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Plaskett v. McCarthy

United States District Court, N.D. California, San Jose Division

September 10, 2019

RYAN D. MCCARTHY, Defendant.



         Plaintiff Jeffrey K. Plaskett (“Plaintiff”) filed this lawsuit against Defendant, Dr. Mark Esper, former Secretary of the United States Department of the Army (“Defendant”), [1] 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.

         I. BACKGROUND

         For 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.”) ¶ 5.

         In 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 Ex. H.

         In 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.” Id.

         From 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.

         Over a 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 pay[2] - 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.

         In late 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.

         In July 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.


         In 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. Id.

         In 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 2014.
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.


         In late 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. Id.

         In 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 month. Id.

         In 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 Ex. 12.

         In May 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 . . .


         In 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.

         In July 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.

         The 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. ...

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