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Carroll v. Office of Federal Contract Compliance Programs

United States District Court, District of Columbia

January 27, 2017


          MEMORANDUM OPINION [DKT. #3, #5, #6]


         Daniel B. Carroll ("plaintiff or "Carroll") brings this action pro se against the U.S. Department of Labor's Office of Federal Contract Compliance Programs ("defendant" or "OFCCP"), seeking a declaratory judgment ordering the agency to initiate enforcement proceedings against his former employer, Vinnell Arabia LLC, for alleged employment discrimination. Before the Court is Defendant's Motion to Dismiss Plaintiffs Complaint ("Motion") [Dkt. #3].[1] Upon consideration of The pleadings, relevant law, and the record herein, defendant's Motion is GRANTED.


         Carroll seeks enforcement of Executive Order 11246. Compl. ¶¶ 2-3 [Dkt. #1]. The Order charges the Secretary of Labor with ensuring that federal contractors "will not discriminate against any employee or applicant for employment because of race, creed, color, sex, sexual orientation, gender identity, or national origin." 30 Fed. Reg. 12319, 12320 (Sept. 24, 1965), as amended by Exec. Order No. 13672, 79 Fed. Reg. 42971 (July 21, 2014). The Secretary in turn has promulgated regulations tasking OFCCP with carrying out the responsibilities assigned to him by the Executive Order. 41 C.F.R. § 60-1.2. These regulations provide that when OFCCP has reasonable cause to believe that a federal contractor has violated the Executive Order, OFCCP "may issue a notice requiring the contractor to show cause" why enforcement proceedings are not warranted. Id. § 60-1.28. If the contractor's response is unsatisfactory, OFCCP may refer the matter "to the Solicitor of Labor with a recommendation for the institution of administrative enforcement proceedings, which may be brought to enjoin violations, to seek appropriate relief, and to impose appropriate sanctions." Id. § 60-1.26(b)(1).

         On May 15, 2013, Carroll filed a charge of discrimination with another federal agency, the U.S. Equal Employment Opportunity Commission ("EEOC"), asserting that his former employer, Vinnell Arabia LLC, a subsidiary of Northrop Grumman Corporation, denied him a promotion to senior accountant because he is white and Jewish. Vinnell Arabia denied the allegations on the merits, but declined to provide documentation for its position on the ground that the EEOC lacked jurisdiction because Vinnell Arabia is a foreign company and the alleged discrimination occurred in a foreign country. On February 12, 2015, the EEOC's Jackson Area Office issued a Determination. That order did not address Vinnell Arabia's jurisdictional argument, but nevertheless found that the "absence of evidence" resulting from the company's lack of production entitled Carroll "to the presumption that documents would have shown that he was discriminated against." Carroll v. Vinnell Arabia LLC, Charge No. 423-2013-01326 (EEOC JAO 2015) [Dkt. #1, at 25]. Shortly thereafter, the agency issued Carroll a Notice of Right to Sue under Title VII of the Civil Rights Act. Compl. ¶¶ 40, 43-44.

         Carroll did not bring suit in federal court. Instead, he forwarded EEOC's Determination to OFCCP and requested that OFCCP sanction Vinnell Arabia for "exhibit[ing] appallingly bad faith with the EEOC." Id. ¶ 5. In a letter dated July 16, 2015, the agency notified Carroll that "OFCCP cannot intervene in a matter that has been investigated by EEOC." Letter from Marika Litras, Dir., Div. of Program Operations, OFCCP, to Daniel B. Carroll (July 16, 2015) [Dkt. #1, at 20]. In response to further correspondence from Carroll, OFCCP issued a second letter reiterating its decision not to intervene, explaining that it had "reviewed the charge you filed with EEOC and the findings of the investigation and determined that there is no basis for OFCCP to seek sanctions against your former employer for discrimination." Letter from Marika Litras, Dir., Div. of Program Operations, OFCCP, to Daniel B. Carroll (Mar. 1, 2016) [Dkt #1, at 21]. The letter advised Carroll that the Notice of Right to Sue issued by the EEOC provided him with an opportunity for a hearing before a court pursuant to Title VII.

         Rather than pursue a Title VII claim, Carroll filed this lawsuit to compel OFCCP to enforce Executive Order 11246 against Vinnell Arabia. The gravamen of the complaint is that Carroll is entitled to a declaratory judgment under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-706, directing OFCCP to issue a notice to Vinnell Arabia requiring it to show cause why enforcement proceedings are not warranted, and directing OFCCP to "devote good faith" to considering sanctions against the company. Compl. ¶ 66. The complaint also seeks to compel the production of OFCCP communications pertaining to Vinnell Arabia, and the award of costs. Id. The agency moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b).


         OFCCP moves to dismiss the complaint on the ground that enforcement decisions are committed to agency discretion by law and are therefore immune from judicial review. See 5 U.S.C. § 701(a)(2). OFCCP styles this defense as a motion to dismiss for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). However, because the Court is mindful of this Circuit's teaching that dismissal based on commitment to agency discretion must occur "under Rule 12(b)(6), not under the jurisdictional provision of Rule 12(b)(1), " Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011), the Court will evaluate whether dismissal is "proper based on failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)." EEOC v. St. Francis Xavier Parochial Sck, 117 F.3d 621, 624 (D.C. Cir. 1997).

         Under Rule 12(b)(6) the Court must ascertain whether the complaint contains "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Because this action is brought by apro se plaintiff, the Court has an obligation to construe his "filings liberally, and to consider his filings as a whole before dismissing [the] complaint." Schnitzler v. United States, 761 F.3d 33, 38 (D.C. Cir. 2014). Nevertheless, the case must be dismissed "if as a matter of law 'it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Neitzke v. Williams, 490 U.S. 319, 327 (1989).


         I. Carroll's Enforcement Claim

         Executive Order 11246, as amended, does not provide for judicial review of agency decisions. If review is available, then, it is only through the APA. Although the APA generally "favor[s] judicial review of administrative action, " Mach Mining, LLC v. EEOC, 135 S.Ct. 1645, 1651 (2015), it excludes from review action that is "committed to agency discretion by law, " 5 U.S.C. § 701(a)(2). In Heckler v. Chaney, 470 U.S. 821, 831 (1985), the Supreme Court held that "[r]efusals to take enforcement steps" are discretionary and therefore presumptively unreviewable. That presumption is not absolute, however, and "may be rebutted where the substantive [law] has provided guidelines for the agency to follow in exercising its enforcement powers." Id. at 832-33. To determine whether an action is reviewable, a court must '"consider both the nature of the administrative action at issue and the language and structure of the [law] that supplies the applicable legal standards for reviewing that action.'" Sierra Club, 648 F.3d at 855 (quoting Sec'y of Labor v. Twentymile Coal Co., 456 F.3d 151, 156 (D.C. Cir. 2006)).

         OFCCP invokes Chaney to argue that its decision not to sanction, or to issue a show cause notice to Vinnell Arabia, is discretionary and therefore unreviewable. Carroll concedes that enforcement discretion is generally unreviewable, but contends that the sanctions process is not an enforcement action and thus does not fall within the Chaney presumption. According to Carroll, "[s]anctions - and the decision whether to begin the sanctions process with a show cause notice - are not quite the same as enforcement proceedings" and do not involve "enforcement action per se." Pl.'s Mem. of P. & A. Addressing Def's Mot. to Dismiss Pl.'s Compl. 20 ("Pl.'s Mem.") [Dkt. #9]. Unfortunately, Carroll is mistaken. Department of Labor regulations provide that OFCCP may only "impose ... sanctions" for violations of the Executive Order through "institution of administrative enforcement proceedings." 41 C.F.R. § 60-1.26(b). In other words, a sanctions proceeding is an enforcement proceeding. Thus, when OFCCP declines to initiate a sanctions proceeding, it declines to take "enforcement steps." Chaney, 470 U.S. at 831; Cf. Drake v. FAA,291 F.3d 59, 70 ...

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