United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS RE:
DKT. NO. 21
J. DAVILA UNITED STATES DISTRICT JUDGE
Jeffrey K. Plaskett (“Plaintiff”) filed this
lawsuit against Defendant, Dr. Mark Esper, former Secretary
of the United States Department of the Army
(“Defendant”),  bringing two causes of action.
Compl. ¶ 1. Plaintiff seeks two Writs of Mandamus: (1) a
Writ of Mandamus ordering Defendant to pay Plaintiff back
wages allegedly owed under the Administrative Procedure Act
(“APA”), 5 U.S.C. § 701 et seq.,
and the Mandamus Act, 28 U.S.C. § 1361; and (2) a Writ
of Mandamus ordering payment of monetary sanctions in the
form of attorney's fees. Id. at ¶¶
30-37. Defendant moves to dismiss Plaintiff's claims
under Federal Rule of Civil Procedure 12(b)(1) for lack of
subject matter jurisdiction and under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim. Dkt. No. 21.
For the reasons below, Defendant's motion is GRANTED.
approximately four years, Plaintiff worked for the U.S. Army
at Fort Hunter Liggett in Monterey County, California, in a
term position that expired on September 30, 2010. See
Id. at ¶¶ 3, 8; see also Id. at Ex.
A. Around this time, Plaintiff applied for a permanent
position with the Army as an Engineering Equipment Operator.
Compl. ¶ 4; id. at Ex. A. But, the Army did not
select Plaintiff for the permanent position. Id. In
November 2010, Plaintiff, who was fifty-five years old when
he applied for the permanent position, filed an
administrative complaint which alleged age discrimination.
Decl. of Mr. D. Michael Tucker (“Tucker Decl.”)
October 2012, an Administrative Judge (“AJ”) for
the Equal Employment Opportunity Commission
(“EEOC”) (also referred to as
“Commission”) issued a decision finding that the
Army committed age discrimination in violation of the Age
Discrimination in Employment Act (“ADEA”) when
the Army did not select Plaintiff for the permanent position.
Compl. ¶¶ 1, 9; Tucker Decl. ¶ 6. The AJ
ordered the Army: (1) to hire Plaintiff into an equivalent
position; and (2) to “award back pay (including pay
increases) with interest, less interim earnings, and all
benefits the complainant would have received if he had been
hired on October 24, 2010, through his entry on duty
date.” Compl. ¶¶ 4, 10; id. at Ex.
A. In a separate order, the AJ ordered the Army to pay $7,
012.50 in sanctions “for the agency's failure to
timely and fully produce discovery and comply with [the
AJ's] orders.” Compl. ¶ 22; id. at
December 2012, the Army notified Plaintiff's counsel, Ms.
Wendy Musell, that pursuant to the AJ's order, the Army
would hire Plaintiff into an equivalent position and pay back
pay. Compl. Ex. B. But, the Army stated that it would not
comply with the sanctions order because the Army was
“bound to follow” guidance from the Office of
Legal Counsel at the U.S. Department of Justice, which
“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.”
December 2012 to April 2013, the Army provided the Defense
Finance and Accounting Service (“DFAS”) with
documentation in an effort to get Plaintiff the ordered back
pay. Tucker Decl. ¶ 7. In April 2013, a DFAS pay
technician confirmed that DFAS had paid the ordered back pay
to Plaintiff. Id. at Ex. 4.
year later, in May 2014, Plaintiff contested the amount of
back pay he had received, “claim[ing] that his private
employment income offset should not have included what he
described as moonlighting hours.” Tucker Decl. ¶
8. Plaintiff claimed this income was non-deductible based on
a regulatory exception which provides that moonlighting
- or pay earned from dual employment - is not deductible. At
this time, Mr. Douglas Hales, an Army contract attorney, also
assumed legal representation of the Army in this matter.
Id. at ¶ 2.
June 2014, Plaintiff provided the Army with “what
appeared to be time cards” from 2012 and 2013 to
support Plaintiff's claim for the disputed back pay.
Id. at ¶ 9; id. at Exs. 7-10.
2014, Mr. Hales stated in an internal email to Ms. Carol
Lange, an Army Human Resources Specialist, that
Plaintiff's time cards supported Plaintiff's request
for the disputed back pay. Tucker Decl. ¶ 9;
id. at Ex. 11. Ms. Musell was not copied on this
email. Accordingly, Mr. Hales asked Ms. Lange to submit the
time cards and a request for additional back pay to DFAS.
Id. Specifically, Mr. Hales stated in the email:
I went over the supporting documents with Mr. Plaskett and
the missing timecards for H&N are covered by the
calendars signed by their book keeper | [sic] because they
don't keep daily timecards. Therefore, his request is
backed up by documentation from his employers and we can send
the request up to DFAS with the document requesting that he
be reimbursed for pay deducted from his earnings from
‘moonlighting' on non-duty days.
July, August, September, October, and November 2014, Mr.
Hales contacted Ms. Casey Prunier, the DFAS pay technician
whom Mr. Hales believed was working on the back pay issue.
Tucker Decl. ¶ 11; id. at Ex. 12. In December
2014, Mr. Hales contacted another DFAS employee. Id.
There is no record of DFAS ever responding to Mr. Hales.
January 2015, Mr. Hales emailed Plaintiff, confirming that he
had forwarded the time cards he had submitted to DFAS. Tucker
Decl. Ex. 5. Mr. Hales stated:
I completed my review of your request for the additional back
pay on 30 July 2014. The time cards were forwarded to Casey
Prunier at DFAS on 4 August 2014. My email requests for
response from Ms. Prunier are attached. I also called Ms.
Prunier on 30 July, 13 August, 18 August, 29 September, 21
October, 26 November and Allen Campbell on 12 December. The
last time I spoke to Ms. Prunier personally was 19 August
I have heard that DFAS is very slow to respond to back pay
requests, generally. Hopefully they will get back on track,
but I don't have any information on when that might be.
February 2015, Mr. Hales asked a newly hired Army lawyer, D.
Michael Tucker, to determine the status of the back pay
request. Tucker Decl. ¶¶ 1, 10. Mr. Tucker
contacted Mr. Brian Dougherty, who had replaced Ms. Prunier
at DFAS. Id. at ¶ 11. Mr. Dougherty then
referred Mr. Tucker to his supervisor, Ms. Sandra Atwood.
early April 2015, Ms. Atwood searched for an open remedy
ticket regarding Plaintiff's request for additional back
pay, but was unable to locate one. Id. Ms. Lange
submitted a new remedy ticket to DFAS by the end of the
April 2015, Plaintiff submitted an appeal to the EEOC,
claiming that the Army had not complied with the entirety of
the EEOC's December 3, 2012 order because the Army
allegedly owed Plaintiff back pay with interest in the amount
of $21, 020.01 and “attorneys' fees and costs
related to its failure to fully pay back pay with interest
and to comply with the EEOC's Orders.” Compl.
¶ 11; see Tucker Decl. ¶ 12. The Army
submitted a required Response, asking the EEOC to “deny
Complainant's request and enforcement order and deny his
request for referral to the Office of Special Counsel for
investigation and review.” Tucker Decl. ¶ 12;
id. at Ex. 12. The Army explained that
Plaintiff's documentation did not contain timecards to
substantiate the actual days worked from one of his
employers, but that the Army “approved”
Plaintiff's request based on a letter from
Plaintiff's employer confirming the schedule.
Id. The Army further explained that Ms. Lange then
submitted the back pay request to DFAS in July 2014.
Id. The Army indicated that short staffing and
Plaintiff's dispute of the back pay calculation over a
year after receiving payment, caused delays in processing
Plaintiff's request. See Id. The Army stated:
“The Agency acted diligently with its available
resources and it believes it has identified the cause of the
delay and that the additional back pay should be
forthcoming.” Tucker Decl. ¶ 12; id. at
2015, DFAS responded to Ms. Lange's remedy ticket. Tucker
Decl. ¶ 13. DFAS informed the Army that, per
moonlighting back pay regulations, the Department needed
certain documentation verifying that Plaintiff performed
moonlighting work prior to his separation from the Army in
2010 in order to process the request for additional back pay.
Id. According to Mr. Tucker, “[T]his was the
first time anyone had pointed out this regulatory
requirement” for documentation verifying moonlighting
work prior to Plaintiff's separation date. Id.
Mr. Hales then informed Ms. Musell of DFAS' position and
“offered that paychecks earned from other employers
during [Plaintiff's] period of federal employment would
be sufficient.” Id. at ¶ 14. Ms. Musell
replied: “This issue is resolved. The Army admitted it
was owed. This was confirmed in the OFO [EEOC Office of
Federal Operations] appeal. It was confirmed in writing. All
that remains is the Army making good on payment.”
Id. at Ex. 17. Mr. Hales replied that he read her
response as a refusal to provide proof of dual employment.
Id. He stated:
Fort Hunter Liggett does not have the authority to pay Mr.
Plaskett. If FHL [Fort Hunter Liggett] had that authority,
Mr. Plaskett would have been paid last summer. Unfortunately,
it would have made a mistake to pay him because he did not
provide proof of “earnings from outside employment the
employee already had before the period of wrongful suspension
or separation”, as required by FMR [Financial
Management Regulation] Vol. 8, Ch. 6 Sec. 060505 Part C . . .
September 2015, Mr. Hales prepared a document titled
“Agency's Supplemental Response to
Complainant's Petition for Enforcement of Final Decision
and Sanctions.” Tucker Decl. ¶ 15; id. at
Ex. 18. Mr. Hales stated that DFAS denied Plaintiff's
request for back pay because “Mr. Plaskett's proof
of ‘moonlighting' earnings only covered the period
after he was working for the Agency. He did not provide proof
that he was already working for another employer before he
left his position with the Agency.” Id. It is
uncertain whether the EEOC received the Supplemental
Response. Id. That same month, Mr. Hales ended his
legal contract work for the Army, and Mr. Tucker began
representing the Army for the back pay dispute. Tucker Decl.
¶ 2. However, “. . . the sanctions question was
being handled at the Department of the Army level of
command.” Id. at ¶ 4.
2016, Ms. Musell sent a letter to the Director of the Equal
Employment Opportunity Compliance and Complaints Review, the
Equal Employment Opportunity Director at Fort Hunter Liggett,
the Equal Employment Opportunity Director at the Army Reserve
Headquarters, and the Legal Department at Fort Hunter
Liggett. Id. at Ex. 30. The letter stated:
“Mr. Plaskett demands that full compliance of the
sanctions and back pay be made by July 22, 2016, or he will
commence with legal action.” Id. The EEOC
docketed Plaintiff's Petition for Enforcement No.
0420160037 regarding sanctions specifically around this time.
Compl. ¶¶ 23-24; id. at Ex. I.
record does not contain information regarding what action the
Army took in response to Ms. Musell's July 2016 letter
and Plaintiff's Petition for Enforcement. Over a year
later, in October 2017, the EEOC issued an order requiring
the Army: (1) “To the extent it has not already done
so, . . . reimburse Complainant's back pay, with
interest, that it incorrectly deducted as interim earning but
was moonlighting work”; (2) to determine “the
appropriate amount of backpay, with interest, due
Complainant” within 60 days following the order; (3) to
“issue a check to the Complainant for the undisputed
amount within sixty (60) calendar days of the date the Agency
determines the amount it believes to be due”-if a
dispute exists concerning the amount of back pay and/or
interest owed; and (4) to submit a compliance report to the
EEOC. Compl. ...