United States District Court, District of Columbia
DANIEL B. CARROLL, Plaintiff,
OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Defendant.
MEMORANDUM OPINION [DKT. #3, #5, #6]
RICHARD J. LEON UNITED STATES DISTRICT JUDGE.
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]. Upon
consideration of The pleadings, relevant law, and the record
herein, defendant's Motion is GRANTED.
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. §
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.
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.
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).
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).
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).
Carroll's Enforcement Claim
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)).
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 ...