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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0434%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

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
py Pe Se 8 ey 8. 2 pT ee een iv
TAB OF AUTOR EGS 0 nnccccscccccccascsesscssnsssseness Vv
Pe SPREE BURA OY vcctecconecescsnisssecssccasestnsosocssascancs 1
I eo kp saihadicoaumarnacsbaiansaslss 1
oy ee bg y 8 Bl Ld As | | a errr 1
STATEMENT OF THE CASE ...................c.:sccceeeee 1
MEMORANDUM OF LAW IN SUPPORT OF

I rt soc oe oes cardaaaneenensaia 7
REASON FOR GRANTING THE PETITION....... 10
RNIN osc tas nasraasucunsavaaids pte ng atevuudysucaniones 11
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:

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0434%3A1. Public record. Not legal advice.