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James v. U.S. Equal Employment Opportunity Commission

United States District Court, D. Oregon, Portland Division

April 30, 2019

KENNETH E. JAMES, an individual, Plaintiff,




         Plaintiff Kenneth E. James ("James"), appearing pro se, brings this lawsuit against the Equal Employment Opportunity Commission ("EEOC") and Jenny Yang, EEOC Chair (collectively, "Defendants"). James's claim stems from Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act ("ADA"), and the Administrative Procedure Act ("APA"). Defendants move to dismiss James's complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure ("Rule") 12(b)(1), and for failure to state a claim upon which relief can be granted under Rule 12(b)(6). For the reasons stated below, Defendants' Motion should be GRANTED.


         On August 19, 2002, James, a former employee of the U.S. Department of Veterans Affairs ("VA"), and his wife applied for standard Federal Long-Term Care Insurance through a program administered by the U.S. Office of Personal Management ("OPM"). (Compl. ECF No. 1, at 1.) On October 1, 2002, James and his wife's applications were denied. (Compl. at 1.) James "contends that these denials constitute employment discrimination of equal pay and benefits for equal work without regard to disability and are a violation of the [ADA]." (Compl. at 2.)

         On December 10, 2002, James filed a formal class complaint of discrimination. (Compl. at 2.) On April 17, 2003, OPM issued a Final Agency Decision dismissing the class complaint. (Compl. at 2.) James then filed an appeal to the EEOC Office of Federal Operations on May 18, 2003. (Compl. at 2.)

         On January 4, 2004, the EEOC office of Federal Operations issued a decision stating that OPM had erred in dismissing James's class action. (Compl. at 2.) OPM then forwarded the class action complaint to the EEOC's Seattle District Office for class certification. (Compl. at 2.) On February 18, 2005, the EEOC Seattle District Office dismissed the class action complaint and ordered OPM to notify James that "an individual complaint would be accepted for processing." (Compl. at 2.)

         On July 28, 2005, OPM processed James's individual complaint and issued a Final Agency Decision. (Compl. at 2.) James then appealed OMP's Final Agency Decision to the EEOC's Office of Federal Operations on September 2, 2005. (Compl. at 2.) The EEOC issued a decision reversing OMP's ruling to dismiss the individual complaint. (Compl. at 2.) OPM filed a Request for Reconsideration, but it was denied by the EEOC on August 16, 2007. (Compl. at 2.)

         On September 11, 2007, OPM issued James a letter acknowledging and accepting his formal complaint. (Comply at 3.) OPM then filed for summary judgment, which was granted on June 21, 2013, by Kurt Hodges, EEOC Administrative Judge. (Compl., at 3.) On September 20, 2013, James filed an appeal with EEOC Federal Operations. (Compl., at 3.) To date, James has not received an answer to his appeal by the EEOC.

         The last stage of review by the EEOC has taken five years and James alleges "EEOC officials appear to be deliberately failing to perform their duties under the [APA]." (Compl., at 4.) Between March 2016 through May 2017, James inquired via email about the status of his appeal many times, each time being informed his application is "pending," (Pl.'s Resp. Def s. Mot. Dismiss, ECF No. 13 ("Pl.'s Resp."), Attach. 2.) James asks this court "to compel the [EEOC] to prioritize [his] case and issue an appellate decision to remand [his] case for further processing by the [OPM]." (Compl. at 4.)

         Legal Standard

         The EEOC moves to dismiss James's complaint pursuant to Rules 12(b)(1) and 12(b)(6). (Def. Mot. Dismiss, ECF No. 9 ("Def. Mot."), at 1.) In evaluating a motion to dismiss, the court accepts all factual allegations as true and draws all reasonable inferences in favor of the plaintiff. Barker v. Riverside Cty. Office of Educ, 584 F.3d 821, 824 (9th Cir. 2009).

         The court liberally construes pro se pleadings. Hebbe v. Filler, 627 F.3d 338, 342 (9th Cir. 2010). A pro se complaint is "held to less stringent standards than formal pleadings drafted by lawyers." Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).

         I. Rule l2(b) (1)

         "Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of America,511 U.S. 375, 377 (1994). Rule 12(b)(1) allows a defendant to challenge subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). A motion to dismiss under Rule 12(b)(1) may attack the complaint on its face by stating that the complaint fails to allege facts upon which the court can base jurisdiction. Savage v. Glendale Union High Sch, Dist. No. 205, Maricopa Cty., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). In determining whether sufficient facts support the underlying jurisdiction allegations in the complaint, the court may review evidence beyond the complaint. Safe Air for Everyone v. Meyer,373 F.3d 1035, 1039 (9th Cir. 2004), To survive a motion ...

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