The opinion of the court was delivered by: Gregory G. Hollows, United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is proceeding in this action pro se and in forma pauperis. This proceeding was referred to this court by Local Rule 302(21), pursuant to 28 U.S.C. § 636(b)(1).
The determination that plaintiff may proceed in forma pauperis does not complete the required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time if it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant.
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S.___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96 (1972); Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma pauperis is entitled to notice and an opportunity to amend before dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230. Named as defendants are the EEOC and various federal officers and employees, including the Secretary of the Navy. Plaintiff alleges that "defendants... were... employees of the federal government acting in their capacities as federal employees or contracted employees by [sic] the EEOC to perform investigations of EEO Complaints." Complaint at 2.
The 71 page complaint, for the most part, alleges violations by defendants in their development of the record in her prior EEO complaints which were exhausted and then litigated in this court from 2002 to 2007. See Harris v. Winter, Civ.S.02-2436 KJM PS, Civ.S.02-2440 KJM PS. Those related cases concerned plaintiff's allegations of gender discrimination and retaliation in her attempted transfer from then-closing Mare Island Naval Shipyard to Puget Sound Naval Shipyard in January, 1996. The alleged violations in processing the EEO complaint occurred between November 1, 1995 and April 1, 1998.*fn1 (Compl. at 3-4.) Plaintiff claims that defendants failed to comply with regulations to develop an impartial and appropriate factual record on which to make findings on the claims in her EEO complaint. She also alleges that defendants deliberately provided false statements in their declarations, affidavits, and reports used to process her EEO complaint. Defendants are also charged with withholding relevant and material discovery during the processing of the EEO complaint, and providing false documentation which caused her EEO complaint to be improperly judged. Plaintiff asserts that, as a result, she was prevented from making a prima facie case against Puget Sound Naval Shipyard for its refusal to hire her. (Id.)
There is no cause of action for failing to adequately investigate EEO complaints. Ward v. EEOC, 719 F.2d 311, 313 (9th Cir. 1983). Congress has not authorized a private cause of action against the EEOC for negligence or other malfeasance in processing an EEO claim. Id.; Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997). The federal employee EEO process, as opposed to its civilian counterpart, is mostly agency driven. The process is complicated and multi-faceted, but for the purposes here, suffice it to say that the aggrieved federal employee may seek informal counseling on the matter, may file a formal complaint with the agency, may petition for an administrative hearing, and is entitled to a final determination from the agency. After receipt of a final determination, or the passage of a defined time period without a decision, a federal employee may appeal to the EEOC and/or file a civil action in district court which will render a de novo decision. See 29 CFR § 1614.105 et seq. In the non-federal civilian world, the EEOC itself takes on a much more active role in the investigation of discrimination complaints, either ultimately bringing suit on behalf of an employee, or much more commonly, issuing a "right to sue" letter.
The point here is that the personnel involved in the federal EEO process serve identical functions to that of EEOC personnel. The lack of a private right of action would apply in either case. Such is the holding of Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000). As set forth in Jordan, if one is displeased with the EEO processing, one files suit in district court on the merits of the discrimination complaint; one does not sue the agency personnel for defective administrative processing. As a result, plaintiff cannot state a claim for the violations alleged in her complaint.
Most of the allegations of the complaint concern the processing of plaintiff's EEO complaint. Consequently, those claims must be dismissed.
To the extent that any allegations pertain to the underlying action by plaintiff against Puget Sound Naval Shipyard employees, they are barred by collateral estoppel or res judicata, as plaintiff has either attempted to bring new claims regarding her employment dispute or which could have been brought earlier, or raised the same claims which were already decided in the previous action. Under the doctrine of res judicata, "'[a] final judgment on the merits bars a subsequent action between the same parties or their privies over the same cause of action.'" The Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1398 (9th Cir. 1992), quoting Davis & Cox v. Summa Corp., 751 F.2d 1507, 1518 (9th Cir. 1985). The doctrine of res judicata consists of two concepts, issue preclusion, or collateral estoppel, and claim preclusion, or res judicata. Migra v. Warren City School District Board of Education, 465 U.S. 75, 77 n.1 (1984). "Issue preclusion [collateral estoppel] refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided." Id. "Claim preclusion [res judicata] refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit." Id. "Claim preclusion [res judicata] bars the assertion of any theory of recovery that could have been asserted in the first action." Fund for Animals, at 1398, citing Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir. 1988).
The instant complaint relates to the same allegations as raised in the previous action. Both actions allege employment discrimination under Title VII based on same employment actions at Mare Island Naval Shipyard and Puget Sound Naval Shipyard between 1995 and 1997. The instant complaint is based on the same events as the previous action.
Aside from the claims against EEOC employees for misconduct in processing plaintiff's EEO claim, the claims currently before the court were already litigated and decided in defendants' favor in the previous actions. See Harris v. Winter, Civ.S.02-2436 KJM PS, Civ.S.02-2440 KJM PS (Order, filed September 28, 2007, dkt. #90). Although the previous actions did result in a dismissal of the claims relating to reprisal and multiple hirings after January 1996, as unexhausted, the other federal claims were necessarily determined and were the same issues ...