Dees v. California State University, Hayward
| Citation | 33 F.Supp.2d 1190 |
| Decision Date | 10 December 1998 |
| Docket Number | No. C 96-04245 MEJ.,C 96-04245 MEJ. |
| Parties | Tommie R. DEES, Plaintiff, v. CALIFORNIA STATE UNIVERSITY, HAYWARD, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
Tommie Dees, Hayward CA, pro se.
Christine Helwick, Lee R. Rydalch, California State University, Office of General Counsel, Long Beach, CA, for Defendants.
ORDER GRANTING DEPARTMENT OF LABOR'S AND DEPARTMENT OF JUSTICE'S MOTIONS TO DISMISS
The Department of Labor Defendants' and the Department of Justice Defendants' motions to dismiss are presently before the Court. After careful review of the parties' papers, Plaintiff's complaint and applicable case law and statutory authority, the Court hereby grants in part the Department of Labor Defendants' and the Department of Justice Defendants' motions to dismiss with prejudice and grants in part the Department of Labor Defendants' and the Department of Justice Defendants' motions to dismiss without prejudice.
From 1976 to 1985, Plaintiff was employed as a groundsworker at California State University, Hayward ("CSU"). In 1983, Plaintiff began experiencing disputes with his supervisors.
On November 15, 1983, CSU determined that Plaintiff was currently unable to carry out the normal duties of his assignment as groundsworker and placed Plaintiff on leave until he could submit a medical release confirming his ability and willingness to perform his assignments under normal working conditions.
Plaintiff eventually exhausted his leave credits and on March 8, 1984, CSU informed Plaintiff that he must be placed on unpaid leave status, return to work or terminate employment, and that inaction would result in termination of his employment. Plaintiff did not respond and Plaintiff was placed on unpaid leave status for an indefinite period of time.
On May 29, 1985, CSU terminated Plaintiff because he was considered absent without authorized leave ("AWOL") since March 1984. CSU notified Plaintiff that he was considered to have automatically resigned from employment because he did not return to his normal assignment with a medical release or request a leave of absence if he was unable to return to work as informed in March 1984.
Plaintiff sought redress in a variety of administrative and legal forums, including the Office of Federal Contract Compliance Programs ("OFCCP") of the United States Department of Labor, challenging CSU's termination of his employment. On November 25, 1985, October 15, 1992 and April 15, 1994, Plaintiff a complaint with the OFCCP. Plaintiff alleged that CSU discriminated against him on the basis of his religion, handicap and veteran status in violation of Executive Order 11246, section 503 of the Rehabilitation Act of 1973 ("section 503") and section 2012 of the Vietnam Era Veterans' Readjustment Assistance Act of 1974 ("VEVRA"). The OFCCP investigated Plaintiff's first complaint, found no violation and closed the complaint. The OFCCP closed Plaintiff's second and third complaints for failure to timely provide additional information. The OFCCP informed Plaintiff of all three determinations and Plaintiff sought reconsideration of the OFCCP's decisions. The national office of the OFCCP upheld the decisions.
Amidst these proceedings, on June 16, 1994, Plaintiff sought an investigation of the OFCCP's actions with the Department of Justice. The Department of Justice informed Plaintiff that it did not have the authority to review the OFCCP's actions and the matter was referred to the DOL. The DOL conducted the internal investigation of the manner in which the OFCCP handled Plaintiff's complaint. On December 20, 1994, the Director of Division of Internal Management Control notified Plaintiff that the DOL had reviewed the OFCCP's actions and found no impropriety in the handling of his complaints.
On November 22, 1996, Plaintiff filed this suit against various agencies and individuals in federal court, including the Department of Labor, the OFCCP, the Secretary of Labor, and nine former and present officials of the Department of Labor in their "official capacity," (see Pl.'s Comp. at 66-68), (collectively referred to in this order as the "DOL").1 Plaintiff also filed this action against the Department of Justice, Janet Reno and ten former and present officials of the Department of Justice in their "official capacity," (see Pl.'s Comp. at 70), (collectively referred to in this order as the "DOJ").2
Plaintiff alleges that the DOL, in their "official capacity," failed to "affirmatively" investigate Plaintiff's complaints, investigated Plaintiff's complaints in a false and fraudulent manner, unlawfully denied Plaintiff's complaint and failed to notify Plaintiff in writing of his rights of appeal. (See Pl.'s Comp. at 66-68.) Plaintiff also alleges that the DOL defendants conspired with the other defendants in violation of the Racketeer Influenced and Corrupt Organization Act ("RICO") by forcing Plaintiff to accept social security disability benefits by "direct threat of murder, extortion, and fraud." (Pl.'s Comp. at 65-66.)
Plaintiff alleges that the DOJ, in their "official duties," failed to "affirmatively" investigate Plaintiff's charges of harassment, threats and coercion by the DOL. (Pl.'s Comp. at 70-71.) Plaintiff alleges that the DOJ complacently failed to perform their duties as part of a conspiracy. (Pl.'s Comp. at 14.) These allegations are the only grounds for Plaintiff's suit against the DOJ.
The DOL's and the DOJ's motions to dismiss are presently before the Court. The motion to dismiss is made on behalf of the DOL and the DOJ defendants who have been served. It is not presented as to any DOL or DOJ defendants who have not been served and no appearance is being made on their behalf.
A complaint should not be dismissed under Fed.R.Civ.P. 12(b)(6), "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A complaint may be dismissed as a matter of law for two reasons: (1) lack of a cognizable legal theory or (2) insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). In considering a motion to dismiss, "[a]ll the allegations of material fact are taken as true and construed in the light most favorable to the non-moving party." Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1439 (9th Cir.1987) (quoting Plaine v. McCabe, 797 F.2d 713, 716-17 (9th Cir.1986)). To grant a motion to dismiss, "it must appear to a certainty that the plaintiff would not be entitled to relief under any set of facts that could be proved." Id.
The OFCCP is an arm of the DOL responsible for ensuring compliance by federal government contractors with certain equal employment opportunity requirements. The OFCCP administers three distinct equal employment opportunity programs: Executive Order 11246, section 503 and VEVRA. These programs require affirmative action by certain federal contractors and subcontractors. Executive Order 11246 prohibits discrimination in employment on the basis of race, color, creed, national origin and sex; section 503 prohibits discrimination in employment on the basis of a handicap; and VEVRA prohibits discrimination in employment on the basis of Vietnam era or disabled veteran status.
Plaintiff's federal complaint alleges that the OFCCP failed to "enforce" and bring charges against CSU as it was "bound by the law" to do. (Pl.'s Comp at 67.) Plaintiff is seeking judicial review of the OFCCP's decision to close his complaints and forego enforcement proceedings against CSU. The DOL argues that the Court lacks jurisdiction to review the OFCCP's disposition of Plaintiff's complaints under the Administrative Procedure Act ("APA"). The DOL is correct.
Where a statute does not expressly provide for judicial review of an agency's enforcement decisions, the APA governs judicial review of a final agency action. See 5 U.S.C. §§ 701-706. Under the APA, final agency action is subject to judicial review if there is no other adequate remedy in court. 5 U.S.C. § 704 (). However, an exception is made for action "committed to agency discretion by law." Id. at § 701(a)(2). "Such action is unreviewable for there is simply `no law to apply.'" Clementson v. Brock, 806 F.2d 1402, 1404 (9th Cir.1986).
[E]ven where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion. In such a case, the statute ("law") can be taken to have "committed" the decisionmaking to the agency's judgment absolutely.
Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985).
"[A]n agency's decision not to take enforcement action should be presumed immune from judicial review under § 701(a)(2)." Id. at 832, 105 S.Ct. 1649. However, an agency's refusal to take enforcement action is "only presumptively unreviewable; the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers." Id. at 832-33, 105 S.Ct. 1649.
If [Congress] has indicated an intent to circumscribe agency enforcement discretion, and has provided meaningful standard for defining the limits of that discretion, there is `law to apply' under § 701(a)(2) [of the APA] and courts may require that the agency follow that law; if it has not, then an agency refusal to institute...
To continue reading
Request your trial
-
Nordbrock v. U.S.
...393, 397 (6th Cir.1991) (a federal agency is not subject to state or federal criminal prosecution); Dees v. California State University, Hayward, 33 F.Supp.2d 1190, 1201 (N.D.Cal.1998) (RICO statutes do not indicate that the United States has waived its sovereign immunity) Salisbury v. Chap......
-
Williams v. Dep't of Fair Emp't
...Regents, 528 U.S. 62, 72-73 (2000)). Sovereign immunity has not been waived as to RICO claims. See Dees v. California State University, Hayward, 33 F. Supp. 2d 1190, 1201 (N.D. Cal. 1998) ("The RICO statutes do not indicate that the United States has waived its sovereign immunity" and thus ......
-
Austin v. Lange
...party addresses this issue within the legal framework applicable to a Bivens claim. See, e.g., Dees v. California State University, Hayward, 33 F.Supp.2d 1190, 1204-05 (N.D. Cal. 1998) (discussing equitable tolling of Bivens claim). The applicable state's personal injury statute of limitati......
-
Straw v. LinkedIn Corp.
... ... California, San Jose DivisionFebruary 22, 2023 ... cases from Indiana state courts to this court”-namely ... “In re Straw, ... disbarment); Dees v. Cal. State Univ., 33 F.Supp.2d ... 1190, 1203 ... ...