Petition for Writ of Certiorari — Christina V. Le, Petitioner v. Kenneth J. Braithwaite, Secretary of the Navy

Supreme Court briefSep 1, 2020

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ORIGINAL

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No. 20-

FILED

SEP 0 1 2020

OFFICE OF THE CLERK

SUPREME COURT I is

3fa

Supreme Court ot tfje ®niteti States

CHRISTINA V. LE,

Petitioner,

Secretary,

DEPARTMENT OF THE NAVY,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Christina V. Le

Petitioner Pro Se

6823 Deerwood Drive

Riverside, CA 92506

Tel: (951) 756-7034

Email: chrisvnac@yahoo.com

RECEIVED

SEP - 8 2020

OFFICE OF THE CLERK

SUPREME COURT. U.S.

QUESTIONS PRESENTED

1. The circuit courts of appeals split on the issue

of jurisdiction regarding breach of settlement agree

ment resolving discrimination charge under Title VII

of the Civil Rights Act of 1964.

The question presented is whether an employee is

entitled to file suit of breach of settlement agreement

as discrimination or retaliation under Title VII.

In Babb v. Wilkie, No. 18-882, 589 U.S.

(2020),

the Court specifically held, “That Congress would want

to hold the Federal Government to a higher standard

than state and private employers is not unusual”; a

subsidiary question is whether this holding is applica

ble to federal employees under Title VII discrimination

and retaliation.

2. In Hannah v. Larche, 363 U.S. 420 (1960), the

Court stated:

[The] exact boundaries [of due process] are undefinable, and its content varies according to

specific factual contexts. Thus, when govern

mental agencies adjudicate or make binding de

terminations which directly affect the legal rights

of individuals, it is imperative that those agen

cies use the procedures which have tradition

ally been associated with the judicial process.

The question presented is whether the EEOC’s

actions, findings, and conclusions are subject to judicial

review under the Administrative Procedure Act (APA)

in connection with the adjudication of claims under

Title VII of the Civil Rights Act of 1964.

PARTIES

The petitioner is Christina V. Le.

The respondent is the Secretary, Department of

the Navy.

RELATED CASES

Related cases are as follows:

[related to] The instant case:

United States Court Of Appeals For The Ninth

Circuit

Case No. 19-55578

CHRISTINA V. LE v. RICHARD V. SPENCER,

Secretary of the Navy

Entry of Judgment: April 13, 2020

United States District Court Central District Of

California

Case No. EDCV 18-01564-JGB(SPx)

CHRISTINA V. LE v. RICHARD V. SPENCER,

Secretary of the Navy

Entry of Judgment: April 24, 2019

2. Previous case:

United States District Court Central District Of

California

Case No. EDCV 14-00103-JGB(SPx)

CHRISTINA V. LE v. RICHARD V. SPENCER,

Secretary of the Navy

Entry of Judgment: May 21, 2014

Ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED..................................

PARTIES..................................................................

RELATED CASES..................................................

TABLE OF AUTHORITIES................................... vm

PETITION FOR A WRIT OF CERTIORARI.......

OPINIONS AND ORDERS BELOW.....................

JURISDICTION......................................................

RELEVANT STATUTORY AND REGULATORY

PROVISIONS......................................................

INTRODUCTION...................................................

STATEMENT OF THE CASE................................

Legal Background........................................

A. Subject Matter Jurisdiction Regarding

Breach of Settlement Agreement Re

solving Discrimination Charge Under

Title VII..................................................

B. Constitutional Rights To Due Process

And Equal Protection Under The APA...

II. Factual Background And EEOC Adminis

trative Proceedings.................................

A. Factual Background........................

B. EEOC Administrative Proceedings

III. Federal Court Proceedings....................

REASONS FOR GRANTING THE WRIT.......

TABLE OF CONTENTS - Continued

Page

Certiorari Should Be Granted To Resolve

Circuit Courts Split On The Issue Of Juris

diction Regarding Breach Of Settlement

Agreement Resolving Discrimination Charge

Under Title VII..............................................

A. The Eleventh and Seven Circuits Have

Held That Under Section 706(f)(3) of

Title VII, 42 U.S.C. § 2000e-5(f)(3),

The District Court Shall Have Juris

diction Of Actions Brought By Ag

grieved Persons .....................................

B. The Fourth, Tenth, And Fifth Circuits

Have Held That The District Court

Does Not Have Subject Matter Juris

diction Because Congress Did Not

Consent To Being Sued By Federal

Employees To Enforce Settlement

Agreements............................................

C. The D.C. Circuit Has Held That The

District Court Has Supplemental Ju

risdiction Under 28 U.S.C. § 1367 On

Breach Of Settlement Agreement As

Retaliation Under Title VII.................

D. The Ninth Circuit Has Asserted That

Congress Has Not Provided For En

forcement Of Settlement Agreements

In Federal Court And That 29 C.F.R.

§ 1614.504 Is “Silent” As To Whether

An Employee May Proceed To Federal

Court.......................................................

TABLE OF CONTENTS - Continued

Page

E. This Court Should Settle The Issue Of

Whether 29 C.F.R. § 1614 Authorized

A Civil Action In Federal Court On

Breach Of Settlement Agreement Re

solving Discrimination Charge Under

Title VII..................................................

F. This Court Should Resolve The Issue

Of Whether “To Hold The Federal Gov

ernment To A Higher Standard” Is Ap

plicable To Federal Employees Under

Title VII..................................................

II. Certiorari Should Also Be Granted To Af

firm That The EEOC’s Adjudication Is

Subject To Judicial Review Under The

APA................................................................

A. The EEOC’s Action Or Decision

Amounted To Final Agency Action Is

Subjected To Judicial Review Under

The APA, 5 U.S.C. § 704.........................

B. Government Agencies Are Liable For

Due Process Violations Committed In

The Course Of Performing Their Adju

dication Functions.................................

C. The EEOC’s Reviewable Actions Pur

suant To 5 U.S.C. § 706.........................

III. This Case Is An Ideal Vehicle For Resolv

ing The Conflict Among The Circuits And

Affirming The Important Issue Of Due

Process And Equal Protection Under The

APA................................................................

TABLE OF CONTENTS - Continued

Page

IV.

The Ninth Circuit’s Summary Affirmance

Is Incorrect...................................................

A. The District Court Erroneously Con

flated Subject Matter Jurisdiction

With FRCP Rule 8(a) (General Rules

Of Pleading)............................................

B. The District Court Erroneously Ap

plied Munoz And The Ninth Circuit’s

Affirmation Is Incorrect.......................

C. The District Court Erroneously Ap

plied Ward And The Ninth Circuit’s

Affirmation Is Incorrect.......................

CONCLUSION

APPENDIX

Order of Summary Affirmance of the United

States Court of Appeals for the Ninth Circuit,

dated November 22, 2019.................................

Judgment of the United States District Court,

Central District of California, dated April 24,

2019....................................................................

Order Dismissing Plaintiff’s First Amended

Complaint Without Leave to Amend of the

United States District Court, Central District

of California, dated April 24, 2019...................

Vll

TABLE OF CONTENTS - Continued

Page

Order of the United States District Court, Cen

tral District of California (1) Granting in Part

and Denying in part Defendant’s Motion to

Dismiss; (2) Dismissing Plaintiffs FAC With

Leave to Amend; and (3) Vacating the March

4, 2019 Hearing, dated February 27, 2019......

Order of the United States Court of Appeals for

the Ninth Circuit denied en banc reconsidera

tion, dated April 13, 2020..................................

17a

Vlll

TABLE OF AUTHORITIES

Page

Cases

Arbaugh v.Y&H Corp., 546 U.S. 500 (2006).....

Army Corps of Engineers v. Hawkes Co., 578 U.S.

___(2016)........... ...................................................... 7, 25

Ashcroft v. Iqbal, 556 U.S. 662 (2009)...................

Babb v. Wilkie, No. 18-882, 589 U.S.

(2020)

Bell Atlantic Corp. u. Twombly, 550 U.S. 544

(2007)........................................................................

Bennett v. Spear, 520 U.S. 154 (1997).................... 7,22

Bolling v. Sharpe, 347 U.S. 497 (1954)..................

Charles v. McHugh, 613 F. App’x 330 (5th Cir.

2015).........................................................................

Eatmon u. Bristol Steel & Iron Works Inc., 769

F.2d 1503 (11th Cir. 1985)....................................

5,6

Exxon Mobil Corp. v. Allapattah Services, Inc.,

545 U.S. 546 (2005)...............................................

Frahm v. United States, 492 F.3d 258 (4th Cir.

2007).........................................................................

Hannah v. Larche, 363 U.S. 420 (1960)................. 7, 33

Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014).

Lindstrom v. United States, 510 F.3d 1191 (10th

Cir. 2007).................................................................

Munoz v. Mabus, 630 F.3d 856 (9th Cir. 2010)... 6,18,31

Ruedlinger v. Jarrett, 106 F.3d 212 (7th Cir.

1997)

TABLE OF AUTHORITIES - Continued

Page

Sackett v. EPA, 566 U.S. 120 (2012)

7, 24, 25

United Mine Workers of America v. Gibbs, 383

U.S. 715 (1966)..................................................

Venetian Casino Resort, LLC v. EEOC, 530 F.3d

925 (D.C. Cir. 2008)...........................................

Vimla Saksenasingh v. Secretary of Education,

126 F.3d 347 (D.C. Cir. 1997)............................

Ward v. EEOC, 719 F.2d 311 (9th Cir. 1983).......

West v. Gibson, 527 U.S. 212 (1999)...................... 7, 23

Constitution

Fifth Amendment.........

Fourteenth Amendment

Statutes

Administrative Procedure Act (APA)

5U.S.C. §§ 701-706.........................

passim

28 U.S.C. § 1254(1).............................

28 U.S.C. § 1367.................................

28 U.S.C. § 1367(a).............................

2,17

28 U.S.C. § 1491(a)(1)........................

TABLE OF AUTHORITIES - Continued

Page

Title VII of the Civil Rights Act of 1964

42 U.S.C. § 2000e.................................

42 U.S.C. § 2000e-2(a).........................

42 U.S.C. § 2000e-3(a).........................

42 U.S.C. § 2000e-5(b).........................

2,4

42 U.S.C. § 2000e-5(f)(3)....................

42 U.S.C. § 2000e-16(a)......................

42 U.S.C. § 2000e-16(d)......................

Regulations

29 C.F.R. § 1614.407(c)

2,20

29 C.F.R. § 1614.504 ....

....18,19, 20

29 C.F.R. § 1614.504(a)

3,16,19, 20

Other Authority

EEOC Enforcement Guidance on Retaliation and

Related Issues, No. 915.004 (Aug. 25, 2016)

(available at https://www.eeoc.gov/laws/guidance/

enforcement-guidance-retaliation-and-relatedissues).................................................................

FRCP Rules

Rule 8(a)......

28, 29

Rule 12(b)(1)

28,30

Rule 12(b)(6)

PETITION FOR A WRIT OF CERTIORARI

Petitioner Christina V. Le respectfully petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit.

OPINIONS AND ORDERS BELOW

The Ninth Circuit Order of Summary Affirmance

dated November 22, 2019 is set out at App. la. District

Court Judgment (DCJ) and Dismissing Order dated

April 24, 2019 are set out at App. 2a and 3a. The DCJ

is based on the District Court Order (opinion) dated

February 27, 2019. App. 5a.

JURISDICTION

A timely petition for rehearing en banc was denied

on April 13, 2020. App. 17a. On March 19, 2020, the

Supreme Court extended the time to file this petition

for a writ of certiorari to 150 days from the date of the

lower court judgment.1 This Court has jurisdiction pur

suant to 28 U.S.C. § 1254(1).

1 See https://www.supremecourt.gov/orders/courtorders/

031920zr_dlo3.pdf.

RELEVANT STATUTORY AND

REGULATORY PROVISIONS

42 U.S.C. § 2000e-2(a) provides in relevant part

that “It shall be an unlawful employment practice for

an employer ... to discriminate against any individual

with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s

race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-3(a) provides in relevant part that “It shall be

an unlawful employment practice for an employer . . .

to discriminate against any individual . . . because he

has opposed any practice made an unlawful employ

ment practice by this subchapter, or because he has

made a charge, testified, assisted, or participated in

any manner in an investigation, proceeding, or hearing

under this subchapter.” 42 U.S.C. § 2000e-5(b) provides

that the EEOC has a statutory duty to attempt to re

solve findings of discrimination on charges through

conciliation. 42 U.S.C. § 2000e-16(a) provides in rele

vant part that “All personnel actions affecting employ

ees or applicants for employment ... in executive

agencies as defined in section 105 of Title 5 . . . shall be

made free from any discrimination based on race, color,

religion, sex, or national origin.”

28 U.S.C. § 1367(a) provides in relevant part that

“district courts shall have supplemental jurisdiction

over all other claims that are so related to claims in the

action.”

29 C.F.R. § 1614.407(c) provides, in relevant part,

that “A complainant who has filed an individual

complaint... is authorized under title VII, the ADEA

and the Rehabilitation Act to file a civil action in an

appropriate United States District Court. . . within 90

days of receipt of the Commission’s final decision on an

appeal.” 29 C.F.R. § 1614.504(a) provides in relevant

part that “Any settlement agreement knowingly and

voluntarily agreed to by the parties . . . shall be bind

ing on both parties . . . The complainant may request

that the terms of the settlement agreement be specifi

cally implemented or, alternatively, that the complaint

be reinstated for further processing from the point pro

cessing ceased.”

The principal statutory authorities governing ju

dicial review of agency action are 5 U.S.C. §§ 701-706.

5 U.S.C. § 704 provides in relevant part that “Agency

action made reviewable by statute and final agency ac

tion for which there is no other adequate remedy in a

court are subject to judicial review.” 5 U.S.C. § 706 pro

vides in relevant part that “The reviewing court shall

... (2) hold unlawful and set aside agency action, find

ings, and conclusions found to be (A) arbitrary, capri

cious, an abuse of discretion, or otherwise not in

accordance with law; (B) contrary to constitutional

right, power, privilege, or immunity; . . . (E) unsup

ported by substantial evidence in a case subject to sec

tions 556 and 557 of this title or otherwise reviewed on

the record of an agency hearing provided by statute.”

INTRODUCTION

Every year, tens of thousands of employees bring

retaliation claims under Title VII of the Civil Rights

Act of 1964 and related statutes prohibiting workplace

discrimination. EEOC FY 2019 statistics shows retali

ation charges continue to represent the majority of

charges with 53.8% (39,110 cases) of all filed charges.2

The EEOC has a statutory duty to attempt to resolve

findings of discrimination on charges through concilia

tion. 42 U.S.C. § 2000e-5(b). Consequently, there have

been a significant number of claims of breach of settle

ment agreements due to a large number of cases re

solved through settlements prior to a formal

determination. Yet, over the span of 30 years, from

1985 to 2015, the federal courts of appeals have pro

vided conflicting decisions on the issue of jurisdiction

regarding breach of settlement agreement resolving

discrimination charge under Title VII of the Civil

Rights Act of 1964 (hereafter, “Title VII”).

The mission of the U.S. Equal Employment Oppor

tunity Commission (EEOC) is to stop and remedy un

lawful employment discrimination in the workplace

by enforcing Federal laws that prohibit employment

discrimination.3 For the Federal sector in particular,

2 See EEOC Releases Fiscal Year 2019 Enforcement and Lit

igation Data, https://www.eeoc.gov/newsroom/eeoc-releases-fiscalyear-2019-enforcement-and-litigation-data.

3 See U.S. Equal Employment Opportunity Commission

(EEOC) OPEN GOVERNMENT PLAN, (Version 4.0, July 2016),

https://www.eeoc.gov/us-equal-employment-opportunity-commissioneeoc-open-govemment-plan.

the EEOC states, “EEOC assures federal agency and

department compliance with EEOC regulations . . .

concerning EEO complaint adjudication . . . provides

guidance and assistance to our Administrative Judges

who conduct hearings on EEO complaints, and adjudi

cates appeals from administrative decisions made by

federal agencies on EEO complaints (emphasis

added).”4 Each year, the EEOC adjudicates tens of

thousands of EEO cases. As such, the EEOC’s actions

or decisions should be held accountable under the

APA. 5 U.S.C. § 706 requires the reviewing court to

hold unlawful and set aside agency actions, findings,

and conclusions found to be “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance

with law,” or “contrary to constitutional right” or “un

supported by substantial evidence.”

STATEMENT OF THE CASE

Legal Background

A. Subject Matter Jurisdiction Regarding

Breach of Settlement Agreement Re

solving Discrimination Charge Under

Title VII

In deciding subject matter jurisdiction, seven cir

cuit courts of appeals split on the issue of jurisdiction

regarding breach of settlement agreement resolving

discrimination charge under Title VII. See Eatmon v.

4 See Federal Sector, https://www.eeoc.gov/federal-sector.

Bristol Steel & Iron Works Inc., 769 F.2d 1503 (11th Cir.

1985) (an individual, not just the EEOC, may bring

suit under Title VII to enforce a predetermination set

tlement agreement); Ruedlinger v. Jarrett, 106 F.3d

212 (7th Cir. 1997) (all of the reasons that support Title

VII jurisdiction over such actions when brought by the

EEOC apply with equal force to actions brought by the

aggrieved employees to enforce conciliation agree

ments); Vimla Saksenasingh v. Secretary of Education,

126 F.3d 347 (D.C. Cir. 1997) (Saksenasingh could sue

on her original complaint, and the breach of settlement

claim could be brought as a supplemental retaliation

claim under 28 U.S.C. § 1367); Frahm v. United States,

492 F.3d 258, 262 (4th Cir. 2007) (the district court

found that it lacked jurisdiction with respect to the

breach of settlement agreement claim because of 28

U.S.C. § 1491(a)(1), which confers jurisdiction on the

Court of Federal Claims for “any claim against the

United States founded .. . upon any express or implied

contract with the United States”); Lindstrom v. United

States, 510 F.3d 1191 (10th Cir. 2007) (waiver of sover

eign immunity under section 717 of Title VII [42 U.S.C.

§§ 2000e-5(f), 2000e-16] does not apply to breach of

settlement agreement); Munoz u. Mabus, 630 F.3d 856

(9th Cir. 2010) (Congress has not provided for enforce

ment of settlement agreements in federal court);

Charles v. McHugh, 613 F. App’x 330 (5th Cir. 2015)

(Congress has not waived sovereign immunity).

B. Constitutional Rights To Due Process

And Equal Protection Under The APA

In Bolling v. Sharpe, 347 U.S. 497 (1954), the Su

preme Court held that the concepts of Equal Protection

(Fourteenth Amendment) and Due Process (Fifth

Amendment) are not mutually exclusive, establishing

the reverse incorporation doctrine.

Under the APA, government agency’s violation of

constitutional rights is subjected to judicial review.

“When governmental agencies adjudicate or make

binding determinations which directly affect the legal

rights of individuals, it is imperative that those agen

cies use the procedures which have traditionally been

associated with the judicial process.” Hannah u.

Larche, 363 U.S. 420 (1960). The Supreme Court set the

conditions to determine “final” agency action in Ben

nett v. Spear, 520 U.S. 154 (1997). The Court stated that

the EEOC has the authority to determine “rights or

obligations” in West v. Gibson, 527 U.S. 212 (1999). In

Sackett v. EPA, 566 U.S. 120 (2012), the Sacketts con

tended, under the APA, that the EPA (Environmental

Protection Agency) deprived them of “life, liberty, or

property, without due process of law,” in violation of the

Fifth Amendment and the Court granted certiorari, re

versed and remanded. The Court held that approved

JD [Jurisdictional Determination] is a final agency ac

tion judicially reviewable under the APA. Army Corps

(2016).

of Engineers v. Hawkes Co., 578 U.S.

II.

Factual Background And EEOC Adminis

trative Proceedings

A. Factual Background

Petitioner Le had a history of very good perfor

mance with regular and significant salary increases

until she filed EEO complaints in 2009. From 19912002 she worked at Naval Surface Warfare Center

(NSWC) Port Hueneme Division, Ventura, California

where she received continuous pay raises and excellent

praises in letters of recommendations from high level

managers. In January 2003, she transferred to the

NSWC Corona Division, 1999 Fourth St., Norco, CA

92860, working as an engineering team lead, in the

Sunset Supply Base (SSB) QA32 branch under Quality

Assessment (QA) department. She was rated excellent

performance and received significant and uninter

rupted pay raises from 2003-2008. Around 2008, man

agement allowed cronyism and harassments to

develop and the work environment became increas

ingly hostile as her immediate supervisor, Branch

Head (BH) Raymond Tadros, wanted to give her job to

his favorite employee, a Caucasian man. Ms. Le filed

her first EEO complaint in May 2009. Then manage

ment issued no pay raise in 2009 and 2010 and humil

iated her by moving her into a small shared office while

allocating large private offices to her peers. In March

2010, Mr. Tadros removed her from the team lead posi

tion.

The 2009 EEOC case was settled on August 3,

2010. This agreement (hereafter, “2010 Settlement

Agreement”), signed by QA Department Head (QADH)

Gregg Johnson and Ms. Le, provided her with a Depart

ment Staff position reporting directly to the QADH

which is two levels above branch head. In addition, the

Agreement provided her with telework benefit; re

stored to a large private office that she was previously

encumbered; compensated pay raises and bonuses for

2009 and 2010; restored loss sick leave; and monetary

compensation of $100,000 (including attorney’s fees

and costs). Pursuant to the terms of the Agreement,

the QADH was also required to supervise and mentor

Ms. Le for career advancement. Not long after settle

ment, management started to pursue a series of ad

verse actions against Ms. Le: issued no pay raises;

moved Ms. Le back into small shared office; and reas

signed Ms. Le to an entry-level position (beginner au

diting work) despite her length of service and

experience. Ms. Le again filed EEO complaints in Sep

tember 2011 through December 2014 (eleven Issues),

which were unlawfully fragmented processing into 3

separate EEO cases.

Ms. Le was diagnosed with significant depression,

anxiety and high levels of stress, which related to the

hostile work environment where she was employed. In

October 2013, Ms. Le’s primary care physician put Ms.

Le off work for one month from October 16 through No

vember 17, 2013. The doctor strongly recommended

that Ms. Le “be separated from the hostile environ

ment”. Therefore, Ms. Le requested Leave Without Pay

(LWOP) as Reasonable Accommodation. Her LWOP re

quest was denied in November 2013; then in March

2014, after Administrative Judge (AJ) Dennis Carter

granted a default judgment on Reassignment case in

which he found discrimination and retaliation, QADH

Doug Sugg at that time, approved Ms. Le’s LWOP from

March 2014 to the end of February 2015. Mr. Johnson,

formerly QADH, now ARDH (Acquisition and Readi

ness Assessment Department Head) replaced Mr.

Doug Sugg, further approved Ms. Le’s LWOP till part

of October 2015. On October 17, 2015, Mr. Johnson de

nied Ms. Le’s LWOP request, EEOC 480-2016-00749X

(new Issue 1). On December 02, 2015, Mr. Johnson is

sued the Notice of Proposed Removal (new Issue 2). On

March 1, 2016, directed by Mr. Johnson and without

advanced notice, Mr. William Collier, Human Re

sources specialist, and Mr. John Ryan, Information

Technology worker, suddenly seized her laptop at

building 509, NSWC Corona Division, EEOC 4802016-00750X (new Issue 3). On March 9, 2016, Deputy

Technical Director Dianne Costlow, Mr. Johnson’s su

perior, issued the Removal letter effective March 11,

2016, EEOC 480-2016-00750X (new Issue 4). These 4

new issues were again unlawfully fragmented pro

cessing into 2 new separate EEO cases.

B. EEOC Administrative Proceedings

The EEOC conducted 7-day hearing in July and

August 2015 for 3 EEOC cases starting September

2011 through March 2014 (eleven Issues). On Novem

ber 7, 2016, AJ Dennis Carter issued his final ruling

(FR) that arbitrarily contradicted his previous rulings

on January 29, 2014, April 13, 2015 and May 5, 2015

in which the AJ granted and reaffirmed a Default

Judgment and an Adverse Inference against the

Agency.

On December 8,2016, Ms. Le filed Notice of Appeal

to the OFO (Office of Federal Operations, EEOC appel

late authority), appeal No. 0120170670. On April 27,

2018, the OFO issued a decision which affirmed the FR

without proper written fact finding and lawful analy

sis. On February 25, 2017, Ms. Le filed Notice of Ap

peal, appeal Nos. 0120171311 and 0120171312 (EEOC

480-2016-00749X and EEOC 480-2016-00750), regard

ing the four new Issues (complaints) for the period

from October 2015 to March 2016 (involuntary termi

nation). For these two appeals, on April 27, 2018, the

OFO issued a decision to VACATE and REMAND for

further processing at EEOC LA District. On July 26,

2018, the AJ ignored the OFO ruling and issued an Or

der to dismiss these four new Issues. The below civil

action has been filed within 90 days of Ms. Le’s receipt

of her right-to-sue letters from the EEOC. Ms. Le has

complied with all statutory prerequisites to filing this

action.

III. Federal Court Proceedings

On July 24, 2018, Ms. Le commenced civil action

in the District Court for the Central District of Califor

nia alleging that she was subject to discrimination,

hostile work environment, and retaliation based on

prior EEO activities in violation of Title VII of the

Civil Rights Act of 1964, the Age Discrimination in

Employment Act of 1967 (ADEA), the Americans with

Disabilities Act of 1990 (ADA) and the Rehabilitation

Act of 1973. Defendant filed first motion to dismiss on

September 24, 2018 (“MTD1”).

On November 19, 2018, Ms. Le filed First

Amended Complaint (FAC). On December 3, 2018, De

fendant filed second motion to dismiss (“MTD2”). On

February 27, 2019, the District Court granted in part

Defendant’s MTD2 (docket No. 37) and granted Ms. Le

leave to amend her FAC. On March 10, 2019, Ms. Le

filed Notice of Intent not to file a second amended com

plaint and requested the District Court to issue a final

judgment so that Ms. Le can properly file a Notice of

Appeal to the Ninth Circuit. On April 24,2019, the Dis

trict Court issued a Minute Order (docket No. 44) to

dismiss Ms. Le’s FAC without leave to amend and

closed the case; also a final judgment (docket No. 45)

was issued. On May 20, 2019, Ms. Le filed Notice of

Appeal with the Ninth Circuit. On July 18, 2019, Ms.

Le filed Plaintiff-Appellant’s Opening Brief. On Sep

tember 17, 2019, Defendant-Appellee filed Motion For

Summary Affirmance (“MSA”). On September 25,2019,

Ms. Le filed opposition to MSA. On November 22,2019,

the Ninth Circuit issued a Summary Affirmance. On

January 6, 2020, Ms. Le filed Petition For Rehearing

En Banc and the Ninth Circuit denied this petition on

April 13, 2020.

The principal document based on which Appellant

appealed to the Ninth Circuit is the District Court Or

der #37 (with opinion). The District Court’s subsequent

orders (without opinion) are procedural requirements

for appeal. On appeal, Ms. Le argued that, in making

decision on jurisdiction, the District Court erred be

cause Ms. Le filed charges for Defendant’s discrimina

tory and retaliatory conducts occurred not before but

after the 2010 Settlement Agreement. More im

portantly, the District Court erred in preventing Ms.

Le to demonstrate necessary background facts. The

material facts related to the settlement agreement as

articulated in the FAC are to support Ms. Le’s allega

tions that the EEOC violated the Due Process and

Equal Protection under the APA and to serve as back

ground for subsequent (post August 2010) discrimina

tion and retaliation claims.

REASONS FOR GRANTING THE WRIT

Certiorari Should Be Granted To Resolve

Circuit Courts Split On The Issue Of Juris

diction Regarding Breach Of Settlement

Agreement Resolving Discrimination Un

der Title VII.

The first question presented is a matter of na

tional importance. As long as the first question pre

sented remains unanswered by this Court, thousands

of employees and their employers operate in a legal

environment lacking uniformity.

Allowing geographical and public-vs-private sec

tor happenstance to affect the jurisdiction of numerous

number of breach of Settlement Agreement claims

brought each year produces untenable results. This un

certainty should not persist.

A. The Eleventh and Seven Circuits Have

Held That Under Section 706(f)(3) of Ti

tle VII, 42 U.S.C. § 2000e-5(f)(3), The

District Court Shall Have Jurisdiction

Of Actions Brought By Aggrieved Per

sons.

In Eatmon, the Eleventh Circuit held:

Section 706(f)(3) of Title VII, provides, in rel

evant part, that “ [e] ach United States district

court . . . shall have jurisdiction of actions

brought under this subchapter [i.e., Title VII]”

. . . the courts have recognized that suits

brought by the EEOC to enforce “Title VII

conciliation agreements” entered into by the

EEOC, the employer and the affected employ

ees also are suits “brought under” Title VII,

over which federal courts have subject matter

jurisdiction . . . Following this line of author

ity, we hold that the releases signed by the

employed appellees, in which they agreed not

to bring charges under Title VII in return for

Bristol Steel’s compliance with the executive

order conciliation agreement, are themselves

“Title VII conciliation agreements” (emphasis

added).

In Ruedlinger, the Seventh Circuit stated:

We agree with the Eleventh Circuit’s state

ment in Eatmon, 769 F.2d at 1510, that: All of

the reasons that support Title VII jurisdiction

over such actions when brought by the EEOC

apply with equal force to actions brought by

the aggrieved employees to enforce concilia

tion agreements entered into by the EEOC,

their employers and themselves. The congres

sional goal of enforcing Title VII through con

ciliation and voluntary compliance would be

hampered if employees could not seek to en

force in federal courts conciliation agreements

between themselves, their employers and the

EEOC . . . Accordingly, we hold that private

plaintiffs may bring an action under Title VII

to enforce a pre-determination settlement

agreement.

B. The Fourth, Tenth, And Fifth Circuits

Have Held That The District Court Does

Not Have Subject Matter Jurisdiction

Because Congress Did Not Consent To

Being Sued By Federal Employees To

Enforce Settlement Agreements.

In Lindstrom, citing Frahm, the Tenth Circuit

held:

Congress has, admittedly, waived sovereign

immunity in Title VII suits where the federal

government is the employer. 42 U.S.C.

§ 2000e- 16(d). However, this statutory waiver

does not expressly extend to monetary claims

[or claims for specific performance] against

the government for breach of a settlement

agreement that resolves a Title VII dispute.

In Charles, the Fifth Circuit stated:

Charles’s claim is based on two arguments: (1)

her alleged incompetence to voluntarily sign

the Agreement and (2) the alleged coercion.

These are both arguments seeking rescission

based entirely upon contract law principles.

That the contract was a settlement agreement

for Title VII claims is tangential. Charles does

not allege that she was discriminated against

during settlement negotiations on any of the

prohibited grounds, nor that the alleged coer

cion was because of her “race, color, religion,

sex or national origin.” § 2000e-16(c). There

fore, she does not assert a claim for which

Congress has waived sovereign immunity.

Charles agrees with Frahm and Lindstrom that

“Congress did not consent to being sued by federal em

ployees to enforce settlement agreements reached as a

result of Title VII discrimination claims, and thus a

district court does not have subject matter jurisdiction

over the suit.” Lindstrom declined to adopt the rulings

of Eatmon and Ruedlinger, citing these cases did not

involve the reach of 29 C.F.R. § 1614.504(a) because

the federal government was not the employer.

C. The D.C. Circuit Has Held That The Dis

trict Court Has Supplemental Jurisdic

tion Under 28 U.S.C. § 1367 On Breach

Of Settlement Agreement As Retaliation

Under Title VII.

Section 1367 codified the concept of pendent or an

cillary jurisdiction set forth in United Mine Workers of

America v. Gibbs, 383 U.S. 715 (1966). The section also

provides the statutory basis upon which a federal dis

trict court can exercise subject matter jurisdiction over

a state law claim that could not, by itself, be brought

in federal court if such a claim arises from the same

set of operative facts that form the basis of the under

lying federal claim. Specifically, § 1367(a) provides,

in relevant part, that “district courts shall have sup

plemental jurisdiction over all other claims that are so

related to claims in the action within such original ju

risdiction that they form part of the same case or con

troversy under Article III of the United States

Constitution.” 28 U.S.C. § 1367(a) (emphasis added).

In Saksenasingh, the D.C. Circuit ruled, “the Dis

trict Court had discretion to exercise jurisdiction over

her retaliation claims. Dismissal of the retaliation

claims for want of jurisdiction was error. 28 U.S.C. s

1367 (1994).” The Court further asserted, “Because

Saksenasingh could sue on her original complaint, and

the breach of settlement claim could be brought as a

supplemental retaliation claim.”

In Exxon Mobil Corp. v. Allapattah Services, Inc.,

545 U.S. 546 (2005), the Supreme Court held:

Although the district courts may not exercise

jurisdiction absent a statutory basis, it is well

established in certain classes of cases that,

once a court has original jurisdiction over

some claims in the action, it may exercise sup

plemental jurisdiction over additional claims

that are part of the same case or controversy.

D. The Ninth Circuit Has Asserted That

Congress Has Not Provided For Enforce

ment Of Settlement Agreements In Fed

eral Court And That 29 C.F.R. § 1614.504

Is “Silent” As To Whether An Employee

May Proceed To Federal Court.

“No such waiver of sovereign immunity exists in

the regulatory or statutory scheme as a whole; rather,

reading 29 C.F.R. § 1614.504 in context only reinforces

our conclusion that Congress had no intention of

providing a cause of action based on an alleged breach

of a predetermination settlement agreement.” Munoz

v. Mabus, 630 F.3d 856 (9th Cir. 2010). The Court as

serted, “Congress, while encouraging resolution of

Title VII complaints through predetermination settle

ment agreements . . . has nonetheless not provided for

enforcement of such agreements in federal court.” Id.

In particular, the Court articulated “Had Munoz cho

sen to reinstate his underlying discrimination com

plaint instead of seeking specific performance, his

claim could eventually have been heard in federal

court after exhausting administrative procedures,

even though § 1614.504 is silent as to that possibility.”

Id.

E. This Court Should Settle The Issue Of

Whether 29 C.F.R. § 1614 Authorized A

Civil Action In Federal Court On Breach

Of Settlement Agreement Resolving Dis

crimination Charge Under Title VII.

Citing Frahm, Lindstrom stated:

The court concluded that 29 C.F.R.

§ 1614.504(a) only permits a federal employee

complainant to elect one of two options - ei

ther request specific performance or rein

statement of the complaint — and that no

other options are available. See id. at 263.

Congress did not consent to being sued by fed

eral employees to enforce settlement agree

ments reached as a result of Title VII

discrimination claims, and thus a district

court does not have subject matter jurisdic

tion over the suit.

Charles stated, “The only relevant EEOC regula

tion that contemplates civil action in the district court

is 29 C.F.R. § 1614.407, but this section does not inde

pendently authorize any civil action in federal court it only sets deadlines for those civil actions already

permitted by statute.”

Munoz held:

29 C.F.R. § 1614.504 allows an employee alleg

ing noncompliance to choose between two ex

clusive remedies, namely specific performance

or reinstatement of the original discrimination

complaint. 29 C.F.R. § 1614.504(a) . . . On its

face, the regulation is silent as to whether an

employee may proceed to federal court after

receiving an adverse EEOC determination.

Munoz seems to indicate 29 C.F.R. § 1614 is flawed,

and that § 1614.504 ends the administrative process and

subsequently complainant has no more recourse.

Munoz, Charles and Lindstrom are not persuasive.

Their rulings are in conflict with the EEOC’s wellestablished practice because the EEOC’s decision let

ter always includes a paragraph named Complainant’s

Right To File A Civil Action specifying “you have the

right to file such action in an appropriate United

States District Court within ninety (90) calendar days”

of receipt of the Commission’s final decision on an

appeal which is evidently based on 29 C.F.R.

§ 1614.407(c). This paragraph clearly defines the next

step beyond the EEOC administrative process, which

includes action taken based on § 1614.504 and related

the OFO’s decision, that is a civil action for Title VII,

Age Discrimination in Employment Act and Rehabili

tation Act. Section 1614.504 does not need to repeat

what has been clearly established by § 1614.407 re

garding plaintiff’s right to file a civil action. The

Munoz, Charles and Lindstrom courts seem to use

§ 1614.504 to invalidate § 1614.407.

F. This Court Should Resolve The Issue

Of Whether “To Hold The Federal Gov

ernment To A Higher Standard” Is Ap

plicable To Federal Employees Under

Title VII.

Regarding age discrimination, in Babb v. Wilkie,

No. 18-882, 589 U.S.

(2020), the Court ruled, “That

Congress would want to hold the Federal Government

to a higher standard than state and private employers

is not unusual”. In broad contrast to the Babb Court,

the Munoz and Lindstrom courts imposed a higher

obstacle for Federal employees as compared to the

Eatmon and Ruedlinger courts’ standard for private

employees. The time is ripe for this Court to resolve

the issue of whether this higher standard principle is

applicable to federal employees under Title VII dis

crimination and retaliation based on sex, race, color,

national origin, and prior EEO activity.

II.

Certiorari Should Also Be Granted To Af

firm That The EEOC’s Adjudication Is Sub

ject To Judicial Review Under The APA.

The second question presented is a matter of na

tional importance because the EEOC is the principle

agency designated by Congress to enforce Federal laws

that prohibit discrimination in the workplace.

A. The EEOC’s Action Or Decision Amounted

To Final Agency Action Is Subjected

To Judicial Review Under The APA, 5

U.S.C. § 704.

The Administrative Procedure Act of 1946 (APA)

creates a presumption in favor of judicial review of

agency action. In order for an agency action, in this

case an EEOC’s action or decision, to be subject to ju

dicial review it must be final. “Agency action made reviewable by statute and final agency action for which

there is no other adequate remedy in a court are sub

ject to judicial review.” 5 U.S.C. § 704.

The Supreme Court held:

As a general matter, two conditions must be

satisfied for agency action to be “final”: First,

the action must mark the “consummation” of

the agency’s decisionmaking process, Chicago

& Southern Air Lines, Inc. v. Waterman S. S.

Corp., 333 U.S. 103, 113 (1948) - it must not

be of a merely tentative or interlocutory na

ture. And second, the action must be one by

which “rights or obligations have been deter

mined.” or from which “legal consequences

will flow.” Port of Boston Marine Terminal

Assn. v. Rederiaktiebolaget Transatlantic, 400

U.S. 62, 71 (1970) (emphasis added). Bennett

v. Spear, 520 U.S. 154 (1997).

The Supreme Court unambiguously ruled that the

EEOC has the authority to determine and oblige rights

or obligations of other government agencies:

The question in this case is whether the Equal

Employment Opportunity Commission (EEOC)

possesses the legal authority to require fed

eral agencies to pay compensatory damages

when they discriminate in employment in

violation of Title VII of the Civil Rights Act

of 1964, 84 Stat. 121,42 U.S.C. § 2000e et seq.

We conclude that the EEOC does have that

authority. West v. Gibson, 527 U.S. 212

(1999).

Even disclosing the employer confidential infor

mation without notice constitutes a final agency action

under the APA. The D.C. Circuit stated:

A “final agency action” within the meaning of

the APA is “the consummation of the agency’s

decisionmaking process ... by which rights or

obligations have been determined or from

which legal consequences will flow.” Bennett v.

Spear ... In sum, as we held in Venetian II,

rejecting the Commission’s challenge to the

ripeness of Venetian’s claims, “the question

whether EEOC’s disclosure policy is lawful

presents a live and focused dispute emanating

from agency action that is both final and

consequential to Venetian.” 409 F.3d at 367.

Venetian Casino Resort, LLC v. EEOC, 530

F.3d 925 (D.C. Cir. 2008) (emphasis added).

B. Government Agencies Are Liable For

Due Process Violations Committed In

The Course Of Performing Their Adju

dication Functions.

The Supreme Court held that property owners can

challenge the EPA’s compliance order as a final agency

action:

The Sacketts, who do not believe that their

property is subject to the [Clean Water] Act,

asked the EPA for a hearing, but that request

was denied. They then brought this action in

the United States District Court for the Dis

trict of Idaho, seeking declaratory and injunc

tive relief. Their complaint contended that

the EPA’s issuance of the compliance order

was “arbitrary [and] capricious” under the

Administrative Procedure Act (APA), 5 U.S.C.

§ 706(2)(A), and that it deprived them of “life,

liberty, or property, without due process of

law,” in violation of the Fifth Amendment.

Sackett v. EPA, 566 U.S. 120 (2012).

The Supreme Court held that an approved Juris

dictional Determination, which satisfies the Bennett’s

conditions, is a final agency action judicially reviewable under the APA:

The Clean Water Act regulates “the discharge

of any pollutant” into “the waters of the

United States.” 33 U. S. C. §§ 1311(a), 1362(7),

(12) . . . During the time period relevant to

this case, for example, the Corps defined that

term to include all wetlands, the “use, deg

radation or destruction of which could affect

interstate or foreign commerce.” 33 CFR

§ 328.3(a)(3). Because of that difficulty, the

Corps allows property owners to obtain a

standalone “jurisdictional determination”

(JD) specifying whether a particular property

contains “waters of the United States.”

§ 331.2. Army Corps of Engineers v. Hawkes

Co., 578 U.S.

(2016).

In Sackett v. EPA and Army Corps of Engineers v.

Hawkes Co., the federal law at issue is the Clean Water

Act and the government agencies that adjudicate the

disputed issues are the EPA and the Army Corps of

Engineers respectively. Similarly, here, the federal law

at issue is Title VII. As such, EEOC’s actions, findings,

and conclusions should be reviewable under the APA.

C. The EEOC’s Reviewable Actions Pursu

ant To 5 U.S.C. § 706.

In the instant case, the EEOC’s adjudication failed

to follow the law and settled precedents including fail

ure to follow its own regulation, EEOC Enforcement

Guidance on Retaliation and Related Issues, No.

915.004, August 25, 2016 (“EEOC Enforcement Guid

ance”). EEOC Enforcement Guidance subsection

Il.C.l.b provides the following:

By contrast, in federal sector Title VII and

ADEA retaliation cases, the Commission has

held that the “but for” standard does not apply

because the relevant federal sector statutory

provisions do not employ the same language

on which the Court based its holding in

Nassar. The federal sector provisions contain

a “broad prohibition of‘discrimination’ rather

than a list of specific prohibited practices,” re

quiring that employment “be made free from

any discrimination,” including retaliation.

Therefore, in Title VII and ADEA cases

against a federal employer, retaliation is pro

hibited if it was a motivating factor.

The EEOC’s actions, findings, and conclusions

found to be “arbitrary, capricious, an abuse of discre

tion, or otherwise not in accordance with law,” or “con

trary to constitutional right” or “unsupported by

substantial evidence”, in violation of 5 U.S.C.

§ 706(2)(A), (B) and (E), are as follows:

(1) the OFO erroneously construed C.F.R.

§ 1614.504 regarding the Office issue (holding

that “not yet move [into smaller office] consti

tutes no breach”);

(2) the OFO wrongly closed appeal No.

0120132026 ([already moved] Office issue) as

“a duplicate” of appeal No. 0120132025 (Reas

signment issue);

(3) the OFO conspired with the Agency (U.S.

Navy) to allow the time-barred Agency Re

sponse (more than 1-year late);

(4) the Administrative Judge (AJ) interfered

with the Federal suit EDCV-14-00103JGB(SPx);

(5) the AJ’s arbitrary and capricious adjudi

cation ignored material facts and failed to

follow the law and binding precedents, in par

ticular EEOC Enforcement Guidance;

(6) the OFO ignored evidence, affirmed the

AJ’s decision without proper written fact find

ing, lawful analysis and reasons for its deci

sion;

(7) the EEOC LA District failed to follow es

tablished precedent regarding EEOC’s Juris

diction (“firmly enmeshed” doctrine); and

(8) the AJ dismissed the cases, defied the

OFO Order that VACATES and REMANDS

for further processing EEOC Nos. 480-201600749X and 480-2016-00750X.

III. This Case Is An Ideal Vehicle For Resolving

The Conflict Among The Circuits And Af

firming The Important Issue Of Due Process

And Equal Protection Under The APA.

This case provides this Court a particularly suita

ble vehicle to resolve the questions presented.

1. This case provides an opportunity to the

dispute among circuit courts regarding the ju

risdiction of breach of settlement agreement

resolving discrimination charge under Title

VII of the Civil Rights Act of 1964 for both pri

vate-sector and Federal employees.

2. An answer to both questions presented

will be outcome determinative for Ms. Le’s

claims of discrimination and retaliation under

Title VII as well as her claims of Due Process

and Equal Protection violation under the

APA.

3. A favorable outcome for Ms. Le will enable

her to recover full relief. 29 C.F.R. § 1614.501.

IV. The Ninth Circuit’s Summary Affirmance

Is Incorrect.

In granting Defendant’s motion to dismiss, the

District Court failed to apply established precedents

regarding FRCP Rule 12(b)(1), Rule 8(a), and erred on

the issue ofjurisdiction regarding breach of settlement

agreement resolving discrimination charge as Retalia

tion under Title VII; and the Ninth Circuit erroneously

affirmed.

A. The District Court Erroneously Con

flated Subject Matter Jurisdiction With

FRCP Rule 8(a) (General Rules Of Plead

ing)

In Arbaugh v.Y & H Corp., 546 U.S. 500 (2006),

the Supreme Court held:

“Subject matter jurisdiction in federal-ques

tion cases is sometimes erroneously conflated

with a plaintiff’s need and ability to prove the

defendant bound bv the federal law asserted

as the predicate for relief a merits-related

determination.” 2 J. Moore et al., Moore’s

Federal Practice § 12.30 [1], p. 12-36.1 (3d ed.

2005) (hereinafter Moore). Judicial opinions,

the Second Circuit incisively observed, “often

obscure the issue by stating that the court is

dismissing ‘for lack of jurisdiction’ when some

threshold fact has not been established, with

out explicitly considering whether the dismis

sal should be for lack of subject matter

jurisdiction or for failure to state a claim.”

Da Silva, 229 F. 3d, at 361 (emphasis added).

The Supreme Court clarified the standard for

pleading a claim in Bell Atlantic Corp. v. Twombly, 550

U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662

(2009):

To survive a motion to dismiss, a complaint

must contain sufficient factual matter, ac

cepted as true, to state a claim to relief that is

plausible on its face. A claim has facial plau

sibility when the plaintiff pleads factual con

tent that allows the court to draw the

reasonable inference that the defendant is

liable for the misconduct alleged. Iqbal, 556

U.S. at 678 (quoting Twombly, 550 U.S. at

570).

In the instant case, the District Court failed to ap

ply the aforementioned precedents. The District Court

erroneously conflated subject matter jurisdiction with

Ms. Le’s need and ability to prove Defendant bound by

the federal law asserted as the predicate for relief a

merits-related determination as required by Rule 8(a).

Defendant’s MTD1 failed to specify whether it is a fa

cial challenge or factual challenge that the Defendant

seeks. Defendant’s MTD2 neither provided any ex

trinsic evidences nor challenged the truth of Ms. Le’s

allegations. District Court failed to apply the require

ments in Leite v. Crane Co., 749 F.3d 1117 (9th Cir.

2014) as follows:

Under Rule 12(b)(1), a defendant may chal

lenge the plaintiff’s jurisdictional allegations

in one of two ways. A “facial” attack accepts

the truth of the plaintiff’s allegations but as

serts that they “are insufficient on their face

to invoke federal jurisdiction.” Safe Air for

Everyone v. Meyer, 373 F.3d 1035, 1039 (9th

Cir.2004). The district court resolves a facial

attack as it would a motion to dismiss under

Rule 12(b)(6): Accepting the plaintiff’s allega

tions as true and drawing all reasonable in

ferences in the plaintiff’s favor, the court

determines whether the allegations are suffi

cient as a legal matter to invoke the court’s

jurisdiction. Pride v. Correa, 719 F.3d 1130,

1133 (9th Cir.2013). A “factual” attack, bv con

trast. contests the truth of the plaintiff’s fac

tual allegations, usually bv introducing

evidence outside the pleadings. Safe Air for

Everyone, 373 F.3d at 1039; Thornhill PubVg

Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733

(9th Cir. 1979) (emphasis added).

B. The District Court Erroneously Applied

Munoz And The Ninth Circuit’s Affirma

tion Is Incorrect.

In issuing the Summary Affirmance, the Ninth

Circuit failed to apply the law and its own precedent,

as articulated in section IV.A above; and ignored

Appellant’s arguments as articulated in her Opening

Brief.

The District Court stated, “the Court lacks juris

diction over breaches of EEOC settlement agreements,

as Congress has not waived sovereign immunity over

such claims. Munoz v. Mabus, 630 F.3d 856, 863 (9th

Cir. 2010). Such claims are improper before this Court

and must be dismissed for want ofjurisdiction.” Munoz

stated, “Because Munoz withdrew this complaint in

exchange for securing the settlement agreement, it

cannot serve as a basis for jurisdiction.”

Ms. Le’s discrimination and retaliation claims in

the instant case include Defendant’s conduct not be

fore but after August 3, 2010. Ms. Le neither withdrew

her complaints nor entered into any additional settle

ment agreement. The 2010 Settlement Agreement spe

cifically states, “The parties agree that this Agreement

may be used as evidence in a later proceeding in which

either of the parties alleges a breach of this Agree

ment.” The District Court erred in the application of

Munoz and the Ninth Circuit’s Affirmation is incorrect.

C. The District Court Erroneously Applied

Ward And The Ninth Circuit’s Affirma

tion Is Incorrect.

The District Court stated, “Though Plaintiff may

seek district court review of claims which she ex

hausted before the EEOC, the Court lacks subject mat

ter jurisdiction over constitutional claims against the

EEOC brought by individuals who are not employees

of the EEOC. Ward v. EEOC, 719 F.2d 311,313 (9th Cir.

1983).” The Ward Court held, “Congress neither ex

pressly nor impliedly provided for an action against

the EEOC for negligence, and the EEOC’s nonfeasance

is not reviewable under the Administrative Procedure

Act. 5 U.S.C. Sec. 704.”

First, Ward is superseded by Bennett (establishing

what constitutes final agency action) and West (estab

lishing the EEOC’s adjudication authority to deter

mine and oblige rights or obligations of other

government agencies). Second, in Ward, the plaintiff

alleges that “the EEOC failed to investigate his charge,

that the EEOC sent his right-to-sue letter to an incor

rect address in 1977” and the Ward court articulated

as “EEOC’s nonfeasance is not reviewable”. Ward did

not consider the issue of what constitutes a final

agency action as Bennett later ruled. Here, unlike

Ward, the EEOC performed full adjudication in Ms.

Le’s cases. Ms. Le’s EEOC cases resulted in final

agency actions from the EEOC and the OFO which

satisfy the conditions of “consummation” and “rights or

obligations have been determined” as articulated by

the Bennett Court, thus are subjected to judicial review

under the APA. Third, Ms. Le did not bring a Title VII

action against the EEOC. Ms. Le brought up the issue

of the EEOC’s violations of Due Process and Equal Pro

tection under the APA and sought redress from the

District Court. Last but not least, the fact that Ms. Le

did not sue the EEOC for relief does not mean that the

EEOC’s adjudication is irrelevant or has no impact on

Ms. Le’s pending case at federal court level. Quite the

contrary, in the course of performing adjudication func

tion, the EEOC violated Ms. Le’s Due Process and

Equal Protection and materially and adversely af

fected her cases. See

102-122 of the FAC. As the

Supreme Court ruled in Hannah v. Larche, adminis

trative agencies have a duty, grounded in due process,

to use the procedures of adjudication to assure fair ad

judication. The District Court erred in failing to apply

proper precedents and the Ninth Circuit’s affirmation

is incorrect.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

Christina V. Le

Petitioner Pro Se

6823 Deerwood Drive

Riverside, CA 92506

Tel: (951) 756-7034

Email: chrisvnac@yahoo.com

September 1, 2020

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.