Plaskett v. Wormuth, No. 19-17294 (9th Cir. 2021)
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The EEOC concluded, under the Age Discrimination in Employment Act (ADEA), that the Army had unlawfully discriminated against Plaskett when it failed to rehire him for a civilian position, awarded Plaskett reinstatement and backpay, and ordered the Army to pay him sanctions based on the Army’s failure to comply with discovery obligations during administrative proceedings. The Army refused to pay the sanctions award, citing sovereign immunity. Although the Army agreed to hire Plaskett and paid him backpay, Plaskett claimed that the Army owed him additional backpay and filed suit, arguing that the Army’s nondiscretionary duty to pay these sums was enforceable under the Mandamus Act, 28 U.S.C. 1361, and the Administrative Procedure Act (APA), 5 U.S.C. 706(1).
The Ninth Circuit affirmed the dismissal of the action for lack of jurisdiction. Regardless of whether the claim was viewed under the Mandamus Act or under the APA, Plaskett was required to plead that the Army had a clear, certain, and mandatory duty. The claim to additional backpay rested on an EEOC decision that, on its face. expressed uncertainty as to what amount of additional backpay might be due. The complaint failed to plead sufficient facts to show that a certain amount of additional backpay was now clearly owed. The ADEA did not include a sufficient waiver of the government’s immunity against monetary litigation sanctions with respect to the sanctions award.
Court Description: 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, 28 U.S.C. § 1361, or under the APA, 5 U.S.C. § 706(1), plaintiff was required to plead, inter alia, that the Army had a clear, certain, and mandatory duty to pay him the additional backpay he sought, and the sanctions award that the EEOC had imposed. The district court dismissed plaintiffs’ claims based solely on lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), and expressly declined to reach the Army’s challenges under Fed. R. Civ. P. 12(b)(6). As to the sanctions award, the panel agreed with the district court that the issue of the Army’s sovereign immunity raised a jurisdictional issue and was properly resolved under Rule 12(b)(1). As to the issue of back pay, the panel held that the adequacy of plaintiff’s APA claim should have been analyzed under Rule 12(b)(6) rather than Rule 12(b)(1). The panel began by evaluating all of plaintiff’s claims under the standards applicable to a motion to dismiss for failure to state a claim. Because the panel concluded that all of plaintiff’s claims failed under those PLASKETT V. WORMUTH 3 standards, the panel did not consider whether the applicable Rule 12(b)(1) standards might have made a difference. 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 about the plaintiff’s own burden of proof under the law. The panel held that plaintiff failed to state a claim under 28 U.S.C. § 1361 or APA § 706(1) for the payment of additional backpay, and the district court properly dismissed plaintiff’s first cause of action. 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. 4 PLASKETT V. WORMUTH 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, there was no legal authority that authorized the EEOC to impose monetary sanctions against the government for discovery violations. The EEOC lacked express authority under either its regulations or the ADEA statute, and the court need not decide whether that express authority must be by a statutory amendment or whether an amendment to the EEOC regulations would be sufficient. PLASKETT V. WORMUTH 5
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