Plaskett v. McCarthy

Background

Jeffrey K. Plaskett worked for the U.S. Army at Fort Hunter Liggett in a term position that expired on September 30, 2010. After the Army did not select him for a permanent position, he filed an administrative age-discrimination complaint.

An Equal Employment Opportunity Commission administrative judge found age discrimination and ordered the Army to hire Plaskett into an equivalent position and pay back pay, including interest and benefits, less interim earnings. In a separate order, the administrative judge ordered the Army to pay $7,012.50 in monetary sanctions for failing to timely and fully produce discovery and comply with the judge’s orders.

The Army paid back pay, but Plaskett later disputed the calculation. He argued that income from outside or “moonlighting” work should not have been deducted from his back pay. The Army and the Defense Finance and Accounting Service requested documentation showing that he had performed that outside work before leaving his Army position in 2010. The opinion states that Plaskett provided time cards for work in 2012 and 2013 but did not provide evidence that he had worked for those companies in 2010. The opinion also states that the Army did not pay the sanctions.

In October 2018, Plaskett filed this lawsuit seeking two court orders requiring payment: one for additional back pay under the Administrative Procedure Act and the Mandamus Act, and another for the monetary sanctions. The defendant moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and under Rule 12(b)(6) for failure to state a claim. The caption identifies Ryan D. McCarthy as the defendant; a footnote states that he was automatically substituted for Mark Esper, his predecessor as Secretary of the Army.

Back-Pay Claim Under the Mandamus Act

The Mandamus Act gives federal district courts jurisdiction over actions seeking to require a federal officer or agency to perform a duty owed to the plaintiff. Mandamus is an extraordinary remedy. To obtain it, a plaintiff must show that the claim is clear and certain, that the government duty is nondiscretionary and plainly prescribed, and that no other adequate remedy exists.

The court concluded that Plaskett did not meet those requirements. Federal back-pay law generally requires deductions for income earned through other employment, but regulations create an exception for additional or “moonlight” employment that the employee already had before the wrongful separation. The court found that the Defense Finance and Accounting Service could not apply that exception without documentation verifying Plaskett’s outside employment before his 2010 separation. Because Plaskett had not supplied the required documentation, his claim was not clear and certain, and the Army’s duty to pay the disputed amount was not plainly established.

The court rejected Plaskett’s arguments that the Army had conceded the additional back pay, waived its ability to dispute the amount, or waited too long to request documentation. It found that the cited Army communications did not constitute a clear and unequivocal waiver, particularly because the Army repeatedly requested documentation.

Back-Pay Claim Under the Administrative Procedure Act

The Administrative Procedure Act allows a court to compel an agency to take a discrete action that the agency is legally required to take when the plaintiff has no other adequate remedy. The court found that Plaskett had a way to pursue the back-pay issue: he could provide documentation verifying qualifying moonlighting employment.

The court found that the time cards from 2012 and 2013 did not show that Plaskett worked for the companies before his 2010 separation. It also found that his resume, which listed his bulldozing business as beginning in 1999 and continuing thereafter, was not the type of statement or affidavit required under the Department of Defense financial regulation to verify the relevant outside earnings. The court therefore concluded that it lacked jurisdiction over the Administrative Procedure Act claim.

Monetary-Sanctions Claim

The court also concluded that it lacked jurisdiction over Plaskett’s request to enforce the EEOC’s monetary-sanctions order. Sovereign immunity generally protects the United States and its agencies from lawsuits unless Congress has clearly and expressly waived that immunity. The court held that the EEOC regulation authorizing administrative judges to take certain actions against parties that fail to comply with orders did not clearly waive the federal government’s immunity from monetary sanctions.

The court found persuasive a decision from the Eastern District of Texas and relied additionally on decisions concerning attorney’s fees and sanctions against the federal government. It rejected Plaskett’s reliance on EEOC decisions reaching a different conclusion, reasoning that the regulation did not contain the clear statement required to waive sovereign immunity. Because sovereign immunity barred enforcement of the sanctions, the court also found that Plaskett’s sanctions claim was not clear and certain for purposes of mandamus.

Disposition

The court granted the defendant’s motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1). Because it dismissed the claims on that ground, it did not reach the defendant’s Rule 12(b)(6) arguments. The court dismissed all claims in the complaint without leave to amend.