No. 04-15333
________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
__________________________________________
FRED KNOX,
Plaintiff-Appellant,
v.
JOHN POTTER, United States Postmaster General; RICH LENA; GUY ONO;
VIRGINIA LABSON; CHARLIE WAMBEKE, of San Mateo Support Services
Union; JEANNE M.L. PLAYER, Administrative Judge; CELE GUITERREZ, and
FRED ALAVARA,
Defendants-Appellees.
_______________________________________________________
On Appeal from the United States District Court
for the Northern District of California
No. 3:03-CV-00229
_______________________________________________________
BRIEF OF DEFENDANT-APPELLEE JEANNE M.L. PLAYER
OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
_______________________________________________________
ERIC S. DREIBAND EQUAL EMPLOYMENT OPPORTUNITY
General Counsel COMMISSION
Office of General Counsel
VINCENT J. BLACKWOOD 1801 L Street, N.W., Room 7030
Acting Associate General Counsel Washington, D.C. 20507
(202) 663-4724
CAROLYN L. WHEELER
Assistant General Counsel
ANNE NOEL OCCHIALINO
Attorney
TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. Nature of the Case and Course of Proceedings . . . . . . . 3
2. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . 4
A. Factual Allegations . . . . . . . . . . . . . . . . . . 4
B. Procedural Background . . . . . . . . . . . . . . . . 5
i. Knox's first three lawsuits . . . . . . . . . . . . 5
ii. Knox's current lawsuit Knox IV . . . . . 8
iv. Knox's subsequent lawsuit Knox V . . . 11
3. District Court Decision . . . . . . . . . . . . . . . . . . 11
4. Standard of Review . . . . . . . . . . . . . . . . . . . . . 13
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . .. . . . . . . . 14
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
I. THE DISTRICT COURT PROPERLY DISMISSED KNOX'S
CLAIMS AGAINST JUDGE PLAYER BECAUSE THEY
ARE BARRED BY RES JUDICATA. . . . . . . . . . . . . . . . . . . . 15
II. DISMISSAL OF KNOX'S CLAIMS AGAINST JUDGE
PLAYER IS ALSO APPROPRIATE BECAUSE KNOX
FAILED TO STATE A CLAIM FOR WHICH RELIEF
CAN BE GRANTED AND BECAUSE THE DISTRICT
COURT LACKED SUBJECT MATTER JURISDICTION
OVER THE CLAIMS. . . . . . . . . . . . . . . . . . . . . . . . 17
A. Knox failed to state a claim against Judge Player
for which relief can be granted. . . . . . . . . . . . . .. . 18
1. Title VII claims . . . . . . . . . . . . . . . . . . . . 18
2. Claims under 42 U.S.C. 1981, 1985, 1986, and
29 U.S.C. 158(b) . . . . . . . . . . . . . . . . . . 19
B. The district court lacked subject matter jurisdiction over
Knox's claims against Judge Player. . . . . . . . . . . . . 21
III. THE DISTRICT COURT PROPERLY DENIED KNOX'S
MOTION TO FILE A REQUEST FOR
RECONSIDERATION OF THE COURT'S RELATED
CASE ORDER AND HIS MOTION TO DISQUALIFY
THE MAGISTRATE JUDGE. . . . . . . . . . . . . . . . . . . . . . . . . 23
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . . . . . . 25
CERTIFICATES OF COMPLIANCE AND SERVICE
No. 04-15333
________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
__________________________________________
FRED KNOX,
Plaintiff-Appellant,
v.
JOHN POTTER, United States Postmaster General; RICH LENA; GUY ONO;
VIRGINIA LABSON; CHARLIE WAMBEKE, of San Mateo Support Services
Union; JEANNE M.L. PLAYER, Administrative Judge; CELE GUITERREZ, and
FRED ALAVARA,
Defendants-Appellees.
STATEMENT OF JURISDICTION
a. Plaintiff-Appellant Fred Knox ("Knox") asserts that the district court
had jurisdiction based on 28 U.S.C. 1343 and 28 U.S.C. 185. See Br. at 2.
Defendant-Appellee Administrative Judge Jeanne M.L. Player of the Equal
Employment Opportunity Commission ("EEOC" or "Commission") contends,
however, that the district court lacked subject matter jurisdiction over Knox's
claims against her. No federal statute grants jurisdiction to the district courts to hear
claims of individuals employed by third parties who are dissatisfied with the
EEOC's administrative process. See infra at III.
b. This Court has jurisdiction over the district court's final order and
judgment dismissing this action with prejudice pursuant to 28 U.S.C. 1291.
c. On October 21, 2003, the district court entered an order adopting the
magistrate's recommendation to dismiss Knox's action with prejudice, deny
Knox's motion to disqualify the magistrate, and deny Knox's request for
reconsideration of the magistrate's related case order. (RE at Ex. U; 10/21/03
order) On January 9, 2004, the district court entered final judgment. (RE at Ex. V;
judgment) On February 6, 2004, Knox filed a timely notice of appeal from the
judgment. See Fed. R. App. P. 4(a)(1)(B).
STATEMENT REGARDING ORAL ARGUMENT
The Commission believes oral argument would not significantly aid the
decisional process in this case because the issues are not complex and are
adequately presented in the briefs.
STATEMENT OF THE ISSUES
1. Whether the district court properly dismissed Knox's claims against
Judge Player because they are barred by the doctrine of res judicata.
2. Whether dismissal would have also been appropriate under Rule
12(b)(6) of the Federal Rules of Civil Procedure for failure to state a
claim because no statute permits third parties to sue an EEOC
administrative judge, and whether dismissal also would have been
appropriate under Rule 12(b)(1) because the district court lacked
subject matter jurisdiction over Knox's claims against Judge Player.
3. Whether the district court properly denied Knox's request for
reconsideration of the magistrate's order finding Knox's lawsuit
related to his previous lawsuits, which involved the same parties and
the same allegations, and whether the district court abused its
discretion in denying Knox's motion to disqualify the magistrate.
STATEMENT OF THE CASE
1. Nature of the Case and Course of Proceedings
This is the fourth pro se lawsuit Knox has filed against his employer,
Defendant-Appellee United States Postal Service ("Postal Service"), and related
defendants. Like the three lawsuits that have preceeded it and a fifth lawsuit that
has followed it this lawsuit involves allegations that the Postal Service and other
defendants subjected Knox to discrimination and retaliation. This is the second
lawsuit in which Knox has sued Judge Player because he was unhappy with how
she conducted the EEOC administrative hearing on his claims against the Postal
Service. Knox does not allege that he was ever employed by the EEOC.
2. Statement of Facts
As in all of Knox's lawsuits, this one arises from his employment at the
Postal Service as a Data Control Technician. Both the factual allegations and the
convoluted procedural history involved in this action are discussed below.
A. Factual Allegations
Knox claims that he was injured in May of 1995 as the result of a Halon
explosion at the San Mateo Information Center. (RE Ex. G, Compl. at 3) He
alleges that a number of his supervisors should have known that the Halon
machines were leaking irritating odors and failed to correct the leaks. (Id.) Knox
also claims that three co-worker deaths (from a heart attack, suicide, and hepatitis)
may be attributable to the Halon explosion and that the explosion caused physical
injuries for which he has had to seek medical treatment since May of 1995. (Id. at
3-4) According to Knox, the Postmaster and his other supervisors acceded to
Knox's request for a medical examination and "caused the plaintiff to be subjected
to examination of his penis and genital area" for no reason. (Id. at 4) Knox also
alleges he was denied promotions and training opportunities and that he was
harassed after he complained about his treatment. (Id. at 6-7)
Knox alleges that Judge Player conducted an administrative hearing
concerning Knox's discrimination complaint. (Id. at 8) According to Knox, Judge
Player failed to adequately investigate his claims of discrimination and refused "to
allow the plaintiff witnesses and witness testimony." (Id.) Knox also alleges that
Judge Player refused to hold a hearing on his claim that Cele Gutierrez sexually
harassed him by ordering medical examinations of his genitals. (Id. at 12)
B. Procedural Background
i. Knox's first three lawsuits
Before filing this lawsuit, Knox filed three other actions. This Court
affirmed their dismissal on December 27, 2001. (EEOC RE at 4, slip op.)
Knox I
Knox filed his first action, Case No. 98-796 JL ("Knox I"), on March 2,
1998. (RE at Ex. A) Judge Player was one of the defendants. (Id.) The other
defendants included the United States Postal Service, Postmaster General William
J. Henderson, Manager Rich Lena, Supervisor Bob Long, Personnel Assistant Susy
Nakai, Supervisor Tom Nesbitt, Computer Systems Administrator Dennis
Williams, Manager Cele Gutierrez, Supervisor Roger Hisle, Charlie Wambeke (the
former President of the San Mateo Area Local, American-Postal Workers Union,
AFL-CIO Local 6669), and the San Mateo Information Service Center of the
United States Postal Service ("San Mateo Center"). (Id.) Knox I alleged claims
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., 42
U.S.C. 1981, 42 U.S.C. 1985(2), 42 U.S.C. 1986, and 29 U.S.C. 158(b) for
racial discrimination, retaliation, unfair labor practices, breach of contract,
intentional infliction of emotional distress, negligent infliction of emotional
distress, and violations of the Veterans Preference Act. (Id.)
As to Judge Player, Knox alleged that she was biased, denied relevant
subpoena records requests, split the case into two separate cases, denied Knox the
opportunity to present witnesses, and allowed the defendants to enter all evidence,
records, and witnesses in their favor. (Id. at 14) Knox also alleged that the EEOC
hearing and investigation was corrupt and that his appeals from the hearing were
not timely decided. (Id.)
In a July 8, 1998, order, the district court dismissed with prejudice Knox's
claims against the EEOC and Judge Player. (RE Ex. V, 12/22/03 order at 4; EEOC
RE at 1, 7/8/98 order) The court found that Congress had not created an express or
implied cause of action against the EEOC by employees of third parties. (Id.) The
court also found that Knox failed to allege specific facts to support his claims
under 42 U.S.C. 1981, 1985(b), and 1986 and that these charges were not
properly brought. (Id.) Finally, the court ruled that Knox had failed to allege any
facts to support his claim under 29 U.S.C. 158(b). (Id.)
As discussed below, the district court later consolidated Knox I, II, and III,
and this Court affirmed the district court's dismissal of Knox's claims against the
EEOC and Judge Player.
Knox II
One year after filing Knox I, Knox filed his second lawsuit, Case No. 99-
1527 JL ("Knox II"). (RE Ex. V at 5; RE Ex. B) Neither Judge Player nor the
EEOC were defendants. The defendants in Knox II were otherwise the same as in
Knox I, except that Knox's co-worker, Fred Alvara, was added. (Id.) Knox II
alleged many of the same causes of action as Knox I and added a few new ones.
Knox alleged claims for racial discrimination, retaliation, unfair labor practices,
assault, battery, interference with contract, intentional infliction of emotional
distress, and hiring co-workers to harass, retaliate, and stalk Knox. (Id.) The
factual allegations of Knox I and Knox II were largely identical. (Id.)
Knox III
Seven months after Knox filed Knox II, he filed his third lawsuit, Case No.
99-4675 JL ("Knox III"). (RE Ex. V at 7; RE Ex. C, compl.) Again, neither Judge
Player nor the EEOC were named as defendants. Knox III alleged claims against
Postmaster General William J. Henderson, the San Mateo Center, and co-worker
Vic Caparros. Similar to Knox I and Knox II, the causes of action in Knox III
include racial discrimination and retaliation, intentional infliction of emotional
distress, and negligent infliction of emotional distress arising from Knox's
employment at the Postal Service. (RE Ex. V at 7-8; RE Ex. C)
Eventually, the district court ordered that Knox I, Knox II, and Knox III
were related. (RE Ex. V at 9) On October 6, 2000, the district court entered an
order disposing of all remaining claims against all remaining defendants in all three
cases. (Id. at 9-10) Knox appealed. After ordering that all three cases be
consolidated, this Court affirmed the dismissal of Knox's claims, including the
dismissal of his claims against Judge Player for failure to state a claim for which
relief could be granted. (Id. at 10-11; EEOC RE at 4, slip op. ) This Court later
denied Knox's petition for rehearing, and the Supreme Court denied Knox's
petition for certiorari. (RE Ex. R at 7)
ii. Knox's current lawsuit Knox IV
On January 16, 2003, Knox filed this lawsuit ("Knox IV"). (RE Ex. G) The
defendants have all been named at least once in Knox's previous three lawsuits.
Besides Judge Player, the Defendants include Postmaster John Potter, Rich Lena,
Guy Ono, Virginia Labson, Charles Wambeke, Cele Gutierrez, and Fred Alarva.
(Id. at 1) The factual allegations are nearly identical to those in Knox's previous
three lawsuits. (Id. at 1-16; RE Ex. V, 12/22/03 order at 8-9)
As in Knox I, Knox II, and Knox III, Knox alleges violations of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., the Veterans Preference
Act, Pub. L. 103-353, 42 U.S.C. 1981, 42 U.S.C. 1985(2), 42 U.S.C. 1986,
and 29 U.S.C. 158(b). (RE Ex. G, Compl. at 2) Knox's claims are for racial and
sexual discrimination arising from the Halon gas explosion and subsequent medical
exam, racial discrimination arising from a failure to train and promote him,
retaliation, unfair labor practices, breach of contract, violation of the Veterans
Preference Act, intentional infliction of emotional distress, negligent infliction of
emotional distress, and sexual harassment. (RE Ex. G)
Specific to Judge Player, Knox alleges in Count I ("Racial and Sexual
Discrimination, Halon Explosion Injuries and Subsequent Examination") that she
was an administrative law judge acting in the course and scope of her employment.
(Id. at 3) In Count III ("Retaliation"), Knox alleges that Judge Player failed to
adequately investigate his complaints by "failing and refusing to allow the plaintiff
witnesses and witness testimony." (Id. at 7-8) In Count IV ("Unfair Labor
Practices"), Knox alleges that each defendant failed to act in accordance with the
National Labor Relations Act, 29 U.S.C. 157. (Id. at 8-9) In Counts V ("Breach
of Contract") and VI ("Violation of Veterans Preference Act"), Knox alleges that
the defendants conspired to breach all covenants of good faith and fair dealing. (Id.
at 9-11) In Counts VII and VIII, Knox alleges that the defendants are liable for
negligent and intentional infliction of emotional distress. (Id. at 11-13) Knox also
alleges that Judge Player refused to hold a hearing on his claims of sexual
harassment. (Id. at 12)
On April 29, 2003, the magistrate judge issued a related case order finding
that Knox IV was related to Knox I (which was related to Knox II and Knox III).
(RE Ex. K) On August 22, 2003, the magistrate issued an order recommending
dismissal of Knox's claims with prejudice on the grounds of res judicata, denial of
Knox's motion to disqualify the magistrate, and denial of Knox's motion for
reconsideration of the related case order. (RE, Ex. R) Knox failed to file any
objections to the magistrate's recommendation. (RE Ex. U, 10/21/03 order; EEOC
RE at 14-15, docket)
In an October 21, 2003 order, the district court adopted the magistrate's
recommendation. (RE Ex. U, order) On January 9, 2004, the district court
entered judgment against Knox and dismissed his claims with prejudice. (RE Ex.
V, judgment) The court also denied Knox's motions to disqualify the magistrate
judge and to reconsider the magistrate's related case order. (Id.) On February 6,
2004, Knox filed a notice of appeal of the district court's January 9, 2004,
judgment. (EEOC RE at 9, 2/6/04 notice)
iii. Knox's subsequent lawsuit Knox V
After filing his first four lawsuits, Knox filed a fifth one, Case No. 03-3638
JL ("Knox V"). Judge Player is not a defendant in Knox V, although it involves
many of the same parties and allegations contained in Knox's earlier suits. On
February 9, 2004, the district court entered an order finding Knox V related to
Knox IV. (EEOC RE at __, docket at R.56) Knox filed an appeal of Knox V,
which is Case No. 04-162000.
C. District Court Decision
The district court's October 21, 2003, order adopted the magistrate's
recommendation to deny reconsideration of the magistrate's related case order,
deny Knox's motion to disqualify the magistrate, and dismiss Knox's complaint
with prejudice. (RE Ex. U) In its order, the district court noted that Knox had not
filed any objections to the recommendation. (Id.) The reasoning for the district
court's opinion was set forth in the magistrate's August 22, 2003, recommendation.
(RE Ex. R, recommendation)
The magistrate denied on two grounds Knox's application to file a request
for reconsideration of the court's order finding Knox IV related to Knox's earlier
suits. (Id. at 5) First, Knox had failed to file any objections to the Defendants'
April 1, 2003, Notice of Related Case within the required ten days. (Id.) Second,
Knox was not entitled to file a motion for reconsideration under Civ. L. R. 7-
9(b)(3) because he had not offered any evidence that the court had disregarded
"material facts or dispositive legal arguments" in determining that the cases were
related. (Id.)
Next, the magistrate rejected Knox's argument that the magistrate should be
disqualified because he had made rulings in Knox I, Knox II, and Knox III. (Id.)
Quoting the Supreme Court's opinion in Liteky v. United States, 510 U.S. 540, 555
(1994), the magistrate stated that "'judicial rulings alone almost never constitute a
valid basis for a bias or partiality motion.'" Id. Noting that Knox had presented no
evidence that the magistrate was biased or prejudiced, the court refused to
disqualify himself. (Id. at 6)
Finally, the magistrate dismissed Knox's lawsuit on the grounds of res
judicata. (Id. at 6-9) Citing Blonder -Tongue Laboratories v. Univ. of Ill. Found.,
402 U.S. 313, 323-24 (1971), court stated that "[a] federal action may be barred by
the doctrine of res judicata if an earlier lawsuit involved the same claim as the
present suit [and] reached a final judgment on the merits, and involved the same
parties or their privies." (Id. at 8) After reviewing and comparing Knox I, Knox
II, Knox III, and Knox IV, the court determined that res judicata barred Knox IV.
(Id. at 9) Although Knox argued that Knox IV was "substantially different" from
his first three lawsuits because it alleged retaliation, the court rejected this
argument, finding that Knox II had also alleged retaliation. (Id. at 8).
5. Standard of Review
"This Court reviews de novo a dismissal based on res judicata." Western
Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997). "The decision
of the district court may [also] be affirmed on any ground finding support in the
record." Oscar v. Univ. Students Co-operative Ass'n, 965 F.2d 783, 785 (9th Cir.
1992) (en banc). The denial of a motion to recuse a judge is reviewed under an
abuse of discretion standard. See Moideen v. Gillespie, 55 F.3d 1478, 1482 (9th
Cir. 1995).
SUMMARY OF ARGUMENT
Unsatisfied with one bite at the apple, Knox seeks a second bite at Judge
Player. The district court properly found that Knox is not entitled to it. Several
years ago, this Court affirmed the dismissal of Knox's same claims against Judge
Player in Knox I. Accordingly, the district court properly found that Knox's
current claims against Judge Player are barred by res judicata.
Dismissal of Knox's claims was also appropriate under Rule 12(b)(6) of the
Federal Rules of Civil Procedure because Knox's claims against Judge Player fail
to state a claim for which relief can be granted. Similarly, dismissal is appropriate
under Federal Rule of Civil Procedure 12(b)(1) because the district court lacked
subject matter jurisdiction over Knox's claims. Finally, dismissal was appropriate
because Knox failed to file any objections to the magistrate's recommendation that
Knox's claims be dismissed.
The district court also properly denied Knox's motion to file a request for
reconsideration of the magistrate judge's order finding Knox IV related to Knox I
because, as Knox concedes, the cases involve the same parties and the same
claims. This Court should also hold that the district court did not abuse its
discretion in refusing to disqualify the magistrate. Therefore, this Court should
affirm the dismissal of Knox's claims against Judge Player.
ARGUMENT
I. THE DISTRICT COURT PROPERLY DISMISSED KNOX'S CLAIMS
AGAINST JUDGE PLAYER BECAUSE THEY ARE BARRED BY RES
JUDICATA.
Under the doctrine of res judicata, "a final judgment on the merits bars further
claims by parties or their privies based on the same cause of action." Montana v.
United States, 440 U.S. 147, 153 (1979). Application of this doctrine is "central to
the purpose for which civil courts have been established, the conclusive resolution
of disputes within their jurisdiction." Id. "Moreover, a rule precluding parties from
the contestation of matters already fully and fairly litigated 'conserves judicial
resources' and 'fosters reliance on judicial action by minimizing the possibility of
inconsistent decisions." In re Schimmels, 127 F.3d 875, 881 (9th Cir. 1997)
(quoting Montana, 440 U.S. at 153-54). Res judicata applies when there is "(1) an
identity of claims, (2) a final judgment on the merits, and (3) identity or privity
between parties." Western Radio, 123 F.3d at 1192.
Here, the district court properly found that res judicata bars Knox's claims
against Judge Player. First, as discussed, supra at 2.B., Knox's claims in this case
are identical to those he brought in Knox I. (EEOC RE at ; slip op. at 3) In both
Knox I and this case, Knox's essential allegation against Judge Player is that she
limited Knox's witnesses and their testimony at his administrative hearing on his
claims against the Postal Service. (RE Ex. A, compl.; RE Ex. G at 8) Knox even
conceded below, and on appeal, that this case "may involve the same claim as prior
suits." (RE Ex. N at 9; Resp. to Mo. to Dismiss; Br. at 16) Although he argues that
Knox IV is not subject to res judicata because it involves a claim of retaliation, his
retaliation claims in Knox IV against Judge Player are based on the same facts as in
Knox I and could have been alleged in Knox I. See Tahoe-Sierra Preservation
Council Inc. v. Tahoe Regional Planning Agency, 322 F.3d 1064, 1078 (9th Cir.
2003) ("Newly articulated claims based on the same nucleus of facts may still be
subject to a res judicata finding if the claims could have been brought in the earlier
action"). Second, in Knox I, this Court affirmed the dismissal of the claims against
Judge Player on the merits for failure to state a claim upon which relief could be
granted. (EEOC RE at 6, slip op. at 3) Third, as Knox admits, Br. at 16, there is
privity between the parties because Judge Player was a defendant in Knox I and is a
defendant in this case. (RE Ex. N. at 9, Ex. A, Ex. G) Therefore, this Court should
affirm the dismissal of Knox's claims against Judge Player because they are barred
by res judicata.
Dismissal is also warranted because Knox failed to file any objections to the
magistrate's recommendation of dismissal. See Fed. R. Civ. P. 72(b) (party may
file objections to proposed findings and recommendation); Fed. R. Civ. P. 72(b)
advisory committee's note ("Failure to make timely objection to the magistrate's
report prior to its adoption by the district judge may constitute a waiver of appellate
review of the district judge's order.").
II. DISMISSAL OF KNOX'S CLAIMS AGAINST JUDGE PLAYER IS
ALSO APPROPRIATE BECAUSE KNOX FAILED TO STATE A CLAIM
FOR WHICH RELIEF CAN BE GRANTED AND BECAUSE THE
DISTRICT COURT LACKED SUBJECT MATTER JURISDICTION
OVER THE CLAIMS.
Even if this Court were to determine that Knox's claims against Judge Player
should not have been dismissed on res judicata grounds, this Court should affirm
on two alternate grounds. See Oscar, 965 F.2d at 785 (appellate court may affirm
on any ground supported by the record). First, dismissal of Knox's claims is
appropriate under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim for which relief can be granted. Second, dismissal is also warranted under
Federal Rule of Civil Procedure 12(b)(1) because the district court lacked subject
matter jurisdiction over Knox's claims against Judge Player.
A. Knox failed to state a claim against Judge Player for which relief can
be granted.
As discussed below, no statute provides for a claim against an EEOC
administrative judge by third-parties who are dissatisfied with the administrative
process. Therefore, Knox failed to state a claim for which relief could be granted
against Judge Player.
1. Title VII claims
Section 717 of Title VII, 42 U.S.C. 2000e-16, "provides the exclusive
judicial remedy for claims of discrimination in federal employment." Brown v.
General Services Admin., 425 U.S. 820, 835 (1976). Under this section, federal
employees claiming discrimination are entitled to de novo trials in federal court
against their employing agencies. See Chandler v. Roudebush, 425 U.S. 840, 843-
864 (1976) (section 717 "accord[s] a federal employee the same right to a trial de
novo as private-sector employees enjoy under Title VII"). Congress created
neither an express nor an implied cause of action against the EEOC by employees
of third parties. Ward v. EEOC, 719 F.2d 311, 313 (9th Cir. 1983). Accordingly,
the recourse for a federal employee unhappy with the EEOC's processing of a
discrimination complaint is to file a de novo action in district court against the
employing agency. See, e.g., Chandler, 425 U.S. at 843-64 (holding that section
717 of Title VII accords federal employees the right to a trial de novo in federal
court). This is exactly what Knox has done (five times, in fact). Thus, the
dismissal of Knox's Title VII claims against Judge Player is appropriate under
Rule 12(b)(6).
2. Claims under 42 U.S.C. 1981, 1985, 1986, and 29 U.S.C.
158(b)
Knox's claims against Judge Player under 42 U.S.C. 1981, 1985 and
1986, and under 29 U.S.C. 158(b) also fail to state a claim for which relief can be
granted. To the extent Knox seeks to claim a substantive violation of 42 U.S.C.
1981 by Judge Player, he has failed to advance sufficient facts to support a claim
that he was "denied [ ] any contract rights or the equal benefit of the law." Kuser
v. EEOC, 18 FEP Cases (BNA) 1011, 1012 (D. Md. 1978) (holding that plaintiff
had no cause of action under section 1981 against the EEOC for issuing a "no
cause" determination, which "neither hinders nor circumscribes a charging party's
right to bring [an] independent de novo action in federal district court") (citing
Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 366 (1977)). Moreover, section
1981 is only violated by intentional racial discrimination, see General Bldg.
Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 391 (1982), which Knox
has not alleged against Judge Player. (RE Ex. G). Therefore, Knox's section 1981
claims against Judge Player fail to state a claim upon which relief can be granted.
Knox's section 1985 and 1986 claims are similarly defective. To establish a
conspiracy to violate civil rights under section 1985, a plaintiff must demonstrate
the existence of "an agreement or 'meeting of the minds' to violate his
constitutional rights." Ward, 719 F.2d at 314. While such an agreement may be
inferred from the parties' conduct, see id., the plaintiff must allege sufficient facts
to support his allegation that the defendants conspired together to violate the
plaintiff's civil rights. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d
621, 626 (9th Cir. 1988). "A mere allegation of conspiracy without factual
specificity is insufficient." Id. (citations omitted). Here, it is patently clear that
Knox did not and cannot meet his burden of pleading or proving that the Judge
Player entered into a conspiracy with the other Defendants-Appellees to violate
Knox's civil rights. Knox's complaint is utterly devoid of any factual allegations
that Judge Player had any involvement with the other Defendant-Appellees except
that associated with the administrative hearing concerning Knox's discrimination
complaints. Because Knox has failed to state a valid section 1985 claim against
Judge Player, his section 1986 claim also fails. See Karim-Panahi, 839 F.2d at 626
(stating that a section 1986 claim cannot be maintained without a valid section
1985 claim).
Finally, Knox cannot rely on 29 U.S.C. 158(b) to state a claim against
Judge Player. That section prohibits unfair labor practices by employers and labor
organizations. Knox does not allege that he was employed by Judge Player (or the
EEOC). He otherwise fails to allege any facts that could remotely be interpreted as
stating a claim under 29 U.S.C. 158(b) against Judge Player.
Thus, dismissal of Knox's claims under Title VII, 42 U.S.C. 1981, 1985,
and 1986, and his claims under 29 U.S.C. 158(b) is appropriate under Rule
12(b)(6).
B. The district court lacked subject matter jurisdiction over Knox's
claims against Judge Player.
Dismissal of Knox's claims against Judge Player is also warranted under
Rule 12(b)(1) of the Federal Rules of Civil Procedure because the district court
lacked subject matter jurisdiction over them. The federal courts are courts of
limited jurisdiction, deriving their powers from the authority of Congress. Lockerty
v. Phillips, 319 U.S. 182, 187 (1943). Thus, in order for a district court to have the
authority to hear a case, Congress must have invested the court with the appropriate
jurisdiction. See id.
In his opening brief, Knox asserts that the district court's subject matter
jurisdiction was based on 28 U.S.C. 1343, and 28 U.S.C. 185. Op. Br. at 2.
This assertion is unavailing. "28 U.S.C. 1343 does not create an independent
basis for federal jurisdiction, but only serves to confer jurisdiction where a federal
cause of action is provided by one of the substantive sections of the Civil Rights
Act." Ellis v. Cassidy, 625 F.2d 227, 229 (9th Cir. 1980). The jurisdictional
requirements of section 1343 are not satisfied where the substantive claim alleged is
"wholly insubstantial" or where the complaint alleges insufficient facts to state a
cause of action for deprivation of civil rights. Kohl Indus. Park Co. v. County of
Rockland, 710 F.2d 895, 899 (2d Cir. 1983) (internal quotations and citations
omitted). As discussed, supra, Knox's complaint fails to state a claim for
deprivation of his civil rights under 42 U.S.C. 1981, 1985, or 1986. Therefore,
section 1343 cannot provide a jurisdictional basis for Knox's claims against Judge
Player.
Nor does 28 U.S.C. 185 supply a basis for the district court's subject matter
jurisdiction. As discussed, supra, that section prohibits unfair labor practices by
employer and labor organizations. It does not confer jurisdiction over the district
courts to entertain actions by third parties against EEOC administrative judges.
Finally, Knox's claims are also barred by the doctrine of sovereign immunity.
It is well-established that the United States and its agencies are immune from suit
for damages except where they have consented by statute to be sued. See e.g.,
United States v. Mitchell, 463 U.S. 206, 212 (1983); Holloman v. Watt, 708 F.2d
1399, 1401 (9th Cir. 1983). A suit against federal employees for actions taken
within the scope of their employment and in their official capacity is "'only another
way of pleading an action against an entity of which an officer is an agent.'"
Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell v. Dep't of Social
Services, 436 U.S. 658, 690 n. 55 (1978)). The party attempting to sue the United
States or its agencies bears the burden of pointing to the statutory provision that
contains "an unequivocal waiver of immunity." Holloman, 708 F.2d at 1401.
Here, Knox has failed to meet his burden of showing that any provision in
Title VII, or in any other federal statute, constitutes a waiver of the EEOC's
sovereign immunity with respect to a claim for damages arising from the EEOC's
handling of a discrimination complaint. Therefore, the district court lacked subject
matter jurisdiction over Knox's claims against Judge Player.
III. THE DISTRICT COURT PROPERLY DENIED KNOX'S MOTION TO
FILE A REQUEST FOR RECONSIDERATION OF THE COURT'S
RELATED CASE ORDER AND CORRECTLY DENIED KNOX'S
MOTION TO DISQUALIFY THE MAGISTRATE.
The district court properly denied Knox's motion to file a request for
reconsideration of the magistrate's related case order. See United States v. Warren,
601 F.2d 471, 474 (9th Cir. 1979) ("Only in rare cases will [this Court] question the
exercise of discretion in connection with the application of local rules."). First, the
court properly found that Knox IV was related to Knox I under Civil L. R. 3-12(b)
because they involve the same parties and relating the cases avoided "an unduly
burdensome duplication of labor and expense." Second, as the court noted, RE Ex.
R at 5, Knox failed to file within ten days a response to the Defendants' Notice of
Related Case. See Civ. L. R. 3-12(d) (response must be filed within ten days of
service of notice of related case). Third, Knox failed to show "a material difference
in fact or law" from that originally presented to the court or the "emergence of new
material facts or a change of law" that would warrant the filing of a motion for
reconsideration of the related case order. Civ. L. R. 7-9(b).
The district also acted well within its discretion in denying Knox's motion to
disqualify the magistrate. See Moideen, 55 F.3d at 1482 (denial of recusal motion
reviewed under abuse of discretion standard). Recusal is appropriate when "a
reasonable person with knowledge of all the facts would conclude that the judge's
impartiality might reasonably be questioned." In re Yagman, 796 F.2d 1165, 1179
(9th Cir. 1986) (internal quotations and citation omitted). Although Knox argues
that the magistrate "had substantially developed prejudgments about the plaintiff-
appellant and his causes," Br. at 22, Knox fails to point to any evidence before the
district court that would make a reasonable person conclude that the magistrate's
impartiality might be questioned. Knox's sole argument seems to be that recusal
was warranted because the magistrate had been assigned to Knox I, II, and III. The
court properly rejected this argument because, as it said, "judicial rulings alone
almost never constitute a valid basis for a bias or partiality motion." Liteky v.
United States, 510 U.S. 540, 555 (1994). Therefore, this Court should hold that the
district court did not abuse its discretion in denying Knox's motion to disqualify the
magistrate.
CONCLUSION
This Court should affirm the district court's dismissal of Knox's claims
against Judge Player on the grounds of res judicata. While Knox was entitled to one
bite at the apple, he was not entitled to two. This Court should also affirm the
district court's denial of Knox's motion to file a request for reconsideration of the
magistrate's related case order and his motion to disqualify the magistrate.
Respectfully submitted,
ERIC S. DREIBAND
General Counsel
VINCENT J. BLACKWOOD
Acting Associate General Counsel
CAROLYN L. WHEELER
Assistant General Counsel
________________________
ANNE NOEL OCCHIALINO
Attorney
U.S. EQUAL EMPLOYMENT
COMMISSION
Office of General Counsel
1801 L Street, N.W., Rm. 7030
Washington, D.C. 20507
(202) 663-4724
July ___, 2004
STATEMENT OF RELATED CASES
This case is related to Case No. 04-15156. The Commission filed a motion to
consolidate these two cases, but the motion has not yet been ruled upon.
The Commission believes that this case is also related to Case No. 04-16200
(the Commission is not a defendant in that case).
CERTIFICATE OF SERVICE
I, Anne Noel Occhialino, hereby certify that I served two copies of the
foregoing brief this ____ day of July, 2004 by first-class mail, postage pre-paid, to
the following:
Pro Se Plaintiff
Fred Knox
27713 Melbourne Ave.
Hayward, CA
95454
Counsel for Defendants-Appellees
Abraham Simmons
Assistant United States Attorney
450 Golden Gate Ave.
San Francisco, CA 94102
_____________________
Anne Noel Occhialino
Attorney
U.S. EQUAL EMPLOYMENT COMMISSION,
Office of General Counsel
1801 L Street, N.W., Room 7030
Washington, D.C. 20507
(P)(202) 663-4724
(F)(202) 663-7090
____________________________________________________________________
1. In his opening brief, Knox argues that the district court's December 22,
2003, order violates his Due Process rights under the Fifth Amendment. Br.
at 24-27. Because new arguments cannot be raised for the first time on
appeal, the Commission will not address this argument. See Arizona v. Components
Inc., 66 F.3d 213, 217 (9th Cir. 1995).
2. "RE Ex. *" refers to Knox's record excerpts and the specific excerpt.
3. "EEOC RE" refers to the Commission's supplemental record excerpts.
4. The court also ordered Knox to show cause in writing why he should not be
deemed a vexatious litigant. (Id.) In its December 22, 2003, order the district
court found Knox to be a vexatious litigant. (RE Ex. V) On January 20,
2004, Knox filed a notice of appeal of that order, which was assigned Case
No. 04-15156. (EEOC RE at 8, 1/20/04 notice) Although the Commission filed
a motion to consolidate that appeal with this one, this Court has not yet
ruled on the motion.
Saturday, June 7, 2008
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