Ardalan v. McHugh et al

Filing 49

ORDER by Judge Lucy Koh denying 38 Motion for Default Judgment; granting 16 Motion to Dismiss; granting 24 Motion to Dismiss; (lhklc2, COURT STAFF) (Filed on 11/27/2013)

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UNITED STATES DISTRICT COURT

United States District Court
For the Northern District of California

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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FERIAL KAREN ARDALAN,

)
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Plaintiff,
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v.
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JOHN MCHUGH, SECRETARY OF THE
ARMY; UNITED STATES
)
REPRESENTATIVE SAM FARR; CARLTON )
HADDEN, DIRECTOR OF THE OFFICE OF )
FEDERAL OPERATIONS OF THE EEOC,
)
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Defendants.
)

Case No.: 13-CV-01138-LHK

ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS AND
DENYING PLAINTIFF’S MOTIONS
FOR DEFAULT JUDGMENT

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Plaintiff Ferial Karen Ardalan (“Ardalan”) brings this Complaint against Defendants John

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McHugh, Secretary of the Army (“McHugh”); United States Representative Sam Farr (“Farr”); and

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Carlton Hadden, Director of the Office of Federal Operations of the United States Equal

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Employment Opportunity Commission (“Hadden”), (collectively, “Defendants”) alleging that

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Defendants discriminatorily terminated and declined to rehire Plaintiff, and participated in a vast

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conspiracy to retaliate against Plaintiff for whistleblowing. See ECF No. 1. Defendant Farr moves

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to dismiss Ardalan’s Complaint, see ECF No. 16, and Defendants McHugh and Hadden separately

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move to dismiss the Complaint, see ECF No. 19. Pursuant to Civil Local Rule 7–1(b), the Court

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Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

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finds this matter appropriate for resolution without oral argument. Plaintiff also moves for default

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judgment against McHugh and Hadden. See ECF No. 38.1 Having considered the submissions of

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the parties, the relevant law, and the record in this case, the Court GRANTS Farr’s Motion to

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Dismiss, GRANTS McHugh and Hadden’s Motion to Dismiss, and DENIES Plaintiff’s Motions

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for Default Judgment.

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I.

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BACKGROUND
A.

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Procedural History
1.

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The Instant Case

Ardalan filed her Complaint on March 13, 2013. See ECF No. 1. Defendant Farr filed his

United States District Court
For the Northern District of California

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Motion to Dismiss on June 3, 2013. See ECF No. 16. Defendants McHugh and Hadden filed their

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Motion to Dismiss on June 4, 2013. See ECF No. 19. On June 18, 2013, Ardalan filed a Response

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to these Motions to Dismiss. See ECF No. 29. On June 25, 2013, Farr filed a Reply, see ECF No.

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31, and McHugh and Hadden filed a separate Reply, see ECF No. 32.

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Additionally, Ardalan filed a Motion for Default Judgment against Farr on June 18, 2013.

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See ECF No. 30. On June 25, 2013, Farr filed an Opposition to the default judgment motion as part

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of his reply in support of his Motion to Dismiss. See ECF No. 31. On July 8, 2013, Ardalan

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voluntarily withdrew the Motion for default judgment against Farr. See ECF No. 37. Ardalan filed

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a separate Motion for Default Judgment against McHugh and Hadden on July 9, 2013. See ECF

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No. 38. McHugh and Hadden filed their Opposition to the default judgment motion against them

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on July 10, 2013. See ECF No. 40. Ardalan filed a Reply on July 15, 2013. See ECF No. 41.

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2.

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Administrative Actions and Previous Litigation

Ardalan has filed 23 complaints with the United States Equal Employment Opportunity

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Commission (“EEOC”) regarding her termination as an instructor at the United States Army’s

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Defense Language Institute Foreign Language Center (“DLI”), DLI’s subsequent decisions

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declining to rehire her, and an alleged conspiracy among Defendants and various DLI managers to

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retaliate against her for whistleblowing regarding DLI’s curriculum. See ECF No. 20, Ex. A at 2.

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Ardalan filed but subsequently withdrew a separate motion for default judgment against Farr.
ECF Nos. 30, 37.
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Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

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Ardalan has also filed four civil actions in this District related to these same alleged practices. See

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Ardalan v. Monterey Inst. Int’l Studies, Case No. 03-CV-1075-JDF, filed June 18, 2004; Ardalan v.

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White, Case No. 01-CV-20935-JW, filed Oct. 2, 2001; Ardalan v. Caldera, Case No. 99-CV-

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20465-JW, filed May 20, 1999; Ardalan v. USA, Case No. 95-CV-20044-JW, removed to federal

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court on Jan. 10, 1995. In all four cases, the courts either dismissed Ardalan’s complaint or granted

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summary judgment in favor of defendants, see ids., and three of the four district court decisions

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were affirmed by the Ninth Circuit. See Ardalan v. Monterey Inst. Int’l Studies, 141 Fed. App’x

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536 (9th Cir. 2005), aff’ing Case No. 03-CV-01075-JDF; Ardalan v. White, 58 Fed. App’x 350 (9th

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Cir. 2003), aff’ing Case No. 01-CV-20935-JW; Ardalan v. Caldera, 24 Fed. App’x 827 (9th Cir.

United States District Court
For the Northern District of California

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2001), aff’ing Case No. 99-CV-20465-JW.

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B.

Factual Allegations

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Ardalan is an Iranian-born American who was employed as a Farsi language instructor at

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DLI from October 2, 1989, until her termination on October 20, 1995. ECF No. 1 ¶¶ 1, 14; ECF

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No. 29 at 15. Defendant McHugh currently serves as Secretary of the United States Army;

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Defendant Farr is the United States Representative for the 20th Congressional District of

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California, which includes Monterey, California, where DLI is located; and Defendant Hadden is

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the Director of the Office of Federal Operations at the EEOC.2 See ECF No. 1 ¶¶ 98-102; ECF No.

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16 at 1; ECF No. 19 at 2. The DLI is a United States Army language school that provides foreign

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language instruction, including Farsi, Arabic, and various Eastern European languages, to military

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personnel and civilian personnel employed by the United States government. See ECF No. 1 ¶ 1

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n.1.

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Ardalan alleges that DLI terminated her in October 1995 because, “in 1992 [she] engaged

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in innocent and good faith whistle blowing acts” against the language school. See ECF No. 1 ¶ 54.

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Ardalan further alleges that, since 2002, she has applied for various positions at DLI but has been

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In her Complaint, Ardalan names twelve other individuals “responsible ... for violation of
Plaintiff[’s] rights.” See ECF No. 1 ¶¶ 103-22. However, Ardalan does not list these individuals as
Defendants in the caption of her Complaint nor does there appear to have been any attempt to serve
these individuals with the Complaint. Thus, the Court recognizes only McHugh, Hadden, and Farr
as Defendants in this suit.
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Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

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“denie[d] almost 90 vacancies.” See Id. ¶¶ 3, 33. After being denied these “several employment

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applications for multiple vacancies in Persian Farsi language and ESL at DLI and/or other sister

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language schools,” Ardalan “engaged in timely EEO[C] [c]omplaint procedures” against DLI. Id.

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at 33. It appears DLI contended that Ardalan was terminated for cause after being absent without

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leave (“AWOL”). ECF No. 19 at 3. Ardalan acknowledges that, in all cases, the EEOC found that

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DLI staff engaged in “no discrimination or retaliation” in declining to rehire Ardalan. See ECF No.

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1.
In the instant proceeding, Ardalan asserts that the EEOC’s repeated findings of non-

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discrimination were erroneous for three reasons. First, she alleges that DLI’s policy of not rehiring

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United States District Court
For the Northern District of California

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individuals previously terminated for cause (the “No Hire policy”) was not a formal, written policy

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until August 18, 2008. Thus, she claims, the No Hire policy could not have been in effect when

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Ardalan was terminated in 1995, or when she applied for rehire prior to August 18, 2008. Id. ¶¶ 43-

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46. Second, Ardalan alleges that “she [was] treated disparately by the Defendants and their agents,

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who have denied her equal protection under the law,” id. ¶15, and that Defendants “ha[ve]

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retaliated against [her], an Iranian born American of Persian ancestry,” id. ¶ 11.

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Third, Ardalan alleges that the refusal to rehire her and the unfavorable outcome of her

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EEOC proceedings were the result of a “continual conspiracy” to punish her for her 1992

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whistleblowing. See id. ¶ 4. According to Ardalan, in “July-August” of 1992, she told National

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Security Agency officials investigating DLI’s curriculum that the school’s Farsi curriculum was

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“outdated and required revision.” Id. ¶76. Ardalan states that this report “led to the disclosure of

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the [DLI] civilian management’s long term failure to update [the curriculum].” Id. ¶ 78. This,

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according to Ardalan, caused the DLI provost, “who was receiving government funds for the

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unsuccessful curriculum developments, [to] orchestrate[] vast retaliatory measures against

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[Ardalan].” Id. This conspiracy included “[d]enial of promotions ... demotion causing reduction of

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salary ... [b]lackballing Plaintiff through conspiracy with his administration ... [and] instructing

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[DLI staff] to make sure Plaintiff would never be rehired at DLI.” Id. ¶ 79.

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Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

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“The conspirators,” including all three Defendants and numerous other staff at the DLI and

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EEOC, allegedly “denied [Ardalan] employment not just at DLI ... but at other sister language

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schools, and local colleges,” id. ¶ 1; “placed a ‘Red Label’ stating ‘Not Eligible for Rehire’ on

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[her] employment file,” id. ¶ 5; and “tamper[ed]” with the “dates, facts and evidence,” of Ardalan’s

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complaints filed in this District, id. ¶ 2. Ardalan also alleges that the unfavorable outcomes of her

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EEOC proceedings were the result of “the EEOC, once again, knowingly and maliciously

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accommodat[ing] DLI and the conspirators by issuing the [d]ecisions for DLI and the

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perpetrators.” Id. ¶ 4. Finally, Ardalan states that Defendants Farr and Hadden have, since 1996,

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“interfered with the investigations and/or grievance procedures [regarding these employment

United States District Court
For the Northern District of California

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claims] causing the denial of Plaintiff’s federally protected rights.” Id. ¶ 12.

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Based upon the DLI’s alleged discriminatory employment practices and Defendants’

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alleged conspiracy to punish Ardalan for whistleblowing against DLI, Ardalan asserts the

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following causes of action in her Complaint: (1) violation of Title VII of the Civil Rights Act of

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1964 (“Title VII”), 42 U.S.C. §2000e et seq., for employment discrimination; (2) violation of her

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right to free speech under the First Amendment of the United States Constitution, (3) violation of

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the Fourteenth Amendment of the United States Constitution for denial of equal protection under

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the law; (4) violation of the Whistleblower Protection Act of 1989 (“Whistleblower Act”), 5 U.S.C.

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§ 2302, for retaliation; (5) violation of 18 U.S.C. §§ 1505, 1506, 1512, and 1622 and 42 U.S.C. §§

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1505 and 1506 for obstruction of justice, obstruction of proceedings, document tampering, witness

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tampering, subornation of perjury; (6) violation of the Civil Rights Act (“Civil Rights Act”), 42

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U.S.C. §§ 1981, 1983, 1985, and 1986, for deprivation of civil rights; (7) violation of the Privacy

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Act of 1974 (“Privacy Act”), 5 U.S.C. § 552(a), for inserting Plaintiff’s Social Security number on

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her EEOC complaint forms against her wishes; (8) violation of 18 U.S.C. §§ 242 and 245, for

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infringement upon Plaintiff’s constitutional rights; and (9) “common law tort” violations. Id. ¶¶ 14-

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70, 73. Ardalan identifies 28 U.S.C. § 1331 and § 1343 as jurisdictional bases for her suit.3 Id. ¶¶

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71-72.

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In her Complaint, Ardalan includes 42 U.S.C. § 1331 and § 1343 in her list of her causes of
action. See ECF No. 1 ¶¶ 71-72. These statutes do not convey any private rights of action. As
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Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

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Ardalan claims her Complaint is brought against Defendants in their “official and

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individual capacities.” See ECF No. 1 ¶ 1. However, in listing her causes of action, Ardalan does

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not specify which claims are brought against Defendants in their official versus individual

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capacities. See id. Furthermore, Ardalan does not specify which claims are asserted against which

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of the three Defendants; instead she simply states that “Defendants” or “named Defendants”

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engaged in each alleged claim. See id. Accordingly, in order to give this pro se complaint the

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benefit of any doubt, see Haines v. Kerner, 404 U.S. 519, 520 (1972); Morrison v. Hall, 261 F.3d

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896, 899 n.2 (9th Cir. 2001), the Court construes all claims as being stated against all Defendants

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in their official as well as individual capacities.

United States District Court
For the Northern District of California

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Finally, Ardalan asks this Court for the following relief: (1) compensatory damages

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equivalent to Ardalan’s lost wages, bonuses, benefits, medical costs, and psychiatric costs since

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1996; (2) punitive damages of an unspecified amount; (3) injunctive relief, including ordering DLI

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to expunge all adverse reports about Ardalan, ordering DLI to refrain from sharing information

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about Ardalan other than information regarding the quality of her work and performance, ordering

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DLI to appoint Ardalan as an Assistant Professor or pay damages equivalent to expected future

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earnings, and ordering a federal investigation of Defendants for their role in the alleged conspiracy

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against Ardalan; and (4) attorney’s fees and costs. Id. ¶¶ 73, 129-32.4

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II.

LEGAL STANDARDS

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A.

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A defendant may move to dismiss an action for lack of subject matter jurisdiction pursuant

Rule 12(b)(1)

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to Federal Rule of Civil Procedure 12(b)(1). A motion to dismiss for lack of subject matter

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jurisdiction will be granted if the Complaint on its face fails to allege facts sufficient to establish

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subject matter jurisdiction. See Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th

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discussed above, the Court holds pro se litigants to a less stringent standard. Haines v. Kerner, 404
U.S. 519, 520 (1972). Thus, the Court interprets these references as assertions of federal question
jurisdiction (§ 1331) and jurisdiction to bring a claim under 42 U.S.C. § 1985 (§ 1343).
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Ardalan’s Complaint includes “Punitive Damages” in her list of her causes of action. See ECF
No. 1 ¶73. In order to give the pro se complaint the benefit of any doubt, the Court construes
Ardalan’s references to Punitive Damages as asserting a prayer for relief.
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Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

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Cir. 2003). In considering a Rule 12(b)(1) motion, the Court “is not restricted to the face of the

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pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual

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disputes concerning the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560

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(9th Cir. 1988). Once a party has moved to dismiss for lack of subject matter jurisdiction under

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Rule 12(b)(1), the opposing party bears the burden of establishing the court’s jurisdiction. See

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Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010).

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B.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a

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Rule 8(a)

short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint

United States District Court
For the Northern District of California

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that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure

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12(b)(6). The Supreme Court has held that Rule 8(a) requires a plaintiff to plead “enough facts to

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state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

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(2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a probability

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requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

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(internal quotation marks omitted). For purposes of ruling on a Rule 12(b)(6) motion, a court

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“accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light

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most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d

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1025, 1031 (9th Cir. 2008).

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However, a court need not accept as true allegations contradicted by judicially noticeable

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facts, Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and the “court may look beyond

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the plaintiff’s complaint to matters of public record” without converting the Rule 12(b)(6) motion

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into one for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995). Nor is the

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court required to “‘assume the truth of legal conclusions merely because they are cast in the form

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of factual allegations.’” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam)

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(quoting W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Mere “conclusory

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Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

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allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss.”

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Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); accord Iqbal, 556 U.S. at 678.

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Furthermore, “a plaintiff may plead herself out of court” if she “plead[s] facts which establish that

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[s]he cannot prevail on h[er] . . . claim.” Weisbuch v. Cnty. of L.A., 119 F.3d 778, 783 n.1 (9th Cir.

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1997) (internal quotation marks and citation omitted).

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Finally, when considering the pleadings of a pro se litigant, the Court “has a duty to ensure

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that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance

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of technical procedural requirements.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th

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Cir. 1988). Thus, while “’[p]ro se litigants must follow the same rules of procedure that govern

United States District Court
For the Northern District of California

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other litigants,’” Brown v. Rumsfeld, 211 F.R.D. 601, 605 (N.D. Cal. 2002) (alterations in original)

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(quoting King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)) (dismissing an employment

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discrimination claim against the Secretary of Defense with leave to amend), pro se pleadings

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should be “liberally construed, particularly where civil rights claims are involved,” Balestreri, 901

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F.2d at 699.

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C.

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When ruling on a motion to dismiss, a district court generally should not look beyond the

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four corners of a complaint. See Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007); Lee v.

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City of L.A., 250 F.3d 668, 688–89 (9th Cir. 2001). However, the Court may take judicial notice of

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matters that are either (1) generally known within the trial court’s territorial jurisdiction or (2)

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capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably

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be questioned. Fed. R. Evid. 201(b). Proper subjects of judicial notice when ruling on a motion to

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dismiss include documents that form part of the public record of prior court proceedings, including

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judicial opinions and parties’ public filings. See Holder v. Holder, 305 F.3d 854, 866 (9th Cir.

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2002) (“We take judicial notice of the California Court of Appeal opinion and the briefs filed in

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that proceeding and in the trial court”).

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D.

Request for Judicial Notice

Leave to Amend

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Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

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If the Court determines that the complaint should be dismissed, it must then decide whether

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to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend

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“should be freely granted when justice so requires,” bearing in mind that “the underlying purpose

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of Rule 15 . . . [is] to facilitate decision on the merits, rather than on the pleadings or

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technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal quotation

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marks omitted). Nonetheless, a district court may deny leave to amend due to “undue delay, bad

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faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by

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amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of

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the amendment, [and] futility of amendment.” See Leadsinger, Inc. v. BMG Music Publ’g, 512

United States District Court
For the Northern District of California

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F.3d 522, 532 (9th Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Where those

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conditions have not been met, this Court will grant leave to amend.

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III.

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DISCUSSION
Defendant Farr moves to dismiss Ardalan’s Complaint for four reasons. First, Farr contends

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that the Complaint lacks subject matter jurisdiction because (a) Ardalan lacks Article III standing,

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(b) Ardalan lacks standing to bring criminal charges, (c) Ardalan has failed to exhaust her

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administrative remedies as required under the Federal Tort Claims Act (“FTCA”), and (d)

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Ardalan’s claims are barred by the doctrine of sovereign immunity. See ECF No. 16 at i. Second,

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Farr alleges that Ardalan’s Complaint is time-barred because (a) her claims exceed the two-year

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statute of limitations of the FTCA, 28 U.S.C. §§ 2671-2680; and (b) her claims should be barred by

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the doctrine of laches. Id. Third, Farr contends that Ardalan’s Title VII claim should be dismissed

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under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Id. Fourth, Farr

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argues Ardalan’s claims are frivolous. Id.

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Similarly, Defendants McHugh and Hadden move to dismiss Ardalan’s Complaint for three

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reasons. See ECF No. 19 at i. First, they contend Ardalan’s constitutional claims do not meet the

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standard under Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) for

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claims against federal employees acting in their individual capacities. Id. at 9-11. Second, they

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contend that all of Ardalan’s statutory claims, except her Title VII claim, fail because (a) Ardalan

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Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

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failed to exhaust her administrative remedies (Whistleblower Act claim); (b) Ardalan’s claims are

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barred by the doctrine of sovereign immunity (claims brought under 42 U.S.C. §§ 1981, 1983,

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1985, 1986); and (c) Ardalan lacks the capacity and standing to sue under criminal statutes (claims

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brought under 18 U.S.C. §§ 1505 and 1506). Id. at 11-13. Third, McHugh and Hadden contend

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that Ardalan’s Title VII claim should be dismissed under Rule 12(b)(6) for failure to state a claim.

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Id. at 8-9. Additionally, McHugh and Hadden’s Reply asserts that the doctrine of res judicata bars

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all of Ardalan’s claims for conduct occurring prior to October 2001. See ECF No. 32 at 3-4.

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For the reasons stated below, the Court GRANTS Farr’s Motion to Dismiss and GRANTS
McHugh and Hadden’s Motion to Dismiss. As an initial matter, the Court considers Defendants’

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United States District Court
For the Northern District of California

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requests for judicial notice and the res judicata implications of Ardalan’s previous complaints in

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federal court regarding her termination from DLI. The Court then examines whether it has subject

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matter jurisdiction to hear Ardalan’s claims, and the sufficiency of Ardalan’s Title VII claim.

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Finally, the Court evaluates Ardalan’s Motions for Default Judgment.5

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A.

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On July 25, 2013, Defendants McHugh and Hadden requested that the Court take judicial

Judicial Notice

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notice of five documents: (1) Ardalan’s Oct. 2, 2001 complaint, and (2) Judge Ware’s Jan. 30,

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2002 ruling in Ardalan v. White, Case No. 01-CV-20935-JW (N.D. Cal.); (3) Ardalan’s May 20,

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1999 complaint, (4) Judge Ware’s Jul. 5, 2000 ruling in Ardalan v. Caldera, Case No. 99-CV-

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20465-JW (N.D. Cal.), and (5) Judge Ware’s Oct. 2, 2000 ruling in Caldera, Case No. 99-CV-

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20465-JW. See ECF No. 42 at 1. Ardalan objects to the Court taking judicial notice of all five

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The Court notes as a preliminary matter here that McHugh and Hadden contend that the
“gravamen” of Ardalan’s Complaint is her Title VII claim for discrimination. See ECF No. 19 at 8.
Their Motion thus argues that “Title VII is Plaintiff’s [o]nly [p]ossible [r]emedy,” because “Title
VII provides the exclusive remedy for claims of discrimination.” Id. (emphasis in original). The
Court is not persuaded. Defendants are correct that Ardalan’s Complaint asserts a claim for
discrimination under Title VII. See ECF No. 1 ¶¶ 14-16. However, reading this pro se complaint
liberally, the Court cannot construe all of Ardalan’s claims as arising solely out of her allegations
of discrimination. Rather, Ardalan’s allegations are grounded in two central, albeit related,
contentions: one, that Ardalan has been the subject of discrimination, and, two, that she has been
the subject of retaliation that began in 1992, and thus existed prior and in addition to this alleged
discrimination. See id. ¶¶ 76-79. The Court conducts its analysis below with this in mind.
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ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
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documents on the basis that she is not seeking to relitigate her previous complaints. See ECF No.

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44 at 6-7. The Court finds that judicial notice is proper for all five documents filed by Defendants

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because all of the documents form part of the public record in prior cases. See Holder, 305 F.3d at

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866. Accordingly, the Court GRANTS McHugh and Hadden’s request for judicial notice. See ECF

5

No. 42.

6

B.

Res Judicata

7

In her Complaint, Ardalan describes a conspiracy that encompasses events ranging from her

8

1992 whistleblowing to a February 2013 EEOC “no discrimination” finding. See, e.g., ECF No. 1

9

¶¶ 9-11, 42, 76-78. McHugh and Hadden contend that Ardalan’s claims against all three

United States District Court
For the Northern District of California

10

Defendants regarding conduct that occurred before October 2001 are barred by the doctrine of res

11

judicata “because [these events] either were or could have been litigated in her previous two

12

cases.” ECF No. 32 at 3. Ardalan did not respond to these assertions, as they were made in

13

McHugh and Hadden’s Reply. However, in her discussion of a prior court’s finding that res

14

judicata barred similar allegations that she had made, she stated her “intention [not to] re-

15

adjudicate these [prior c]ases but to inform the Court of the ... continuation of the retaliation.” ECF

16

No. 44 at 1 (emphasis added). For the following reasons, the Court finds that res judicata bars all of

17

Ardalan’s claims insofar as they allege violations that occurred prior to October 2, 2001.

18

Res judicata, or claim preclusion, prohibits relitigation of any claims that were raised or

19

could have been raised in a prior action. W. Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192

20

(9th Cir. 1997) (emphasis added). Specifically, res judicata is “applicable whenever there is (1) an

21

identity of claims, (2) a final judgment on the merits, and (3) identity or privity between parties.”

22

Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (quoting W.

23

Radio Servs. Co., 123 F.3d at 1192). In determining whether there is identity of claims, “[t]he

24

central criterion ... is whether the two suits arise out of the same transactional nucleus of facts.” Id.

25

at 714 (internal quotation marks omitted). “As a general matter, a court may, sua sponte, dismiss a

26

case on preclusion grounds where the records of that court show that a previous action covering the

27

same subject matter and parties had been dismissed.” Headwaters Inc. v. U.S. Forest Serv., 399

28

11
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

F.3d 1047, 1054 (9th Cir. 2005) (internal quotation marks omitted). However, “[w]here no judicial

2

resources have been spent on the resolution of a question, trial courts must be cautious about

3

raising a preclusion bar sua sponte.”Arizona v. California, 530 U.S. 392, 412-13 (2000).

4

As set forth below, the instant case is Ardalan’s fourth district court action alleging that

5

DLI officials engaged in discriminatory and retaliatory employment practices and orchestrated a

6

conspiracy against her.

7

First, on December 5, 1994, prior to her termination, Ardalan filed a complaint alleging that

8

various DLI officials, the DLI, and the Army engaged in (1) sex discrimination in violation of Title

9

VII, (2) slander, (3) intentional infliction of emotional distress, and (4) assault. See Ardalan v.

United States District Court
For the Northern District of California

10

USA, Case No. 95-CV-20044-JW (removed to federal court on January 10, 1995).

11

Second, on May 2, 1999, Ardalan brought suit against then-Secretary of the Army Louis

12

Caldera, alleging (1) gender discrimination in violation of Title VII, (2) retaliation, (3) sexual

13

harassment, (4) improper termination, (5) negligent infliction of emotional distress, (6) intentional

14

infliction of emotional distress, (7) slander, (8) assault and battery, and (9) obstruction of justice.

15

See ECF No. 42 (Ardalan v. Caldera (“Caldera”), Case No. 99-CV-20465-JW, filed May 20,

16

1999).

17

Third, on October 2, 2001, Ardalan filed a complaint against then-Secretary of the Army

18

Thomas White, alleging (1) discrimination based on national origin in violation of Title VII; (2)

19

violation of the First Amendment and Article 1 of the California Constitution; (3) violation of the

20

Fourteenth Amendment; (4) violation of the Whistle Blower Protection Act of 1989, 5 U.S.C. §

21

2302(b); (5) violation of the Freedom of Information Act; (6) Violation of the Privacy Act of 1974,

22

5 U.S.C. § 552(a); and (7) violation of the Civil Rights Act of 1991, 18 U.S.C. §§ 1506, 1512,

23

1622. ECF No. 42 (Ardalan v. White (“White”), Case No. 01-CV-20935, filed October 2, 2001). In

24

White, Judge James Ware dismissed the entirety of Ardalan’s Amended Complaint6 with prejudice,

25

finding that all of Ardalan’s claims were barred by res judicata. See White, at *8-9. Judge Ware

26

held that although Ardalan “articulated additional legal theories against Defendants to support her

27

6

28

Judge Ware’s 2002 order does not specify if this was Ardalan’s First or Second Amended
Complaint. See White, at *2.
12

Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

allegations of conspiracy,” she presented no evidence that had not been available to her in 1999

2

when she filed her complaint in Caldera and “the ultimate controversy underlying the dispute [in

3

White] ... remain[ed] the same” as that in Caldera. Id. at *4. In a brief memorandum disposition

4

written in 2003, the Ninth Circuit affirmed, finding that “[t]he district court properly dismissed

5

Ardalan’s action on res judicata grounds because all of the claims alleged therein had either been

6

fully and fairly litigated in her prior district court action, or could have been litigated in that

7

action.” See White, 58 Fed. App’x at 350.

8
9

In this action, Defendants McHugh and Hadden only raise res judicata in their Reply, see
ECF No. 32 at 3, and Defendant Farr does not raise res judicata at all. Arguments raised for the

United States District Court
For the Northern District of California

10

first time in a reply brief are deemed waived. United States v. Alcan Elec. & Eng’g, Inc., 197 F.3d

11

1014, 1020 (9th Cir. 1999). Nonetheless, the Court exercises its power in this case to raise res

12

judicata sua sponte. See Headwaters, Inc., 399 F.3d at 1054. This is because Ardalan has had no

13

fewer than three opportunities to litigate the pre-October 2, 2001 events surrounding her

14

termination and the subsequent decisions not to rehire her, and courts in this district have dedicated

15

considerable resources to the resolution of these claims. See Arizona, 530 U.S. at 412-13.

16

Furthermore, Ardalan makes no claims that any of the evidence on which she relies in this

17

Complaint was concealed or otherwise unavailable prior to October 2, 2001. Accord White, 58 Fed.

18

App’x at 350 (finding res judicata appropriate where “Ardalan failed to demonstrate that the

19

defendants fraudulently concealed any of the allegedly newly discovered evidence from her.”).

20

The Court finds that res judicata once again bars Ardalan’s claims insofar as they state

21

claims for conduct that transpired before October 2, 2001. This is because all three elements of res

22

judicata—identity of claims, final judgment on the merits, and identity between parties—are

23

satisfied with respect to such claims. See Owens, 244 F.3d at 713. First, as in White, Ardalan does

24

not allege that she has obtained nor does she appear to present any new evidence regarding the

25

events that occurred prior to October 2, 2001. See ECF No. 1. In other words, Ardalan’s claims that

26

rest upon pre-October 2001 evidence and events rely on the same “transactional nucleus of facts”

27

as her previous suits against DLI. Second, both White and Caldera received final judgments on the

28

13
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

merits. Judge Ware granted summary judgment in Caldera and dismissed White without leave to

2

amend, and the Ninth Circuit affirmed in both cases. See White, 58 Fed. App’x 350, aff’ing White,

3

No. 01-CV-20935-JW; Caldera, 24 Fed. App’x 827, aff’ing Caldera, 99-CV-20465-JW. Finally,

4

privity of parties exists between Ardalan’s previous actions and the instant case. The Ninth Circuit

5

has held that, when invoking res judicata, “privity may exist ... when there is sufficient

6

commonality of interest,” because “privity is a flexible concept dependent on the particular

7

relationship between the parties in each individual set of cases.” Tahoe-Sierra Pres. Council, Inc.

8

v. Tahoe Reg'l Planning Agency, 322 F.3d 1064, 1081-82 (9th Cir. 2003) (internal quotation marks

9

omitted) (finding res judicata barred new Plaintiffs’ claims where “several [but not all] parties in

10
United States District Court
For the Northern District of California

1

both actions [we]re identical” and the preceding Plaintiffs “had a complete opportunity to litigate

11

their claims”). Here, all of Ardalan’s complaints name the Secretary of the Army, Defendants are

12

all federal officials, and Defendants in this case share a common interest with the defendants in

13

Ardalan’s last cases in aggressively litigating Ardalan’s claims. Additionally, Ardalan herself had

14

the opportunity to litigate her claims against Hadden and Farr for their pre-October 2001 conduct.

15

See ECF No. 1; Owens, 244 F.3d at 713.

16

Accordingly, the Court finds that Ardalan’s claims against all three Defendants for conduct

17

that took place prior to October 2, 2001 are barred by res judicata. These claims are DISMISSED

18

WITH PREJUDICE because amendment would be futile. Accord White, 58 Fed. App’x at 350

19

(“The district court did not abuse its discretion in denying Ardalan leave to amend [the claims it

20

dismissed on res judicata grounds] because amendment would be futile.”). This reading of the

21

Complaint accords with Ardalan’s stated “intention [not to] re-adjudicate these [prior c]ases but to

22

inform the Court of the ... continuation of the retaliation.” ECF No. 44 at 1 (emphasis added). For

23

the remainder of this Order, the Court only addresses Ardalan’s Complaint insofar as it states

24

claims for conduct post-October 2, 2001.

25

C.

26

“Federal courts are courts of limited jurisdiction. They possess only that power authorized

27
28

Subject Matter Jurisdiction

by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
14
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

Lack of subject matter jurisdiction cannot be waived by the parties, and “[i]f the court determines

2

at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ.

3

P. 12(h)(3); see Attorneys Trust v. Videotape Computer Prod., Inc., 93 F.3d 593, 595 (9th Cir.

4

1996). A court may lack subject matter jurisdiction because, among other reasons, the claim is

5

barred by sovereign immunity, a plaintiff has failed to exhaust her administrative remedies, or a

6

plaintiff lacks Article III standing. See McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.

7

1988) (“The question whether the United States has waived its sovereign immunity against suits for

8

damages is, in the first instance, a question of subject matter jurisdiction.”); Brady v. United States,

9

211 F.3d 499, 501 (9th Cir. 2000) (affirming dismissal for lack of subject matter jurisdiction where

10
United States District Court
For the Northern District of California

1

“[p]laintiff had failed to exhaust her administrative remedies by presenting an administrative claim

11

to the appropriate federal agency before filing her complaint in district court.”); Steel Co. v.

12

Citizens for a Better Env’t, 523 U.S. 83, 101-02 (1998) (finding that where the plaintiff lacks

13

standing under Article III of the U.S. Constitution, the court lacks subject matter jurisdiction, and

14

the case must be dismissed).

15

For the following reasons, the Court finds that subject matter jurisdiction is lacking for

16

Plaintiffs’ second, third, fourth, fifth, sixth, seventh, eighth, and ninth claims.7 Accordingly, the

17

Court GRANTS Defendants’ Motions to Dismiss under Rule 12(b)(1) or dismisses sua sponte

18

under Rule 12(h)(3)8 claims two, three, four, five, six, seven, eight, and nine.

19

1.

No Bivens Implied Cause of Action: Ardalan’s Constitutional Claims

20

Ardalan claims that all three Defendants’ ongoing conspiracy against her has violated her

21

First Amendment rights (claim 2) and Fourteenth Amendment rights (claim 3). See ECF No. 1 ¶¶

22

17-25. Specifically, she alleges they infringed her First Amendment rights by engaging in “brutal

23

and ruthless retaliation” against her since she “engaged in ... [f]ree expression” by acting as a

24

whistleblower regarding the DLI’s curriculum in 1992. See id. ¶ 17. Ardalan also alleges

25

Defendants denied her equal protection rights in violation of the Fourteenth Amendment by

26
7

27
28

The Court uses the numbering system for the claims as numbered, supra p.5.
Rule 12(h)(3) states: “If the court determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action.”
15
8

Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

orchestrating a conspiracy that caused her applications to DLI to be rejected. See id. ¶ 25. Farr

2

moves to dismiss Ardalan’s Complaint, including the constitutional claims, under Rule 12(b)(1) on

3

the basis of sovereign immunity. See ECF No. 16 at 7. McHugh and Hadden move to dismiss

4

Ardalan’s constitutional claims under Rule 12(b)(1) on the basis that they fail to meet the standard

5

established under Bivens, 403 U.S. 388 (1971), for recognizing implied constitutional causes of

6

action brought against federal employees. See ECF No. 19 at 9-11. Ardalan’s Response does not

7

address Defendants’ arguments for dismissing these constitutional claims. The Court finds that

8

Ardalan’s constitutional claims fail to meet the standard for implying a cause of action established

9

by Bivens and its progeny. Therefore, Ardalan’s constitutional claims are dismissed under Rule

United States District Court
For the Northern District of California

10
11

12(b)(1).
The Court first provides an overview of Bivens and its progeny. The Supreme Court has

12

recognized that an implied cause of action may be available to plaintiffs who would otherwise have

13

no statutory redress against federal officials who violated plaintiffs’ constitutional rights. In Bivens,

14

the Supreme Court found that “‘violation of [the Fourth Amendment] by a federal agent ... g[ave]

15

rise to a cause of action for damages’ against a Federal Government employee.” Minneci v.

16

Pollard, 132 S.Ct. 617, 620 (2012) (quoting Bivens, 403 U.S. at 389). In making this finding, the

17

Court “created a remedy for violations of constitutional rights committed by federal officials acting

18

in their individual capacities.” Consejo de Desarollo Economico de Mexicali, A.C., 482 F.3d at

19

1173. The Court has recognized that this “freestanding damages remedy for a claimed

20

constitutional violation” is far from automatic. Wilkie v. Robbins, 551 U.S. 537, 550 (2007).

21

Rather, in deciding whether to recognize a Bivens remedy for a constitutional violation by a federal

22

employee, the Court must engage in a two-step inquiry. See Minneci, 132 S. Ct. at 621. First, the

23

Court asks “whether any alternative, existing process for protecting the [constitutionally

24

recognized] interest amounts to a convincing reason for the Judicial Branch to refrain from

25

providing a new and freestanding remedy.” Id. (alterations in original). Second, even if no

26

alternative exists, the Court considers whether “any special factors counsel[] hesitation before

27

authorizing a new kind of federal litigation.” Id. Finally, “a Bivens action can be maintained against

28

16
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

a defendant in his or her individual capacity only, and not in his or her official capacity.” Consejo

2

de Desarollo Economico de Mexicali, A.C., 482 F.3d at 1173 (emphasis added). Thus, Bivens suits

3

against federal employees acting in their official capacities are barred by sovereign immunity, and

4

the Court lacks subject matter jurisdiction to hear such claims. Id.

5

Since Bivens, the Supreme Court has recognized implied causes of action for damages
against federal employees for only three types of constitutional violations: (1) police search and

7

seizure in violation of the Fourth Amendment, see Bivens, 403 U.S. 388; (2) gender discrimination

8

by a Congressman in violation of the Fifth Amendment for an employee not covered by Title VII,

9

see Davis v. Passman, 442 U.S. 228 (1979); and (3) deliberate indifference toward a prisoner in

10
United States District Court
For the Northern District of California

6

violation of the Eight Amendment, see Carlson v. Green, 446 U.S. 14 (1980); see also Minneci,

11

132 S.Ct. at 621-22. In each of these cases, the Supreme Court allowed a Bivens action because the

12

Court found that the plaintiffs had no other meaningful remedies for the constitutional violations

13

they had suffered. Id. Conversely, the Court has found that no Bivens remedy is available for a

14

retaliatory employment action in violation of the First Amendment, see Bush v. Lucas, 462 U.S.

15

367 (1983), or for the denial of Social Security benefits in violation of the Fifth Amendment, see

16

Schweiker v. Chilicky, 487 U.S. 412 (1988), because comprehensive administrative schemes

17

already provide meaningful redress for plaintiffs. See Minneci, 132 S.Ct. at 622. In essence, the

18

Ninth Circuit has observed that “[w]here Congress has designed a program that provides what it

19

considers adequate remedial mechanisms for constitutional violations, Bivens actions should not be

20

implied.” Kotarski v. Cooper, 866 F.2d 311, 312 (9th Cir. 1989).

21

In the present case, the Court assumes, as an initial matter, that Ardalan brings her

22

constitutional claims against Defendants in their individual capacities. As stated above, sovereign

23

immunity bars constitutional claims brought against federal employees in their official capacities,

24

and thus district courts lack subject matter jurisdiction to hear such claims. See Consejo de

25

Desarollo Economico de Mexicali, A.C., 482 F.3d at 1173. Though the conspiracy Ardalan

26

describes consistently depicts Defendants as acting in their official capacities, the caption of the

27

Complaint lists Defendants in their official and individual capacities. See ECF No. 1. Because the

28

17
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

only way for these claims to proceed is to construe them as attempts to state Bivens actions against

2

Defendants in their individual capacities, the Court affords this pro se plaintiff the benefit of this

3

doubt. Morrison, 261 F.3d at 899 n.2.

4

The Court first concludes that Ardalan has no Bivens cause of action for her First

5

Amendment claim. The Supreme Court has expressly declined to recognize a Bivens claim for “a

6

federal civil servant [who wa]s the victim of a retaliatory demotion or discharge because he …

7

exercised his First Amendment rights.” Bush, 462 U.S. at 381. In Bush, a NASA employee was

8

demoted and his salary cut by almost $10,000 in direct retaliation for press interviews he gave

9

criticizing the agency for fraudulent and wasteful spending. Id. at 369. The employee appealed this

United States District Court
For the Northern District of California

10

demotion to the Federal Employee Appeals Authority and subsequently the Civil Service

11

Commission Appeals Review Board before finally bringing an action against his supervisor in

12

district court. Id. at 369-72. Applying the two-step Bivens inquiry, the Supreme Court found that

13

Bush had an extensive administrative process through which to seek redress. The Court reasoned

14

that “[f]ederal civil servants are now protected by an elaborate, comprehensive scheme that

15

encompasses substantive provisions forbidding arbitrary action by supervisors and procedures—

16

administrative and judicial … Constitutional challenges … such as First Amendment claims raised

17

by petitioner are fully cognizable within this system.” Id. at 385-86 (emphasis added). Considering

18

the second prong of the inquiry, the Court found that “Congress was in a far better position than a

19

court” to determine whether an additional avenue of redress should be available for federal

20

employees subject to an adverse personnel action in response to speaking out against the agency.

21

See id. at 388-89.

22

This Court finds no basis to distinguish Ardalan’s claim of retaliation for speaking out

23

against her employer from the plaintiff’s claim in Bush. As described at length in Section III.C.3.a,

24

Ardalan has an extensive administrative system in which she may seek redress for adverse

25

employment actions, including DLI’s act of declining to rehire her. Indeed, the Whistleblower

26

Protection Act of 1989 amended the Civil Service Reform Act of 1978 to provide even greater

27

protections and more extensive administrative remedies for federal employee whistleblowers than

28

18
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

those available at the time of Bush. See Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 682 (Fed. Cir.

2

1992). Without a basis to meaningfully distinguish Ardalan’s First Amendment claim from that

3

asserted in Bush, this Court must follow the explicit instructions of the Supreme Court. Thus, the

4

Court finds that Ardalan’s First Amendment claim of retaliation against Defendants fails for lack of

5

subject matter jurisdiction. Accordingly, the Court GRANTS Defendants’ Motion to Dismiss

6

Ardalan’s First Amendment claim under Rule 12(b)(1) for lack of subject matter jurisdiction. The

7

claim is DISMISSED WITH PREJUDICE as there is nothing Ardalan can do to cure the

8

jurisdictional defect in this claim.

9

Next the Court turns to Ardalan’s Fourteenth Amendment equal protection claim and

United States District Court
For the Northern District of California

10

concludes that it too does not meet the standard for implying a cause of action under Bivens. The

11

Supreme Court has held that Title VII “provides the exclusive judicial remedy for claims of

12

discrimination in federal employment.” Brown v. Gen. Servs. Admin., 425 U.S. 820, 835 (1976). In

13

Davis, the Supreme Court recognized an implied Bivens action where a plaintiff alleged that a

14

congressman declined to hire her on the basis of unlawful gender discrimination. 442 U.S. at 248.

15

However, the Court explicitly noted that when Congress amended “Title VII to protect federal

16

employees from discrimination, it failed to extend this protection to congressional employees such

17

as petitioner.” Id. at 247 (emphasis added). Thus, where the Court extended Bivens actions to

18

employment discrimination claims, it did so where no Title VII administrative remedy was

19

available.

20

Relying on the Supreme Court’s holding in Davis, the Ninth Circuit has explicitly rejected

21

Bivens claims for federal employees’ employment discrimination claims where these employees

22

may pursue their claims under Title VII. See Brazil v. U.S. Dep’t of Navy, 66 F.3d 193, 197 (9th

23

Cir. 1995). In Brazil, a civilian military employee alleged that the U.S. Navy was motivated by

24

racial animus when it revoked his security clearance enabling him to work on a nuclear capable

25

ship. Id. at 197. The Court rejected Brazil’s Fifth Amendment claim, noting that Bivens actions are

26

“unavailable where the claim involves employment discrimination and the plaintiff is a civilian

27
28

19
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

employee of the military.” Id.; accord Kotarski, 866 F.2d at 311 (finding no Bivens action available

2

for employee’s discrimination claim where Title VII redress was available).

3

In light of the liberal pleading standard afforded to pro se plaintiffs, the Court construes
Ardalan’s Fourteenth Amendment equal protection claim as a Fifth Amendment equal protection

5

claim because the defendants in this case are federal actors, not state actors. Nonetheless, Ardalan’s

6

constitutional claim arising out of an employment discrimination claim still fails. Like Brazil,

7

Ardalan is a civilian military employee alleging that discriminatory animus motivated her

8

superiors’ adverse employment actions. See ECF No. 1 ¶¶ 14-16. As described in Section III.C.3.a

9

and Section III.D, both Title VII’s EEOC administrative procedures and the Whistleblower Act’s

10
United States District Court
For the Northern District of California

4

administrative procedures are available to hear Ardalan’s claims of discrimination and retaliation.

11

Because Ardalan has statutory mechanisms to seek redress for her Fifth Amendment claim, the

12

Court finds that Ardalan has no Bivens cause of action for her Fifth Amendment claim. Thus, the

13

Court has no subject matter jurisdiction to hear this claim. See Brazil, 66 F.3d at 197; Kotarski, 866

14

F.2d at 311. Therefore, the Court GRANTS Defendants’ Motions to Dismiss Ardalan’s Fourteenth

15

Amendment claim under Rule 12(b)(1) for lack of subject matter jurisdiction. This claim is also

16

DISMISSED WITH PREJUDICE as there is nothing Ardalan can do to remedy the jurisdictional

17

defect with the claim.

18
19
20
21
22
23
24
25
26
27
28

2.

Sovereign Immunity: Civil Rights Act Claims, 42 U.S.C. §§ 1981, 1983,
1985, and 1986

According to the doctrine of sovereign immunity, “[t]he United States, as sovereign, is
immune from suit save as it consents to be sued.” United States v. Sherwood, 312 U.S. 584, 586
(1941). Thus, “[a] court lacks subject matter jurisdiction over a claim against the United States if it
has not consented to be sued on that claim.” Consejo de Desarrollo Economico de Mexicali, A.C. v.
United States, 482 F.3d 1157, 1173 (9th Cir. 2007). This immunity extends to executive and
legislative branch officials, including Members of Congress, acting in their official capacities. See,
e.g., Gerritsen v. Consulado Gen. De Mexico, 989 F.2d 340, 343 (9th Cir. 1993) (dismissing a pro
se plaintiff’s § 1983 and § 1985 claims against the FBI because “the FBI is a federal agency and ...
20
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

Congress has not revoked its immunity” (emphasis added)); Keener v. Congress, 467 F.2d 952, 953

2

(5th Cir. 1972) (per curiam) (holding that sovereign immunity applies to the legislative branch);

3

see also Cooper v. United States, No. 13-CV-0487, 2013 WL 3991994, at *2 (E.D. Cal. Aug. 2,

4

2013) (sovereign immunity applies to Congress when sued as a branch of government). Though

5

sovereign immunity is only waived where consent to suit is “unequivocally expressed,” Lehman v.

6

Nakshian, 453 U.S. 156, 160 (1981), “once Congress has waived sovereign immunity over certain

7

subject matter, the Court should be careful not to assume the authority to narrow the waiver that

8

Congress intended,” Ardestani v. I.N.S., 502 U.S. 129, 137 (1991) (internal quotation marks

9

omitted).

United States District Court
For the Northern District of California

10

Ardalan alleges that all three Defendants’ longstanding conspiracy against her included

11

denying her the preferential treatment afforded to DLI instructors of “European and East European

12

national origins,” “refusal to [re]employ Plaintiff as the similarly situated candidates,” and “refusal

13

to correct similar discriminatory acts,” in violation of the Civil Rights Act, 42 U.S.C. §§ 1981,

14

1983, 1985, and 1986.9 See ECF No. 1 ¶¶ 51-59. Farr argues that Ardalan’s Civil Rights Act claims

15

are barred by sovereign immunity. See ECF No. 16 at 7-9. Defendants McHugh and Hadden

16

similarly contend that Ardalan’s Civil Rights Act claims are barred by sovereign immunity. See

17

ECF No. 19 at 12. Ardalan’s Response does not address Defendants’ sovereign immunity

18

arguments. See ECF No. 29. For the reasons discussed below, the Court finds that sovereign

19

immunity bars Ardalan’s Civil Rights Act Claims under 42 U.S.C. §§ 1981, 1983, 1985, and 1986.

20

The Court first addresses Ardalan’s claims under §§ 1983 and 1985. The Ninth Circuit has

21

held that claims brought against federal agencies under the Civil Rights Act, 42 U.S.C. § 1983 and

22

§ 1985, are barred by the doctrine of sovereign immunity. See Jachetta v. United States, 653 F.3d

23

898, 908 (9th Cir. 2011) (finding “no evidence ... that Congress intended to subject federal

24

agencies to § 1983 and § 1985 liability”). Moreover, courts in this district have repeatedly held that

25
26
27
28

9

42 U.S.C. § 1981 protects against discrimination under color of state law. 42 U.S.C. § 1983
provides a private right of action for deprivation of civil rights under color of state law. 42 U.S.C. §
1985 creates a private right of action against an individual who conspires to violate the civil rights
of another. 42 U.S.C. § 1986 creates a private right of action against an individual who negligently
fails to prevent such a violation of the civil rights of another.
21
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

this sovereign immunity bar extends to § 1983 and § 1985 claims against federal employees. See,

2

e.g., Hakim v. United States, No. 13-CV-1895, 2013 WL 5544466, *2-3 (N.D. Cal. Oct. 7, 2013)

3

(dismissing plaintiff’s § 1983 claim against DLI and one of its civilian employees as barred by

4

sovereign immunity); Gottchalk v. City and Cnty. of San Francisco, --- F. Supp. 2d. ---, 2013 WL

5

4103607, at *8, *10 (N.D. Cal. Aug. 12, 2013) (dismissing a pro se plaintiff’s § 1981, § 1983, and

6

§ 1985 claims against various federal defendants, including several EEOC officials, on the basis

7

that these claims were barred by sovereign immunity under Ninth Circuit law).

8
9

With respect to Ardalan’s § 1981 claim, Judge Chen recently explained in Gottchalk that
the Ninth Circuit has not specifically addressed whether § 1981 claims are also barred by sovereign

United States District Court
For the Northern District of California

10

immunity. Gottchalk, 2013 WL 4103607, at *10. However, the Fifth Circuit, Seventh Circuit, and

11

Eleventh Circuit have explicitly found that § 1981 claims are barred by sovereign immunity. See

12

Davis v. U.S. Dep’t of Justice, 204 F.3d 723, 725-26 (7th Cir. 2000) (finding sovereign immunity

13

barred plaintiff’s § 1981 claim against federal employees acting in their official capacities);

14

Affiliated Prof’l Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999) (finding that

15

sovereign immunity barred plaintiff’s § 1981 claim against the Secretary of Health and Human

16

Services in her official capacity); United States v. Timmons, 672 F.2d 1373, 1380 (11th Cir. 1982)

17

(holding sovereign immunity barred plaintiff’s § 1981 claim). In Gottchalk, Judge Chen asserted

18

that the Ninth Circuit would likely follow its sister Circuits in finding that sovereign immunity bars

19

§ 1981 claims against federal actors in their official capacities. See Gottchalk, 2013 WL 4103607,

20

at *10.

21

This Court finds that Judge Chen’s analysis was thoughtful and meticulous and finds no

22

reason to diverge from it here. As Judge Chen explained, in Morse v. N. Coast Opportunities, Inc.,

23

118 F.3d 1338 (9th Cir. 1997), the Ninth Circuit dismissed a § 1983 claim against federal actors on

24

the basis of sovereign immunity by reasoning that the claim arose under color of federal and not

25

state law. See 118 F.3d at 1343. The plain language of § 1981, like that of § 1983, states that the

26

statute applies to actions taken under color of state law. See 42 U.S.C. § 1981 (“impairment under

27

color of State law”) (emphasis added), § 1983 (“under color of any statute, ordinance, regulation,

28

22
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

custom, or usage, of any State or Territory or the District of Columbia”) (emphasis added). Accord

2

Gottchalk, 2013 WL 4103607, at *10. Thus, the Ninth Circuit is likely to reach a similar holding

3

on sovereign immunity in the context of a § 1981 claim brought against federal employees. As

4

such, the Court holds that Ardalan’s § 1981 claim is barred by the doctrine of sovereign immunity.

5

Similarly, the Ninth Circuit has not yet addressed whether § 1986 claims are barred by

6

sovereign immunity. However, both the Fifth and Seventh Circuits have held that sovereign

7

immunity bars § 1986 claims against federal agencies and employees acting in their official

8

capacities. See Davis v. U.S. Dep’t of Justice, 204 F.3d at 726-27 (finding sovereign immunity

9

barred plaintiff’s § 1986 claim against a federal employee acting in an official capacity); Shalala,

United States District Court
For the Northern District of California

10

164 F.3d at 286 (same). The Court finds that the Ninth Circuit would likely follow its sister

11

Circuits’ holdings that sovereign immunity bars § 1986 claims, as explained below.

12
13
14
15
16
17
18
19
20

Section 1985 identifies various prohibited conspiracies to commit civil rights violations and
states:
in any case of conspiracy set forth in this section, if one or more persons engaged therein
do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby
another is injured in his person or property, or deprived of having and exercising any right
or privilege of a citizen of the United States, the party so injured or deprived may have an
action for the recovery of damages
42 U.S.C. § 1985. Similarly, § 1986 states:
Every person who, having knowledge that any of the wrongs conspired to be done, and
mentioned in section 1985 of this title, are about to be committed, and having power to
prevent or aid in preventing the commission of the same, neglects or refuses so to do, if
such wrongful act be committed, shall be liable to the party injured ...

21

42 U.S.C. § 1986 (emphasis added). It is clear that both sections provide a private right of action

22

for conduct that enables or permits certain civil rights violations to occur—the difference is that

23

§ 1985 protects against conspiracy to commit those violations and § 1986 protects against

24

negligently failing to prevent those violations. Compare 42 U.S.C. § 1985 with 42 U.S.C. § 1986.

25

In Jachetta, the Ninth Circuit found “no evidence ... that Congress intended to subject federal

26

agencies to ... § 1985 liability.” 653 F.3d at 908. This Court finds no plausible reason why

27

Congress would subject federal actors to liability under § 1986 for negligently permitting certain

28

23
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

violations to occur when Congress did not intend to create liability under § 1985 for federal actors

2

that conspired to commit those same violations.

3

In reaching this holding, the Court recognizes that the Ninth Circuit’s holding in Jachetta
was limited to claims against federal agencies. See id. However, courts in this district have applied

5

Jachetta to find that sovereign immunity bars § 1985 claims against federal employees as well. See,

6

e.g., Gottchalk, 2013 WL 4103607, at *8, *10. Given the similar protections of and the express

7

textual relationship between § 1985 and § 1986, this Court finds that the holding in Jachetta

8

regarding § 1985 claims should be extended to § 1986 claims. This conclusion is reinforced by the

9

Fifth and Seventh Circuits’ explicit findings that sovereign immunity bars § 1986 claims against

10
United States District Court
For the Northern District of California

4

federal employees. See Davis, 204 F.3d at 725; Shalala, 164 F.3d at 286. Accordingly, the Court

11

holds that the doctrine of sovereign immunity bars Ardalan’s § 1986 claim.

12

In sum, the Court finds that Ardalan’s Civil Rights Act claims brought under 42 U.S.C. §§

13

1981, 1983, 1985, and 1986 against all three Defendants in their official capacities are barred by

14

the doctrine of sovereign immunity. These claims are thus dismissed under Rule 12(b)(1) for lack

15

of subject matter jurisdiction. Ardalan’s claims are DISMISSED WITH PREJUDICE as there is

16

nothing Ardalan can do to cure the jurisdictional defects of these claims.

17
18

3.

Failure to Exhaust Administrative Remedies

The Court now addresses Ardalan’s claims which must be dismissed due to a failure to

19

exhaust administrative remedies. Where a plaintiff has failed to exhaust the administrative

20

remedies for her claim, a district court lacks subject matter jurisdiction to hear that claim, and it

21

must be dismissed. See Brady v. United States, 211 F.3d 499, 501-2 (9th Cir. 2000) (affirming

22

dismissal of a Federal Tort Claim Act claim for lack of subject matter jurisdiction where

23

“[p]laintiff had failed to exhaust her administrative remedies by presenting an administrative claim

24

to the appropriate federal agency before filing her complaint in district court.”). “The requirement

25

of an administrative claim is jurisdictional. Because the requirement is jurisdictional, it must be

26

strictly adhered to. This is particularly so [where it] waives sovereign immunity.” Id.

27
28

a. Whistleblower Protection Act and Civil Service Reform Act Claim, 5
U.S.C. 2302 et seq.
24
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

The Court now addresses Ardalan’s Whistleblower claim. Ardalan alleges that Defendants

2

retaliated against her for disclosing deficiencies in DLI’s curriculum in violation of the Civil

3

Service Reform Act of 1978, as amended by the Whistleblower Protection Act of 1989, 5 U.S.C. §

4

2302 et seq. See ECF No. 1 ¶ 26. Defendant Farr moves to dismiss Ardalan’s entire Complaint,

5

including her Whistleblower claim, under Rule 12(b)(1) for lack of subject matter jurisdiction on

6

the basis that Ardalan has failed to exhaust her administrative remedies. See ECF No. 16 at 7-9.

7

Defendants McHugh and Hadden move to dismiss Ardalan’s Whistleblower claim on the same

8

basis. See ECF No. 19 at 11-12. In her Response, Ardalan does not address Defendants’ arguments

9

for dismissing her Whistleblower claim. For the reasons described below, the Court finds that

United States District Court
For the Northern District of California

10

Ardalan has failed to exhaust the administrative remedies available for her Whistleblower claim,

11

but dismisses with leave to amend.

12

The Civil Service Reform Act of 1978, as amended by the Whistleblower Protection Act of

13

1989, establishes certain protections for federal employee whistleblowers. Spruill v. Merit Sys.

14

Prot. Bd., 978 F.2d 679, 682 (Fed. Cir. 1992). As amended, 5 U.S.C. § 2302 provides, in relevant

15

part:

16
17
18
19

Any employee who has authority to take, direct others to take, recommend, or approve any
personnel action, shall not, with respect to such authority ... take or fail to take, or threaten
to take or fail to take, a personnel action with respect to any employee or applicant for
employment because of ... any disclosure of information by an employee or applicant which
the employee or applicant reasonably believes evidences ... gross mismanagement, a gross
waste of funds, [or] an abuse of authority ...

20

5 U.S.C. § 2302(b)(8) (emphasis added). In other words, “Section 2302(b)(8) describes certain

21

activities which have come to be known as ‘whistleblowing,’ and prohibits adverse personnel

22

actions against federal government employees in reprisal for such activities.” Spruill, 978 F.2d at

23

681. The retaliatory personnel actions prohibited above include “reinstatement,” “restoration,” and

24

“reemployment,” among others. See 5 U.S.C. § 2302 (a)(2)(A) (emphasis added). “[A]n employee,

25

former employee, or applicant for employment,” who believes that she was subjected to one of

26

these prohibited personnel actions may “seek corrective action from the [Office of] Special

27

Counsel.” See 5 U.S.C. § 1214(a)(3) (emphasis added). If she is unsatisfied with the Special

28

25
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

Counsel’s decision, she may then file a complaint with the Merit Systems Protection Board

2

(“MSPB”). See 5 U.S.C. § 1221(a). Finally, if that MSPB administrative complaint is unsuccessful,

3

the employee or applicant “may obtain judicial review of the [MSPB’s] order or decision.” See 5

4

U.S.C. § 1221(h)(1), (h)(2). Subject to one exception discussed at the end of this Section, the

5

United States Court of Appeals for the Federal Circuit, and not the district court, has sole

6

jurisdiction to review such MSPB decisions regarding Whistleblower claims for retaliation in

7

violation of 5 U.S.C. § 2302(b)(8). See 5 U.S.C. § 7703(b)(1)(A); see Weber v. United States, 209

8

F.3d 756, 758 (D.C. Cir. 2000) (“the MSPB’s decision is appealable to the Federal Circuit”).

9

Where a plaintiff has failed to exhaust her administrative remedies under the Office of Special

10
United States District Court
For the Northern District of California

1

Counsel and MSPB, the Federal Circuit lacks subject matter jurisdiction to hear the claim. See

11

Brady, 211 F.3d at 502; see also Weber, 209 F.3d at 758 (“An employee who believes he has been

12

the victim of a prohibited personnel practice must first complain to the [Office of Special

13

Counsel].”)

14

In her Whistleblower claim, Ardalan alleges that “Defendants have intended to inhibit her

15

1st Amendment activity and her Constitutional rights” by retaliating against her “since 1992 to

16

present” for her “whistle-blowing reports to the government officials about the DLI civilian

17

management.” See ECF No. 1 ¶ 26. This retaliation includes, according to Ardalan, “denying

18

employment not only at DLI but by other employers.” See id. Additionally, Ardalan incorporates

19

into her Whistleblower claim by reference allegations that Defendants McHugh, Hadden and Farr

20

violated her First Amendment and Fourteenth Amendment rights. See id. (“Plaintiff incorporates

21

by references [sic]... paras 17-25”). However, nowhere in her Complaint or in her Response does

22

Ardalan allege that she sought corrective action for the alleged retaliatory conspiracy “since 1992

23

to present” through the administrative channels of the Office of Special Counsel or to the MSPB.

24

See ECF Nos. 1, 29. But even if Ardalan had exhausted these administrative remedies, this Court

25

still would have no jurisdiction to hear Ardalan’s retaliation claim. The plain language of U.S.C. §

26

7703 states that jurisdiction to review the MSPB’s findings in retaliation claims brought under the

27

Whistleblower Protection Act rests solely with the Federal Circuit, not the district courts, as stated

28

26
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

above. See 5 U.S.C. §7703(b)(1)(A); Weber v. United States, 209 F.3d at 758; Tolliver v. Deniro,

2

790 F.2d 1394, 1395 (9th Cir. 1986). Accordingly, the Court GRANTS Defendants’ Motions to

3

Dismiss Ardalan’s Whistleblower claim under Rule 12(b)(1) for lack of subject matter jurisdiction.

4

Despite this jurisdictional defect, the Court dismisses this claim with leave to amend for the

5

reasons set forth below.

6

As noted earlier in this Section, there is one exception to the requirement that the Federal

7

Circuit, and not the district court, has jurisdiction to review MSPB decisions in Whistleblower

8

Protection Act claims. A federal employee alleging that she has been the subject of an adverse

9

personnel action motivated by retaliation and discrimination is alleging what is called a “mixed

United States District Court
For the Northern District of California

10

case,” and thereby has an alternate set of administrative remedies available to her, and those

11

remedies are reviewable by district courts. Specifically, an “employee or applicant for

12

employment” has what is called a “mixed case” in this administrative regime when she “has been

13

affected by an action which the employee or applicant may appeal to the [MSPB], and [2] alleges

14

that a basis for the action was discrimination prohibited by section 717 of the Civil Rights Act of

15

1964 (42 U.S.C. § 2000e-16).” See 5 U.S.C. § 7702(a)(1)(A), (a)(1)(B); see also 29 C.F.R. §

16

1614.302 (“A mixed case complaint is a complaint of employment discrimination filed with a

17

federal agency based on race, color, religion, sex, national origin, age, disability, or genetic

18

information related to or stemming from an action that can be appealed to the [MSPB].”); Romain

19

v. Shear, 799 F.2d 1416, 1419 (9th Cir. 1986) (describing a mixed case as containing both an

20

allegation of “an adverse action normally appealable to the MSPB and an allegation that a basis for

21

the action was discrimination.”).

22

A federal employee asserting a “mixed case” claim may bypass the Office of Special

23

Counsel and MSPB administrative process described above and instead file an administrative

24

complaint directly with the EEOC. Once the EEOC renders a final decision, the employee may,

25

within 30 days, appeal that decision to the MSPB or the employee may bypass the MSPB altogether

26

and appeal the EEOC decision directly to a district court. See 5 U.S.C. § 7702(a); 29 C.F.R. §§

27

1614.302(d)(1)(ii), 1614.302(d)(3), 1614.310(a). As the Ninth Circuit has noted when distilling this

28

27
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

labyrinth of federal regulations, “[w]hile only the Court of Appeals for the Federal Circuit can

2

review MSPB decisions in cases that do not entail discrimination claims, if a case is a mixed one,

3

judicial review must be sought in district court . . .” Washington v. Garrett, 10 F.3d 1421, 1428

4

(9th Cir. 1993).10

5

Critically here, if Ardalan has pleaded a “mixed case,” this Court would have jurisdiction to

6

review her claim because there is one EEOC decision which Ardalan has timely appealed to this

7

court within the 30-day window to appeal an EEOC final decision in a “mixed case.” Notably,

8

Ardalan’s most recent EEOC proceeding, identified as proceeding 8, infra Section III.D.1, received

9

an EEOC final determination on February 28, 2013. See ECF No. 32 at 7. Ardalan filed her

United States District Court
For the Northern District of California

10

Complaint with this Court on March 13, 2013, see ECF No. 1, well within the 30-day window to

11

appeal an EEOC final decision in a mixed case, see 29 C.F.R. §§ 1614.302(d)(1)(ii),

12

1614.302(d)(3), 1614.310(a).

13

However, the Court cannot conclude that Ardalan’s Whistleblower claim is asserted as a

14

“mixed case” claim rather than a pure retaliation claim. This is because Ardalan does not explicitly

15

allege discrimination as a basis for her adverse personnel action (DLI’s act of declining to rehire

16

her). See ECF No. 1 ¶ 26. Ardalan does not incorporate any allegations of a discriminatorily

17

motivated decision not to rehire her, nor does she make any reference to the EEOC decisions that

18

would underlie a “mixed case” claim. Compare id., with id. ¶¶ 14-16. Rather, Ardalan simply

19

pleads in her Whistleblowing claim that Defendants’ retaliation was a direct response to her 1992

20
10

21
22
23
24
25
26
27
28

As one circuit court has described, “[t]he MSPB and EEOC regulations that structure the
prosecution of mixed cases are extremely complicated.” Butler v. West, 164 F.3d 624, 638 (D.C.
Cir. 1999). “An employee who intends to pursue a mixed case has several paths available to her. At
the outset, the aggrieved party can choose between filing a “mixed case complaint” with her
agency’s EEO[C] office and filing a “mixed case appeal” directly with the MSPB. See 29 C.F.R. §
1614.302(b). The Butler court observed that “[b]y statute, the relevant agency EEO[C] office and
the MSPB can and must address both the discrimination claim and the appealable personnel action.
See 5 U.S.C. § 7702(a). Should she elect the agency EEO[C] route, within thirty days of a final
decision she can file an appeal with the MSPB or a civil discrimination action in federal district
court. See 29 C.F.R. §§ 1614.302(d)(1)(ii), 1614.302(d)(3), 1614.310(a). If 120 days pass without a
final decision from the agency’s EEO[C] office, the same avenues of appeal again become
available: the complainant can file either a mixed case appeal with the MSPB or a civil action in
district court. See 5 U.S.C. §§ 7702(e)(1)(A), 7702(e)(2); 29 C.F.R. §§ 1614.302(d)(1)(i),
1614.310(g); 5 C.F.R. § 1201.154(b)(2).” Id. (emphasis added).
28

Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

whistleblowing regarding the quality of the DLI curriculum. See id. ¶¶ 26, 76-79. Despite this,

2

because the Court must give pro se plaintiffs the benefit of every doubt, the Court dismisses

3

Ardalan’s Whistleblowing claim with leave to amend. This is because the Whistleblowing section

4

of her complaint does at least incorporate by reference her 14th Amendment claim. See id. ¶ 26.

5

The Court takes this path in order not to foreclose Ardalan’s ability to appeal this EEOC decision

6

by filing a “mixed case” Whistleblower claim. However, should Ardalan choose to amend this

7

claim, the Court urges her to restyle it as a “mixed case” claim and allege specifically how the

8

basis of DLI’s retaliation against her was discrimination.

9

b. Privacy Act Claim, 5 U.S.C. § 552 et seq.

United States District Court
For the Northern District of California

10

The Court now considers Ardalan’s Privacy Act claim. Ardalan alleges that all three

11

Defendants violated the Privacy Act, 5 U.S.C. § 552, when EEOC staff members repeatedly

12

“inserted her [Social Security number] on signed [EEOC complaint] documents in view of

13

Plaintiff’s continual and adamant objections,” with one manager saying to Ardalan “I place your

14

Social Security Number, and you run after your rights – See who will listen to you.” ECF No. 1 ¶

15

68. Farr moves to dismiss Plaintiff’s entire Complaint, including her Privacy Act claim, under Rule

16

12(b)(1) on the basis that Ardalan has not exhausted her administrative remedies. See ECF No. 16

17

at 9. McHugh and Hadden move to dismiss her Privacy Act claim on the basis that she does not

18

explain how they violated the Privacy Act. See ECF No. 19 at 14. As explained below, the Court

19

dismisses Ardalan’s Privacy Act claim as to all Defendants because Ardalan has failed to exhaust

20

her administrative remedies, and thus, the Court lacks subject matter jurisdiction to hear this claim.

21

The Privacy Act of 1974, 5 U.S.C. §552 et seq, requires, among other things, that federal

22

agencies “‘maintain all records which are used by the agency in making any determination about

23

any individual with such accuracy, relevance, timeliness, and completeness as is reasonably

24

necessary to assure fairness to the individual in the determination.’” Rouse v. U.S. Dep’t of State,

25

567 F.3d 408, 414 (9th Cir. 2009) (quoting 5 U.S.C. § 552a(e)(5)). The Privacy Act further

26

requires that each agency establish an administrative process through which individuals may

27

review such records and petition to have inaccurate records amended. See 5 U.S.C. § 552a(f)(4).

28

29
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

The plain language of the Privacy Act states that federal courts only have jurisdiction to hear

2

Privacy Act accuracy claims once a plaintiff has exhausted these administrative remedies. 5 U.S.C.

3

§ 552(a)(g)(1).11 However, once these administrative remedies are exhausted, an individual may

4

file a claim seeking amendment of the inaccurate records and damages. See Hewitt v. Grabicki, 794

5

F.2d 1373, 1377 (9th Cir. 1986) (citing § 552a(g)(1)(A), (g)(1)(C), (g)(2)(A) & (B), (g)(4)(A) &

6

(B)).
Ardalan does not allege or provide any indication that she has exhausted any Privacy Act

7
8

administrative processes to review and amend these EEOC records. See ECF No. 1 ¶¶ 67-68.

9

Indeed, Ardalan states only that Defendants violated her “constitutional rights” and, therefore, the

United States District Court
For the Northern District of California

10

Privacy Act, when EEOC staff added her Social Security number to each of her formal EEOC

11

complaints against her verbal protests. Id. Therefore, the Court finds that Ardalan has failed to

12

exhaust her administrative remedies for her Privacy Act claim. The Court GRANTS Defendant

13

Farr’s Motion to Dismiss Ardalan’s Privacy Act claim under Rule 12(b)(1) for lack of subject

14

matter jurisdiction and sua sponte dismisses Ardalan’s Privacy Act claim against Hadden and

15

McHugh under Rule 12(h)(3) for lack of subject matter jurisdiction. This claim is dismissed with

16

leave to amend as against all Defendants so that Ardalan may allege that she did exhaust

17

administrative remedies. Leave to amend is granted because none of the conditions noted in

18

Leadsinger have been met here.
c. “Common Law Tort” Claim

19
20
11

21
22
23
24
25
26
27
28

5 U.S.C. § 552(a)(g)(1) states:
Whenever any agency (A) makes a determination under subsection (d)(3) of this section not
to amend an individual’s record in accordance with his request, or fails to make such review
in conformity with that subsection; (B) refuses to comply with an individual request under
subsection (d)(1) of this section; (C) fails to maintain any record concerning any individual
with such accuracy, relevance, timeliness, and completeness as is necessary to assure
fairness in any determination relating to the qualifications, character, rights, or
opportunities of, or benefits to the individual that may be made on the basis of such record,
and consequently a determination is made which is adverse to the individual; or (D) fails to
comply with any other provision of this section, or any rule promulgated thereunder, in
such a way as to have an adverse effect on an individual, the individual may bring a civil
action against the agency, and the district courts of the United States shall have jurisdiction
in the matters under the provisions of this subsection.
30

Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

One cause of action in Ardalan’s compliant is labeled “Punitive Damages” and contains a
discussion that the Court previously construed as a prayer for punitive damages, supra Section I.B.

3

See ECF No. 1 ¶ 73. However, within that cause of action, Ardalan alleges “the continuation of the

4

violation of the common law tort against Defendants.” Id. In regard for the liberal pleading

5

standard afforded to pro se plaintiffs, the Court construes this allegation as a claim under the

6

Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680, “the exclusive waiver of

7

sovereign immunity for suits against the United States sounding in tort.” Gottschalk, 2013 WL

8

4103607, at *9. Defendant Farr moves to dismiss Ardalan’s Complaint, and thus this tort claim, on

9

the basis that Ardalan “fail[ed] to exhaust her administrative remedies under the FTCA.” See ECF

10
United States District Court
For the Northern District of California

2

No. 16 at 9. Though McHugh and Hadden do not address this tort allegation or the FTCA in their

11

Motion to Dismiss, they move to dismiss all claims, except the Title VII claim, on the basis that

12

Title VII “is the exclusive remedy for claims of discrimination based on ... national origin.” See

13

ECF No. 19 at 8. Ardalan does not address her tort claim or Farr’s FTCA argument in her

14

Response. See ECF No. 29.

15

“The Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680, waives the sovereign

16

immunity of the United States for actions in tort.” Jerves v. United States, 966 F.2d 517, 518 (9th

17

Cir. 1992). It “bars claimants from bringing suit in federal court until they have exhausted their

18

administrative remedies” set forth in the FTCA. McNeil v. United States, 508 U.S. 106, 113 (1993);

19

accord Jerves, 966 F.2d at 520. Here, Ardalan’s Complaint provides neither an allegation nor a

20

plain language description of in what tortious conduct Defendants allegedly engaged. See ECF No.

21

1 ¶ 73 (simply alleging “the continuation of the violation of the common law tort against

22

Defendants.”). The Complaint also lacks any indication that Ardalan pursued, let alone exhausted,

23

administrative remedies for Defendants’ conduct. Accordingly, the Court finds that Ardalan has

24

failed to exhaust the administrative remedies for her FTCA claim. The Court therefore GRANTS

25

Farr’s Motion to Dismiss Ardalan’s tort claim under Rule 12(b)(1) and sua sponte dismisses

26

Ardalan’s tort claim against Defendants McHugh and Hadden under Rule 12(h)(3) for lack of

27

subject matter jurisdiction. This claim is dismissed with leave to amend as against all Defendants

28

31
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

so that Ardalan can have one last chance to allege that she did exhaust administrative remedies.

2

This claim is dismissed with leave to amend because none of the conditions noted in Leadsinger

3

have been met here.

4

4.

5

The Court now addresses Ardalan’s claims which must be dismissed for lack of Article III

6
7
8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16

standing. Ardalan asserts that all three Defendants have violated criminal statutes 18 U.S.C. §§
242, 245, 1505, 1506, 1512, 1622, see ECF No. 1 ¶¶ 27-28, and that the actions of Defendants
Hadden and Farr “require[] criminal investigation,” id. ¶ 12. Defendant Farr moves to dismiss all
criminal allegations against him on the basis that private citizens lack Article III standing to bring
claims under criminal statutes. See ECF No. 16 at 6-7. Defendants McHugh and Hadden move to
dismiss Ardalan’s claims for violation of 18 U.S.C. §§ 1505 and 1506 on identical Article III
standing grounds. See ECF No. 19 at 13. In her Response, Ardalan does not address this standing
argument but instead merely reiterates her criminal allegations against Defendants. See ECF No. 29
at 22-24. The Court agrees with Defendants that, as a private citizen, Ardalan lacks Article III
standing to bring claims under these criminal statutes.
To have Article III standing, a plaintiff must plead and prove that she has suffered sufficient

17
18
19
20
21
22
23
24
25
26
27
28

Article III Standing: Criminal Claims, 18 U.S.C. §§ 242, 245, 1505,
1506, 1512, 162212

injury to satisfy the “case or controversy” requirement of Article III of the United States
Constitution. See Clapper v. Amnesty Int'l, ––– U.S. ––––, 133 S.Ct. 1138, 1146 (2013) (“‘One
element of the case-or-controversy requirement’ is that plaintiffs ‘must establish that they have
standing to sue.’” (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997))). “The party invoking federal
jurisdiction bears the burden of establishing these elements.” Lujan v. Defenders of Wildlife, 504
12

Ardalan also states claims for “Obstruction of Proceedings” under 42 U.S.C. § 1505 and for
“Theft or Alteration of Record Documents” under 42 U.S.C. § 1506. See ECF No. 1 ¶¶ 60-66
(emphasis added). As 42 U.S.C. §§ 1505 and 1506 regard housing of persons engaged in national
defense, the Court finds that these claims are mis-numbered and should instead be read as additions
to or restatements of Ardalan’s claims brought under 18 U.S.C. § 1505 (obstruction of
proceedings) and 18 U.S.C. § 1506 (theft of alteration of records), respectively. Compare ECF No.
1 ¶¶ 27-50 (emphasis added), with ¶¶ 60-66. In light of the liberal pleading standard afforded to pro
se plaintiffs, the Court incorporates the facts pled under the headings 42 U.S.C. § 1505 and 42
U.S.C. § 1506, id. ¶¶ 60-66, into Ardalan’s Title 18 criminal claims.
32
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

U.S. 555, 561 (1992). If the plaintiff lacks standing under Article III of the U.S. Constitution, then

2

the court lacks subject matter jurisdiction, and the case must be dismissed. See Steel Co., 523 U.S.

3

at 101–02.

4

Title 18 of the United States Code provides criminal liability for, among other things,
deprivation of rights (§ 242); violation of certain federally protected activities (§ 245); obstruction

6

of proceedings before federal departments, agencies, and committees (§ 1505); theft or alteration of

7

records or process (§1506); witness tampering (§ 1512); and subordination of perjury (§ 1622). The

8

Supreme Court has held that “in American jurisprudence ... a private citizen lacks a judicially

9

cognizable interest in the prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410

10
United States District Court
For the Northern District of California

5

U.S. 614, 619 (1973). In other words, a private litigant “lacks standing to compel an investigation

11

or prosecution of another person.” Tia v. Criminal Investigation Demanded as Set Forth, 441 Fed.

12

App’x 457, 458 (9th Cir. 2011) (emphasis added); see also Hamilton v. Reed, 29 Fed. App’x 202,

13

204 (6th Cir. 2002) (finding no private right of action conveyed by 18 U.S.C. §§ 1505 and 1506);

14

Shahin v. Darling, 606 F. Supp. 2d 525, 538-39 (D. Del. 2009) aff’d, 350 Fed. App’x 605 (3d Cir.

15

2009) (dismissing pro se plaintiff’s claims for violation of 18 U.S.C. §§ 242, 1506, and 1512 on the

16

basis that these criminal statutes do not convey a private right of action); John’s Insulation, Inc. v.

17

Siska Const. Co., 774 F. Supp. 156, 163 (S.D.N.Y. 1991) (finding no private right of action

18

conveyed by 18 U.S.C. § 245); see also Ou-Young v. Vasquez, No. 12-CV-2789, 2012 WL

19

5471164, at *5 (N.D. Cal. Nov. 9, 2012) (dismissing Plaintiff’s claim under Rule 12(b)(6) because

20

“this Court has found no authority to support Plaintiff's claim that a private right of action exists

21

under [18 U.S.C. §1512(b), (c)].”).

22

The Court finds that, under these Supreme Court and Ninth Circuit precedents, Ardalan, a

23

private citizen, lacks Article III standing to bring claims under these criminal statutes. Thus, the

24

Court GRANTS Farr’s Motions to Dismiss all of Ardalan’s criminal claims on the basis of Rule

25

12(b)(1). The Court also GRANTS McHugh and Hadden’s Motion to Dismiss Ardalan’s claims for

26

violation of 18 U.S.C. §§ 1505 and 1506 under Rule 12(b)(1), and sua sponte dismisses the rest of

27

Ardalan’s criminal claims against McHugh and Hadden on the basis of Rule 12(h)(3) for lack of

28

33
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

subject matter jurisdiction. As there is no way for Ardalan to cure the jurisdictional defects in these

2

criminal claims, these claims are DISMISSED WITH PREJUDICE.

3
4

For the foregoing reasons explained above, the Court finds that subject matter jurisdiction is
lacking for Plaintiffs’ second, third, fourth, fifth, sixth, seventh, eighth, and ninth claims.

5

D.

Title VII Claim, 42 U.S.C. §2000e et seq.

6

Ardalan alleges that Defendants Farr, McHugh, and Hadden violated Title VII, 42 U.S.C. §

7

2000e-16, on the basis that DLI declined to rehire her for “almost 90 vacancies” since October 2,

8

2001. See ECF No. 1 ¶ 14-15. Defendant Farr moves to dismiss Ardalan’s Complaint, including the

9

Title VII claim, on the bases that the Complaint lacks subject matter jurisdiction, is time-barred,

United States District Court
For the Northern District of California

10

and fails to state a claim upon which relief can be granted. See ECF No. 16 at i. Defendants

11

McHugh and Hadden move to dismiss Ardalan’s Title VII claim on the bases that Defendant

12

McHugh is the only proper defendant for this claim and Ardalan’s claim fails to state a claim under

13

Rule 12(b)(6). See ECF No. 19 at 8-9. In their Reply, McHugh and Hadden assert that Ardalan’s

14

claims concerning DLI’s denial of rehire prior to 2009 are time-barred and thus the Court lacks

15

subject matter jurisdiction to hear them and that Ardalan cannot allege a prima facie case of

16

discrimination for her timely claims. See ECF No. 32 at 4-9. As discussed below, the Court finds

17

that Plaintiff is time barred from bringing a Title VII claim on six of the eight EEOC proceedings

18

she has initiated since October 2, 2001. Defendant McHugh is the only proper subject of Ardalan’s

19

two surviving Title VII claims. As for the two surviving Title VII claims, Ardalan has not stated a

20

claim for relief against McHugh that is plausible on its face. Thus, the Court GRANTS

21

Defendants’ Motions to Dismiss Ardalan’s Title VII claim under Rules 12(b)(1) and 12(h)(3) for

22

lack of subject matter jurisdiction with respect to Farr and Hadden, and Rule 12(b)(6) for failure to

23

state a claim with respect to McHugh. The claim is DISMISSED WITH PREJUDICE as to Farr

24

and Hadden, as there is nothing Ardalan can do to cure the jurisdictional deficiency of her claim

25

against these Defendants. The claim is dismissed with leave to amend as to McHugh.

26
27
28

1.

Plaintiff’s Title VII claims based on her first six EEOC proceedings
are time barred
34

Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

Title VII of the Civil Rights Act of 1964, as amended, makes it unlawful for a federal
government employer to discriminate against an employee or applicant on the basis of race, color,

3

religion, sex, or national origin. See 42 U.S.C. § 2000e et seq. An individual alleging that her

4

employer violated Title VII may petition the EEOC for review of that personnel action, see id.; 29

5

C.F.R. § 1600 et seq., and may file a Title VII claim in district court “within 90 days of receipt of

6

the [EEOC’s] final decision on an appeal,” among other criteria, see 29 C.F.R. § 1614.407.13

7

However, if the employee does not exhaust her administrative remedies through the EEOC and/or

8

files her complaint after the 90-day limit has run, the District Court lacks subject matter jurisdiction

9

to hear the Title VII claim, and the claim should be dismissed. See Baldwin Cnty. Welcome Ctr. v.

10
United States District Court
For the Northern District of California

2

Brown, 466 U.S. 147, 152 (1984) (holding that district courts should “strictly adhere[]” to this 90-

11

day limitation).

12

Since October 2, 2001,14 Ardalan has filed eight administrative complaints with the EEOC

13

alleging that DLI engaged in employment practices prohibited by Title VII when DLI declined to

14

rehire her for various language instruction positions. See ECF No. 34 ¶¶ 1-2, Attachments 1-5; see

15

also ECF No. 32 at 5-6. Each of Ardalan’s eight EEOC complaints received a final EEOC agency

16

decision, making it eligible to serve as the basis of a district court Title VII complaint and initiating

17

the 90-day window for filing such a complaint. The dates Ardalan filed each of her eight EEOC

18

complaints and the dates of the final EEOC agency decision on each complaint are as follows: (1)

19

complaint filed November 8, 2002, reconsideration of finding of no discrimination denied

20

November 29, 2004; (2) complaint filed November 30, 2004, reconsideration of finding of no

21

discrimination denied May 29, 2008; (3) complaint filed April 19, 2005, reconsideration of no

22

finding of discrimination denied May 29, 2008; (4) complaint filed July 7, 2006, reconsideration of

23

finding of no discrimination denied April 2, 2008; (5) complaint filed September 11, 2007, EEOC

24

Administrative Judge finding of no discrimination implemented July 25, 2008; (6) complaint filed

25
26
27
28

13

In the Ninth Circuit, a plaintiff’s 90-day window to file a Title VII complaint in district court is
presumed to begin running three days after the agency decision is issued. See Payan v. Aramark,
495 F.3d 1119, 1125-26 (9th Cir. 2007) (“[w]e adopt the three-day presumption”).
14
All claims against Defendants for Title VII violations prior to October 2, 2001 are barred by the
doctrine of res judicata as discussed in Section III.B.
35
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

March 12, 2007, EEOC Administrative Judge finding of no discrimination implemented July 25,

2

2008; (7) complaint filed November 23, 2009, reconsideration of finding of no discrimination

3

denied December 13, 2012; and (8) complaint filed September 9, 2011, reconsideration of finding

4

of no discrimination denied February 28, 2013. See ECF No. 20 ¶¶ 3-7, 12, Exhs. A-E, J; ECF No.

5

34 ¶¶ 2-4, Attachments 1-5; see also ECF No. 32 at 5-7 (listing filing dates, outcomes, and dates of

6

final decisions for all EEOC actions).

7

It is clear that final EEOC determinations 1, 2, 3, 4, 5, and 6 above were rendered well over

8

90 days before Ardalan filed her Title VII claim with this Court on March 13, 2013. See ECF No.

9

1. Accordingly, the Court finds that Ardalan is time-barred from bringing a Title VII claim based

United States District Court
For the Northern District of California

10

on EEOC proceedings 1, 2, 3, 4, 5, and 6 above. Baldwin Cnty. Welcome Ctr., 466 U.S. at 152

11

(requiring strict adherence to this 90-day limitation); Payan, 495 F.3d 1119 (same). However,

12

Ardalan is not time barred from bringing a Title VII claim based on EEOC proceedings 7 and 8

13

because the final EEOC determination in these matters (December 13, 2012 for EEOC proceeding

14

7 and February 28, 2013 for EEOC proceeding 8) occurred within 90 days of Ardalan filing her

15

Complaint with this Court on March 13, 2013. See ECF No. 1. The Court addresses the sufficiency

16

of the Title VII claim based on these two EEOC proceedings below.

17

2.

Proper Defendant for Title VII Claim

18

The plain language of Title VII states that a federal employee unsatisfied by an EEOC

19

decision may within 90 days “file a civil action as provided in section 2000e-5 of this title, in

20

which civil action the head of the department, agency, or unit, as appropriate, shall be the

21

defendant.” 42 U.S.C. § 2000e-16(c) (emphasis added). Numerous courts in this district have thus

22

held that “[w]hen a federal employee alleges employment discrimination, the only proper

23

defendant is the head of the agency which employs them.” Hercules v. Dep’t of Homeland Sec.,

24

No. 07-CV-0270, 2008 WL 1925193, at *21 (N.D. Cal. Apr. 29, 2008) (dismissing all defendants

25

except Homeland Security Secretary) (citing Vinieratos v. United States Dep’t of the Air Force,

26

939 F.2d 762, 772 (9th Cir. 1991)); see also Kunamneni v. Gutierrez, No. 08-CV-5154, 2009 WL

27

909831, at *2 (N.D. Cal. Apr. 2, 2009).

28

36
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

As DLI is a U.S. Army language school, ECF No. 1 ¶ 1, n.1, the proper defendant in

2

Ardalan’s Title VII claim is McHugh as Secretary of the Army. See Smith v. U.S. Army Corps of

3

Engineers, 829 F. Supp. 2d 176, 183 (W.D.N.Y. 2011) (finding the Secretary of the Army to be the

4

only proper defendant of a Title VII claim by a former civilian employee of the Army Corps of

5

Engineers). The Court considers the sufficiency of this claim below.

6

As Congress has not otherwise “unequivocally expressed” its intention to waive sovereign

7

immunity for Defendants Hadden and Farr, see Lehman, 453 U.S. at 160-61, the Court lacks

8

subject matter jurisdiction to hear Ardalan’s Title VII claim against Hadden and Farr. Accordingly,

9

the Court GRANTS Defendants’ Motions to Dismiss Ardalan’s Title VII complaint against Hadden

United States District Court
For the Northern District of California

10

and Farr under Rule 12(b)(1) and 12(h)(3). This claim is DISMISSED WITH PREJUDICE as

11

against these defendants, as there is no way for Ardalan to cure this jurisdictional defect.

12
13

3.

Sufficiency of Title VII Claim

The Court now proceeds to consider the sufficiency of Ardalan’s Title VII claim as stated

14

against McHugh. Although Ardalan’s two most recent EEOC proceedings provide a basis for

15

which she can bring a timely Title VII claim before this Court, McHugh argues that Ardalan’s Title

16

VII claim should be dismissed for failure to state a claim under Rule 12(b)(6). See ECF No. 19 at

17

8-9. The Court agrees.

18

To state a claim of employment discrimination under Title VII, Ardalan must allege that (1)

19

she belongs to a protected class, (2) she was qualified for the job, (3) she was subject to an adverse

20

employment action, and (4) similarly-situated individuals outside her protected class were treated

21

more favorably. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also

22

Luckey v. Visalia Unified Sch. Dist., No. 1:13–cv–00332–AWI–SAB, 2013 WL 3166331 at *3 n.1

23

(E.D. Cal. 2013) (holding that plaintiff’s Title VII claim failed to state a claim because “[p]laintiff

24

alleged no facts that he suffered discriminatory treatment based on race, color, national origin, sex

25

or age.”) (emphasis added).

26

Ardalan fails to state a claim for employment discrimination because she does not allege

27

anywhere in her complaint that DLI declined to rehire her because of her national origin or as a

28

37
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

result of any other discriminatory motives beyond the bare legal conclusion that “she has been

2

treated disparately by the Defendants and their agents, who have denied her equal protection under

3

the law.” See ECF No. 1 ¶¶ 14-16. Ardalan’s only other allegation of disparate treatment, which

4

happens not to be alleged in her Complaint’s Title VII section, is that both she and another DLI

5

instructor of Middle Eastern descent were denied re-employment after they engaged in

6

whistleblowing, see id. ¶ 122, “while [a DLI dean] from the East European national origin was

7

neither reprimanded nor terminated [for] infamous workplace violations,” id. ¶ 118. Further,

8

Ardalan’s allegations in other sections of her Complaint suggest that the DLI declined to rehire her

9

specifically because of a written, formal policy not to rehire employees terminated for cause.

10
United States District Court
For the Northern District of California

1

Notably, Ardalan concedes that the DLI maintained a formal policy not to rehire individuals

11

previously terminated for cause during the period in which she applied for the six positions that

12

underlie her two timely EEOC complaints. This is because she alleges that as of August 2008, DLI

13

maintained a formalized policy not to re-hire employees who had been previously terminated for

14

cause (the “No Hire” policy). See ECF No. 1 ¶ 44. Indeed, DLIFLC Regulation 690-1(6)(c)(2),

15

dated August 18, 2008, states that “[DLI] employees who are adversely terminated will then be

16

disqualified from any future appointment for positions with [DLI].” See ECF No. 20, Ex. I at 3.

17

Although Ardalan applied for “nearly 90” positions at DLI after October 2, 2001, see ECF No. 1 ¶

18

3, only six of these applications are relevant here. This is because Ardalan’s timely EEOC

19

complaints (EEOC proceedings 7 and 8) concern the DLI’s denial of her applications for six

20

faculty positions posted between 2009 and 2011. ECF 35 ¶ 7; see also ECF No. 32 at 6-7. Thus,

21

based on Ardalan’s own statements, the formal No Hire policy was in place at all times during

22

which Ardalan applied for these six positions. Ardalan’s own allegations thus suggest that DLI

23

declined to rehire her not because of her national original but because of a written, formal policy

24

not to rehire employees terminated for cause.

25

Moreover, Ardalan’s allegations in other sections of the Complaint suggest that any

26

retaliation against her was the direct outcome of her whistleblowing in 1992 regarding the quality

27

of DLI’s curriculum, and not her national origin. Ardalan alleges that in response to this 1992

28

38
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

whistleblowing, “DLI civilian management ... orchestrated vast retaliatory measures against

2

Plaintiff as follows ... [d]enial of promotions ... demotion causing reduction of salary...

3

[b]lackballing Plaintiff through conspiracy with his administration ... [and] instructing [DLI staff]

4

to make sure Plaintiff would never be rehired at DLI.” Id. ¶¶ 78, 79 (emphasis added). In other

5

words, Ardalan’s own Complaint suggests that DLI’s motive for denying the six employment

6

applications underlying her timely EEOC complaints was retaliation for her whistleblowing

7

regarding the quality of the language curriculum.

8
9

Accordingly, the Court finds Ardalan has not stated a claim of discrimination. The Court
GRANTS Defendants McHugh and Hadden’s Motion to Dismiss Ardalan’s Title VII claim against

United States District Court
For the Northern District of California

10

McHugh under Rule 12(b)(6). This claim is dismissed with leave to amend for Ardalan to allege

11

she was not rehired because of her national origin. Leave to amend is granted because none of the

12

conditions noted in Leadsinger have been met here.

13

E.

14

On June 18, 2013, Ardalan filed a Motion for Default Judgment against Defendant Farr on

15

the basis that Farr’s Motion to Dismiss her Complaint was not timely filed as required by Federal

16

Rule of Civil Procedure 12(a)(2)-(a)(3). See ECF No. 30. Farr filed an opposition on June 25, 2013.

17

See ECF No. 33. On July 8, 2013, Ardalan withdrew the Motion for Default Judgment against Farr.

18

See ECF No. 37. On July 9, 2013, Ardalan filed a Declaration “in support of Withdrawal of Motion

19

for Default Judgment,” ECF No. 39. Because Ardalan withdrew this motion, the Court DENIES

20

the Motion as moot.

21

Ardalan’s Motions for Default Judgment

On July 9, 2013, Ardalan filed a separate Motion for Default Judgment against Defendants

22

McHugh and Hadden on the basis that McHugh and Hadden’s Motion to Dismiss was not timely

23

filed as required by Rule 12(a)(2)-(a)(3). See ECF No. 38. McHugh and Hadden filed their

24

Opposition to Ardalan’s Motion for Default Judgment on July 10, 2013, see ECF No. 40, and

25

Ardalan replied on July 15, 2013, see ECF No. 41.

26
27
28

In her Motion for Default Judgment, Ardalan claims that McHugh and Hadden’s June 4,
2013, Motion to Dismiss, ECF No. 19, was filed one day late. See ECF No. 38 at 1-2. Rule 12(a)(2)
39
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

and 12(a)(3) require that a United States employee sued in his or her official or individual

2

capacities file any responsive pleadings “within 60 days after service on the United States

3

attorney.” Fed. R. Civ. P. 12(a). Ardalan argues that, as the United States Attorney in this case was

4

served with the Complaint on April 4, 2013, the 60-day window for filing McHugh and Hadden’s

5

Motion to Dismiss expired on June 3, 2013. See ECF No. 38 at 1-2. The Court need not reach the

6

timeliness issue because the Court DENIES Ardalan’s Motion for Default Judgment against

7

Defendants McHugh and Hadden for other reasons as set forth below.

8

Federal Rules of Civil Procedure 55 governs the entry of default by the clerk and the

9

subsequent entry of default judgment by either the clerk or the district court. In pertinent part, Rule

United States District Court
For the Northern District of California

10
11
12

55 provides:
(a) Entering a Default. When a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that failure is shown by affidavit or
otherwise, the clerk must enter the party’s default.

13
(b) Entering a Default Judgment.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

(1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum that can be made
certain by computation, the clerk-on the plaintiff's request, with an affidavit showing the
amount due-must enter judgment for that amount and costs against a defendant who has
been defaulted for not appearing and who is neither a minor nor an incompetent person.
(2) By the Court. In all other cases, the party must apply to the court for a default judgment
....
Fed. R. Civ. P. 55(a), (b).
The Ninth Circuit has stated that Rule 55 requires a “two-step process,” consisting of: (1)
seeking the clerk’s entry of default, and (2) filing a motion for entry of default judgment. Eitel v.
McCool, 782 F.2d 1470, 1471 (9th Cir. 1986) (“Eitel apparently fails to understand the two-step
process required by Rule 55.”); Symantec Corp. v. Global Impact, Inc., 559 F.3d 922, 923 (9th Cir.
2009) (noting “the two-step process of ‘Entering a Default’ and ‘Entering a Default Judgment’”).
In light of the requirement to obtain entry of default before seeking default judgment, courts
regularly deny motions for default judgment where default has not been previously entered. See,
e.g., Marty v. Green, No. No. 10-1823, 2011 WL 320303, at *3 (E.D. Cal. Jan. 28, 2011)
(“Plaintiff’s motion for default judgment is denied because plaintiff did not follow the procedural
40
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT

1

steps required to properly file a motion for default judgment. Specifically, plaintiff failed to seek a

2

clerk’s entry of default from the Clerk of Court prior to filing his motion for default judgment.”);

3

Norman v. Small, No. 09-2233, 2010 WL 5173683, at *2 (S.D. Cal. Dec. 14, 2010) (denying

4

plaintiff’s motion for default judgment because “the clerk has not entered default”). In this case,

5

default has not been entered against Defendants. Without first obtaining an entry of default against

6

Defendants, Plaintiff’s motion for default judgment is improperly before this Court. See Marty,

7

2011 WL 320303 at *3. Thus, the Court DENIES Ardalan’s Motion for Default Judgment.

8

IV.

9

CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant Farr’s Motion to Dismiss and

United States District Court
For the Northern District of California

10

Defendants McHugh and Hadden’s Motion to Dismiss as follows: (1) all claims for conduct

11

occurring prior to October 2, 2001 are dismissed with prejudice as they are barred by the doctrine

12

of res judicata; (2) claims two, three, five, six, eight are dismissed with prejudice; (3) claims four,

13

seven, and nine are dismissed with leave to amend; (3) claim one is dismissed with leave to amend

14

as against Defendant McHugh and dismissed with prejudice as against Farr and Hadden. Ardalan’s

15

motions for default judgment are DENIED.

16

IT IS SO ORDERED.

17
18

Dated: November 27, 2013

________________________________
LUCY H. KOH
United States District Judge

19
20
21
22
23
24
25
26
27
28

41
Case No.: 13-CV-01138-LHK
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND DENYING PLAINTIFF’S MOTIONS FOR
DEFAULT JUDGMENT