Jeffrey Plaskett v. Christine Wormuth

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFFREY K. PLASKETT, No. 19-17294

Plaintiff-Appellant,

D.C. No.

v. 5:18-cv-06466-

EJD

CHRISTINE WORMUTH, Secretary,

U.S. Department of the Army,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the Northern District of California

Edward J. Davila, District Judge, Presiding

Argued and Submitted January 15, 2021

San Francisco, California

Filed November 19, 2021

Before: Mary M. Schroeder, Ryan D. Nelson, and

Daniel P. Collins, Circuit Judges.

Opinion by Judge Collins;

Concurrence by Judge Schroeder

2 PLASKETT V. WORMUTH

SUMMARY *

Mandamus Act / Jurisdiction

The panel affirmed the district court’s judgment

dismissing for lack of jurisdiction plaintiff’s action against

the Secretary of the U.S. Department of the Army under the

Mandamus Act and the Administrative Procedure Act

(“APA”) seeking payment of additional claimed backpay

and a sanctions award.

Regardless of whether plaintiff’s claim was viewed as

one under the Mandamus Act, 28 U.S.C. § 1361, or under

the APA, 5 U.S.C. § 706(1), plaintiff was required to plead,

inter alia, that the Army had a clear, certain, and mandatory

duty to pay him the additional backpay he sought, and the

sanctions award that the EEOC had imposed. The district

court dismissed plaintiffs’ claims based solely on lack of

subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1),

and expressly declined to reach the Army’s challenges under

Fed. R. Civ. P. 12(b)(6). As to the sanctions award, the panel

agreed with the district court that the issue of the Army’s

sovereign immunity raised a jurisdictional issue and was

properly resolved under Rule 12(b)(1). As to the issue of

back pay, the panel held that the adequacy of plaintiff’s APA

claim should have been analyzed under Rule 12(b)(6) rather

than Rule 12(b)(1). The panel began by evaluating all of

plaintiff’s claims under the standards applicable to a motion

to dismiss for failure to state a claim. Because the panel

concluded that all of plaintiff’s claims failed under those

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

PLASKETT V. WORMUTH 3

standards, the panel did not consider whether the applicable

Rule 12(b)(1) standards might have made a difference.

The panel held that plaintiff’s claim to additional

backpay rested on an EEOC October 2017 decision, but the

order on its face expressed uncertainty as to what amount, if

any, of additional backpay might be due. Plaintiff’s

complaint failed to plead sufficient facts to show that the

process contemplated by the October 2017 decision had been

completed and that a certain amount of additional backpay

was now clearly owed to him.

Plaintiff nonetheless contended that the Army should be

barred from contesting that it owed him $21,020.01 in

additional backpay. First, plaintiff contended that the Army

effectively conceded that it owed him that amount. On this

record, the panel held that plaintiff had provided no plausible

basis for concluding that the Army had waived its objections

to the adequacy of plaintiff's documentation or to the

correctness of his claim for additional backpay. Second,

plaintiff asserted that the doctrine of laches barred the Army

from contesting the amount of backpay due. As the district

court correctly recognized, a plaintiff cannot invoke the

doctrine of laches based on the premise that the plaintiff was

prejudiced by his opponent’s supposed failure to inform it

about the plaintiff’s own burden of proof under the law. The

panel held that plaintiff failed to state a claim under

28 U.S.C. § 1361 or APA § 706(1) for the payment of

additional backpay, and the district court properly dismissed

plaintiff’s first cause of action.

Concerning plaintiff’s claim for payment of the

sanctions award, the panel considered whether the district

court correctly concluded that the Army’s sovereign

immunity had not been waived. The panel agreed with the

district court’s conclusion, but its reasoning differed.

4 PLASKETT V. WORMUTH

Whether the Army’s sovereign immunity has been waived

here turns on whether an applicable waiver was

unequivocally expressed in statutory text. In contending that

the Army’s immunity from monetary litigation sanctions

was waived, the only statute plaintiff relied on was § 15 of

the Age Discrimination in Employment Act (“ADEA”). The

panel rejected plaintiff’s contention that a sufficient waiver

of the Government’s immunity against monetary litigation

sanctions could be found in § 15’s express statement that the

EEOC could impose appropriate remedies that will

effectuate policies of the section. The panel rejected

plaintiff’s additional arguments, and concluded that

sovereign immunity precluded enforcement of the award

levied by the EEOC in this case. The district court properly

dismissed plaintiff’s second cause of action.

Judge Schroeder concurred, and agreed with the

majority’s conclusion that plaintiff was not entitled to any of

the relief he sought. Plaintiff could not succeed on his claim

for additional backpay because he failed to show that the

amount he sought represented moonlight earnings

improperly deducted as replacement income. This was true

based on either looking at the allegations of the complaint,

as the majority did, or looking through the record, as the

district court did. With respect to sanctions, there was no

legal authority that authorized the EEOC to impose

monetary sanctions against the government for discovery

violations. The EEOC lacked express authority under either

its regulations or the ADEA statute, and the court need not

decide whether that express authority must be by a statutory

amendment or whether an amendment to the EEOC

regulations would be sufficient.

PLASKETT V. WORMUTH 5

COUNSEL

Wendy E. Musell (argued), Law Offices of Wendy Musell,

Oakland, California, for Plaintiff-Appellant.

Lewis S. Yelin (argued) and Marleigh D. Dover, Appellate

Staff; David L. Anderson, United States Attorney; Ethan P.

Davis, Acting Assistant Attorney General; Civil Division,

United States Department of Justice, Washington, D.C.; for

Defendants-Appellee.

OPINION

COLLINS, Circuit Judge:

In 2012, the Equal Employment Opportunity

Commission (“EEOC”) concluded, after an administrative

proceeding under the Age Discrimination in Employment

Act (“ADEA”), that the U.S. Army had unlawfully

discriminated against Plaintiff Jeffrey Plaskett on the basis

of age when it failed to rehire him for a particular civilian

position in 2010. The EEOC awarded Plaskett reinstatement

and backpay, and it also ordered the Army to pay him

sanctions in light of the Army’s failure to comply with its

discovery obligations during the administrative proceedings.

The Army, however, refused to pay the sanctions award on

the ground that it was barred by sovereign immunity. And

although the Army agreed to hire Plaskett and paid him

backpay, Plaskett subsequently claimed that the Army owed

him additional backpay. Dissatisfied with his efforts to

resolve these disputes directly with the Army or through the

EEOC, Plaskett ultimately filed this civil action seeking

payment of both the additional claimed backpay and the

sanctions award. Plaskett alleged that the Army’s

6 PLASKETT V. WORMUTH

nondiscretionary duty to pay these sums was enforceable

under the Mandamus Act, 28 U.S.C. § 1361, and the

Administrative Procedure Act (“APA”), 5 U.S.C. § 706(1).

The district court dismissed the action for lack of

jurisdiction, concluding that the requirements of mandamus

jurisdiction were not met as to the backpay award and that

the Army’s sovereign immunity barred enforcement of the

sanctions award. Although our reasoning differs in some

respects from that of the district court, we agree that this

action was properly dismissed. We therefore affirm the

district court’s judgment.

I

A

From July 4, 2006 until September 30, 2010, Jeffrey

Plaskett was employed as an Engineering Equipment

Operator by the U.S. Army at Fort Hunter Liggett in Jolon,

California. Shortly after that term appointment expired,

Plaskett applied for one of four open permanent positions for

the same job. However, the 55-year-old Plaskett was not

hired; instead, four younger men ranging in age from 29–45

were selected.

In November 2010, Plaskett filed an administrative

complaint with the EEOC alleging that the Army had

violated § 15 of the ADEA, which generally provides that

“[a]ll personnel actions affecting employees or applicants

for employment who are at least 40 years of age . . . in

military departments . . . , in executive agencies[,]” and

certain other governmental entities “shall be made free from

any discrimination based on age.” 29 U.S.C. § 633a(a).

After hearing testimony over several days, the EEOC

administrative judge on October 18, 2012 issued a decision

specifically finding that “Plaskett was not selected for an

PLASKETT V. WORMUTH 7

Engineering Equipment Operator position because of his

age” and that the Army had therefore violated the ADEA.

The administrative judge ordered Plaskett to be hired in the

same or a substantially equivalent position and also awarded

him backpay. See 29 U.S.C. § 633a(b) (stating that, in

EEOC proceedings to enforce the ADEA, the EEOC is

authorized to provide “appropriate remedies, including

reinstatement or hiring of employees with or without

backpay”).

In a separate order issued the next day, the administrative

judge ordered the Army to pay Plaskett $7,012.50 as a

sanction for its failure to produce discovery in a timely

manner. The judge concluded that the Army’s efforts to

locate documents had not been sufficiently “diligent,” and

important documents were belatedly produced “at or after”

the hearing, and then only after multiple requests by Plaskett

and the filing of a motion to compel. The sanction amount

was determined by multiplying the “reasonable time” that

Plaskett’s attorney had spent pursuing this discovery

(16.5 hours) by a reasonable hourly rate for attorneys in the

relevant legal community ($425). As authority for imposing

this monetary sanction, the judge cited 29 C.F.R.

§ 1614.109(f)(3). 1 That section provides that, when a

complainant or an agency fails to comply with an

administrative judge’s orders or with discovery requests, the

judge may impose one or more merits-related sanctions

(such as drawing adverse inferences or even terminating

1

The administrative judge’s order actually says “§ 1614.(f)(3),” but

all parties agree that § 1614.109(f)(3) was the intended referent.

8 PLASKETT V. WORMUTH

sanctions) or may “[t]ake such other actions as appropriate.”

Id. 2

Under the EEOC’s regulations, an agency must act on an

administrative judge’s decision by “issuing a final order

within 40 days,” notifying the complainant “whether or not

the agency will fully implement the decision.” 29 C.F.R.

§ 1614.110(a). If the agency’s final order does not fully

2

Subsection (f)(3) provides:

(3) When the complainant, or the agency against

which a complaint is filed, or its employees fail

without good cause shown to respond fully and in

timely fashion to an order of an administrative judge,

or requests for the investigative file, for documents,

records, comparative data, statistics, affidavits, or the

attendance of witness(es), the administrative judge

shall, in appropriate circumstances:

(i) Draw an adverse inference that the requested

information, or the testimony of the requested witness,

would have reflected unfavorably on the party refusing

to provide the requested information;

(ii) Consider the matters to which the requested

information or testimony pertains to be established in

favor of the opposing party;

(iii) Exclude other evidence offered by the party

failing to produce the requested information or

witness;

(iv) Issue a decision fully or partially in favor of the

opposing party; or

(v) Take such other actions as appropriate.

29 C.F.R. § 1614.109(f)(3).

PLASKETT V. WORMUTH 9

implement that decision, “then the agency shall

simultaneously file an appeal” with the EEOC. Id.

Accordingly, on December 3, 2012, the Army issued a “final

action” notice stating that it would implement the EEOC’s

October 18, 2012 order granting relief for a violation of the

ADEA. However, in the same notice, the Army stated that

it would not implement the EEOC’s October 19, 2012

sanctions order. The Army noted that the U.S. Department

of Justice’s Office of Legal Counsel (“OLC”) “has 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.” See Authority of the

EEOC to Impose Monetary Sanctions Against Federal

Agencies for Failure to Comply with Orders Issued by

EEOC Administrative Judges, 27 Op. O.L.C. 24 (2003). The

Army stated that it was “bound to follow this [OLC]

opinion” over the conflicting views of the EEOC, and it

therefore declined to implement the EEOC’s sanctions order.

Consistent with the regulation, the Army simultaneously

filed an appeal of that order with the EEOC’s “Office of

Federal Operations” (“OFO”), see 29 C.F.R. § 1614.403(a),

which is authorized to issue decisions in such appeals “on

behalf of the Commission,” id. § 1614.405(a).

In its appeal of the sanctions order, the Army relied

solely on sovereign immunity and did not otherwise contest

that the sanction was warranted and proportionate to the

Army’s violation of its discovery obligations during the

administrative proceedings. In August 2015, the OFO issued

an order upholding the sanction and directing the Army to

pay it. The Army timely sought reconsideration of the

OFO’s decision, but reconsideration was denied in May

2016. Plaskett petitioned for enforcement of the order in

July 2016, and the OFO granted that petition in July 2018.

10 PLASKETT V. WORMUTH

B

Meanwhile, in May 2014, Plaskett informed the Army

that he believed that his backpay had been underpaid.

Specifically, Plaskett contended that the Army had

improperly deducted the amount of his private employment

income during the backpay period from the final backpay

awarded. According to Plaskett, the private employment

income at issue, arising from Plaskett’s bulldozing work,

was “moonlighting” income that should not have been

deducted under the applicable regulations. See 5 C.F.R.

§ 550.805(e)(1) (stating that, although “outside earnings . . .

undertaken to replace” the employment from which an

employee has been wrongfully separated should be deducted

in calculating backpay, “earnings from additional or

‘moonlight’ employment the employee may have engaged in

while Federally employed (before separation) and while

erroneously separated” should not be deducted).

After Plaskett did not receive a satisfactory response

from the Army on this issue, Plaskett filed a formal appeal

with the OFO in April 2015, asserting that the Army owed

him $21,020.01 in additional backpay under the December

2012 final action. While the appeal was pending, the Army

sent an email to Plaskett’s counsel noting that, pursuant to

DoD Financial Management Regulation (“FMR”) 7000.14-

R, Vol. 8, Chap. 6, § 060505(C) (2013), “[t]he only earnings

from other employment that are not deducted from back pay

are earnings from outside employment the employee already

had before the period of wrongful suspension or separation”

(emphasis added). 3 Accordingly, the Army requested that

Plaskett provide documentation showing that he had

3

The relevant language is now contained, substantially unchanged,

in § 060405(C) of the current version of the regulation.

PLASKETT V. WORMUTH 11

engaged in the asserted moonlighting employment before he

left the Army’s employment. Asserting that Plaskett did not

supply such documentation, the Army subsequently declined

to pay any additional backpay.

The OFO issued its decision in Plaskett’s appeal in

October 2017. The OFO noted that the Army conceded that

Plaskett “should be reimbursed for the amount deducted

from back pay that was moonlighting earnings,” but the OFO

stated that “neither party has submitted documentation [of]

the sum thereof.” Accordingly, the OFO ordered the Army

to reimburse Plaskett’s “back pay, with interest, that it

incorrectly deducted as interim earnings but was

moonlighting work.” Plaskett was ordered to “cooperate in

the [Army’s] efforts to compute the amount of back pay and

benefits due” and to “provide all relevant information

requested” by the Army.

In January 2018, Plaskett sought enforcement of the

October 2017 decision, and an EEOC Compliance Officer

requested a compliance report from the Army. The Army

wrote to Plaskett’s counsel in February 2018, stating that,

while it had not yet reimbursed any asserted moonlighting

earnings, that was attributable to “Plaskett’s failure to

provide either time cards or other statements showing he was

engaged in outside employment while still a federal

employee in 2010.” Counsel responded by asserting that

Plaskett had already “provided all of the information he was

required” to provide. At the instructions of the Compliance

Officer, the Army’s attorney in May 2018 sent Plaskett’s

counsel an email explaining that the only outside

employment time cards the Army had received from Plaskett

covered pay periods in 2012 and 2013 and were therefore

inadequate to establish that Plaskett had engaged in such

12 PLASKETT V. WORMUTH

employment before October 2010. Plaskett’s counsel

apparently did not respond to this email.

Subsequently, on May 30, 2018, the OFO docketed

Plaskett’s formal petition for enforcement of the December

2017 order. Plaskett asserted that the Army had failed to

comply with the October 2017 order and that he was owed

$21,020.01 in additional backpay. In its response, the Army

stated that it did not construe the October 2017 order as

requiring the payment of $21,020.01 and that, without

additional documentation from Plaskett, it could not

determine any amount of moonlighting earnings that were

improperly offset against the backpay award.

C

Before the EEOC acted on Plaskett’s petition for

enforcement of the December 2017 order, Plaskett filed this

action in the district court on October 23, 2018. Plaskett’s

first cause of action sought an order directing the Army to

pay him additional backpay in the amount of $21,020.01,

plus interest, and his second cause of action sought an order

requiring payment of the $7,012.50 sanctions award. In

seeking to compel these actions by the Army, Plaskett’s

complaint relied on two sources of authority: (1) the district

court’s jurisdiction over “action[s] in the nature of

mandamus” under the Mandamus Act, see 28 U.S.C. § 1361;

and (2) the judicial review provisions of the APA, which

allow a court to “compel agency action unlawfully withheld

or unreasonably delayed,” 5 U.S.C. § 706(1).

The Army moved to dismiss for lack of subject matter

jurisdiction and for failure to state a claim on which relief

may be granted, see FED. R. CIV. P. 12(b)(1), (6), and the

district court granted that motion in September 2019. The

court concluded that mandamus jurisdiction did not lie as to

PLASKETT V. WORMUTH 13

the backpay dispute, because Plaskett had not shown a clear

right to the additional sum claimed. For similar reasons, the

court also held that it lacked jurisdiction under the APA. As

to the sanctions award, the district court concluded that it

lacked jurisdiction in light of the Government’s sovereign

immunity. Although the EEOC contended that the

Government’s immunity was waived under the EEOC

regulation at 29 C.F.R. § 1614.109(f)(3), the court held that

the regulation lacked the requisite clear and unequivocal

waiver of sovereign immunity. Accordingly, the district

court dismissed the action. Plaskett timely appealed to this

court.

II

Before turning to Plaskett’s specific claims for additional

backpay and for payment of the sanctions award, we first

review the requirements of the particular sources of authority

that he invoked, viz., the Mandamus Act and the APA.

A

Although the common-law writ of mandamus has been

abolished in the district courts, see FED. R. CIV. P. 81(b), 4 the

Mandamus Act grants district courts “original jurisdiction of

any action in the nature of mandamus” against a federal

officer or agency. 28 U.S.C. § 1361; see generally

33 CHARLES A. WRIGHT, CHARLES H. KOCH, & RICHARD

MURPHY, FEDERAL PRACTICE AND PROCEDURE § 8305 (2d

ed. 2018) (noting that § 1361 “uses the indirect phrasing, ‘in

4

By contrast, the “common-law writ of mandamus against a lower

court” remains available to appellate courts under the All Writs Act,

28 U.S.C. § 1651(a). See Cheney v. U.S. Dist. Ct. for the Dist. of

Columbia, 542 U.S. 367, 380 (2004).

14 PLASKETT V. WORMUTH

the nature of mandamus,’” in light of Rule 81(b)). However,

§ 1361’s grant of such jurisdiction “does not expand the

generally recognized scope of mandamus.” Nova Stylings,

Inc. v. Ladd, 695 F.2d 1179, 1180 (9th Cir. 1983).

Consistent with the limitations that traditionally governed

the common-law writ of mandamus, an action under § 1361

is thus “intended to provide a remedy for a plaintiff only if

he has exhausted all other avenues of relief and only if the

defendant owes him a clear nondiscretionary duty.” Heckler

v. Ringer, 466 U.S. 602, 616 (1984). As we have explained,

“[a]n order pursuant to § 1361 is available only if (1) the

claim is clear and certain; (2) the official’s or agency’s ‘duty

is nondiscretionary, ministerial, and so plainly prescribed as

to be free from doubt’; and (3) no other adequate remedy is

available.” Agua Caliente Tribe of Cupeño Indians of Pala

Rsrv. v. Sweeney, 932 F.3d 1207, 1216 (9th Cir. 2019)

(quoting Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1997)).

Accordingly, to establish his entitlement to mandamus-type

relief, Plaskett had to plead that these three requirements

were met.

B

“The APA authorizes suit by ‘[a] person suffering legal

wrong because of agency action, or adversely affected or

aggrieved by agency action within the meaning of a relevant

statute.’” Norton v. Southern Utah Wilderness All., 542 U.S.

55, 61 (2004) (quoting 5 U.S.C. § 702). “[A]gency action”

is defined to include a “failure to act,” see 5 U.S.C.

§ 551(13), and in a suit brought by an aggrieved person over

such a failure to act, the APA expressly authorizes a court to

“compel agency action unlawfully withheld or unreasonably

delayed,” id. § 706(1). Construing the APA in light of its

antecedents, when judicial review was often sought through

“writs of mandamus,” the Supreme Court has held that “a

PLASKETT V. WORMUTH 15

claim under § 706(1) can proceed only where a plaintiff

asserts that an agency failed to take a discrete agency action

that it is required to take.” Norton, 542 U.S. at 63–64. Thus,

“§ 706(1) empowers a court only to compel an agency ‘to

perform a ministerial or non-discretionary act,’ or ‘to take

action upon a matter, without directing how it shall act.’” Id.

at 64 (citation omitted); see also Center for Biological

Diversity v. Veneman, 394 F.3d 1108, 1112 (9th Cir. 2005).

We have recognized that, in this respect, the showing

required to support a request for an order under § 706(1)

compelling an agency to take a discrete action mirrors the

showing that is required to obtain mandamus-type relief. See

Agua Caliente Tribe, 932 F.3d at 1216 (considering the two

forms or relief “together because the relief sought is

essentially the same”) (simplified). That is, because a “court

can compel agency action under [§ 706(1)] only if there is ‘a

specific, unequivocal command’ placed on the agency to

take a ‘discrete agency action,’ and the agency has failed to

take that action,” the “agency action must be pursuant to a

legal obligation ‘so clearly set forth that it could traditionally

have been enforced through a writ of mandamus.’” Vietnam

Veterans of Am. v. CIA, 811 F.3d 1068, 1075–76 (9th Cir.

2016) (citations omitted). 5

5

We have suggested that jurisdiction under the Mandamus Act may

not be proper when, as here, Plaskett would have an adequate remedy

under § 706(1) of the APA for any meritorious claim. See Independence

Min. Co. v. Babbitt, 105 F.3d 502, 507 n.6 (9th Cir. 1997) (“[W]e

question the applicability of the traditional mandamus remedy under the

[Mandamus Act] where there is an adequate remedy under the APA.”);

cf. Piledrivers’ Local Union No. 2375 v. Smith, 695 F.2d 390, 392 (9th

Cir. 1982) (“Mandamus jurisdiction” under the Mandamus Act only

“exists when . . . no other adequate remedy is available.”). We need not

address this issue, however, because we have subject matter jurisdiction

16 PLASKETT V. WORMUTH

C

It follows from these settled principles that, regardless of

whether Plaskett’s claim is viewed as one under § 1361 or

under § 706(1), he was required to plead, inter alia, that the

Army had a clear, certain, and mandatory duty to pay him

(1) the additional backpay he sought and (2) the sanctions

award that the EEOC had imposed. In reviewing whether

the district court properly dismissed this action for failure to

carry this burden, we confront an initial question concerning

the proper procedural framework for reviewing the district

court’s decision.

The district court dismissed Plaskett’s claims based

solely on “lack of subject matter jurisdiction” under Rule

12(b)(1) and it expressly declined to “reach [the Army’s]

challenges under Rule 12(b)(6).” As to the sanctions award,

we agree that the issue of the Army’s sovereign immunity

raises a jurisdictional issue that was properly resolved under

Rule 12(b)(1). See Mundy v. United States, 983 F.2d 950,

952 (9th Cir. 1993). But as to the issue of backpay, the

matter is more complicated. We have generally treated the

requirements for obtaining mandamus-type relief under

§ 1361 as jurisdictional in nature, see, e.g., Stang v. IRS,

788 F.2d 564, 565–66 (9th Cir. 1986); but cf. In re First Fed.

Savs. & Loan Ass’n of Durham, 860 F.2d 135, 140 (4th Cir.

1988), but the Army now correctly concedes that it was error

to dismiss Plaskett’s APA claim for backpay for lack of

subject matter jurisdiction. Any deficiencies as to the APA

claim go to the merits of that cause of action rather than to

the subject matter jurisdiction of the court to consider it. See,

over the APA claim under 28 U.S.C. § 1331, and Plaskett’s claims fail

under either the APA or the Mandamus Act given that he lacks any clear

right to relief.

PLASKETT V. WORMUTH 17

e.g., Califano v. Sanders, 430 U.S. 99, 106–07 (1977)

(holding that the APA is not a jurisdictional provision and

that jurisdiction in APA cases rests on the federal question

statute, 28 U.S.C. § 1331). The adequacy of Plaskett’s APA

claim for additional backpay thus should have been analyzed

under Rule 12(b)(6) rather than Rule 12(b)(1).

We therefore begin by evaluating all of Plaskett’s claims

under the standards applicable to a motion to dismiss for

failure to state a claim. See Atel Fin. Corp. v. Quaker Coal

Co., 321 F.3d 924, 926 (9th Cir. 2003) (“We may affirm a

district court’s judgment on any ground supported by the

record.”). And because, for the reasons explained below, we

conclude that all of his claims fail under those standards, we

need not consider whether the application of Rule 12(b)(1)

standards might have made a difference. Cf. Ass’n of Am.

Med. Colls. v. United States, 217 F.3d 770, 778–79 (9th Cir.

2000) (noting that “motions to dismiss under Rule 12(b)(1),

unlike a motion under Rule 12(b)(6),” may involve

presentation of evidence and findings of fact).

D

Accordingly, in reviewing Plaskett’s claims, we consider

whether, “taking all well-pleaded factual allegations as true,

it contains enough facts to ‘state a claim to relief that is

plausible on its face.’” Hebbe v. Pliler, 627 F.3d 338, 341–

42 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009)). “Threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not

suffice.” Iqbal, 556 U.S. at 678. In applying these

standards, we “consider only allegations contained in the

pleadings, exhibits attached to the complaint, and matters

properly subject to judicial notice.” Swartz v. KPMG LLP,

476 F.3d 756, 763 (9th Cir. 2007). The adequacy of

Plaskett’s claims under these standards raises a question of

18 PLASKETT V. WORMUTH

law that we consider de novo. Id. at 760. Likewise, whether

the Army was entitled to sovereign immunity as to the

sanctions award presents a question of law that we review de

novo. Orff v. United States, 358 F.3d 1137, 1142 (9th Cir.

2004), aff’d, 545 U.S. 596 (2005).

III

We conclude that Plaskett has failed to state a claim,

under either § 1361 or § 706(1), for $21,020.01 in additional

backpay.

A

Plaskett’s claim to additional backpay ultimately rests on

the EEOC’s October 2017 decision, but that ruling does not

establish a “clear and certain” claim resting on a

“nondiscretionary, ministerial” duty to pay additional

backpay that is “so plainly prescribed as to be free from

doubt.” Agua Caliente Tribe, 932 F.3d at 1216 (citations and

internal quotation marks omitted). On the contrary, the order

on its face expresses uncertainty as to what amount, if any,

of additional backpay might be due.

The October 2017 order confirms that there is no dispute

that, if the Army offset its backpay award by amounts that

Plaskett earned as a result of moonlighting work, then

Plaskett is entitled to receive additional backpay reflecting

that improperly deducted amount. See 5 C.F.R.

§ 550.805(e)(1); DoD FMR 7000.14-R, Vol. 8, Chap. 6,

§ 060505(C) (2013); see also supra at 10–11. As the order

explains, the Army “concedes [Plaskett] should be

reimbursed for the amount deducted from back pay that was

moonlighting earnings.” While the order reflects the parties’

apparent assumption that the amount of such reimbursable

moonlighting earnings was not zero, the order does not make

PLASKETT V. WORMUTH 19

any finding as to what, if any, amount is actually owed. On

the contrary, the order states that “neither party has

submitted documentation [of] the sum thereof.” The order

therefore directs the Army to “determine the appropriate

amount of back pay, with interest,” and it directs Plaskett to

“cooperate in the [Army’s] efforts to compute the amount of

back pay and benefits due” and to “provide all relevant

information requested” by the Army. The order also

specifies that, in the event of a dispute over the exact amount

due, the Army should pay any undisputed amount and

Plaskett should file a “petition for enforcement or

clarification of the amount in dispute.” The order thus

plainly envisions that a further process will need to take

place to determine what additional sum, if any, is due to

Plaskett.

Plaskett’s complaint fails to plead sufficient facts to

show that the process contemplated by the October 2017

order has been completed and that a certain amount of

additional backpay is now clearly owed to him. Instead, the

complaint appears to rest on the premise that, because the

Army inexcusably failed to complete that process within the

60 days specified in the October 2017 order, the Army has

forfeited all objections on this score and therefore must pay

the full $21,020.01 demanded by Plaskett. But nothing in

the October 2017 order (or in anything else that Plaskett has

cited) establishes that this consequence follows from the

Army’s failure to respond in time. On the contrary, when

Plaskett called the Army’s oversight to the attention of the

EEOC, it did not order payment of $21,020.01 but instead

directed the Army to issue a “compliance report” within

20 days.

Judicially noticeable materials in the record further

underscore Plaskett’s failure to plead facts establishing a

20 PLASKETT V. WORMUTH

plausible inference that the uncertain and indeterminate

entitlement to additional backpay referenced in the October

2017 order has crystalized into a fixed obligation to pay a

sum certain. In particular, the parties’ correspondence over

this issue in the period leading up to the filing of this action

confirms that the parties disagree as to whether Plaskett has

supplied the necessary documents to allow a determination

as to whether moonlighting income was improperly offset in

calculating Plaskett’s previous backpay award. 6 Plaskett has

pleaded no facts plausibly showing that he has provided the

Army with the requisite documents, thereby establishing his

entitlement to additional backpay. Nor has Plaskett pleaded

facts showing that the EEOC has taken a position on this

dispute, and the judicially noticeable materials concerning

the parties’ interactions with the EEOC do not indicate that

either. Rather, the dispute was presented to the EEOC in

connection with Plaskett’s petition for enforcement, which

was docketed in May 2018. See supra at 12. However, the

EEOC dismissed that petition in January 2020 on the ground

that, “upon the filing of [this] civil action in October 2018,

the Commission’s jurisdiction over the complaint ceased.”

It is thus clear that Plaskett has failed to plead—and, if

given leave to amend, he could not plead—that any inchoate

entitlement to additional backpay contemplated by the

October 2017 order has been reduced to a “clear and certain”

6

We do not take judicial notice of the truth of the factual assertions

contained in the parties’ correspondence with one another or with the

EEOC, but only of the fact that the parties have made these competing

representations. No party has disputed the authenticity of the documents,

and neither side has objected to the requests for judicial notice made by

the other. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741,

746 n.6 (9th Cir. 2006); Lee v. City of Los Angeles, 250 F.3d 668, 688–

90 (9th Cir. 2001). We accordingly also grant Plaskett’s request for

judicial notice of certain materials from the administrative record.

PLASKETT V. WORMUTH 21

claim for performance of a “‘nondiscretionary, ministerial’”

duty to pay a determinate sum of any size. Agua Caliente

Tribe, 932 F.3d at 1216 (citation omitted).

B

Plaskett nonetheless contends that, for two reasons, the

Army should be barred from contesting that it owes him

$21,020.01 in additional backpay. The district court

properly rejected both arguments.

First, Plaskett contends that the Army effectively

conceded that it owed him that amount. Plaskett notes that

an Army attorney stated, in an internal email in 2014, that

Plaskett’s request for additional backpay appeared to be

“backed up by documentation from his employers.” Plaskett

further notes that the Army did not affirmatively contend, in

opposing Plaskett’s 2015 appeal to the OFO, that Plaskett

was owed nothing, and the Army did not call attention to its

moonlighting regulation until after that appeal had already

been filed. Moreover, the Army’s opposition to the appeal

blamed Plaskett for being tardy in submitting documentation

and expressed the view that “the additional backpay should

be forthcoming.” None of these actions amounts to either a

binding concession as to Plaskett’s position or a waiver of

the Army’s objections. Indeed, the EEOC itself plainly did

not read the record the way Plaskett does, because in its

October 2017 ruling on the 2015 appeal, it emphasized the

lack of supporting documentation in the record and the need

for the parties to work together to ascertain any additional

amount owed. See supra at 12. On this record, Plaskett has

provided no plausible basis for concluding that the Army

waived its objections to the adequacy of Plaskett’s

documentation or to the correctness of his claim for

additional backpay. See Groves v. Prickett, 420 F.2d 1119,

1126 (9th Cir. 1970) (noting that a claim is waived when a

22 PLASKETT V. WORMUTH

litigant’s conduct is “clear, decisive and unequivocal of a

purpose to waive the legal rights involved” (citation

omitted)).

Second, Plaskett asserts that the doctrine of laches bars

the Army from contesting the amount of backpay due.

According to Plaskett, the Army “failed to seek in a timely

fashion” the “documents it now claims are necessary” under

the applicable regulations, and due to the passage of time,

those documents “may no longer exist.” But as the party

asserting an entitlement to additional backpay, Plaskett at all

times had the burden to establish that he was entitled to that

money in accordance with the applicable law and

regulations. Here, the relevant regulations are all public

documents and, before presenting a claim for additional

backpay, Plaskett and his counsel would be expected to

consult those regulations in order to ensure that they could

satisfy all of their requirements and that Plaskett had a good-

faith basis for requesting additional backpay. At least with

respect to the essential elements of his own claim for relief,

a claimant such as Plaskett cannot invoke laches to complain

that the opposing party failed to tell him what the applicable

law was for the claim he was asserting against it. It may be

that laches might come into play in connection with the

belated assertion of an affirmative defense. Cf. O’Donnell

v. Vencor, Inc., 465 F.3d 1063, 1067 (9th Cir. 2006)

(considering whether a belated assertion of a “statute of

limitations defense” was barred by laches but finding that the

requisite prejudice was not established). But as the district

court correctly recognized, a plaintiff cannot invoke the

doctrine based on the premise that the plaintiff was

prejudiced by its opponent’s supposed failure to inform it

about the plaintiff’s own burden of proof under the law. See

Halcon Int’l, Inc. v. Monsanto Australia Ltd., 446 F.2d 156,

159 (7th Cir. 1971) (stating that laches “is a shield of

PLASKETT V. WORMUTH 23

equitable defense rather than a sword for the investiture or

divestiture of legal title or right”); 30A C.J.S. Equity § 140

(2021) (“The doctrine of laches cannot be used as a means

to obtain affirmative relief.”).

Accordingly, Plaskett failed to state a claim under either

28 U.S.C. § 1361 or APA § 706(1) for the payment of

additional backpay, and the district court properly dismissed

Plaskett’s first cause of action.

IV

In contrast to his claim for additional backpay, Plaskett’s

claim for payment of the sanctions award presents only a

pure question of law concerning the scope of the

Government’s sovereign immunity. If that immunity has

been waived, it is indisputable that Plaskett has properly

asserted a claim, because then the Army would have a clear,

certain, and ministerial duty to pay that sum to Plaskett, and

the district court would have jurisdiction over that claim.

The only question, therefore, is whether the district court

correctly concluded that the Army’s sovereign immunity had

not been waived. Although we agree with the district court’s

conclusion, our reasoning differs.

“The United States, as sovereign, is immune from suit

save as it consents to be sued,” United States v. Sherwood,

312 U.S. 584, 586 (1941), and the courts “strictly construe”

any such “waivers of sovereign immunity,” Oklevueha

Native Am. Church of Haw., Inc. v. Holder, 676 F.3d 829,

840 (9th Cir. 2012). Here, the district court concluded that

the Government’s sovereign immunity from monetary

sanctions imposed by the EEOC had not been waived

because the applicable EEOC regulation—29 C.F.R.

§ 1614.109(f)(3)—“lack[ed] a ‘clear statement’ that the

United States has waived sovereign immunity to permit the

24 PLASKETT V. WORMUTH

imposition of monetary sanctions against the Army in

administrative proceedings.” In our view, the district court

asked the wrong question.

It is well settled that “[o]nly Congress enjoys the power

to waive the United States’ sovereign immunity.” Dunn &

Black, P.S. v. United States, 492 F.3d 1084, 1090 (9th Cir.

2007). Accordingly, the Supreme Court has long held that,

as a “critical requirement firmly grounded in [its]

precedents,” a “waiver of the Federal Government’s

sovereign immunity must be unequivocally expressed in

statutory text.” Lane v. Peña, 518 U.S. 187, 192 (1996)

(emphasis added); see also FAA v. Cooper, 566 U.S. 284,

290 (2012) (“We have said on many occasions that a waiver

of sovereign immunity must be ‘unequivocally expressed’ in

statutory text.” (citation omitted)). Consistent with this

overwhelming authority, we have squarely held that,

because a “regulation” is “not [an] act[] of Congress,” it

“cannot effect a waiver of sovereign immunity.” Tobar v.

United States, 639 F.3d 1191, 1195 (9th Cir. 2011); see also

Heller v. United States, 776 F.2d 92, 98 n.7 (3d Cir. 1985)

(holding that “government regulations alone, without the

express intent of Congress, cannot waive sovereign

immunity”).

Plaskett notes that we have upheld the imposition of

monetary litigation sanctions by courts under the Federal

Rules of Civil Procedure, see Mattingly v. United States,

939 F.2d 816, 818–19 (9th Cir. 1991) (Rule 11 sanctions);

United States v. Nat’l Med. Enters., Inc., 792 F.2d 906, 910–

11 (9th Cir. 1986) (discovery sanctions under Rule 37(b));

cf. United States v. Woodley, 9 F.3d 774, 781–82 (9th Cir.

1993) (holding that neither local rules, supervisory power,

nor FED. R. CRIM. P. 16(d)(2) authorized sanctions awarded

against the Government in that case), and he argues that

PLASKETT V. WORMUTH 25

administrative agencies must be deemed to have similar

authority to impose sanctions by regulation. But as Plaskett

recognizes, any power to award monetary litigation

sanctions under the Federal Rules of Civil Procedure draws

upon both the authority delegated to the Supreme Court

under the Rules Enabling Act, see 28 U.S.C. § 2072, and also

upon the inherent authority of the courts to control the

proceedings before them. We have construed the latter

authority as including a limited power to waive the

Government’s immunity from sanctions, see Woodley,

9 F.3d at 782 (“Sovereign immunity does not bar a court

from imposing monetary sanctions under an exercise of its

supervisory powers.”); cf. Chambers v. NASCO, Inc.,

501 U.S. 32, 45 (1991) (“‘[I]n narrowly defined

circumstances federal courts have inherent power to assess

attorney’s fees against counsel.’” (citation omitted)), and in

that respect it is perhaps unsurprising that we have

recognized, under appropriate provisions of the federal rules,

an authority to impose monetary sanctions on the

Government. But in this regard an administrative agency

simply does not stand on the same footing as an Article III

court. “An administrative agency possesses no such inherent

equitable power, however, for it is a creature of the statute

that brought it into existence; it has no powers except those

specifically conferred upon it by statute.” Int’l Union of

Elec., Radio & Mach. Workers v. NLRB, 502 F.2d 349, 352

n.* (D.C. Cir. 1974) (opin. of MacKinnon, J.); see also HTH

Corp. v. NLRB, 823 F.3d 668, 679 (D.C. Cir. 2016) (“As a

creature of statute the Board has only those powers conferred

upon it by Congress.”).

Accordingly, whether the Army’s sovereign immunity

has been waived here turns on whether an applicable waiver

has been “unequivocally expressed in statutory text.” Lane,

518 U.S. at 192. Moreover, even when Congress has waived

26 PLASKETT V. WORMUTH

the Government’s sovereign immunity by statute, the

“scope” of that waiver “will be strictly construed . . . in favor

of the sovereign.” Id. That means that, before a particular

type of monetary exaction may be sought against the

Government, an applicable statutory waiver must be

identified that “extend[s] unambiguously to such monetary

claims.” Id.

In contending that the Army’s immunity from monetary

litigation sanctions has been waived, the only statute on

which Plaskett relies is § 15 of the ADEA. See 29 U.S.C.

§ 633a. That statute establishes a general requirement that

federal personnel decisions “shall be made free from any

discrimination based on age,” id. § 633a(a), and it authorizes

the EEOC to enforce that requirement “through appropriate

remedies, including reinstatement or hiring of employees

with or without backpay, as will effectuate the policies of

this section,” id. § 633a(b). It also gives the agency authority

to issue “such rules, regulations, orders, and instructions as

it deems necessary and appropriate to carry out its

responsibilities under this section.” Id. An aggrieved

plaintiff may invoke this administrative option (as Plaskett

did here), “and then file a civil action in federal district court

if he is not satisfied with his administrative remedies.”

Stevens v. Dep’t of Treasury, 500 U.S. 1, 5 (1991). 7 If, as

here, the plaintiff is generally satisfied with the findings and

remedies provided by the administrative process, he or she

can file “an enforcement action against the agency,” but in

7

Alternatively, the plaintiff “can decide to present the merits of his

claim to a federal court in the first instance,” after giving the required

pre-suit notice to the EEOC. Stevens, 500 U.S. at 6; see also 29 U.S.C.

§ 633a(c), (d). The court presented with a de novo civil action under

either route has the authority to award “such legal or equitable relief as

will effectuate the purposes of this chapter.” 29 U.S.C. § 633a(c).

PLASKETT V. WORMUTH 27

such an action the “prevailing employee may not challenge

the [EEOC’s] decision regarding either discrimination or

what it found to be appropriate remedies.” Carver v. Holder,

606 F.3d 690, 696 (9th Cir. 2010).

Plaskett first claims that a sufficient waiver of the

Government’s immunity against monetary litigation

sanctions may be found in § 15’s express statement that the

EEOC may impose “appropriate remedies, including

reinstatement or hiring of employees with or without

backpay, as will effectuate the policies of this section.”

29 U.S.C. § 633a(b). We reject this contention. The

statute’s reference to “appropriate remedies” is

unmistakably a reference to remedies for the “discrimination

based on age” that is made unlawful by § 15(a). That is

confirmed by the specific examples that the statute gives—

namely, “reinstatement,” “hiring,” and “backpay”—all of

which provide redress for such underlying discrimination. A

monetary litigation sanction, by contrast, serves as a

“remedy” for “a violation of a discovery order” or other

litigation-related rule. See Woodley, 9 F.3d at 782. The

express authority to impose monetary “remedies” that

redress discrimination (such as “backpay”) is not the same

as an authority to impose monetary remedies to redress

litigation misconduct. This aspect of § 15 thus does not

supply the necessary clear waiver of immunity that would

explicitly extend to this distinct, latter category of monetary

claim. Lane, 518 U.S. at 192.

Plaskett also notes that § 15 authorizes the EEOC to

“issue such rules, regulations, orders, and instructions as it

deems necessary and appropriate to carry out its

responsibilities” and that it requires federal agencies to

“comply with such rules, regulations, orders, and

instructions.” 29 U.S.C. § 633a(b). These provisions cannot

28 PLASKETT V. WORMUTH

supply the requisite waiver of sovereign immunity either. As

we have recognized, the Supreme Court has consistently

affirmed that “a waiver of sovereign immunity must be

‘unequivocally expressed’ in statutory text.” Cooper,

566 U.S. at 290 (emphasis added) (citation omitted).

Because Congress thus must itself supply the requisite

waiver through clear statutory text, a boilerplate delegation

of general enforcement authority to an agency, untethered to

any relevant explicit statutory waiver of sovereign

immunity, cannot be thought to provide such a waiver. To

hold otherwise would be to allow the necessary waiver to be

expressed in “statutory text or regulations,” and that would

be contrary to long-established Supreme Court authority and

to our decision in Tobar. And to rely on a general grant of

enforcement authority, as opposed to an express power to

impose monetary exactions, would violate the rule that a

waiver of sovereign immunity “may not be inferred, but

must be ‘unequivocally expressed.’” United States v. White

Mountain Apache Tribe, 537 U.S. 465, 472 (2003) (citation

omitted).

Finally, Plaskett contends that, if the EEOC cannot

impose monetary litigation sanctions against the

Government, then it will be unable to effectuate its authority

over its own proceedings. This policy concern cannot

overcome the settled caselaw cited above, but in any event,

its premise is incorrect. The Government here expressly

concedes that the EEOC can impose a variety of

nonmonetary sanctions, “such as by drawing adverse

inferences, by excluding evidence, or by taking other action

during the adjudication of a claim.” This range of potent

sanctions gives the agency ample authority to ensure that the

Government, as a litigant in EEOC proceedings, acts in

conformity with lawful rules and orders of the agency.

PLASKETT V. WORMUTH 29

Because Congress has not “unequivocally expressed in

statutory text” that the EEOC may award monetary litigation

sanctions against the Government, sovereign immunity

precludes enforcement of the award levied by the EEOC in

this case. Lane, 518 U.S. at 192. The district court therefore

properly dismissed Plaskett’s second cause of action.

V

The district court’s judgment dismissing this action is

AFFIRMED.

SCHROEDER, Circuit Judge, concurring:

I agree that the district court’s denial of relief should be

affirmed.

Plaskett cannot succeed on his claim for additional

backpay because he failed to show that the amount he seeks

represents moonlight earnings improperly deducted as

replacement income. This is the correct result whether we

look to the allegations of the complaint, as the majority does,

or look through to the record before the EEOC, as the district

court did.

With respect to sanctions, there is no legal authority that

authorizes the EEOC to impose monetary sanctions against

the government for discovery violations. There is a broad

statutory waiver of sovereign immunity that subjects the

government to liability for violating the ADEA, and requires

it to abide by the EEOC regulations enforcing the statute. As

to ADEA liability, the statute in material part provides:

30 PLASKETT V. WORMUTH

All personnel actions affecting employees or

applicants for employment who are at least

40 years of age . . . shall be made free from

any discrimination based on age.

29 U.S.C. § 633a(a).

As to compliance with EEOC regulations enforcing the

statute, the statute further provides:

[T]he [EEOC] is authorized to enforce the

provisions of subsection (a) through

appropriate remedies, including

reinstatement or hiring of employees with or

without backpay, . . . [and to] issue such

rules, regulations, orders, and instructions as

it deems necessary and appropriate to carry

out its responsibilities under this section.

...

The head of each such department agency, or

unit shall comply with such rules,

regulations, orders, and instructions of the

[EEOC] . . . .

Id. § 633a(b).

Under this statutory authority, the EEOC promulgated a

regulation that allows administrative law judges to sanction

parties who fail to respond to discovery requests. It lists

sanctions that allow ALJs to draw adverse inferences, to

exclude other evidence, and to “[t]ake such other actions as

appropriate.” 29 C.F.R. § 1614.109(f)(3). The list does not

expressly include monetary sanctions. The law of this

Circuit is clear that absent express authority, monetary

PLASKETT V. WORMUTH 31

sanctions may not be imposed against the government. See

United States v. Woodley, 9 F.3d 774, 792 (9th Cir. 1993).

The EEOC thus lacks express authority under either its

regulations or the statute. We therefore need not decide

whether—given the broad statutory waiver of sovereign

immunity authorizing the EEOC to enforce the ADEA

against the government—that express authority must be by

a statutory amendment or whether an amendment to the

EEOC regulations would be sufficient.

For these reasons, I agree with the majority’s conclusion

that Plaskett is not entitled to any of the relief he seeks.