Petition for Writ of Certiorari — Brent v. Wynne (No. 07-844)

Court, U.S.

om EB

07-844 DEC 19 2007

OFFICE OF THE CLERK

The Supreme Court of the United States

GEORGE BRENT,

Petitioner,

V.

MICHAEL DOMINGUEZ, ACTING

Secretary of the Air Force; et al,

Respondents

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth

Circuit

PETITION FOR A WRIT OF CERTIORARI

GEORGE BRENT

PRO SE

PETITIONER

PO BOX 93691

Pasadena, CA 91109

Telephone (626) 826-7429

QUESTIONS PRESENTED

The E.E.0.C/O.F.0O. over a span of nine

years(1994 thru 2003). Consistently refused to

grant Petitioner a hearing and instead directed to

the M.S.P.B. In May 1994, the Office of Special

Counsel of M.S.P.B. reviewed petitioners claims

and rendered a final decision that stated

“Reprisal for filing an EEO complaint is

also a violation of the EEO laws and thus

subject to a discrimination complaint itself.

However, as noted in OSC regulations at 5

C.F.R. & 1810.1., it was not intended that

this office duplicate or bypass’ the

procedures established by the agencies and

the Equal Employment Opportunity

Commission for resolving such

discrimination complaints. Therefore, it is

the policy of the Special Counsel not to

take action on such _ allegations of

discrimination; they are more

appropriately resolved through the EEO

process. 5 C.F.R. §1810.1.In light of the

information you have provided, we find no

reason to depart from our policy in this

matter. Thus, we will take no further

action concerning your allegations of

discrimination.”

(Re: OSC File NoMA-94-0540 )

The questions presented are two:

: Whether petitioners’ constitutional

rights of due process under the 5° amendment

have been violated.

2. Whether U.S. District Court erroneously

denied petitioner the right to have his claims

heard by wrongly concluding that the petitioner

had not exhausted his administrative remedies,

and refused to apply the doctrine of equitable

tolling.

il]

PARTIES TO THE PROCEEDING

The parties to this. proceeding are

Petitioner George Brent; and Respondents

Secretary to the Air Force, Michael Dominguez

and United States Equal Employment

Opportunity Commission.

1V

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................cccscecssssessees i

PARTIES TO THE PROCEEDING ....................... ili

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STATEMENT OF THE CASE ...................c.:sccceeeee 1

MEMORANDUM OF LAW IN SUPPORT OF

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REASON FOR GRANTING THE PETITION....... 10

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APPENDIX A

9th Circuit Court of Appeals, Memorandum,

ne NN i ONE 2 os ch a on enssninanvennediamidanndinarie 1

APPENDIX B

US District Court Order, Filed June 26, 2005......... $

APPENDIX C

US District Court Order, Filed Nov. 18, 2005....... 13

APPENDIX D

9th Circuit Court of Appeals Order, Filed

Sept. 20, 2007........ Eee eiouets Pg enth es aha eau 25

APPENDIX E

Fe Ms oils Suiidnes ceestauineecdo i goesemieion 26

TABLE OF AUTHORITIES

Page

CASES

Leorna v. U.S. Department of State, 105 F.3d

ee Ce Be ceteris ctescadicarrusaeareiaananone 7,8

Stoll v. Ryon, 165 F.3d 1238 (9th Cir. 1999) .......0....... 8

Santa Maria v. Pacific Bell, 202 F.3d 1176 (9th

RAN: MN Sica skiactieenmnce meen baa idan 9

Sloan v West, 140 F.3d 1255 (9th Cir. 1998).......... 9,10

Morales v. Merit System Protection Board, 932

Pe ee TR SG, FED vitae unntan 9

Valenzuela v. Kraft Inc., 801 F.2d 1170 (9th Cir.

ES aires cactuapattcnrcelessunietiaeast at ee eaeeacueeene ae 10

Toxama v. M.S.P.B., 481 F.3d 1361 (C.A. Fed.

EP censitdaskcsuntcannciniiaakapesinn sian eaten 8

Peterson v. California Dept. of Corrections,

2006 WL 3349 519 (E.D. Cal) Slip Copy .................. 7

Baldwin County Welcome Ctr. v. Brown, 466

Reis SEE A ancxcicesindGcaegrecanpresksaeseee aan 9

STATUTES

Rs BAR OOE crv sakvecuan deca

OPINIONS BELOW

The opinion of the court of appeals is reprinted

in the Appendix at App.1-2 and 25. The opinion of the

district courts is reprinted in Appendix at App. 3-24.

The opinion of E.E.0O.C/O.F.Q. is reprinted in

Appendix at App. 26- 28

JURISDICTION

The order of the court of appeals was entered on

June 11, 2007. A timely-filed petition for rehearing

en banc was denied on September 20, 2007. App. la-

2a and 22a. This Court has jurisdiction under 28

U.S.C. § 1254(1).

STATUTES INVOLVED

28 U.S.C. § 1254(1) provides, in pertinent part:

Cases in court of appeals may be reviewed by the

Supreme Court by the following methods:

1. By Wnt of Certiorari granted upon the

petition of any part to a civil or criminal case, before

or after rendition of judgment or decree;

STATEMENT OF THE CASE

This case arises out of a complaint filed in 1991

at March A.F.B in Riverside California.

During a reduction in force it appeared as

though the personnel at March A.F.B. were being

aligned according to race, via promotions, job

performance appraisals, and various awards.

The result being minorities, particularly

African Americans losing their jobs and being denied

promotions. Petitioner, an employee of eleven years at

March A.F.B. asked upper management of the base to

explain the obvious disparities.

The upper management not only refused to

justify its’ actions, they began a campaign of

retaliatory actions against petitioner leading to a

number of complaints to the O.S.C., E.E.O.C. in

addition to U.L.P.s and arbitrations. In January of

1994 and again in April of 1994. Petitioner filed

formal E.E.O. complaints naming the individuals

believed to be responsible for the majority of

discrimination and retaliation over the previous two

years at March A.F.B.

Retaliation against petitioner continued,

leading him to the union where he became a union

steward and later an elected executive officer within

his local. In October 1994, petitioner was removed

from the position he held since he began his

employment at March A.F.B. as a mechanic at the

15“ Air Force Combat Operations Center and

assigned what amounted to hard labor in the field.

This action eventually led to permanent spinal injury

of petitioner. While attempting to rehabilitate himself

petitioner was unable to continue his activity within

the union or his personal complaints. In August 1996

petitioner was removed from federal service by upper

management of March A.F.B. Petitioner was told in

writing the action was due to his permanent injury.

However, when the rehabilitation specialist from the

Office of worker’s compensation called March A.F.B.

seeking re-employment for petitioner she was told

“NO WAY” and the March A.F.B. representative went

on to tell how petitioner had been “fired for cause” and

that “he has two E.E.O. lawsuits against the agency”

of March A.F.B. The rehabilitation specialist wrote a

record of this conversation and placed it in petitioner

O.W.C.P. file and the results were devastating to

petitioner and his family. A copy of this record of

conversation is appendix D.

Petitioner was removed from the O.W.C.P.

rehabilitation program and all benefits stopped. The

hearing representative of the O.W.C.P. upheld the

original decision based on this record of conversation.

This record of conversation was submitted to

the E.E.O.C. as evidence and positive proof that the

past actions taken against petitioner were in

retaliation of his filling E.E.O. complaints against the

agency of March A.F.B. and the reasons given by

March A.F.B. for removing him from federal service

were only a pretext. Petitioner filed a timely EEO

complaint against March A.F.B. alleging his removal

was a retaliatory action and a continuation of the

already existing EEO complaints. In 2000 and

E.E.0O.C. Administrative Law Judge ruled petitioners

EEO complaint was proper although March A.F.B.

had refused to acknowledge or process the complaint.

Thereby, adding petitioners’ removal from

federal service as a viable issue to the existing

complaints. In November, 2003 an _ E.E.O.C.

Administrative Law Judge issued an Order of

Dismissal and Remand to Agency for issuance of FAD

and notice.

The order was issued as a result of a pre-

hearing conference via telephone with both parties

and the E.E.O.C. Administrative Law Judge. A record

of the conversation by the A.L.J. contained in the

2003 dismissal/remand order reads as follows;

“Today the parties orally argued their positions

on the pending Agency motion to send the issue of

Complainant’s removal from employment to M.S.P.B.,

in whole or in part. For the reasons stated in

Agency's “Brief on Removal”, attached hereto as

Exhibit 2 and incorporated herein, and _ the

regulations and portions of MD-110 cited above, the

issue of the Complainant’s removal is ~roperly before

the M.S.P.B.

The agency had argued to Judge Abrams in

2000 that to avoid further delay, the remaining issues

should stay with E.E.O.C. for resolution. Today, the

Agency did not assert that position.

Today, Complainant vigorously argued two

points: first, that the termination of his employment

was a “part of”, “directly related to”,” because of “and

the culmination of the pattern of conduct which he

alleged began even before 1993, which is the earliest

date he alleged in the ROI before me; and second, that

he did not want the case to be heard by M.S.P.B.

because “this is an E.E.O. case”. Despite being

advised numerous times in many different ways that

the M.S.P.B. was authorized to hear and resolve cases

alleging discrimination, he objected not only to any

role for M.S.P.B. but also to the separation of some

issues from others; even when told that the

termination issue could not remain at E.E.O.C., he

stated that he was not leaving E.E.O.C. and would

appeal to O.F.O. rather than go to M.S.P.B., and that

the issues should not be separated for hearing

because “this is an E.E.O. case”. He was advised that

appeal to O.F.O. would further delay the resolution of

his E.E.O. claims by the M.S.P.B., but he persisted in

his position.

Finally, I advised him that if he though he

might want to argue that the termination case could

be resolved without a full hearing on the other

preceding issues, he should so state now, or the entire

case would be sent to M.S.P.B. He stated that he was

on record that the entire course of conduct was one

on-going claim, ending with his termination; that the

Agency used his on the job injury as an excuse to get

rid of him for retaliatory reasons. Moreover, he cited

the memo produced by the Department of Labor

O.W.C.P. to Senator Barbara Boxer, who had inquired

on behalf of Complainant, which she then produced to

Complainant and which he concluded at page 101 of

the brown file he submitted to Judge Abrams on May

11, 2001, reflecting that there had been a phone call

between O.W.C.P. and an unnamed representative of

the agency, which had referred to the Air Force not

re-hiring Complainant and referred to two lawsuits he

filed against the agency. This brown file is included

in the record as Ex. 3.

Therefore, based on Complainant’s admissions-

indeed, his insistence-that his claim of discriminatory

termination is factually so related to the underlying

claims, to the point that the issues are intertwined, I

find that the entire case must be decided by M.S.P.B.”

Petitioner did appeal the E.E.O.C.

dismissal/remand order to the O.F.O. and the appeal

was denied. However, the O.F.O. offered petitioner

the to file again for reconsideration which petitioner

did and was denied again (see app. E) and

subsequently received a right to sue letter.

Pctitioner’s complaint was timely filed in U.S. District

Court.

Defendants in this matter motioned for

dismissal based on the E.E.O.C.A.L.J. order, stating

that petitioned failed to file in U.S. District Court

within thirty days after receiving the FAD issued by

the agency. The agency was ordered to issue the FAD

within thirty days of the date of the order. The agency

issued the order more than seventy five days late.

Petitioner engaged in appeal to the O.F.O.

thirty days after the order was issued. The U.S.

District Court granted the defendants motion to

dismiss (see app. A) Sending petitioner to the 9"

circuit court of appeals.

The appeal was denied (see app. B) and

petitioner responded to the decision in petition for en

banc Rehearing as follows:

ORAND OF LA

PETITION

The Panel’s Memorandum Opinion cited the

case Leorna (v) U.S. Department of State 105 F.34

548, 551 (9 Cir. 1997) in support of its ruling that

Appellant’s Title VII claims were properly dismissed

by the District Court because he failed to timely

appeal to the M.S.P.B. or a civil action in the United

States District Court.

First, in Leorna (v) U.S. Department of State

105 F.3% 548, 551 (9° Cir. 1997) supra, the Ninth

Circuit implicitly stated that a claimant who proceeds

without legal counsel during the E.E.O.C. pre-

clearance phase is protected by equitable tolling

principles and is not chargeable with constructive

knowledge of the law’s filing requirements (Id., p.551).

Since Appellant was not represented by a lawyer

during the period in which he sought to exhaust his

administrative remedies before the E.E.O.C. /O.F.O.

and A.L.J., the limitation period should be tolled

under the authority of the Leorna ruling. Where the

appellant was not represented by an attorney, Leorna,

supra, does not control. Peterson (v) California Dept.

of Corrections {2006 WL 3349 519%E.D. Cal) Slip

Copy}. As a layperson, Appellant did not understand

the complexity of the filing requirements and there is

no factual basis to ascribe to him actual knowledge of

the 30 day time limitation. On the issue whether

Appellant had actual knowledge of the deadline, there

are at least issues of fact that necessitate an

evidentiary hearing. Toxama (v) M.S.P.B. 481 F.3d

1361 (C.A. Fed. 2007). Second, since the Leorna,

supra, opinion was decided in 1997, the Ninth Circuit

has ruled that a District Court erred when it failed to

consider “extraordinary circumstances” beyond the

Appellant’s control and based its refusal to toll the

statute on it’s erroneous belief that Appellant had not

offered any explanation for the lapse, and incorrectly

presumed knowledge on appellant’s part given to her

attorney. Even where the Plaintiff was represented

by an atterney, the Ninth Circuit determined that

Appellant had offered an explanation more than

sufficient to toll the statute of limitation as a matter

of law. Stoll (v) Ryon 165 F.3d 1238 (9th Cir. 1999).

The Ninth Circuit deemed it significant that the lapse

worked no prejudice to the Apples, as is true in the

case at hand. The fact that the A.L.J. refused to hear

Appellant’s claims and made no finding was sufficient

to warrant Appellant’s challenge to the A.LJ.

procedural order both before the E.E.O.C. /O.F.O. and

then subsequently in the United States District

Court. Appellant presented persuasive evidence to

the District Court that he had been discriminated

against and that his protest and complaints processed

through established administrative process resulted

in retaliation that culminated in his firing (see

Exhibit 6). On these unrebutted facts, the Panel

should have applied the doctrine of equitable tolling

in Appellant’s favor. The Panel erred in that it barred

Appellant from pursuing his claims. Even the

Appellees’ admitted in their Answering Brief that the

FAD afforded Appellant the right to seek judicial

review of the E.E.0.C. /O.F.O. decision denying his

challenge to the Procedural Order issued by A.L.J.

Mulligan (p. 12, second paragraph). It was not futile

for the Appellant to appeal the O.F.O. denial of his

request for reconsideration. In determining whether

to apply equitable tolling principles, the United States

Supreme Court has weighed other and additional

factors, apart from whether Appellant received

adequate notice of the deadline. Baldwin County

Welcome Ctr. (v) Brown 466 U.S. 147, 151 (1984).

Further, Appellant was justified in relying on the

Instructions that he received from the Office of

Special Counsel, M.S.P.B. (Exhibit 4). As such, this

undeniable official instruction argues for the

application of equitable estoppel as grounds to excuse

the filing delay, especially where the purposes of the

limitation period were satisfied. Santa Maria (v)

Pacific Bell 202 F.3d 1176 (9% Cir. 2000)(omitted).

The Ninth Circuit has also declared that if

Appellant had chosen the M.S.P.B. appellate route

(which he did not) and his discrimination claims had

been dismissed, his Title VII statute of limitation

would have been tolled to allow him to have

exhausted his E.E.O.C. administrative remedies and

filed in federal court. Sloan (v) West 140 F. 3d 1255

(9 Cir. 1998) (at p. 1262). Appellant should enjoy no

less right by choosing to pursue his appeal,

uninterruptedly, through the E.E.O.C. process. (29

C.F.R. 1614.302(d)()Gi) & (3), 61614.310(a), Sloan

140 F.3d at 1260; (See Morales (v) Merit System

Protection Board ) 932 F.2d 800, 802 (9th Cir. 1991).

10

It is significant that Title VII’s statute of

hmitation is not a jurisdictional requirement. It may

be waived and equitably tolled. Sloan, supra,

Valenzuela (v) Kraft Inc. 801 F.2d 1170, 11174 (9%

Cir. 1986). Petitioner was denied an enbanc rehearing

(see app. C)

Reason for Granting the Petition

Petitioner relied upon the instructions given by

the O.S.C/M.S.P.B. (Quoted in questions presented)

and subsequently without deviation pursued his claim

through the E.E.O.C. /O.F.O. for the following nine

years. Strangely, the E.E.O.C./O.F.O. had in it’s

possession a copy of the instructions in 2003 when it

directed petitioner to seek recourse again through the

M.S.P.B. Petitioner also relied on 29 C.F-.R.

1614.302(b). Filing a formal EEO complaint

constitutes an election to proceed in the EEO forum.

The U.S. District Court misconstrued and

misapplied the doctrine of equitable tolling of the

thirty day statue of limitation such that petitioner

was placed in the position of having to seek an appeal

to the U.S. District Court before he had fully

exhausted his administrative remedies through the

Office of Federal Operations and also obtain a right to

sue letter within the thirty day limitation, all of which

were impractical and impossible to achieve.

Specifically the 9 Circuit in refusing to grant

the petition failed to follow its own precedence notably

as outlined hercin.

CONCLUSION

For the foregoing reasons, the petition should

be granted. In the alternative, this Court should

invite the views of the Solicitor General.

Respectfully submitted,

GEORGE BRENT

PRO SE

PETITIONER

PO BOX 93691

Pasadena. CA 9110

Telephone 626) 826-

Y

~

‘

APD

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed JUN 11, 2007]

D.C. No. CV-05-00091-VAP

GEORGE BRENT,

Plaintiff-Appellant,

v.

MICHAEL DOMINGUEZ,

Acting Secretary of the Air Force; et a/.,

Defendant-Appellees.

Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, District Judge, Presiding

MEMORANDUM -

Submitted June 5, 2007 -

Before: LEAVY, RYMER, and T.G. NELSON,

Circuit

Judges.

-This disposition is not appropriate for publication and is not

precedent except as provided by 9th Cir. R. 36-3.

** The panel unanimously finds this case suitable for decision

without oral argument. See Fed. R. App.. P. 34(a)(2)

George Brent appeals pro se from the district

courts order dismissing his action alleging

violations of Title VII of Civil Rights Acts of 1964,

42 U.S.C. § 2000e et seg., by the Untied States Air

Force (“Air Force”), and violations of the

Administrative Procedures Act (“APA”), 5 U.S.C. §

551 et seg. We have jurisdiction pursuant to 28

U.S.C. § 1291. We review de novo. Jones v.

Blanas, 393 F.3d 918, 926 (9% Cir. 2004)

(dismissals based on a statue of limitations); id.

(decisions whether to apply equitable tolling where

the facts are undisputed); Ha/e v. Norton, 476 F.3d

694, 697, (9" Cir. 2007) (dismissals for lack of

subject matter jurisdiction). We affirm.

The district court properly dismissed Brent’s

Title Vii claims because, despite the Air Force’s

clear notice to him of his rights, Brent failed timely

either to appeal the Air Force’s Final Agency

Determination of his discrimination claims to the

Merit Systems District Court. See Leorna v. U.S.

Dept of State, 105 F.3d 548, 551, (9" Cir. 1997)

(explaining that the doctrine of equitable tolling

“has been consistently applied to excuse a

claimant’s failure to comply with the time

limitations where she had neither actua/ nor

constructive notice of the filing period”) (emphasis

added).

We do not address the merits of the district

court’s dismissal of Brent’s APA claims because, in

his reply brief, Brent conceded that the dismissal of

those claims was proper.

AFFIRMED

APPENDIX B

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

(Filed JUL 26, 2005)

EDCV 05-91-VAP (SGLx)

George Brent,

Plaintiff,

vi

MICHEAEL DOMINGUEZ, etc.: et al..

Defendants

ORDER GRANTING DEFENDANT MICHAEL

DOMINGUEZ’S MOTION TO DISMISS

Motion filed on June 23, 2005

Defendant Michael Dominguez’s Motion to

Dismiss came before the Court for hearing on July

25, 2005. After reviewing and considering all

papers filed in support of, and in opposition to, the

Motion, as well as the arguments advanced by

counsel at the hearing, the Court GRANTS

Defendant’s Motion to Dismiss.

BACKGROUND

This case arises out of a series of employment

discrimination charges Plaintiff George Brent has

made against the United States Air Force, his

former employer, under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §2000e et seg. After

pursuing his claims through a number of

administrative complaints, Mr. Brent filed his

initial Complaint with this Court on February 3,

2005, and his First Amended Complaint (“FAC”) on

June 10, 2005. His First Amended Complaint

reasserts against Michael Dominguez, Acting

Secretary of the Air Force, the discrimination

allegations made in the administrative complaints

and also brings an administrative law judge and

the Equal Employment Opportunity Commission

(“EEOC”) [ FAC 88-96.]

The Court takes judicial notice of the following ducuments

appended to Defendant Michael Dominguez’s Motion to

Dismiss (“Mot”), to which Plaintiff also adverts in his

Opposition to the Motion “(Opp”’): Complaint of

Discrimination in the Federal Government, March AFB

Docket No. MD94004; Complaint of Discrimination in the

Federal Government, March AFB Docket No. MD94008; April

A tangled procedural history precedes the

filing this action. The critical points, on which the

parties agree, are as follows. Mr. Brent filed formal

Equal Employment Opportunity (“EEOC”)

complaints on January 18 1994, and April 28, 1994.

[ FAC {7 35, 47; Opp’n Exs. C, G. ] The Air Force

subsequently dismissed him from his position, and

his claim that his removal was motivated by

discrimination was consolidated with his pending

EEO administrative complaints on April 21, 2000.

[FAC]954, 66; Mot. Ex LL.] On November 24, 2003,

the administrative law judge dismissed Mr. Brent’s

case and remanded it to the Air Force for a final

agency decision (“FAD”).5[ FAC J 72; Mot. Ex 00. |

While the case was pending with the Air

Force, Mr. Brent appealed the dismissal and

remand to the EEOC, which denied the appeal on

August 26, 2004. [FAC JJ 70, 84; Mot. Ex. SS.]

The Air Force then issued its FAD on March 16,

2004. [Mot. Ex. QQ; Opp’n at 4.] Mr. Brent

requested reconsideration of the EEOC decision,

and the EEOC denied the request on November 4,

2004. [FAC JJ 70, 86; Mot. Ex. UU.] Mr. Brent,

however, did not appeal the issuance of the FAD.

This action is followed.

21, 2000, Order re Motion to Amend; November 24, 2003,

Order of Dismissal and Remand to Agency for Issuance of

FAD and Notice; March 16, 2004, Department of the Air

Force Final Decision; August 26, 2004. EEOC Decision:

November 4, 2004, EEOC Denial of Request for

Reconsideration. Mot Exs. C, G, LL, O00, SS, UU. See Mir v.

Little Co. of Mry Hosp., 844 F.2d 646, 649 (9% Cir 1988) (on

motion to dismiss court may “take judicial notice of matters of

public record outside the pleadings”) (quotation marks

omitted).

Defendant Michael Dominguez now moves to

dismiss, arguing that this entire action is time

barred because it was filed more than thirty days

after the Air Force’s FAD.[Mot.at 14-16.] In the

alternative, he contends that Mr. Brent

Either failed to raise his individual allegations

of discrimination during the administrative process

or raised them beyond the permitted time period.

[Id. at 10-14.] Defendant filed his Opposition on

July 11, 2005, and Defendant filed his Reply on

July 15, 2005.

IT. LEGAL STAND

Under Federal Rule of Civil Procedure 12(b) (6),

a party may bring a motion to dismiss for failure to

state a claim upon which relief can be granted. 4

Dismissal is appropriate when it is clear that no

relief could be granted under any set of facts that

could be proven consistent with the allegations set

forth in the complaint. See Williamson v. General

Dynamics Corp., 208 F.3d 1144, 1149 (9" Cir. 2000)

; Big Bear Lodging Ass’n v. Snow Summit, Inc., 182

F.3d 1096, 1101 (9 Cir. 1999).

2 The parties state that this second complaint was filed on

April 22, 1994. FAC 47; Mot. at 6. In fact, while Mr. Brent’s

signature line is so dated, the official date stamp indicates

April 28, 1994, as the filing date. See Mot. Ex. G

This use of the word “dismissal” is misleading. The judge’s

order directed the Air Force to complete processing of

Plaintiffs claims on the merits; it did not terminate Plaintiffs

administrative complaint. See Mot. Ex 00 at 114.

The Court must view all allegations in the

complaint in the light most favorable to the non-

moving party and must accept all material

allegations — as well as any reasonable inferences

to be drawn from them — as true. See Big Bear

Lodging Ass’n, 182 F.3d at 1101; American Family

Ass'n Inc ity and County of San Francisco, 277

‘3d 1114, 1120 (9 Cir. 2002)

The scope of review under Rule 12(b) (6) is

generally limited to the contents of the complaint

Clegg v. Cult Awareness Network, 18 F.3d 752, 754

(9" Cir. 1994). Nevertheless, “a document is not

‘outside’ the complaint if the complaint specifically

refers to the document and if its authenticity is not

questioned.” Branch v. Tunnell, 14 F.3d 449, 453

(9" Cir. 1993), overruled on other grounds _by

Glabraith v. Santa Clara, 307 F. 3d 1119, 1125-27

(9" Cir. 2002). The Court may also consider

exhibits submitted with the complaint, Hal Roach

Studios v. Richard Feiner & Co.; 896 F.2d 1542,

155 n.19 (9™ Cir. 1990), and “take judicial notice of

matters of public record outside the pleadings,

“Mir, 844 F.2d at 649 (quotation marks omitted)

4 “Federal court jurisdictionfor a review of discrimination

complaints in the federal sector requires an exhaustion of

administrative remedies “Tanious v. Internal Revenue

Service, 915 F.2d 410, 411 (9™ Cir. 1990). Compliance with

Title VII’s time limits, however, compliance with th:

presentment of discrimination complaint: is a jurisdictional

perquisite. “ Sommatino v. United States, 255 F.3d 704, 708

(9 Cir. 2001).The Court therefore evaluates Defendan

contention of untimeliness under Federal Rule of

Procedure 12 (b)(6). Because the Court find

Iil.. DISCUSSION

3ecause Plaintiffs allegations of discrimination

include his removal, his administrative complaint

fell within the scope of both the EEOC and Merit

Systems Protection Board (“MSPB”) administrative

schemes. 5 Administrative review of “mixed cases”

of this kind, 2S C.F.R. § 1614.302(a) (1), (2), is

governed by 5 U.S.C. § 7702 and its implementing

regulations

A mixed case complainant may file initially with

MSPB or with his employing agency. 5 U.S.C. §

7702 (a) (2). 29 C.F.R. 1614.302(b). If he files with

his employing agency, which is the path Mr. Brent

chose, the agency must resolve the complaint

within 120 days. 5 U.S.C. § 7702 (a) (2). Once it

does so, the complainant has thirty days either to

appeal

Plaintiffs action iSpositive it does not reach Defendant’s

assertion that Plaintiff failed to present his claims during the

1dministrative process, an argument properly analyzed under

,

Ferderal Kule of Civil Procedure 12 (b) (1

5 The MSPB “* judicatels Federal employee appeals yf

agency personnel actions, “5 C.F.R. § 1200.1 and its “appellate

jurisdiction” includ 1D from removal, see id. § 1201.3

(J (2)

6 Even if a complainant chooses to appeal to the MSPB

rather than commence a civil action, he still has opportunities

to seek judicial review. For instance, following a decision by

the MSPB, the complainant has thirty days to file a civil

acLION OFT petition Lhe EEOC for review of the MSPB

determination. 5 U.S.C. § 7702 (a3) (A), (b) (1); 29 C.F.R. §

1614.310 (b

that decision to the MSPB or file a civil action. 6

Id., 29 C.F.R. §§ 1614.302(d) (3), 1614.310(a). If

the agency does not resolve the complaint in 120

days, the complainant may also appeal to the

MSPB or file a civil action.7 5 U.S.C. § 7702 (e) (1)

(A), (2) ; 29 C.F.R. §§ 1614.302 (d) (1) (i), 1614.310

(g).

When the Air Force issued its FAD, then,

Mr. Brent had thirty days either to appeal his case

to the MSPB or file a complaint in federal court.

This action therefore is untimely. Mr. Brent

acknowledges his failure to bring this action within

thirty-day time limit; however, he counters, the

inordinate length of time his complaint remained in

the administrative process, especially the Air

Force’s delay in issuing its FAD, permits emuitable

excusal of his noncompliance. [See Opp’n at 11-12.]

He also argues that the administrative law judge’s

order dismissing and remanding his case was

improper. [Id. at 12-16]

The time limitations imposed by the Title

VII scheme are “requirement(s] subject to waiver,

estoppel and equitable tolling.” See Sommantino,

255 F.3d at 708. Nevertheless, Plaintiffs recourse

to equity is unavailing. Defendant Michael

Dominguez clearly has not waived the statute of

limitations defense Nor do the doctrines of

estoppel and equitable tolling apply here

7 An agency’s failure to resolve a complaint within 120 days

does not indefinitely extend a complainant’s time to bring a

civil action Under 5 U.S.C. § 7702 Qe) (1) (A), the

complainant is entitled to file a civil a civil action “ to the

10

“Equitable estoppel focuses on _ the

defendant’s wrongful actions preventing the

plaintiff from asserting his claim.” Leong v. Potter,

347 F.3d 1117, 1123 (9% Cir. 2003). Mr. Brent does

not allege any conduct on the part of Defendant

that prevented him form filing his claims. Once

120 days had expired from the filing of his

administrative complaints, Mr. Brent was free to

bring a civil action without waiting for further Air

Force review of his allegations. 5 U.S.C. § 7702(e)

(1) (A); 29 C.F.R. §§ 1614.302 (d) (1) (i), 1614.310(g).

The Air Force was required to notify Mr. Brent of

this right, 29 C.F.R. § 1614.302 (d) (1) (i), and Mr.

Brent does not contend that it failed to do so. Thus,

whatever the reason for the Air Force’s prolonged

delay in processing these claims, that delay did not

interfere with Plaintiffs commencement of a civil

action.

“Equitable tolling focuses on a plaintiffs

excusable ignorance and lack of prejudice to the

defendant. The doctrine of equitable tolling has

been consistently applied to excuse a claimant’s

failure to comply with the time limitations where

she had neither actual nor constructive notice of

the filing

(7 ...continued)

same extent and in the same manner as provided in section

717 (c) of the Civil Rights Act of 1964 ( 42 U.S.C. §2000e-16

(c).” § 2000e-16 (c) permits a complaint to file a civil action

because of agency inaction “until such time as final action

may be taken by ...[the] agency.”

1]

“Equitable tolling focuses on a plaintiffs

excusable ignorance and lack of prejudice to the

defendant. The doctrine of equitable tolling has

been consistently applied to excuse a claimant’s

failure to comply with the time limitations where

she had neither actual nor constructive notice of

the filing period.” Leong, 347 F.3d at 1123

(citations and quotations marks omitted). Mr.

Brent cannot claim excusable ignorance. The FAD

advised him that he had thirty days to file a civil

action, quoting 29 C.F.R. § 1614.310 (a) and

reiterating that “the civil action must be filed

within the applicable time limit.” [Mot. Ex. QQ at

144-45.]

As for Mr. Brent's criticisms of the

administrative law judge’s actions, as Defendant

points out, [Reply at 8], Mr. Brent offers no

authority for the proposition that allegedly

erroneous decisions by the judge should somehow

extend the time limit for filing a civil action. 8

8 Moreover, despite Plaintiffs vehement objections to

the November 24, 2003, Order of Dismissal and Remand, the

order appears proper. The administrative scheme does not

provide for hearings on mixed cases before an EEOC

administrative law judge. See 29 C.F.R. § 1614.302 (d) (2);

Thus, once the judge concluded that Mr. Brent’s complaint

constituted a single mixed case, she was without authority to

conduct a hearing on it.

According to Plaintiff, EEOC decisions dictate that

the judge should have heard the removal issue along with the

other allegations because they are all “intertwined.” [Opp’n at

15.] The case Plaintiff cites in support of this argument;

however, Amie L. Shaw, E.E.0.C. Doc. 05930370, 1994 WL

727959 (July 15,1994), is inapposite. In Shaw, the EEOC

reversed its earlier ruling that an appeal from a final agency

CONCLUSION

For the foregoing reasons, Defendant

Michael Dominguez’s Motion to Dismiss is

GRANTED.

IT IS SO ORDERED.

Dated: July 26,2005 /s/ VIRGINIA A. PHILLIPS

VIRGINIA A. PHILLIPS

United States District Judge

8 (...continued)

decision on removal was premature because it had not

been appealed to the MSPB. In its decision, the EEOC relied

on “the particular facts of [the] case, “ noting that the

appellant’s removal had been entirely processed to an agency

finding of retaliation and that “the only live question

presented by the case is the appropriateness of the remedy

that was awarded by the agency.” Id. at *3

Shaw addresses whether a mixed case complainant

must always appeal a final agency decision to the MSPB

rather than the EEOC. Though connected, that question

appears distinct from whether and EEOC administrative

judge may hear mixed cases in the first instance. In addition,

in contrast to Shaw, Plaintiffs case was far from being

entirely processed at the time the administrative law

decision. Finally, the Court notes, Shaw is an exception

discrimination which are not independently appealable to the

MSPB, but which are ‘inextricably intertwined’ with an

appealable action, should be raised in that forum.” John R.

Stan, E.E.0.C. Doc. 05960266, 1198 WL 264238, at *3 (May

19, 1998) (citation omitted).

13

APPENDIX C

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

(Filed NOV 18, 2005)

No. EDCV 05-91-VAP (SGLx)

George Brent,

Plaintiff.

MICHEAEL DOMINGUEZ, etc

Defendants.

ORDER GRANTING DEFENDANTS’

MOTION TO DISMISS

Motion filed on September 25, 2005

14

The Court had received and considered all

papers filed in support of, and in opposition to,

Defendants’ Motion to Dismiss. The Motion is

appropriate for resolution without hearing. See

Fed. R. Civ. P. 78; Local Rule 7-15. For the reasons

set forth below, the Motion is Granted.

BACKGROUND

This case arises out of a series of employment

discrimination charges Plaintiff George Brent has

made against the United States Air Force, his

former employer, under Title VII of the Civil Rights

Acts of 1964, 42 U.S.C. § 2000e et seq. After

pursuing his claims through a number of

administrative complaints, Plaintiff filed his initial

Complaint with this Court on February 3, 2005,

and his First Amended Complaint (“FAC”) on June

10, 2005. His First Amended complaint reasserts

against Michael Dominguez, Acting Secretary of

the Air Force, the discrimination allegations made

in the administrative complaints! and also brings

an Administrative Procedure Act (“APA”) claim

directly against Administrative Law Judge (“ALJ”)

Kathleen Mulligan and the Equal

! This claim was dismissed on July 26, 2005, pursuant to the

Court’s July 26, 2005 , Order Granting Defendant Michael

Dominguez’s Motion to Dismiss

2 The Court takes judicial notice of the following documents

appended to Defendant Michael Dominguez’s Motion to

Dismiss (“Dominguez’s Mot.”), to which Plaintiff also adverts

in his Opposition to the Motion (“Opp’n”): Complaint of

Discrimination in the Federal Government, March AFB

Docket No. MD94004; Complaint of Discrimination in the

15

Employment Opportunity Commission (“EEOC”)

(collectively, “ Defendants”) stemming from ALJ

Mulligan’s Order remanding Plaintiffs claim to the

Air Force for a Final Agency Determination. [FAC

11 88-96.].

A tangled procedural history precedes the

filing of this action.? The critical points, on which

the parties agree, are as follows. Plaintiff filed

formal Equal Employment Opportunity (“EEOC”)

complaints on January 18, 1994, and April 28,

1994. [FAC {J 35, 47.] The Air Force subsequently

dismissed him from his position, and Plaintiffs new

claim that his removal was motivated by

discrimination was consolidated with his pending

EEO administrative complaints on April 21, 2000.

[FAC {9 54, 66; Dominguez’s Mot. Ex. LL] On

November 24, 2003, Defendant ALJ Mulligan

dismissed Plaintiffs case and remanded it to the

Air Force for a final agency decision (“FAD”).? [FAC

{ 72; Dominguez’s Mot. Ex 00.]

Federal Government, March AFB Docket No. MD94008; April

21, 2000, Order re Motion to Amend; November 24, 2003,

Order of Dismissal and Remand to Agency for Issuance of

FAD and Notice; March 16, 2004, to Department of the Air

Force final Decision; August 26, 2004, EEOC Decision;

November 4, 2004, EKOC Denial of Request for

Reconsideration. [Dominguez’s Mot. Exs. C, G, LL, OO, QQ,

SS, UU.] See Mir v. Little Co. Of. Mary Hosp,, 844 F.2d 646,

649 (9" Cir. 1988) (on motion to dismiss court may “take

judicial notice of matters of public record outside the

pleadings”) (quotation marks omitted).

16

While the case was pending with the Air

Force, Plaintiff appealed the dismissal and remand

to the EEOC, which denied the appeal on August

26, 2004. [FAC 9 70, 84; Dominguez’s Mot. Ex.

5S.] The Air Force then issued its FAD on March

16, 2004. [Dominguez’s Mot. Ex QQ.] Plaintiff

requested reconsideration of the EEOC decision,

and the EEOC denied the request on November 4,

2004. [FAC {{ 70, 86; Dominguez’s Mot. Ex. UU.]

Plaintiff, however, did not appeal the issuance of

the FAD. This action followed.

Defendants filed a Motion to Dismiss (“Mot.”) on

September 29, 2005, arguing that the Court lacks

subject matter jurisdiction over Plaintiffs APA

claim and that Plaintiff fails to state a claim upon

which relief can be granted. [Mot. at 1.] Plaintiff

filed an Opposition to Defendants’ Motion to

Dismiss (“Opp’n”) on October 11, 2005. Defendants

filed their Reply of October 14, 2005.

II. LEGAL STAND

A. Motion to Dismiss Under Rule 12 (b) (1)

Pursuant to Federal Rule of Civil Procedure 12

(b) (1), a district court must dismiss an action if the

court lacks jurisdiction over the subject matter of

the suit. Fed. R. Civ. P. 12 (b) (1). The party

seeking to invoke federal jurisdiction bears the

burden of establishing that jurisdiction exists.

Scott v. Breeland, 792 f. 2d 925, 927 (9 Cir. 1986).

A complaint will be dismissed under Rule 12(b) (1)

for lack of subject matter jurisdiction if (1) the

cause does not “arise under” any federal law or the

United States Constitution, (2) there is no cause or

controversy within the meaning of _ that

constitutional term, or (3) the cause is not one

described by any jurisdictional statute. Baker v.

Carr, 369 U.S. 186, 198 (1962).

B. Motion to Dismiss under Rule 12(b) (6)

Under Rule 12(b)(6), a party may bring a motion

to dismiss for failure to state a claim upon which

reflief can be granted. Dismissal is appropriate

when it is clear that no relief could be granted

under any set of facts that could be proven

consistent with the allegations set forth in the

complaint. See Williamson v. Gen. Dynamics

Corp., 208 F.3d 1144, 1149 (9" Cir. 2000); Big

Bear Lodging Ass’n v. Snow Summit, Inc., 182 F.3d

1096, 1101 (9 Cir. 1999).

The Court must view all allegations in the

complaint in the light most favorable to the non-

moving party and must accept all material

allegations — as well as any reasonable inferences

to be drawn from them as true. See Big Bear

Lodging Ass’n, 182 F.3d at 1101; American Family

Ass’n, Inc. v. City and County of San Francisco, 277

F.3d 1114, 1120 (9 Cir. 2002).

The scope of review under Rule 12(b) (6) is

generally limited to the contents of the complaint.

Clegg v. Cult Awareness Network, 18 F.3d 752,

754, (9* Cir. 1994). Nevertheless, “ a document is

not ‘outside’ the complaint if the complaint

specifically refers to the document and if its

authenticity is not questioned.” Branch v. Tunnell,

14 f.3d 449, 453 (9 Cir. 1993), overruled on other

grounds by Galbraith v. Santa Clara, 307 F.3d 1119

1125-27 (9" Cir. 2002). The Court may also

consider exhibits submitted with the complaint,

Hal Roach Studios v. Richard Feiner & Co., 896 F.

2d 646, 649 (9 Cir. 1988) (quotation marks

omitted).

iii. DISCUSSION

A. Subject Matter Jurisdiction

Defendants argue that the Eleventh

Amendment provides them immunity from

Plaintiffs suit. [Mot. at 2.] They contend that

although Plaintiffs APA claim contains a limited

waiver of the government’s sovereign immunity,

the claim is not properly before the Court.

Defendants assert that Plaintiffs First Amended

Complaint fails to establish that Defendant ALJ

Mulligan’s Order to Remand was a final agency

decision not otherwise subject to judicial review.

[Mot. at 2-3.]

Plaintiff fails to oppose directly Defendants’

contentions. Instead, Plaintiff argues that (1) he

has properly alleged that he has_ suffered

determinate consequences resulting from

Defendant ALJ Mulligan’s Order, and (2) there is

no adequate remedy at law to redress his damages.

[Opp’n at 3-4].

The APA provides judicial review to “fal

person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute.” 5

19

U.S.C. § 702. In other words, to allege properly an

APA claim, a person must (1) “identify some agency

action4 that affects him [or her] in ... a specified

fashion,” and (2) “show that he [or she] has suffered

legal wrong because of the challenged agency

action, or is adversely affected or aggrieved by the

action within the meaning of a relevant statue.”

Lujan v. National Wildlife Federation, 497 U.S.

871, 882-83 (1990). The type of agency action

reviewable is an “[a]gency action made reviewable

by statute and [a] final agency action for which

there is no other adequate remedy in a court .... A

preliminary, procedural, or intermediate agency

action or ruling not directly reviewable is subject to

review on the review of the final agency action. “ 5

U.S.C. § 704.

1. Plaintiff has not Alleged that Defendants

Violated A Relevant Statue.

Defendants do not argue that Plaintiffs First

Amended Complaint fails to allege what legal

wrong he has suffered or how he has been

adversely affected or aggrieved within the meaning

of a relevant statute. 5 The Court, however, has a

sua sponte duty to ensure that it has subject

matter jurisdiction over Plaintiffs First Amended

Complaint. See Stockton Christian Life Center,

Inc. v. .R.S., 172 F. Supp. 2d 1292, 1294 (E.D. Cal.

2001).

4 Section 701 defines “agency action” as it is defined in 5

U.S.C. § 551, “the whole or part of an agency rule, order,

license, sanction, relief, or the equivalent or denial thereof, or

failure to act.” 5 U.S.C. § 701 (b) (2).

20

While § 702’s language is broad, “the statute

does not confer jurisdiction independent of some

other specific statute” and a Plaintiff must aver in

his or her complaint how the agency failed to act as

required by law.” Office of the Governor v. Dep’t of

Health and Human Servs., 997 F.2d 1290, 1292 (9%

Cir. 1993). “Section 702 does not create

substantive rights. There is no right to sue for a

violation of the APA in the absence of a relevant

statute whose violation forms the legal basis for the

complaint.” El Rescate Legal Servs., Inc. v.

Executive Office of Immigration Review, 959 F.2d

742m 753 (9 Cir. 1992)\(holding that when

Plaintiff has not shown a violation of the I&NA,

there can be no APA claim)(internal quotation

marks omitted).

Plaintiffs First Amended Complaint fails to

allege the relevant statue that forms the legal basis

of his claim. Plaintiff alleges that (1) he never had

a hearing on his claims, (FAC J 92) and (2)

Defendant ALJ Mulligan’s Order was not in

accordance with past EEOC authority, [FAC 7 94].

Plaintiffs First Amended Complaint lacks an

allegation that Defendants violated any relevant

statute.

The only reference to a _ statue within

Plaintiffs First Amended Complaint is one to Title

VII. In Plaintiffs prayer for relief, he writes; “ a

declaratory judgement that, the failure of the

EEOC to bring Brent’s complaints to hearing for

over four years and the ruling of ALJ Mulligan

dismissing Brent’s three complaints and remanding

them to the [Air Force] for a final agency decision

were arbitrary and contrary to law and therefore

violate the provisions of the APA and of Title VII.”

[FAC “Prayer for Relief” § 1.] The Court finds that

this does not suffice to establish a proper APA

claim. Although Plaintiffs first claim against the

Secretary of the Air Force purported to rest on Title

VII, it is unclear whether or not Plaintiff is alleging

that Defendants violated Title VII by remanding

Plaintiffs action for a FAD.

Even if Plaintiff indeed were alleging that

Defendants violated Title VII, the Court finds such

a claim has not been adequately stated here.

Among other flaws in Plaintiffs Complaint, it fails

to name a proper defendant. 42 U.S.C. §2000e-16

(requiring that in a civil action under Title VII, the

head of the department, agency, or unit, as

appropriate, shall be the defendant). Here, if

Plaintiff is attempting to use Title VII as the

relevant statute upon which to bring his APA

claim, the suit should have named the head of the

EEOC, instead of the entity and Defendant ALJ

Mulligan

Therefore, Plaintiffs APA claim against

Defendants is not properly before the Court and

this Court lacks subject matter jurisdiction because

Defendants are immune from suit under sovereign

immunity.

B. Failure to State a Claim

Not only does the Court lack jurisdiction,

Plaintiff has failed to state a claim on which relief

can be granted. The APA is a_ procedural

mechanism to enforce substantive rights contained

in other statutes and does not by itself provide

substantive rights. El] Rescate Legal Servs.. Inc.,

959 F.2d at 753. Plaintiff fails to allege how he was

legally wronged within the meaning of a relevant

statute, and thus fails to state a claim upon which

relief can be granted.

C. Leave to Amend

Federal Rule of Civil Procedure 15(a)

provides that leave to amend “shall be freely given

when justice so requires.” Fed. R. Civ. P. 15(a).

Although liberally granted, leave to amend is not

automatic. The Ninth Circuit strongly favors

allowing amendment, and considers a motion for

leave to amend under four faciors; bad faith, undue

delay, prejudice to the opposing party, and the

futility of amendment. Royal Ins. Co. of America v.

Southwest Marine, 194 F.3d 1009, 1016 (9* Cir.

1999)\(quoting Kaplan v. Rose, 49 F.3d 1363, 1370

(9 Cir. 1994). “|Llate amendments to assert new

theories are not reviewed favorably when the facts

and the theory have been known to the party

seeding amendment since the inception of the cause

of action.” Acri_v. International Assoc. of

Machinists & Aerospace Workers, 781 F.2d 1393,

1398 (9"" Cir. 1986).

Where, as here, the question before the court

centers on whether amending the complaint would

be futile, the Court must query whether no set of

facts could be proven under the amendment which

would constitute a valid claim. Sweaney v. Ada

County, Idaho, 119 F.3d 1385, 1392 (9* Cir. 1997)

(quoting Miller v. Rykoff-Sixton, Inc., 845 F.2d 209,

214 (9 Cir. 1988)\(holding that “l[A] proposed

amendment is futile only if no set of facts can be

proved under the amendment to the pleadings that

would constitute a valid and sufficient claim or

defense.”). See also Ruffolo v. Oppenheimer, 987

F.2d 129, 131 (2 Cir. 1993) (holding it is not an

abuse of discretion to deny leave to amend where

granting leave is unlikely to be productive.)

To refute a challenge of futility, a claim must

be legally sufficient. See Lerman v. Chuckleberry

Pub., Inc., 544 F. Supp. 966, 968 (S.D.N.Y. 1982),

rev d on other gounds sub nom., 745 F.2d 123 (2°

Cir. 1984), cert.denied, 471 U.S. 1054, 105 S. Ct.

2114, 85 L. Ed.2d 479 (1985) (explaining “[uJnless a

propsed amendment is clearly frivolous or legally

insufficient on its face, the substantive merits of a

claim or defense should not be considered on a

motion to amend.”)

Here, the Court concludes that there is no

possible statute that Defendants violated. Plaintiff

will be unable to amend his Complaint to allege he

suffered a legal wrong or that he was adversely

affected or aggrieved within the meaning of a

relevant statue. Thus, it would be futile to grant

Plaintiff leave to amend.

24

Ill. CONCLUSION

For the foregoing reasons, Defendants’ Motion to

Dismiss is granted without leave to amend.

Dated: November 18, 2005

/s/ VIRGINIA A. PHILLIPS

VIRGINIA A. PHILLIPS

United States District Judge

»

WN

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed SEP. 20, 2007]

No. 06-55130

D.C. No. CV-05-00091-VAP

Central District of California

GEORGE BRENT,

Plaintiff-Appellant,

V.

MICHAEL DOMINGUEZ,

Acting Secretary of the Air Force; et a/,

Defendant-Appellee.

ORDER

Before: LEAVY, RYMER, and T.G. NELSON,

Circuit

Judges.

We grant Brent’s motion to include excerpts of the

record with the petition for rehearing en banc.

The full court has been advised of the petition for

rehearing en banc and no judge has requested a

vote

on whether to rehear the matter en banc. See Fed.

R.

App. P. 35.

The petition for rehearing en banc is denied.

No further filings will be accepted in this closed

case.

26

APPENDIX E

[LOGO]

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 19848

Washington, D.C. 20036

GEORGE BRENT,

Complainant,

v.

DR. JAMES G. ROCHE, Secretary,

Department of the Air Force, Agency.

Request No. 05A50042

Appeal No. 01A41258

Agency Nos. MD94004, MD94008

DENIAL OF REQUEST FOR RECONSIDERTION

Complainant initiated a request to the Equal Employment

Opportunity Commission (EEOC or Commission) to

reconsider the decision in George Brent v. Department of

the Air Force, EEOC Appeal No. 01441258 (August 26,

2004). EEOC Regulations provided that the Commission

may, in its discretion, reconsider any previous Commission

decision where the requesting party demonstrates that: (1)

the appellate decision involved a clearly crroncous

interpretation of material fact or law; or (2) the appellate

decision will have a substantial impact on the policies,

practices, or operations of the agency. See 29 C.F.R. §

1614.405(b).

After a review of complainant’s request for reconsideration,

the previous decision, and the entire record, the

at

Commission finds that the request finds that the request

fails to meet the criteria of 29 C.F.R. § 1614.405(b), and it

is the decision on the Commission to deny the request. The

decision in EEOC Appeal No. 01A41258 remains _ the

Commission’s final decision. There is no further right of

administrative appeal on the decision of the Commission on

this request for reconsideration.

COMPLAINANT’S RIGHT TO FILE A CIVIL

ACTION(P0900)

This decision of the Commission is final, and there is no

further mght of administrative appeal from _ the

Commission’s decision. You have the night to file a civil

action in an appropriate United States District Court within

ninety(90) calendar days from the date that you receive

this decision. If you file a civil action, you must name as

the defendant in the complaint the person who is the

official agency head or department head, identifying that

person by his or her full name and official title. Failure to

do so may result in the dismissal of your case in court.

“Agency” or “department” means the national organization,

and not the local office, facility or department in which you

work.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not

have or cannot afford the services of an attorney, you may

request that the Court appoint an attorney to represent you

and that the Court permit you to file the action without

payment of fees, costs, or other security. See Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. §

2000e et seg,; the Rehabilitation Act of 1973, as amended,

29 U.S.C. $$ 791, 794 (c). The grant or denial of the

request is within the sole discretion of the Court. Filing

a request for an attorney docs not extend your time in

which to file a civil action. Both the request and the civil

action must be filed within the time limits as stated in the

paragraph above (“Right to File A Civil Action”).

FOR THE COMMISSION:

s/ Carlton M. Hadden, Director

Carlton M. Hadden, Director

Office of Federal Operations

NOV 04 2004

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that

this decision was received within five (5) calendar days

after it was mailed. I certify that this decision was mailed

to complainant, complainant’s — representative (if

applicable), and the agency on:

NOV 04 2004

Date

S {IHegible]

Equal Opportunity ASSI: