Plaskett v. Wormuth, 19-17294

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtCOLLINS, Circuit Judge
Citation18 F.4th 1072
Parties Jeffrey K. PLASKETT, Plaintiff-Appellant, v. Christine WORMUTH, Secretary, U.S. Department of the Army, Defendant-Appellee.
Docket NumberNo. 19-17294,19-17294
Decision Date19 November 2021

18 F.4th 1072

Jeffrey K. PLASKETT, Plaintiff-Appellant,
v.
Christine WORMUTH, Secretary, U.S. Department of the Army, Defendant-Appellee.

No. 19-17294

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 15, 2021 San Francisco, California
Filed November 19, 2021


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.

Before: Mary M. Schroeder, Ryan D. Nelson, and Daniel P. Collins, Circuit Judges.

COLLINS, Circuit Judge

18 F.4th 1077

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, 28 U.S.C. § 1361, and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(1). The district court dismissed the action for lack of jurisdiction, concluding that the requirements of mandamus jurisdiction were not met as to the backpay award and that the Army's sovereign immunity barred enforcement of the sanctions award. Although our reasoning differs in some respects from that of the district court, we agree that this action was properly dismissed. We therefore affirm the district court's judgment.

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 entities "shall be made free from any discrimination based on age." 29 U.S.C. § 633a(a). After hearing testimony over several days, the EEOC administrative judge on October 18, 2012 issued a decision specifically finding that "Plaskett was not selected for an Engineering Equipment Operator position because of his age" and that the Army

18 F.4th 1078

had therefore violated the ADEA. The administrative judge ordered Plaskett to be hired in the same or a substantially equivalent position and also awarded him backpay. See 29 U.S.C. § 633a(b) (stating that, in EEOC proceedings to enforce the ADEA, the EEOC is authorized to provide "appropriate remedies, including reinstatement or hiring of employees with or without backpay").

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 "diligent," 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 29 C.F.R. § 1614.109(f)(3).1 That section provides that, when a complainant or an agency fails to comply with an administrative judge's orders or with discovery requests, the judge may impose one or more merits-related sanctions (such as drawing adverse inferences or even terminating 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 agency will fully implement the decision." 29 C.F.R. § 1614.110(a). If the agency's final order does not fully implement that decision, "then the agency shall simultaneously file an appeal" with the EEOC. Id. Accordingly, on December 3, 2012, the Army issued a "final action" notice stating that it would implement the EEOC's October 18, 2012 order granting relief for a violation of the ADEA. However, in the same notice, the Army stated that it would not implement the EEOC's October 19, 2012 sanctions order. The Army noted that the U.S. Department of Justice's Office of Legal Counsel ("OLC") "has expressly opined that there has been no express waiver of sovereign immunity that would authorize the payment of sanctions in administrative cases before the EEOC." See Authority of the EEOC to Impose Monetary Sanctions Against Federal Agencies for Failure to Comply with Orders Issued by EEOC Administrative Judges , 27 Op. O.L.C. 24 (2003). The Army stated that it was "bound to follow this

18 F.4th 1079

[OLC] opinion" over the conflicting views of the EEOC, and it therefore declined to implement the EEOC's sanctions order. Consistent with the regulation, the Army simultaneously filed an appeal of that order with the EEOC's "Office of Federal Operations" ("OFO"), see 29 C.F.R. § 1614.403(a), which is authorized to issue decisions in such appeals "on behalf of the Commission," id. § 1614.405(a).

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 5 C.F.R. § 550.805(e)(1) (stating that, although "outside earnings ... undertaken to replace" the employment from which an employee has been wrongfully separated should be deducted in calculating backpay, "earnings from additional or ‘moonlight’ employment the employee may have engaged in while Federally employed (before separation) and while erroneously separated" should not be deducted).

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...

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8 practice notes
  • Hueter v. Kruse, CIV. NO. 21-00226 JMS-KJM
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • December 17, 2021
    ...as arising under the Mandamus Act, 28 U.S.C. § 1361, or the Administrative Procedure Act, 5 U.S.C. § 706(1). See Plaskett v. Wormuth , 18 F.4th 1072, –––– (9th Cir. 2021) (explaining that relief under both § 1361 and § 706(1) is available only if "(1) the claim is clear and certain; (2) the......
  • Hueter v. Haaland, Civ. 21-00344 JMS-KJM
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • February 16, 2022
    ...to be free from doubt.'” Hueter v. Kruse, F.Supp. 3D, 2021 WL 5989105, at *25 n.34 (D. Haw. Dec. 17, 2021) (quoting Plaskett v. Wormuth, 18 F.4th 1072, 1081 (9th Cir. 2021)). But it is well-established that an agency's decisions regarding enforcement actions are discretionary. See Heckler, ......
  • Winns v. DeJoy, 21-cv-04264-VKD
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • October 31, 2022
    ...disputed the amount of back pay and benefits due. See Dkt. No. 48 ¶ 19, Ex. I (Dkt. No. 48-9 at ECF 8); see also Plaskett v. Wormuth, 18 F.4th 1072, 1083-84 (9th Cir. 2021) (concluding that plaintiff failed to state a claim for a certain amount of additional back pay, based on an EEOC order......
  • Vaz v. Neal, 21-15913
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 9, 2022
    ...But the requirements for obtaining relief under the APA go to the merits, not to subject matter jurisdiction. See Plaskett v. Wormuth , 18 F.4th 1072, 1082 (9th Cir. 2021) ("Any deficiencies as to the APA claim go to the merits of that cause of action rather than to the subject matter juris......
  • Request a trial to view additional results
4 cases
  • Hueter v. Haaland, Civ. 21-00344 JMS-KJM
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • February 16, 2022
    ...to be free from doubt.'” Hueter v. Kruse, F.Supp. 3D, 2021 WL 5989105, at *25 n.34 (D. Haw. Dec. 17, 2021) (quoting Plaskett v. Wormuth, 18 F.4th 1072, 1081 (9th Cir. 2021)). But it is well-established that an agency's decisions regarding enforcement actions are discretionary. See Heckler, ......
  • Vaz v. Neal, 21-15913
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 9, 2022
    ...But the requirements for obtaining relief under the APA go to the merits, not to subject matter jurisdiction. See Plaskett v. Wormuth , 18 F.4th 1072, 1082 (9th Cir. 2021) ("Any deficiencies as to the APA claim go to the merits of that cause of action rather than to the subject matter juris......
  • Fuzu Li v. Jigang Jin, H048817
    • United States
    • California Court of Appeals
    • August 19, 2022
    ...'" duty are governed by the Mandamus Act, which vests original jurisdiction in any district court. (Plaskett v. Wormuth (9th Cir. 2021) 18 F.4th 1072, 1081; 28 U.S.C. § 1361.) One who successfully challenges a denial of tax-exempt status may seek an award of reasonable administrative and li......
  • Daisy Tr., A Nev. Tr. v. Fed. Nat'l Mortg. Ass'n, 21-15595
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 24, 2022
    ...a claim, the complaint must "contain[] enough facts to 'state a claim to relief that is plausible on its face.'" Plaskett v. Wormuth, 18 F.4th 1072, 1083 (9th Cir. 2021) (quoting Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010)). The district court's holding was correct on the facts an......

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