12 pay. Tucker Decl. ¶ 9; id. at Ex. 11. Ms. Musell was not copied on this email. Accordingly, Mr. 13 Hales asked Ms. Lange to submit the time cards and a request for additional back pay to DFAS. 14 Id. Specifically, Mr. Hales stated in the email:

15 I went over the supporting documents with Mr. Plaskett and the missing timecards for H&N are covered by the calendars signed by 16 their book keeper | [sic] because they don’t keep daily timecards. Therefore, his request is backed up by documentation from his 17 employers and we can send the request up to DFAS with the document requesting that he be reimbursed for pay deducted from 18 his earnings from ‘moonlighting’ on non-duty days.

19 Id. 20 In July, August, September, October, and November 2014, Mr. Hales contacted Ms. Casey 21 Prunier, the DFAS pay technician whom Mr. Hales believed was working on the back pay issue. 22 Tucker Decl. ¶ 11; id. at Ex. 12. In December 2014, Mr. Hales contacted another DFAS 23 employee. Id. There is no record of DFAS ever responding to Mr. Hales. Id. 24 25 2 Black’s Law Dictionary defines moonlighting as “[t]he fact, condition, or practice of 26 working at a second job after the hours of a regular job. — Also termed dual employment; multiple 27 job-holding.” Black’s Law Dictionary (11th ed. 2019). 1 In January 2015, Mr. Hales emailed Plaintiff, confirming that he had forwarded the time 2 cards he had submitted to DFAS. Tucker Decl. Ex. 5. Mr. Hales stated:

3 I completed my review of your request for the additional back pay on 30 July 2014. The time cards were forwarded to Casey Prunier at 4 DFAS on 4 August 2014. My email requests for response from Ms. Prunier are attached. I also called Ms. Prunier on 30 July, 13 5 August, 18 August, 29 September, 21 October, 26 November and Allen Campbell on 12 December. The last time I spoke to Ms. 6 Prunier personally was 19 August 2014.

7 I have heard that DFAS is very slow to respond to back pay requests, generally. Hopefully they will get back on track, but I 8 don’t have any information on when that might be.

9 Id. 10 In late February 2015, Mr. Hales asked a newly hired Army lawyer, D. Michael Tucker, to 11 determine the status of the back pay request. Tucker Decl. ¶¶ 1, 10. Mr. Tucker contacted Mr. 12 Brian Dougherty, who had replaced Ms. Prunier at DFAS. Id. at ¶ 11. Mr. Dougherty then 13 referred Mr. Tucker to his supervisor, Ms. Sandra Atwood. Id. 14 In early April 2015, Ms. Atwood searched for an open remedy ticket regarding Plaintiff’s 15 request for additional back pay, but was unable to locate one. Id. Ms. Lange submitted a new 16 remedy ticket to DFAS by the end of the month. Id. 17 In April 2015, Plaintiff submitted an appeal to the EEOC, claiming that the Army had not 18 complied with the entirety of the EEOC’s December 3, 2012 order because the Army allegedly 19 owed Plaintiff back pay with interest in the amount of $21,020.01 and “attorneys’ fees and costs 20 related to its failure to fully pay back pay with interest and to comply with the EEOC’s Orders.” 21 Compl. ¶ 11; see Tucker Decl. ¶ 12. The Army submitted a required Response, asking the EEOC 22 to “deny Complainant’s request and enforcement order and deny his request for referral to the 23 Office of Special Counsel for investigation and review.” Tucker Decl. ¶ 12; id. at Ex. 12. The 24 Army explained that Plaintiff’s documentation did not contain timecards to substantiate the actual 25 days worked from one of his employers, but that the Army “approved” Plaintiff’s request based on 26 a letter from Plaintiff’s employer confirming the schedule. Id. The Army further explained that 27 Ms. Lange then submitted the back pay request to DFAS in July 2014. Id. The Army indicated 1 that short staffing and Plaintiff’s dispute of the back pay calculation over a year after receiving 2 payment, caused delays in processing Plaintiff’s request. See id. The Army stated: “The Agency 3 acted diligently with its available resources and it believes it has identified the cause of the delay 4 and that the additional back pay should be forthcoming.” Tucker Decl. ¶ 12; id. at Ex. 12. 5 In May 2015, DFAS responded to Ms. Lange’s remedy ticket. Tucker Decl. ¶ 13. DFAS 6 informed the Army that, per moonlighting back pay regulations, the Department needed certain 7 documentation verifying that Plaintiff performed moonlighting work prior to his separation from 8 the Army in 2010 in order to process the request for additional back pay. Id. According to Mr. 9 Tucker, “[T]his was the first time anyone had pointed out this regulatory requirement” for 10 documentation verifying moonlighting work prior to Plaintiff’s separation date. Id. Mr. Hales 11 then informed Ms. Musell of DFAS’ position and “offered that paychecks earned from other 12 employers during [Plaintiff’s] period of federal employment would be sufficient.” Id. at ¶ 14. Ms. 13 Musell replied: “This issue is resolved. The Army admitted it was owed. This was confirmed in 14 the OFO [EEOC Office of Federal Operations] appeal. It was confirmed in writing. All that 15 remains is the Army making good on payment.” Id. at Ex. 17. Mr. Hales replied that he read her 16 response as a refusal to provide proof of dual employment. Id. He stated:

17 Fort Hunter Liggett does not have the authority to pay Mr. Plaskett. If FHL [Fort Hunter Liggett] had that authority, Mr. Plaskett would 18 have been paid last summer. Unfortunately, it would have made a mistake to pay him because he did not provide proof of “earnings 19 from outside employment the employee already had before the period of wrongful suspension or separation”, as required by FMR 20 [Financial Management Regulation] Vol. 8, Ch. 6 Sec. 060505 Part C . . . 21 22 Id. 23 In September 2015, Mr. Hales prepared a document titled “Agency’s Supplemental 24 Response to Complainant’s Petition for Enforcement of Final Decision and Sanctions.” Tucker 25 Decl. ¶ 15; id. at Ex. 18. Mr. Hales stated that DFAS denied Plaintiff’s request for back pay 26 because “Mr. Plaskett’s proof of ‘moonlighting’ earnings only covered the period after he was 27 working for the Agency. He did not provide proof that he was already working for another 1 employer before he left his position with the Agency.” Id. It is uncertain whether the EEOC 2 received the Supplemental Response. Id. That same month, Mr. Hales ended his legal contract 3 work for the Army, and Mr. Tucker began representing the Army for the back pay dispute. Tucker 4 Decl. ¶ 2. However, “. . . the sanctions question was being handled at the Department of the Army 5 level of command.” Id. at ¶ 4. 6 In July 2016, Ms. Musell sent a letter to the Director of the Equal Employment 7 Opportunity Compliance and Complaints Review, the Equal Employment Opportunity Director at 8 Fort Hunter Liggett, the Equal Employment Opportunity Director at the Army Reserve 9 Headquarters, and the Legal Department at Fort Hunter Liggett. Id. at Ex. 30. The letter stated: 10 “Mr. Plaskett demands that full compliance of the sanctions and back pay be made by July 22, 11 2016, or he will commence with legal action.” Id. The EEOC docketed Plaintiff’s Petition for 12 Enforcement No. 0420160037 regarding sanctions specifically around this time. Compl. ¶¶ 23- 13 24; id. at Ex. I. 14 The record does not contain information regarding what action the Army took in response 15 to Ms. Musell’s July 2016 letter and Plaintiff’s Petition for Enforcement. Over a year later, in 16 October 2017, the EEOC issued an order requiring the Army: (1) “To the extent it has not already 17 done so, . . . reimburse Complainant’s back pay, with interest, that it incorrectly deducted as 18 interim earning but was moonlighting work”; (2) to determine “the appropriate amount of 19 backpay, with interest, due Complainant” within 60 days following the order; (3) to “issue a check 20 to the Complainant for the undisputed amount within sixty (60) calendar days of the date the 21 Agency determines the amount it believes to be due”—if a dispute exists concerning the amount of 22 back pay and/or interest owed; and (4) to submit a compliance report to the EEOC. Compl. ¶ 14; 23 id. at Ex. C. The EEOC also ordered Plaintiff to “cooperate in the Agency’s efforts to compute 24 the amount of back pay and benefits due, and . . . [to] provide all relevant information requested 25 by the Agency.” Id. 26 The Army took no action. Compl. ¶ 15. The EEOC’s October 2017 order did not come to 27 the Army’s attention until January 2018 when Plaintiff sought enforcement of the order. Id. at ¶ 1 17; Tucker Decl. ¶ 2. In response, EEOC representative, Mr. Rodney Jenkins, issued a notice of 2 non-compliance. Compl. ¶ 17; id. at Ex. D. The Army did not submit a response to the EEOC. 3 Compl. ¶ 18. 4 Mr. Tucker did, however, contact a DFAS Office of General Counsel attorney who 5 informed him the DFAS did not view the order as a directive “to do anything but ensure that we 6 calculated his back pay correctly based [on] any new information he might submit.” Tucker Decl. 7 ¶ 18; id. at Ex. 21. The attorney added: “Unless he has documentation showing DFAS calculated 8 the offset incorrectly because his job met the requirements of the regulation, we would not revise 9 our back pay calculation.” Id. 10 Following Mr. Tucker’s return from military leave, he searched files for additional 11 documentation that would satisfy DFAS, but did not locate any. Tucker Decl. ¶ 20. In late 12 February 2018, Mr. Tucker sent a letter to Ms. Musell which stated that DFAS could not provide 13 additional back pay without documentation verifying Plaintiff’s moonlighting work prior to 14 separation from the Army in 2010. Id. at ¶ 21; id. at Ex. 22. Ms. Musell replied that Plaintiff had 15 already provided all required information. Id. at ¶ 22; id. at Ex. 23. She added: “There have been 16 multiple orders since last October requiring the Army to respond, but the Army chose not to 17 respond. There is now a final order.” Id. 18 In April 2018, Ms. Musell sent a letter to Mr. Jenkins concerning the Army’s alleged 19 failure to comply with the prior EEOC orders. See Compl. ¶ 19; see also id. at Ex. E. Ms. Musell 20 also provided Mr. Tucker with a copy of the letter. This letter omitted reference to the Army’s 21 request for documentation verifying moonlighting work. 22 In May 2018, Mr. Tucker spoke with Mr. Jenkins about Ms. Musell’s refusal to provide the 23 requested documentation. Tucker Decl. ¶ 23. Mr. Jenkins directed Mr. Tucker to send “a more 24 definitive statement/request” to Ms. Musell. Id. at ¶ 24; see id. at Ex. 24. Mr. Tucker emailed Ms. 25 Musell and explained that an affidavit from each employer where Plaintiff performed 26 moonlighting work prior to his separation in 2010 would constitute sufficient documentation. 27 Tucker Decl. ¶ 24; id. at Ex. 25. Mr. Tucker stated: 1 To clarify, the agency needs Mr. Plaskett to at least provide an affidavit from each of the companies he worked for (preferably from 2 a manager) that indicates he performed work for them in 2010 while employed by the Army. The time cards previously submitted only 3 appear to cover pay periods in 2012 and 2013; if there were additional time cards showing he worked for each company in 2010, 4 I do not have them. As recited in my February 26, 2018 letter, the reason the time cards alone are insufficient stems from the wording 5 of 5 U.S.C. s. 5596(b) and the DoD Financial Management Regulation, DoD 7000.14-R, Volume 8, Chapter 6, paragraph 6 060505.C, which addresses an exception for offsetting outside earnings from back pay. If you submitted any such statements 7 before, please re-submit them. 8 Id. Ms. Musell did not reply. Tucker Decl. ¶ 24. Also, in May 2018, the EEOC placed Plaintiff’s 9 Petition for Enforcement, Docket No. 0420180019 concerning the back pay issue on the docket. 10 Compl. ¶ 20; id. at Ex. F. 11 In June 2018, Ms. Musell sent another letter to the EEOC, claiming that the Army “has 12 refused to comply with all orders by the EEOC related to corrective action and still owes Mr. 13 Plaskett back pay, with interest.” Compl. ¶ 21; id. at Ex. G. 14 In July 2018, the EEOC granted Plaintiff’s Petition for Enforcement No. 0420160037 15 relating to the issue of unpaid sanctions. Compl. ¶ 24; id. at Ex. I. The EEOC directed the Army 16 to pay $7,012.50 in sanctions “for its failure to timely and fully produce discovery and comply 17 with the AJ orders.” Id. Also, in July 2018, the EEOC sent a compliance letter to the Army, 18 directing the Army to submit a compliance report. Compl. ¶ 25. 19 Mr. Tucker submitted a Reply to the EEOC regarding Plaintiff’s Petition for Enforcement, 20 Docket No. 0420180019. Tucker Decl. ¶ 24; id. at Ex. 28. The Army asked the EEOC to deny 21 Plaintiff’s petition for enforcement of sanctions. Id. The Army also stated: “Further, we request 22 that if the EEOC OFO’s intent was to direct the payment of $21,020.01 in back pay plus interest, 23 that it more clearly state so. If not, we request that Mr. Plaskett be required to either provide the 24 requested documentation or admit that he did not, in fact, work a second job while employed as a 25 federal employee in 2010 so that this case may be brought to a close.”3 Mr. Tucker noted that Mr. 26

27 3 There is no information in the record regarding the current status of Petition for Enforcement, Docket No. 0420180019. 1 Plaskett “submitted time cards for employment held with three companies in 2012 and 2013, but 2 failed to provide any evidence that he performed work for any of the three in 2010, while still 3 employed as a federal employee.” Id. 4 In October 2018, Plaintiff filed this action seeking $21,020.01 in back pay and $7,012.50 5 in sanctions. Compl. ¶¶ 33, 37; see Dkt. No. 1. 6 II. LEGAL STANDARD 7 Federal Rule of Civil Procedure 12(b)(1) provides that a party may seek dismissal of a suit 8 for lack of subject matter jurisdiction. Fed. R. Civ. Proc. 12(b)(1). A Rule 12(b)(1) motion 9 challenges a court’s subject matter jurisdiction and may be either facial or factual. Id.; Wolfe v. 10 Strankman, 392 F.3d 358, 362 (9th Cir. 2004). When a Defendant makes a factual challenge, as in 11 this case, the Court “may look beyond the complaint and need not presume the truthfulness of the 12 plaintiff’s allegations.” Johnson v. 1082 El Camino Real, L.P., Case No. 5:17-cv-01391-EJD, 13 2018 WL 1091267, at *1 (N.D. Cal. Feb. 28, 2018), citing White v. Lee, 227 F.3d 1214, 1242 (9th 14 Cir. 2000). Also, “the party opposing the motion to dismiss must produce affidavits or other 15 evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Johnson, 16 2018 WL 1091267, at *1, citing Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 17 2004). 18 III. DISCUSSION

19 A. This Court Lacks Jurisdiction Under the Mandamus Act Over Plaintiff’s Claim for Writ of Mandamus Ordering Additional Back Pay. 20 21 The Mandamus Act provides that district courts have original jurisdiction over “any action 22 in the nature of mandamus to compel an officer or employee of the United States or any agency 23 thereof to perform a duty owed to the plaintiff.” See Nova Stylings, Inc. v. Ladd, 695 F.2d 1179, 24 1180 (9th Cir. 1983). The Supreme Court has ruled that “the remedy of mandamus is a drastic 25 one, to be invoked only in extraordinary situations.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 26 33, 34 (1980), citing Will v. United States, 389 U.S. 90, 95 (1967); Bankers Life & Cas. Co. v. 27 Holland, 346 U.S. 379, 382-85 (1953); Ex parte Fahey, 332 U.S. 258, 259 (1947); Patel v. Reno, 1 134 F.3d 929, 930 (9th Cir. 1998) (calling mandamus “an extraordinary remedy”); see also Will v. 2 United States, 389 U.S. 90, 107 (1967) (regarding the writ as “among the most potent weapons in 3 the judicial arsenal”). A plaintiff may not receive mandamus relief under Section 1361 unless “(1) 4 the claim is clear and certain; (2) the official’s or agency’s ‘duty is nondiscretionary, ministerial, 5 and so plainly prescribed as to be free from doubt’; and (3) no other adequate remedy is 6 available.” Agua Caliente Tribe of Cupeño Indians of Pala Reservation v. Sweeney, 932 F.3d 7 1207, 1216 (9th Cir. 2019), citing Patel, 134 F.3d at 931. 8 The Back Pay Act, 5 U.S.C. § 5596(b)(1), authorizes back pay for an agency employee 9 “who, on the basis of a timely appeal or an administrative determination . . . is found by an 10 appropriate authority under applicable law, rule, regulation . . . to have been affected by an 11 unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of 12 all or part of the pay, allowances, or differentials of the employee.” 5 U.S.C. § 5596(b)(1). In 13 calculating back pay, the agency must deduct any income that the employee earned “through other 14 employment during that period.” 5 U.S.C. § 5596(b)(1)(A)(i) (emphasis added). The Office of 15 Personnel Management’s regulations concerning back pay provide an exception for “additional” 16 or “moonlight” employment. 5 C.F.R. § 550.805(e)(1). Specifically, the Code of Federal 17 Regulations provide that when calculating deductions for back pay, “[d]o not count earnings from 18 additional or ‘moonlight’ employment the employee may have engaged in while Federally 19 employed (before separation) and while erroneously separated.” 5 C.F.R. § 550.805(e)(1). 20 Department of Defense (“DoD”) Financial Management Regulation (“FMR”) 7000.14-R, Volume 21 8, Chapter 6, Paragraph 060505.C4 also carves out an exception for additional or “moonlight” 22 employment. DoD FMR, 7000.14-R, Vol. 8, Ch. 6, Paragraph 060505.C. The DoD regulation 23 provides as follows:

24 C. Exception for Additional or Moonlight Employment. The only earnings from other employment that are not deducted from 25 back pay are earnings from outside employment the employee already had before the period of wrongful suspension or separation. 26

27 4 The May 2019 version of Chapter 6 numbers this exception as § 060405, not § 060505. For example, if an employee usually worked 20 hours at a second 1 part-time job (‘moonlighting’) prior to separation from Government employment, and during the period of separation worked 40 hours at 2 the outside job, then the amount representing the extra 20 hours worked would be offset against the back pay computation. To 3 clearly establish whether the pay for outside employment increased substantially during the period of separation, the DoD should obtain 4 a statement or affidavits from the employee covering his or her outside earnings. 5 6 Id. (original emphasis). The exception provides that income earned from “moonlight” 7 employment, or “outside employment the employee already had before the period of wrongful 8 suspension or separation,” is not deductible from an agency’s calculation of back pay. Id. 9 In Kinkaid v. McDonald, the District Court of the District of Columbia found that the 10 “moonlighting” exception did not apply to petitioner’s back pay calculation because petitioner 11 initiated his outside employment after his separation from the U.S. Department of Veteran Affairs 12 (“VA”). 208 F. Supp. 3d 212, 213, 216 (D.D.C. 2016), appeal filed, Kinkaid v. Shulkin, No. 16- 13 5352 (Nov. 29, 2016). Petitioner received back pay from DFAS and reinstatement for improper 14 removal from his position as a physician at the VA Medical Center. Id. at 213. 15 Here, as in Kinkaid, Plaintiff disputes the amount of back pay he received from DFAS in 16 May 2014. See id. at 216. Plaintiff claims that the “moonlighting” employment exception applies 17 to DFAS’ calculation. But, per the DoD regulation, DFAS does not have the legal authority to 18 apply the “moonlighting” employment exception without the requisite documentation. Plaintiff 19 has not provided the necessary documentation to trigger the exception. And Plaintiff has not 20 complied with the EEOC’s October 2017 order requiring Plaintiff to “cooperate in the Agency’s 21 efforts to compute the amount of back pay and benefits due, and . . . [to] provide all relevant 22 information requested by the Agency.” See Compl. ¶ 14; see also id. at Ex. C (emphasis added). 23 Without the requisite documentation, DFAS cannot verify Plaintiff’s claimed “moonlighting” 24 employment. Having failed to provide the requisite documentation to DFAS, Plaintiff’s claim for 25 back pay is not “clear and certain.” Plaintiff has also failed to demonstrate that the Army has a 26 duty which is “so plainly prescribed as to be free from doubt” to pay the disputed back pay 27 because DFAS has not yet verified Plaintiff’s claimed “moonlighting” employment. See Aqua 1 Caliente, 2019 WL 3676342, at *8, citing Patel, 134 F.3d at 931; see also Tucker Decl. ¶ 24. 2 Plaintiff contends that “[t]he remedy of mandamus is appropriate given the extraordinary 3 and repeated violations of orders (eleven in total) by the Agency, and the Agency’s obstinate 4 insistence it is above the law and outside reach of the EEOC’s enforcement orders.” Dkt. No. 25. 5 But, Plaintiff disputes neither the existence of the moonlighting regulations nor the DFAS and 6 Army’s interpretation of the regulations’ requirements. Plaintiff argues instead that this court has 7 mandamus jurisdiction over Plaintiff’s claim for disputed back pay for essentially three reasons. 8 First, Plaintiff claims that the Army “conceded it owed Plaintiff” the disputed back pay with 9 interest. Id. Second, Plaintiff claims that the Army’s delays in complying with the EEOC orders 10 constitute a waiver of the Army’s “right to contest” the disputed back pay amount. Id. Third, 11 Plaintiff argues that laches bars the Army from disputing the amount of back pay allegedly owed 12 because Plaintiff “failed to seek in a timely fashion the documents it now claims are necessary.” 13 See id. None of these arguments establish mandamus jurisdiction over Plaintiff’s claim for 14 disputed back pay. 15 First, the concession argument is unpersuasive. Although Mr. Hales stated in his 2014 16 email that Plaintiff’s documentation supported his request for the back pay, Mr. Hales also made 17 clear he was not the final decision maker. See Tucker Decl. ¶ 9; see also id. at Ex. 11. Rather, 18 Mr. Hales said that “. . . we can send the request up to DFAS with the document requesting that he 19 be reimbursed for pay deducted from his earnings from ‘moonlighting’ on non-duty days.” Id. at 20 Ex. 11 (emphasis added). Also, although the Army stated in its 2015 Response to Plaintiff’s 21 Petition for Enforcement that the Army had “approved” Plaintiff’s request for back pay, this 22 statement was made before the Army learned that DFAS required documentation verifying that 23 Plaintiff engaged in moonlighting prior to his separation date. 24 Second, the Army did not waive its right to dispute the amount of back pay allegedly 25 owed. “A waiver is an intentional relinquishment or abandonment of a known right or privilege.” 26 Groves v. Prickett, 420 F.2d 1119, 1125 (9th Cir. 1970) (internal citations omitted). To show that 27 the Army waived its right to challenge the amount of back pay allegedly owed, Plaintiff must 1 demonstrate, at a minimum, that the Army’s “conduct relied upon must be clear, decisive and 2 unequivocal of a purpose to waive the legal rights involved.” Id. at 1125-26, citing United States 3 v. Chichester, 312 F.2d 275 (9th Cir. 1963). Plaintiff does not meet this burden because the Army 4 requested the required documentation to verify “moonlighting” employment on several occasions. 5 See Tucker Decl. ¶¶ 14, 21, 24. The Army did not “clear[ly], decisive[ly], and unequivocal[ly]” 6 waive its right to dispute the amount of back pay owed. See Groves, 420 F.2d at 1125-26. 7 Third, laches does not bar the Army from disputing the back pay allegedly owed. Laches 8 does not apply in this context because “[l]aches is an equitable defense that prevents a plaintiff, 9 who ‘with full knowledge of the facts, acquiesces in a transaction and sleeps upon his rights.’” 10 See Danjaq LLC v. Sony Corp., 263 F.3d 942, 950-51 (9th Cir. 2001) (internal citations and 11 quotations omitted) (emphasis added). 12 Thus, Plaintiff has not established that this court has jurisdiction over his claim for the 13 disputed back pay under the Mandamus Act, 28 U.S.C. § 1361.

14 B. This Court Lacks Jurisdiction Under the APA Over Plaintiff’s Claim for Writ of Mandamus Ordering Additional Back Pay. 15

16 A plaintiff may bring a claim under Section 706(1) of the APA “only where a plaintiff 17 asserts that an agency failed to take a discrete agency action that it is required to take.” Norton v. 18 S. Utah Wilderness All., 525 U.S. 55, 64 (2004) (original emphasis). When plaintiff demonstrates 19 that he or she has “a right to relief under the circumstances, it is the reviewing court’s duty to 20 ‘compel agency action unlawfully withheld or unreasonably delayed’” per 5 U.S.C. § 706(1). 21 Alibeik v. Chertoff, No. C-07-01938 EDL, 2007 WL 4105527, at *3 (N.D. Cal. Nov. 16, 2007), 22 citing Gelfer v. Chertoff, No. C 06-06724 WHA, 2007 WL 902382, at *1 (N.D. Cal. March 22, 23 2007) (internal citations and quotations omitted). The APA provides that “[a]gency action made 24 reviewable by statute and final agency action for which there is no other adequate remedy in a 25 court are subject to judicial review.” 5 U.S.C. § 704 (emphasis added). 26 As the Army points out, “Plaintiff had a remedy.” Dkt. No. 27. Plaintiff’s remedy is to 27 provide the Army with documentation verifying “moonlighting” employment. Id. Plaintiff has 1 not provided such documentation. Plaintiff provided the Army with time cards for employment 2 performed at three companies in 2012 and 2013. But, Plaintiff did not provide evidence that he 3 worked for any of these companies prior to his separation from the Army in 2010. Tucker Decl. ¶ 4 24; id. at Ex. 28. Plaintiff claims the resume he submitted to the Army when he applied for the 5 permanent position in 2010 demonstrates that he performed moonlighting work. Dkt. No. 25. The 6 resume includes Plaintiff’s bulldozing business under the Work Experience section. Musell Decl. 7 ¶ 6; id. at Ex. E. This section notes: “Jeff Plaskett Bulldozing (1/01/1999 - Present) – 8 Owner/Operator,” a salary of $100.00 per hour, fifty hours per week, and duties. But, DFAS 9 cannot use this resume to verify moonlighting employment prior to 2010 under the DoD 10 regulation, which provides: “To clearly establish whether the pay for outside employment 11 increased substantially during the period of separation, the DoD should obtain a statement or 12 affidavits from the employee covering his or her outside earnings.” DoD FMR, 7000.14-R, Vol. 13 8, Ch. 6, Paragraph 060505.C. Thus, this court lacks jurisdiction over Plaintiff’s claim under the 14 APA. 15 C. This Court Lacks Jurisdiction Over Plaintiff’s Claim for Writ of Mandamus Enforcing Monetary Sanctions. 16 17 This court lacks jurisdiction over Plaintiff’s claim for a Writ of Mandamus enforcing the 18 EEOC’s issuance of monetary sanctions against the Army.

19 1. Sovereign Immunity Precludes the EEOC From Awarding Monetary Sanctions Against the Army. 20 21 The doctrine of sovereign immunity prevents suits against the United States and its 22 agencies unless Congress has waived sovereign immunity. See F.D.I.C. v. Meyer, 510 U.S. 471, 23 475 (1994). “[A] clear statement from the United States waiving sovereign immunity, together 24 with a claim falling within the terms of the waiver” is necessary for federal courts to have 25 jurisdiction over suits against the United States. United States v. White Mountain Apache Tribe, 26 537 U.S. 465, 472 (2003). A waiver of sovereign immunity must be “unequivocally expressed.” 27 Id. An implied waiver of sovereign immunity is not permissible. Id.; Lane v. Pena, 518 U.S. 187, 1 192 (1996) (“. . . A waiver of the Federal Government’s sovereign immunity must be 2 unequivocally expressed in statutory text, and will not be implied.”) (internal citations omitted). 3 Also, a waiver of sovereign immunity “must be construed strictly in favor of the sovereign.” 4 United States v. Nordic Village, 503 U.S. 30, 34 (1992), quoting McMahon v. United States, 342 5 U.S. 25, 27 (1951) (internal quotations omitted). Furthermore, “[a] court may impose money 6 awards against the United States only under an express waiver of sovereign immunity.” United 7 States v. Woodley, 9 F.3d 774, 781 (9th 1993). 8 The EEOC imposed sanctions against the Army pursuant to 29 C.F.R. § 1614.109(f)(3). 9 This regulation grants an AJ the authority to take certain actions “in appropriate circumstances” 10 against a complainant, the agency against whom the complainant has filed a complaint, and its 11 employees for “fail[ing] without good cause shown to respond fully and in timely fashion to an 12 order of an administrative judge, or requests for the administrative file for documents, records, 13 comparative data, statistics, affidavits, or the attendance of witness(es).” 29 C.F.R. § 14 1614.109(f)(3). Specifically, an AJ may:

15 (i) Draw an adverse inference that the requested information, or the testimony of the requested witness, would have reflected 16 unfavorably on the party refusing to provide the requested information; 17 (ii) Consider the matters to which the requested information or 18 testimony pertains to be established in favor of the opposing party;

19 (iii) Exclude other evidence offered by the party failing to produce the requested information or witness; 20 (iv) Issue a decision fully or partially in favor of the opposing party; 21 or

22 (v) Take such other actions as appropriate.

23 Id. (emphasis added). 24 This court faces a question of first impression in this circuit—whether the EEOC has the 25 legal authority to grant monetary sanctions against the Army under the ADEA at administrative 26 proceedings based on section 1614.109(f)(3). Only one federal case, which the Army cites, 27 directly addresses the issue of whether the EEOC has the legal authority to issue monetary 1 sanctions against a federal agency under the ADEA. In Arnold v. McHugh, No. 15-210, 2016 WL 2 5661641, at *4-5 (E.D. Tex. Sept. 30, 2016), the Eastern District of Texas found that sovereign 3 immunity precluded the EEOC from issuing monetary sanctions against the Army. Id. Plaintiff, 4 a former Heavy Equipment Mechanic with the Army, filed an EEO complaint with the EEOC for 5 racial discrimination. Id. at *1. The AJ concluded that the Army did not discriminate against 6 plaintiff when the Army terminated his employment. Id. However, the AJ issued sanctions 7 against the Army in the form of “reasonable discovery costs” and attorneys’ fees for the Army’s 8 failure to investigate Plaintiff’s complaint in a timely manner. Id. The Army refused to pay 9 sanctions based on the argument that sovereign immunity precluded the EEOC from issuing 10 monetary sanctions against the federal government. Id. Plaintiff then filed an action in federal 11 court seeking enforcement of monetary sanctions against the Army. Id. at *2. 12 The court rejected plaintiff’s various arguments that the court had subject matter 13 jurisdiction over the action. First, plaintiff claimed that Congress “waived sovereign immunity for 14 monetary sanctions in EEOC proceedings” based on the language in Section 2000e-16(b) of Title 15 VII. Id. at *3. Section 2000e-16(b) provides that the EEOC has the authority to enforce the 16 prohibition against discriminatory employment practices in the federal government by “issu[ing] 17 such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out 18 its responsibilities under [Title VII].” Id., citing § 2000e-16(b) (internal quotations omitted). 19 Plaintiff “claim[ed] that this conclusion is required by West v. Gibson, 527 U.S. 212 (1999), which 20 held that compensatory damages are an appropriate remedy for Title VII violations by federal 21 agencies.” Id. at *3. The court rejected plaintiff’s argument, stating: “West held that 22 compensatory damages were an appropriate remedy under § 2000e-16(b), but spoke nothing of 23 monetary sanctions or of the EEOC’s ability to issue such awards. Nor did West alter the 24 sovereign immunity analysis . . .” Id. (internal citation omitted). 25 Second, plaintiff claimed that “the EEOC’s inability to impose monetary sanctions on 26 federal agencies” “undermine[s] Title VII’s remedial scheme in the way that the Court in West 27 found that an inability to award compensatory damages would.” Id. at *4. The court rejected this 1 argument stating: “These sanctions are not remedial, as they can be awarded to parties who have 2 not been discriminated against, and the EEOC has several tools other than monetary sanctions that 3 it can use to keep agencies from disregarding its procedural orders.” Id. (internal citation omitted). 4 Third, plaintiff claimed that the EEOC’s consistent refusal to accept a sovereign immunity 5 preclusion argument supported a finding of a waiver of sovereign immunity. Id. at *3-4. The 6 court rejected this argument, stating: “The EEOC cannot waive the Federal Government’s 7 immunity through its regulations or its administrative proceedings.” Id. at *4 (citation omitted). 8 For these reasons, the court concluded that sovereign immunity precluded the court from enforcing 9 monetary sanctions that the EEOC had issued at administrative proceedings. Id. 10 This court finds the reasoning in Arnold persuasive and concludes that section 11 1614.109(f)(3) is not an express waiver of sovereign immunity. The Eighth Circuit’s decision in 12 Palmer provides additional support for finding that sovereign immunity precludes the EEOC from 13 awarding monetary sanctions. Palmer v. Gen. Servs. Admin., 787 F.2d 300, 300-01 (8th Cir. 14 1986). In Palmer, the issue was whether federal courts were authorized to award attorney’s fees to 15 a federal employee who prevails at the administrative level on a claim of age discrimination 16 brought under the ADEA. The Eighth Circuit held that the doctrine sovereign immunity 17 “impose[d] an initial barrier” to the plaintiff’s claim for attorney’s fees. Id. at 301. The Eighth 18 Circuit reasoned that the ADEA provision authorizing courts to award “such legal or equitable 19 relief as will effectuate the purposes of [the ADEA]” did unequivocally express an intent to 20 authorize an award of fees against the government. Id. at 302. 21 The Ninth Circuit’s decision in Woodley further bolsters the Army’s sovereign immunity 22 argument. In Woodley, the court ordered the government to pay attorney’s fees and costs as a 23 sanction under Federal Rule of Civil Procedure 16(d)(2). Id. at 782. The Ninth Circuit held that 24 Rule 16(d)(2) only provides a court with authority to “prescribe such terms and conditions as are 25 just” to remedy a violation of a discovery order, and that this language was insufficient to 26 constitute an express waiver of sovereign immunity. Id. at 781. The language of Rule 16(d)(2) is 27 similar to 29 C.F.R. § 1614.109(f)(3)(v), which provides that an AJ shall “[t]ake such other 1 actions as appropriate” to remedy a violation of an AJ’s order or requests for information. See 29 2 C.F.R. § 1614.109(f)(3). 3 Plaintiff cites various EEOC decisions which reject the Army’s argument that sovereign 4 immunity precludes the EEOC from awarding sanctions against the federal government and its 5 agencies. See e.g., Matheny v. Dep’t of Justice, EEOC DOC 05A30373, 2005 WL 1000149, at 6 *6-9 (EEOC April 21, 2005); Mathis v. Dep’t of Navy, EEOC DOC 0720080006, 2009 WL 7 3360160, at *3 n.3 (EEOC Oct. 8, 2009); Waller v. Dep’t of Transp., EEOC DOC 0720030069, 8 2007 WL 1661113, at *8-10 (EEOC May 25, 2007). In these decisions, the EEOC provides 9 rationales to support its conclusion that the Commission has the legal authority to award monetary 10 sanctions against the federal government and its agencies. 11 First, the EEOC finds that it has “independent authority, based in statute” to issue 12 sanctions at an administrative proceeding. Mathis, 2009 WL 3360160, at *2. As support, the 13 EEOC points to West v. Gibson, where the Supreme Court held that the EEOC has the legal 14 authority “to award compensatory damages to complainants in the administrative process.” 15 Matheny, 2005 WL 1000149, at *8, citing West v. Gibson, 527 U.S. 212 (1999). In West, the 16 Supreme Court found that “the term ‘appropriate remedies’ found in section 717 is not limited to 17 remedies specifically set forth in Title VII.” Matheny, 2015 WL 100149, at *8. Authority to 18 award compensatory damages helps facilitate the EEOC’s “remedial scheme” which 19 “encourage[es] quicker, less formal and less expensive resolution of disputes within the Federal 20 Government and outside of court.” Id., citing West, 527 U.S. at 219. By extension, according to 21 the EEOC: “To deny the Commission the power to ensure compliance with its administrative 22 process through the use of sanctions is to encourage the non-cooperation of agencies with the 23 administrative process,” thus undermining the EEOC’s remedial scheme by “forcing complainants 24 into court, which would, as the Court wrote, ‘increase the burdens of both time and expense that 25 accompany efforts to resolve hundreds, if not thousands, of such disputes each year.’” Id.; see 26 also Waller, 2007 WL 1661113, at *9. 27 1 Second, the EEOC cites “Commission precedent”—“long utiliz[ing] monetary sanctions as 2 a tool to ensure full compliance with Administrative Judges’ orders.” Id. at *8. At oral argument, 3 Ms. Musell reiterated a concern raised in Plaintiff’s Opposition to Defendant’s Motion to Dismiss: 4 this court’s decision to not enforce the EEOC’s sanctions against the Army would set a precedent 5 that government agencies can disobey the orders of AJs without consequence. See Dkt Nos. 25, 6 32. 7 Although Plaintiff and the EEOC opinions he cites raise thoughtful policy concerns, 8 Plaintiff does not demonstrate that section 1614.109(f)(3) constitutes an “unequivocally 9 expressed” waiver of sovereign immunity for monetary sanctions against the Army. See White 10 Mountain, 537 U.S. at 472. Section 1614.109(f)(3) lacks “a clear statement” that the United States 11 has waived sovereign immunity to permit the imposition of monetary sanctions against the Army 12 in administrative proceedings. See id. Finding an implied waiver of sovereign immunity in 13 section 1614.109(f)(3) would be impermissible. See id.; see also Lane v. Pena, 518 U.S. at 192. 14 In the absence of a waiver of sovereign immunity, this court lacks jurisdiction to enforce monetary 15 sanctions against the Army. See id. at 781.

16 2. This Court Lacks Jurisdiction Under the Mandamus Act Over Plaintiff’s Claim for Writ of Mandamus Enforcing Monetary Sanctions. 17 18 This court also lacks jurisdiction under the Mandamus Act. Plaintiff’s claim for relief is 19 not “clear and certain” because sovereign immunity precludes the EEOC from imposing sanctions 20 against the Army. See Agua Caliente, 2019 WL 3676342, at *8 (9th Cir. Aug. 7, 2019), citing 21 Patel, 134 F.3d at 931; see also Alibeik, 2007 WL 4105527, at *2. 22 IV. ORDER 23 For the reasons set forth above, Defendant’s motion to dismiss for lack of jurisdiction 24 under Federal Rule of Civil Procedure 12(b)(1) is GRANTED. Because the Court has dismissed 25 Plaintiff’s claims for lack of subject matter jurisdiction under Rule 12(b)(1), it need not reach 26 Defendant’s challenges under Rule 12(b)(6). 27 1 All claims in the Complaint are DISMISSED WITHOUT LEAVE TO AMEND. 2 IT IS SO ORDERED. 3 Dated: September 10, 2019 4 EDWARD J. DAVILA 5 United States District Judge 6 7 8 9 10 11 12

15 16

= 17

Z 18 19 20 21 22 23 24 25 26 27 28 || Case No.: 5:18-cv-06466-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS