Opinion
Civil Action No. 3:01cv00445
February 11, 2002
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
This matter is before the Court pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation on Defendant United States Equal Employment Opportunity Commission's (EEOC) motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of jurisdiction over the subject matter and for failure to state a claim upon which relief may be granted. (Mot. to Dismiss). For the reasons discussed below, it is recommended that the Defendant's motion be GRANTED in part (as to Defendants EEOC, Josie Wood, and Susan Thompson) and DENIED in part (as to Defendant Paul H. O'Neill, Secretary of the United States Department of the Treasury). It is further recommended that the style of the action be amended accordingly.
As will be hereafter discussed, it is not clear whether the Plaintiff intended to make the EEOC a defendant in this case, but it nevertheless will be treated as one for purposes of this motion.
It is recommended that the motion be granted in this regard because it is unclear from the written motion (and the accompanying memorandum) that the request for dismissal pertains only to the EEOC and not to additional defendants. Furthermore, at oral argument, government defense counsel requested that the motion be considered as applying to all defendants except for the proper defendant under Title VII.
Although the Plaintiff also initially named as defendants in her action the Attorney General of the United States and the United States Attorney for the Eastern District of Virginia, they have not been noted as defendants in the record because of the reasonable assumption that they were only being noted as having been served pursuant to Rule 4(i) of the Federal Rules of Civil Procedure.
The re-designation of Mr. O'Neill with his correct title as Secretary of the Treasury will combine the two previously-named and served defendants, "Paul H. O'Neill, Secretary" and the Department of the Treasury, with a deletion of the reference to the Internal Revenue Service. Thus, only one Defendant, properly named, will remain in the action.
Standard of Review
A motion to dismiss is properly granted where viewing the allegations in the Complaint as true, the Plaintiff has failed to state a claim upon which relief may be granted, where the court lacks subject matter jurisdiction, or where the Plaintiff has failed to join a necessary party under Rule 19 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(b)(1), (6), (7).
Facts and Procedural History
Plaintiff filed this action pro se claiming employment discrimination on account of her national origin and/or race (hereafter, race) in her employment with the Internal Revenue Service (IRS) which is a bureau within the Department of the Treasury (Treasury). ( See Mem. in Supp. of Mot. to Dismiss by Def. U.S. EEOC ("Def.'s Mem.")). Plaintiff also appears to complain about how her administrative complaint was handled by an EEOC administrative judge who dismissed her complaint without a hearing. (Am. Compl.; Answer ¶ 46). Plaintiff's complaint in this action does not specifically allege any jurisdictional basis, but at the same time it is clear that Title VII is the legal basis of her claims. ( See Am. Compl. "Statement of My Rights") (" It is very discrimination against because of [sic] lam an Asian (Chinese)"). Because the Plaintiff also appeared to complain about the EEOC's processing of her complaint and listed "Paul H. O'Neill/Secretary, U.S. Equal Employment Opportunity Commission" as a defendant on the required Clerk's cover sheet to her Amended Complaint (as well as on every request for summons), the action was styled accordingly and the EEOC has filed the present motion to dismiss. However, at the same time, defense counsel clarified at oral argument on the motion that the Defendants are not seeking to dismiss this action as to Plaintiff's employer, but rather only as to the Defendant EEOC and all other defendants who are not proper defendants in the Plaintiff's apparent Title VII action. Plaintiff did not object to defense counsel's clarification, presumably based on counsel's assurances that her claim against her employer would in fact be preserved.
It is unclear whether many of the allegations of the Complaint are directed at "EEO" officers within the employing agency, or the EEOC itself See Am. Compl.; Answer. Nevertheless, the EEOC acknowledges that the Plaintiff has correctly referenced an EEOC appellate docket number on her Amended Complaint to lead to the conclusion that she is referring to the dismissal of her administrative complaint by an EEOC administrative judge. See Def.'s Mem. Note 1. However, if so, dismissal by an administrative judge without a hearing is expressly permitted in any event upon an agency's motion to dismiss for failure to state a claim pursuant to § 1614.109(b) of applicable regulations. 29 C.F.R. § 1614.109(b); 64 Fed. Reg. 37643, 37650 (1999).
In a later document filed by the Plaintiff on December 4, 2001, entitled "Motion Objections From Plaintiff," the Plaintiff lists, in a general recitation of laws enforced by the EEOC, the following statutes: Title VII of the Civil Rights Act of 1964 ("Title VII"), the Equal Pay Act of 1963 (the "EPA"), the Age Discrimination in Employment Act of 1967 ("ADEA"), and the Americans with Disabilities Act of 1990 (the "ADA"). (Pl.'s Mot. Objections.) However, the present allegations are based on discrimination on account of her race (Title VII), not discrimination actionable under the EPA (equal pay for men and women), the ADEA (discrimination based on age), or the ADA (not available to government employees). Although the Plaintiff also mentions some medically-related work restrictions which could potentially implicate the Rehabilitation Act, she only does so in the context of asserting claims of racial discrimination that she clearly states as being the basis for the action.
As previously indicated, Paul H. O'Neill is actually the Secretary of the Department of the Treasury.
Plaintiff is or at least was employed by the IRS. Plaintiff has pursued her claims of employment discrimination administratively within Treasury and the EEOC. (Am. Compl.; Answer). The Plaintiff filed this civil action on July 16, 2001, along with a "Motion for Requesting Appoint [sic] an Attorney." (Compl.; Pl.'s Mot. for Att'y.) In the July 16 motion, the Plaintiff correctly identified "Paul H. O'Neill, Secretary, Department of the Treasury, (Internal Revenue Service), Agency," as a proper party defendant. (Pl.'s Mot. for Att'y.) In addition, in both the original Complaint and her Amended Complaint (filed on July 20, 2001), the Plaintiff listed under "Certification of Service" both the EEOC and Paul H. O'Neill (as "Secretary of the Department of the Treasure [sic]") as separate entities for purposes of service of the complaint. (Compl.; Am. Compl.). However, on the Clerk's required cover sheet to her Amended Complaint (as well as in the caption on every summons), Plaintiff apparently combined the two entities and incorrectly designated that defendant as "Paul H. O'Neill, Secretary, U.S. Equal Employment Opportunity Commission." Plaintiff also named as defendants certain IRS managers, Josie Wood and Susan Thompson. Accordingly, the style of the action evolved to the point of incorrectly identifying the lead Defendant as "Paul H. O'Neill, Secretary, U.S. Equal Employment Opportunity Commission."
It is not clear from the pleadings whether or not the Plaintiff is still employed by the IRS as there are conflicting statements in this regard. However, the point is irrelevant for purposes of resolving the pending motion.
The Defendants have not alleged that the Plaintiff filed her civil action beyond the time period required under Title VII (although they did indicate that some of the claims might be barred for failure to exhaust administrative remedies); nor have the parties presented enough details regarding the processing of the Plaintiff's administrative claims for the Court to determine the issue on its own, even if it were so inclined.
This may be either "Josie" Wood or "Jose" Wood. The name is listed both ways in the Answer but obviously refers to the same individual. (Answer Intro., ¶ 32).
All defendants were served and an Answer was filed on behalf of all of them on September 21, 2001. (Answer). In their affirmative defenses, Defendants contend, inter alia, that "Plaintiff fails to state a claim against the EEOC for violations of Title VII alleged against her employer," and that this Court "lacks subject-matter jurisdiction over any claims against the EEOC for violations of Title VII alleged against plaintiffs employer." (Answer ¶¶ 54-55). Because the Plaintiff referenced an EEOC appellate docket number in her Amended Complaint and appeared to complain about how her administrative complaint was handled by the EEOC, the EEOC also filed its motion to dismiss on the same date. (Mot. to Dismiss at Note 1 and accompanying text). In response to the Answer/and or the Motion to Dismiss, the Plaintiff filed a document on October 11, 2001, entitled "Factual Response of the Plaintiff" In this document, the Plaintiff responded to the affirmative defenses asserted as follows: "I am not stating a claim against the EEOC. I am only sending them a copy of the claim against the two (2) defendants," and "[a]s again, I deny filing a claim against the EEOC." (Pl.'s Response ¶¶ 54-55). Thus, it appears that the Plaintiff never intended to make the EEOC a defendant in this civil action, but rather was seeking to comply with her understanding of federal regulations that require a government employee who has filed an appeal with the EEOC to notify the EEOC in writing when she files a civil action. See e.g., 29 C.F.R. § 1614.409. The situation becomes more convoluted with the Plaintiff's mismatch of the EEOC with the head of the employing agency when she filed and served her Amended Complaint. In any event, the confusion can presumably be eliminated by a clarifying amendment of the style of the action if it is to be otherwise maintained.
The Court is not sure why the Answer by the government also refers to Mr. O'Neill as Secretary of the EEOC, when this was implicitly recognized as inaccurate in the EEOC's motion to dismiss filed on the same date. Nevertheless, by answering on behalf of all Defendants (which includes both Mr. O'Neill and Treasury), by not raising any objections as to service in the Answer or Motion to Dismiss, and by conceding that there was still an action as to Plaintiff's employer under Title VII, the Court deems any potential objections as to proper service of or personal jurisdiction over the proper defendant as waived. See Fed.R.Civ.P. 12(h) (regarding waiver of defense over lack of personal jurisdiction or insufficiency of process).
Plaintiff states that this document responds to "the questionnaires, that stated by the defendant's motion, dated on September 21, 2001." It appears to respond to the Answer of the same date, because its contents are similarly numbered by paragraph to corresponding paragraphs in the Answer, but the pleading has been filed as a response to the motion to dismiss.
Analysis
Defendant EEOC argues that Plaintiff has not sufficiently asserted a cause of action against the EEOC under either Title VII or the Administrative Procedure Act ("APA") and, further, that this Court lacks subject matter jurisdiction under Title VII over Plaintiff's dissatisfaction with the EEOC's resolution of her discrimination complaint. (Def.'s Mem.). Defendants further maintain (at least at oral argument on their motion) that the only proper Defendant in this action is Plaintiff's employer. In response, Plaintiff denies filing a claim against the EEOC in the first place, and states that she was only "sending them a copy of the claim against the two (2) defendants." (Pl.'s Response ¶¶ 54-55). Since the Plaintiff lists the Defendants in the caption on this particular pleading as Susan Thompson and Josie Wood, this Court concludes that she is referring to those IRS representatives as the intended defendants. However, Plaintiff does not appear to object (at least at oral argument) to dismissing those same two defendants and maintaining her action against her employer under Title VII.
Since Plaintiff is proceeding pro se and obviously has difficulty communicating and/or understanding the proceedings, and since the Defendants have raised particular legal issues related to Plaintiff's claims, it would be inappropriate to dismiss Plaintiff's claims against the EEOC (or any other party) on any basis other than the merits of the arguments raised by the Defendants and applicable legal precedents. The Court must therefore decide if it lacks subject matter jurisdiction in this action under either Title VII or the APA in regard to the claims and/or whether the Plaintiff fails to sufficiently state a claim upon which relief can be granted with regard to any of the proper party defendants.
Initially, it should be noted that the burden of proving jurisdiction is on the Plaintiff See McNutt v. General Motors Acceptance Corp., 298 U.S. 178 (1936); Adams v. Bain, 697 F.2d 1213 (4th Cir. 1982). "The Fourth Circuit, however, has long held that district courts are to treat pro se civil rights plaintiffs with heightened solicitude, such that technical pleading requirements will not prevent the plaintiffs claim from being considered." Terry v. EEOC, 21 F. Supp.2d 566 (E.D. Va. 1998) (holding that the court had subject matter jurisdiction under the APA in a pro se action by a U.S. government employee against the EEOC for its alleged failure to adequately investigate plaintiffs claims, but that no APA cause of action existed due to an adequate remedy under Title VII) (citing Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978) ("district courts must examine the pro se complaint to see whether the facts alleged, or the set of facts which the plaintiff might be able to prove, could very well provide a basis for recovery")). In addition, unless a claim asserted pursuant to federal statute is "made solely for the purpose of obtaining jurisdiction," or is wholly insubstantial and frivolous," jurisdiction is not defeated "by the possibility that the averments might fail to state a cause of action," and "the court must assume jurisdiction to decide whether the allegations state a cause of action," it being "well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction." Bell v. Hood, 327 U.S. 678, 682-83 (1946); see also Hughes v. Chater, 1997 WL 303231, at *3 (4th Cir. 1997) (unless a claim is "so patently frivolous as to deprive a district court of jurisdiction," district courts should dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), rather than for lack of subject matter jurisdiction). Finally, even if a pro se plaintiff fails to support a claim for jurisdiction under Rule 12(b)(1), it may nevertheless be appropriate for the court to "retain jurisdiction to examine the pleadings for alternative bases of jurisdiction and for sufficiency of the claim under Rule 12(b)(6)." Materson v. EEOC, 166 F.R.D. 368, 371 (E.D. Va. 1996).
The Gordon case also provides support for the Court to help the Plaintiff to correctly name the proper Defendant in her Title VII claim. "A district court is not required to act as an advocate for a pro se litigant; but when such a litigant has alleged a cause of action which may be meritorious against a person or persons unknown, the district court should afford him a reasonable opportunity to determine the correct person or persons against whom the claim is asserted, advise him how to proceed and direct or permit amendment of the pleadings to bring that person or persons before the court." Gordon, 574 F.2d at 1152-53.
At the same time, "[i]t is axiomatic that the doctrine of sovereign immunity operates to shield the United States from suit unless it consents to be sued . . . [a]nd, any waivers of sovereign immunity must be "construed strictly in favor of the sovereign."' Circuit City Stores, Inc. v. EEOC, 75 F. Supp.2d 491, 503 (E.D. Va. 1999) (quoting Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983)) (other citations omitted). A suit against a federal agency such as the EEOC is, in reality, one against the United States and, therefore, "it must be shown that the United States has clearly and unequivocally waived sovereign immunity with respect to the action here presented." Id. (holding that court lacked subject matter jurisdiction of action against the EEOC where agency action challenged by a private employer was not "final," therefore not reviewable under the APA, and where the APA was the only potential waiver of sovereign immunity available in such action to remove the bar to suit against the United States). Nevertheless, there are two statutes potentially waiving the U.S. government's sovereign immunity in this action — the APA and the section of Title VII authorizing suits by federal government employees.
Id. (citing Hawaii v. Gordon, 373 U.S. 57, 58 (1963))
The court did, however, retain jurisdiction in the action in order to adjudicate the plaintiffs motion for sanctions and to otherwise assess the propriety of remedial measures arising out of certain alleged misrepresentations by the EEOC.
The basic federal government civil rights employment standard is found in subsection (a) of 42 U.S.C. § 2000e-16 and it provides that all personnel actions in specified government agencies and departments "shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16(a); West v. Gibson, 527 U.S. 212, 214 (1999). The government agencies and departments covered under subsection (a) include, inter alia, "military departments," "executive agencies as defined in section 105 of Title 5," and certain "units" of the judicial branch and of the government of the District of Columbia. Id. Under subsection (b) of section 2000e-16, the EEOC is required to "issue such rules, regulations, orders and instructions" as are necessary and appropriate to carry out its section 2000e-16 responsibilities, including subsection (a) enforcement and evaluation of federal agency equal employment opportunity programs. Id. § 2000e-16(b). Under this authority, the EEOC has promulgated a comprehensive set of federal-sector regulations providing, inter alia, rules for agency processing of complaints as well as for administrative hearings by the EEOC. See 29 C.F.R. Part 1614. In contrast to actions in the private sector, the federal sector regulations empowers the EEOC to order U.S. agency compliance directly, and "[r]elief ordered in a final [EEOC] decision is mandatory and binding on the agency. . . ." 29 C.F.R. § 1614.502. See also Nealon v. Stone, 958 F.2d 584, 588 (4th Cir. 1992) (distinguishing procedures applicable to private employers, where either side may litigate the claim de novo in court after a reasonable cause determination, from procedures applicable in a public sector case where the EEOC issues a compliance order that is enforceable against the agency).
These regulations also provide, in the event that the agency does not comply with an EEOC decision, that the complainant be notified of her right. to "file a civil action for enforcement of the decision pursuant to Title VII . . . and to seek judicial review of the agency's refusal to implement the ordered relief pursuant to the Administrative Procedure Act . . . or to commence de novo proceedings. . . ." 29 C.F.R. § 1614.503(g). Thus, in contrast to the EEOC's broad assertion in this matter that its "decisions do not constitute "final agency action' worthy of judicial review" under the APA, see Def's Mem. (citing Georator Corporation v. EEOC, 592 F.2d 765 (4th Cir. 1979)), the EEOC at least considers its decisions and orders against federal agencies and/or their failure to comply with such decisions to be final agency action worthy of APA review.
Under subsection (c) of section 2000e-16, a federal government employee may file a civil action:
[w]ithin 90 days of receipt of notice of final action taken by a department, agency, or unit referred to in subsection (a) of this section, or by the Equal Employment Opportunity Commission upon an appealfrom a decision or order of such department, agency, or unit on a complaint of discrimination . . . or after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit or with the Equal Employment Opportunity Commission on appeal from a decision or order of such department, agency, or unit until such time as final action may be taken . . . in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.42 U.S.C. § 2000e-16(c) (emphasis added). The question, therefore, is not whether the U.S. has waived its sovereign immunity with respect to this type of suit generally, but exactly what agency or identifiable segment of the federal government is the "appropriate" defendant under the statute with respect to the claims raised. In Hancock v. Egger, 848 F.2d 87 (6th Cir. 1988), the United States Court of Appeals for the Sixth Circuit had occasion to decide who the proper defendant would be under section 2000e-16 in an action also brought by an IRS employee. The employee had named only the Commissioner of the IRS as her defendant. However, after a careful and detailed analysis of the language used in section 2000e-16, the court concluded that the only proper defendant under the statute was the head of the Department of the Treasury and the action was dismissed. Id. at 89.
In support of its conclusion, the court reasoned that the terms "department, agency, or unit" in subsection (c) referred back to subsection (a) and the IRS was clearly not a "military department" or one of the "units" listed in subsection (a) of section 2000e-16. Therefore, it would have to be an executive agency "as defined in section 105 of Title 5" to be a proper defendant under Title VII. 42 U.S.C. § 2000e-16(a); Hancock, 848 F.2d at 88. "Executive agency" is defined to mean "an Executive department, a Government corporation, and an independent establishment." 5 U.S.C. § 105 (emphasis added). Therefore, since the IRS was (and is) "part" of an executive department (i.e., the Department of the Treasury), it is not a proper defendant under Title VII. Id. §§ 101-105; Hancock, 848 F.2d at 88-89.
In this case, it is clear that Josie Wood and Susan Thompson, who are managers within the "Information Services Division" or other subdivisions of the IRS (which, of course, is an agency within the Department of the Treasury), are not heads of any department, unit, or agency subject to suit under the statute. In contrast, the EEOC is an "independent establishment" (and therefore an "agency" under the statute) since it is not part of any executive department, military department, government corporation, or other independent establishment. See 5 U.S.C. § 104. In addition, this is a case that involved an administrative appeal before the EEOC. However, that circumstance does not mean that the EEOC is necessarily an "appropriate" or proper defendant in a cause of action under the statute, or in this particular case. Nevertheless, the Fourth Circuit has determined that the EEOC may be a proper defendant in a public sector Title VII action under certain circumstances. Indeed, in Nealon v. Stone. 958 F.2d 584 (4th Cir. 1992), a government employee filed a civil action seeking enforcement of an initial decision by the EEOC in her case as well as a de novo finding of discrimination. Apparently, the EEOC had erroneously applied private sector procedures for the public sector charge initially (issuing a "reasonable cause" determination which the court labeled "EEOC I"), and then it reversed position some twenty months later ("EEOC II"). Id. at 586. In the related civil suit, the plaintiff named both the head of the employing agency (the Secretary of the Army) as well as the Chairman of the EEOC. The court allowed her to retain the EEOC as a defendant in her action, explaining:
This is also consistent with the law in this circuit with respect to private employers, i.e., that supervisors are not liable in their individual capacities for Title VII violations, which would be incorporated into section 2000e-16 by its reference to section 2000e-5 since there is no conflict with other express provisions of section 2000e-16. See Lissau v. Southern Food Service. Inc., 159 F.3d 177 (4th Cir. 1998)
The EEOC was established by Title VII of the Civil Rights Act of 1964.
Nealon names the EEOC as a defendant in the suit for purposes of compelling enforcement of the EEOC I decision. The EEOC contests its inclusion as a defendant. This Circuit has already implicitly determined that enforcement in district court of a public sector EEOC finding of discrimination does not require plaintiff to name the EEOC as a party. . . . We have not held, however, that the EEOC, when named, is not a proper party to this type of suit. . . . We do not decide in the case at bar that the EEOC was a necessary party under Fed.R.Civ.P. 19(a). We decide here only that the EEOC could properly have been joined as a defendant under Rule 20(a), since Nealon's requested relief from the EEOC, to disregard EEOC II and return to EEOC I, arose from the same occurrence as the case against the Army, and the nature of the EEOC orders was unclear and an explanation of its contested actions was helpful to just adjudication. In addition, common questions of law and fact were involved.Id. at 588 Note 1 (citations omitted). The court did not discuss specifically the issue of sovereign immunity or subject matter jurisdiction, but it was certainly implicit in the court's decision that the U.S. had sufficiently waived its sovereign immunity under section 2000e-16 to allow both the employing agency and the EEOC to be properly named as defendants in that case and that the court clearly had subject matter jurisdiction of the matter. Since the decision referred to as EEOC I was in fact a reasonable cause determination (because the EEOC had erroneously applied private sector procedures), and not a final compliance order, the court affirmed the dismissal of that plaintiffs attempted enforcement of EEOC I on the merits. Id. at 588 (citingGeorator Corp. v. EEOC, 592 F.2d 765, 768 (4th Cir. 1979) (which had dismissed a challenge by a private employer of a reasonable cause determination under the APA)).
This Court concludes that there is federal subject matter jurisdiction of this action under Title VII and that Rule 12(b)(1) does not compel the dismissal of the EEOC as a defendant. However, unlike the plaintiff inNealon, the Plaintiff in this action is not seeking to enforce an EEOC order. Her only complaint against the EEOC was that her discrimination complaint against her employer was dismissed by the EEOC without a hearing. Furthermore, since filing her Amended Complaint, she has categorically stated that she was "not stating a claim against the EEOC," but that she was only sending them a copy of her claim. (Pl.'s Response ¶¶). It is clear, therefore, that what she is seeking is a hearing or a de novo review of her discrimination complaint which is precisely her relief under Title VII without the necessity of naming or involving the EEOC. Therefore, there is nothing to distinguish her claimed dissatisfaction with the EEOC from that which a private sector employee might have and "[c]ourts have uniformly held that no cause of action exists with respect to the EEOC's handling of claims because Congress has given plaintiffs a right to file a de novo lawsuit against the allegedly discriminating employer." Terry v. EEOC, 21 F. Supp.2d 566, 569 (E.D. Va. 1998). Accordingly, Plaintiff's claims under Title VII against the EEOC (as well as all other Defendants other than Paul H. O'Neill, Secretary of the Treasury) should be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
Nothing that the EEOC did or didn't do will have any relevance to the court's de novo review of the evidence.
Furthermore, even if the Court considers the APA as an alternative base of support for the Plaintiff's claim against the EEOC, her cause of action under that statutory scheme must also fail pursuant to Rule 12(b)(6) because the Plaintiff already has an adequate remedy pursuant to Title VII for her discrimination complaints. "The APA provides that judicial review is only available for "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.'" Id. (citing 5 U.S.C. § 704) (emphasis added).
See, e.g., Terry, 21 F. Supp.2d at 569. In Terry, a U.S. Navy employee sued the EEOC for failure to adequately investigate his discrimination claims. The court granted the plaintiff leave to amend his complaint to add the Secretary of the Navy as a defendant, but the plaintiff, pro se, informed the court that he did not intend to amend his complaint. The court determined that the U.S. government had waived its sovereign immunity and that the court did have subject matter jurisdiction of the action against the EEOC under the APA since the plaintiff was not seeking money damages directly against the EEOC, but only wanted the EEOC to intercede on his behalf Id. at 569. It is similarly clear in the present case that the Plaintiff does not seek anything directly from the EEOC, but only to be heard on her discrimination claims.
Such a claim may also be precluded under this circuit's decision in Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979), to the extent that any action by the EEOC challenged by the Plaintiff did not constitute "final" agency action under the APA. See also Nealon v. Stone, 958 F.2d at 768.
Conclusion
For the foregoing reasons, it is recommended that the motion to dismiss be GRANTED in part (as to Defendants EEOC, Josie Wood, and Susan Thompson), and DENIED in part (as to Defendant "Paul H. O'Neill, Secretary of the United States Department of the Treasury," the only remaining Defendant). The Court further recommends that the style of this action be amended accordingly.Let the Clerk of the Court send a copy of this report and recommendation to the Honorable Robert E. Payne, to the Plaintiff, pro se, and counsel for the Defendants.
It is so Ordered.
Notice to Parties
Failure to file written objections to the proposed findings, conclusions and recommendations of the Magistrate Judge contained in the foregoing report within ten (10) days after being served with a copy of this report shall bar you from attacking on appeal the findings and conclusions accepted and adopted by the District Judge except upon grounds of plain error.