United States District Court, D. Oregon, Portland Division
KENNETH E. JAMES, an individual, Plaintiff,
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; Jenny Yang, EEOC Chair Defendants.
FINDINGS AND RECOMMENDATION
V. ACOSTA, MAGISTRATE JUDGE
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.
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.)
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.)
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.)
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.)
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.
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
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).
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)).
Rule l2(b) (1)
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