Charcalla v. Director of Civil Affairs DOJ
Filing
36
OPINION AND ORDER denying 22 Third Motion for Default Judgment; granting 28 Motion to Dismiss Plaintiffs Amended Petition for a Writ of Mandamus for Failure to State a Claim on Which Relief Can Be Granted and for Insufficient Service of Process ; denying 32 Motion for Summary Judgment. Plaintiffs 15 Amended Petition for a Writ of Mandamus is DISMISSED. Signed by Judge Rudy Lozano on 8/7/15. cc: Charcalla (mc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
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)
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) NO. 1:14–CV-14
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MARK W. CHARCALLA,
Plaintiff,
v.
DIRECTOR OF CIVIL RIGHTS
DIVISION DEPARTMENT OF
JUSTICE, An agency of the
United States Government
Defendant.
OPINION AND ORDER
This matter is before the Court on the Third Motion for
Default Judgment, filed by Plaintiff Mark Charcalla, on November
12, 2014 (DE# 22); the Motion to Dismiss Plaintiff’s Amended
Petition for a Writ of Mandamus for Failure to State a Claim on
Which Relief Can Be Granted and for Insufficient Service of
Process, filed by Defendant Director of Civil Rights Division of
the Department of Justice on January 20, 2015 (DE# 28); and the
Motion for Summary Judgment for a Writ of Mandamus filed by
Plaintiff on February 6, 2015 (DE #32).
For the reasons set forth
below, Plaintiff’s Third Motion for Default Judgment (DE # 22) is
DENIED; Defendant’s Motion to Dismiss Plaintiff’s Amended Petition
for a Writ of Mandamus for Failure to State a Claim on Which Relief
1
Can Be Granted and for Insufficient Service of Process (DE# 28) is
GRANTED; and Plaintiff’s Motion for Summary Judgment for a Writ of
Mandamus (DE #32) is DENIED.
Plaintiff’s Amended Petition for a
Writ of Mandamus (DE# 15) is DISMISSED.
BACKGROUND
On January 21, 2014, Plaintiff Mark Charcalla (“Charcalla”)
filed a pro se complaint entitled, “Petition for Writ of Mandamus”
against Defendant Director of Civil Affairs of the Department of
Justice (“DOJ”).
(DE# 1.)
default judgement.
In April 2014, Charcalla moved for
Magistrate Judge Cosbey denied this motion
because Charcalla’s service of the United States was improper under
Federal Rules of Procedure Rule 4(i)(1).
(DE# 7.)
Charcalla
served another summons on the United States, and in July 2014,
filed a second motion for default.
Magistrate Judge Cosbey denied
this motion because Charcalla failed to serve the Attorney General
as required by Rule 4(i)(1).
On
August
20,
2014,
(DE# 11.)
Charcalla
filed
an
amended
pro
se
complaint entitled, “Amended Petition for a Writ of Mandamus”
(“Amended Petition”), seeking a writ of mandamus compelling the
DOJ to authorize a United States district attorney to act as
Charcalla’s attorney in his claim against his former employer for
benefits
(“VRRA”).
under
the
(DE# 15.)
Veterans
Reemployment
Rights
Act
of
1974
Charcalla served the Amended Petition and
2
summons on a United States district attorney, the Attorney General,
and Molly Moran, the former Acting Assistant Attorney General of
the DOJ’s Civil Rights Division.
(DE## 18-21.)
On November 12, 2014, Charcalla filed his Third Motion for
Default Judgment.
(DE# 22.)
Five days later, an Assistant United
States Attorney filed a notice of appearance on behalf of the DOJ,
and an unopposed motion to extend the time to file a response to
the Amended Petition.
(DE## 23, 24.)
Magistrate Judge Cosbey
granted this motion for an extension, noting that the DOJ’s counsel
“represents that plaintiff does not object,” and ordered the DOJ
to file responses to Charcalla’s Amended Petition and Third Motion
for Default Judgment by January 13, 2015.
(DE# 25.)
Magistrate
Judge Cosbey granted the DOJ’s second unopposed motion to extend
the time to file a response to the Amended Petition to January 20,
2015,
noting
objection.
the
DOJ’s
representation
that
Charcalla
had
no
(DE# 27.)
On January 20, 2015, the DOJ filed a motion to dismiss the
Amended Petition for failure to state a claim and for insufficient
service of process.
(DE# 28.)
Charcalla filed his response to
the DOJ’s motion on February 6, 2015.
(DE# 31.)
On the same day,
Charcalla filed a one-sentence motion for summary judgment.
32.)
2015.
(DE#
The DOJ filed its reply to its motion to dismiss on March 3,
(DE# 35.)
The DOJ did not respond to Charcalla’s motion
for default judgment or summary judgement motion.
3
FACTS
The Amended Petition alleges the following relevant facts:
Charcalla
is
a
“service
connected
disabled
veteran”
seeking
benefits authorized under the VRRA. (DE# 15 at 1.) Upon returning
from military duty, Charcalla was reemployed by his former employer
under the VRRA, but was laid off after nine weeks.1
(Id. at 2.)
Sometime “[l]ater, [Charcalla] learned that a company can not [sic]
do this until the veteran has had 1 full year of employment.”
(Id.)
the
In 2009, he filed a claim against his former employer with
Department
enforcement.
of
Labor,
and
escalated
(Id. at 1, 7.)
it
to
the
DOJ
for
The DOJ refused to represent
Charcalla in his Uniformed Services Employment and Reemployment
Rights Act (“USERRA”) claim against his former employer.
(Id. at
1, 7 (May 2009 letter to Charcalla denying representation).)
In
2011, Charcalla filed a pro se complaint asserting USERRA claims
against his former employer, which was subsequently dismissed.
(Id. at 1 (citing Charcalla v. Gen. Elec. Transp. Sys., No. 11277
(W.D.
Pa.))).
Charcalla
allegedly
contacted
several
government officials and agencies, including the Department of
Veterans
Affairs
and
the
Office
1
of
Special
Counsel,
seeking
While the Amended Petition does not allege the dates of Charcalla’s
reemployment or termination, both parties allege in their briefs that Charcalla
was rehired in or around 1985, and was terminated several weeks later. (DE ##
29 at 1, 31 at 2); see Charcalla v. Gen. Elec. Transp. Sys., No. 11–277, 2012
WL 1436563, at *1 (W.D. Pa. Apr. 25, 2012) (noting complaint against Charcalla’s
former employer alleged that he returned to employment in December 1985, but
was laid off in early 1986).
4
representation under the VRRA, to no avail.
(Id. at 3.)
In
September 2012, a deputy director of the Civil Rights Division
allegedly told Charcalla that the DOJ would not authorize his
representation “as a matter of established policy.”
(Id.)
In
April 2013, the Office of the Inspector General’s Investigations
Division reviewed Charcalla’s allegations of misconduct by the
DOJ, and determined that it did not have jurisdiction.
(Id. at 4,
11.)
The Amended Petition asserts that “courts may issue all writs
necessary and appropriate in aid of their respective jurisdictions
and agreeable to usages and principals of law,” (id. at 2 (citing
28 U.S.C. § 1651(a)), and that the Administrative Procedure Act
allows a court to set aside an agency action or policy.
4.)
(Id. at
The Amended Petition seeks a writ of mandamus compelling the
DOJ to authorize a United States district attorney to represent
him in his claim against his former employer.
(Id. at 1, 4, 6.)
DISCUSSION
Motion for Default Judgment
In his third motion for default judgment, Charcalla contends
that he is entitled to a default judgment against the DOJ.
A party
seeking affirmative relief is entitled to a default judgment in
its favor when the party from which relief is sought fails to plead
or otherwise defend.
Fed. R. Civ. P. 55(a).
5
Here, the DOJ filed two unopposed motions for extensions of
time in which to respond to the Amended Petition.
no objection to either motion.
Charcalla had
Magistrate Judge Cosbey granted
the DOJ’s motions, and the DOJ filed its motion to dismiss within
the extended deadline.
Therefore, Charcalla’s third motion for
default judgment is DENIED.
See Washington v. Duncan, No. 13–C–
1080, 2015 WL 2165580, at *2 (E.D. Wis. May 8, 2015) (denying
default judgement motion where the court had granted defendant’s
motion for leave to file answer).
Motion to Dismiss
The DOJ’s motion to dismiss argues that Charcalla’s Amended
Petition: (1) suffers from insufficient service of process under
Federal Rules of Civil Procedure Rule 12(b)(5); and (2) fails to
state a claim upon which relief can be granted under Rule 12(b)(6).
The Court will address these issues in turn.
Insufficient Service of Process:
Federal Rules of Civil Procedure Rule 4(i) provides that to
serve a United States agency, “a party must serve the United States
and also send a copy of the summons and of the complaint by
registered mail to the agency.”
Fed. R. Civ. P. 4(i)(2).
properly serve the United States, a party must:
(A)(i) deliver a copy of the summons and of the complaint
to the United States attorney for the district where the
action is brought . . . ;
6
To
(B) send a copy of each by registered or certified mail
to the Attorney General of the United States at
Washington, D.C.; and
(C) if the action challenges an order of a nonparty
agency or officer of the United States, send a copy of
each by registered or certified mail to the agency or
officer.
Fed. R. Civ. P. 4(i)(1).
The DOJ asserts that Charcalla failed to
satisfy Rule 4 because he personally served the summons and Amended
Petition on the Attorney General and the former Acting Assistant
Attorney General of the DOJ’s Civil Rights Division.
2, 5.)
(DE# 29 at
However, the record indicates that Charcalla served these
documents by certified mail.
(DE## 19, 20.)
Service in this
manner is authorized by Rules 4(i)(1)(B) and 4(i)(2).
According
to the certified mail receipts, the Attorney General and the DOJ
received the summons on August 28, 2014, and September 3, 2014,
respectively.
(Id.)
In addition, a nonparty personally served
the summons on the United States district attorney in Fort Wayne,
Indiana, on August 28, 2014.
(DE# 18.)
authorized by Rule 4(i)(1)(A).
Service in this manner is
Therefore, Charcalla’s service on
of process was effective under Rule 4.
Failure to State a Claim:
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a complaint to be dismissed if it fails to “state a claim upon
which relief can be granted.”
Allegations other than fraud and
mistake are governed by the pleading standard outlined in Federal
7
Rules of Civil Procedure Rule 8(a), which requires a “short and
plain statement” that the pleader is entitled to relief.
In order to survive a Rule 12(b)(6) motion, the complaint
“must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face’.”
Ashcroft
v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570,
127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).
All well-pleaded facts
must be accepted as true, and all reasonable inferences from those
facts must be resolved in the plaintiff’s favor.
Co., 521 F.3d 686, 692 (7th Cir. 2008).
Pugh v. Tribune
“In evaluating the
sufficiency of a complaint, ‘the court may also consider documents
attached to the pleading without converting the motion into one
for summary judgment.’”
Runnion ex rel. Runnion v. Girl Scouts of
Greater Chicago and Nw. Ind., 786 F.3d 510, 528, n.8 (7th Cir.
2015) (quoting Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 556
(7th Cir. 2012)); see Fed. R. Civ. P. 10(c) (“A copy of a written
instrument that is an exhibit to a pleading is a part of the
pleading for all purposes.”)).
Plaintiffs may plead themselves
out of court if the complaint includes allegations that show they
cannot possibly be entitled to the relief sought.
McCready v.
eBay, Inc., 453 F.3d 882, 888 (7th Cir. 2006).
The Court notes that Charcalla is appearing pro se in this
matter. Generally, although “pro se litigants are masters of their
8
own complaints” and “[d]istrict judges have no obligation to act
as counsel or paralegal to pro se litigants,” Myles v. United
States, 416 F.3d 551, 552 (7th Cir. 2005), a document filed pro se
is to be liberally construed, and “a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551
U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (citation
omitted).
to
However, “on a motion to dismiss, courts are not bound
accept
as
allegation.”
true
a
legal
conclusion
couched
as
a
factual
Twombly, 550 U.S. at 555 (citation omitted).
The DOJ asserts that Charcalla’s Amended Petition fails to
state a claim for relief under Rule 12(b)(6) because Charcalla’s
claims are (1) barred by sovereign immunity, and (2) not covered
by the Administrative Procedure Act.
Sovereign Immunity
The
DOJ
argues
sovereign immunity.
that
the
Amended
Petition
is
barred
by
“Sovereign immunity, when it exists, cuts off
a plaintiff’s ability to sue the government.”
Michigan v. U.S.
Army Corps of Eng’rs, 758 F.3d 892, 900 (7th Cir. 2014).
A waiver
of sovereign immunity cannot be implied but must be unequivocally
expressed in statutory text, and any such waiver must be strictly
construed in the government’s favor.
Abdulqader v. United States,
596 Fed. Appx. 515, 516 (7th Cir. 2015) (citing United States v.
Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349, 63 L. Ed. 2d 607
9
(1980) and Lane v. Pena, 518 U.S. 187, 192, 116 S. Ct. 2092, 135
L. Ed. 2d 486 (1996)).
The DOJ maintains that USERRA does not
waive sovereign immunity as to the DOJ’s representation decisions.
USERRA is “the latest in a series laws protecting veterans’
employment
and
reemployment
predecessor, the VRRA.
rights,”
replacing
20 C.F.R. § 1002.2.
its
immediate
“USERRA encourages
military service by granting service members rights with respect
to
civilian
employment
that
are
situated, nonmilitary employees.”
567 F.3d 860, 867 (7th Cir. 2009).
not
available
to
similarly
Crews v. City of Mt. Vernon,
When Congress enacted USERRA
in 1994, it “emphasized USERRA’s continuity with the VRRA and its
intention to clarify and strengthen that law.” 20 C.F.R. § 1002.2;
see Middleton v. City of Chicago, 578 F.3d 655, 659 (7th Cir. 2009)
(“USERRA established additional rights and liabilities that did
not exist under the VRRA.”).2
interpreted
protections.
liberally
in
USERRA and the VRRA are to be
favor
of
veterans
seeking
its
See Davis v. Advocate Health Ctr. Patient Care
Express, 523 F.3d 681, 683–84 (7th Cir. 2008) (noting courts
construe USERRA liberally); Watters v. Tilden Min. Co., L.C., 409
Fed. Appx. 812, 818 (6th Cir. 2010) (noting “the VRRA and acts
like it should be interpreted liberally”).
2
While “cases have
For example, “[t]he only remedy available under the VRRA was injunctive relief
and recovery of lost wages and benefits. . . . Among other improvements, if an
employer engaged in willful discrimination, USERRA permitted a plaintiff to
seek liquidated damages, a form of relief unavailable under the VRRA.”
Middleton, 578 F.3d at 659.
10
implored courts to construe certain veterans’ statutes liberally,
they do not instruct courts to create rights out of whole cloth.”
Bowlds v. Gen. Motors Mfg. Div. of Gen. Motors Corp., 411 F.3d
808, 812 (7th Cir. 2005).
The DOJ maintains that no provision of USERRA waives the
United
States’
sovereign
immunity
for
claims
challenging
its
USERRA representation decisions. Cf. 38 U.S.C. § 4324 (authorizing
litigation against a Federal executive agency in its capacity as
an employer).
In response, Charcalla does not argue that USERRA
waives sovereign immunity.
Rather, he insists that USERRA’s
predecessor, the VRRA, applies to his claims.
While the Seventh Circuit has not addressed this issue under
either statute, courts in other circuits have refused to extend
the United States’ waiver of sovereign immunity under USERRA beyond
its waiver as an employer.
In Wood v. Dep’t of Labor, No. 09–
61222–CV, 2009 WL 4667087 (S.D. Fla. Dec. 9, 2009), a veteran
challenged the Department of Labor’s decision to refer his USERRA
complaint against an employer to a state agency.
Id. at *1.
The
veteran insisted that the Department had an obligation under USERRA
to assist him in his complaint against the employer, and asked the
Court to order the Department to provide him with a lawyer to
pursue those claims.
Id.
The court held that USERRA did not
contain an explicit waiver of sovereign immunity, noting that Ҥ
4324 only authorizes litigation against the federal government in
11
its capacity as an employer.”
Id. at *1-*2.
After addressing
other issues, the court dismissed the case with prejudice.
See
id. at *2; see also Jones v. New York City Hous. Auth., No. 05Civ-8104, 2006 WL 1096804, at *3 (S.D.N.Y. Apr. 25, 2006) (finding
no waiver of sovereign immunity under USERRA where a veteran sued
“a federal agency to force the United States to ensure that an
employer complies with federal and local law”).
This Court agrees
that USERRA does not unequivocally waive sovereign immunity as to
the government’s representation decisions.
While Charcalla asserts that the VRRA, rather than USERRA,
applies to his claims, he does not cite any provision of the VRRA
that
waives
sovereign
representation decisions.
immunity
as
to
the
government’s
The Court was unable to locate any
unequivocal waiver of sovereign immunity as to representation
decisions in either the text of the VRRA, or case law addressing
the VRRA.
Strictly construing USERRA in the government’s favor,
the Court concludes that the United States did not waive sovereign
immunity as to its representation decisions under the VRRA.
Administrative Procedure Act
The DOJ also argues that Charcalla’s claim should be dismissed
because the Administrative Procedure Act (“APA”) does not cover
the DOJ’s representation decisions under USERRA.
The APA provides
that a reviewing court shall “compel agency action unlawfully
withheld or unreasonably delayed.”
12
5 U.S.C. § 706(1).
However,
the APA does not apply where “agency action is committed to agency
discretion by law.”
5 U.S.C. § 701(a)(2).
The DOJ maintains that
because its decision to represent a veteran is discretionary under
USERRA, it is not reviewable under the APA.
In Heckler v. Chaney, 470 U.S. 821, 105 S. Ct. 1649, 84 L.
Ed. 2 714 (1985), the Supreme Court addressed circumstances in
which judicial review of agency inaction is appropriate.
There,
the Court addressed whether the Food and Drug Administration’s
(“FDA”)
decision
not
to
undertake
an
enforcement
proceeding
against the use of certain drugs was subject to judicial review.
The Court held that, under 5 U.S.C. § 701(a)(2), even when Congress
has not affirmatively precluded judicial oversight, “review is not
to be had if the statute is drawn so that a court would have no
meaningful standard against which to judge the agency’s exercise
of discretion.”
Id. at 830.
Since the statute conferring power
on the FDA to prohibit the unlawful misbranding or misuse of drugs
provided no substantive standards on which a court could base its
review, the Supreme Court found that enforcement actions were
committed to the complete discretion of the FDA.
The Supreme Court has emphasized that 5 U.S.C. § 701(a)(2)
requires careful examination of the statute upon which the claim
of agency illegality is based.
See Webster v. Doe, 486 U.S. 592,
600, 108 S. Ct. 2047, 100 L. Ed. 2d 632 (1988) (citing Heckler,
13
470 U.S. 821).
Here, the DOJ relies upon USERRA’s enforcement
provision, which states in part:
If the Attorney General is reasonably satisfied that the
person on whose behalf the complaint is referred is
entitled to the rights or benefits sought, the Attorney
General may appear on behalf of, and act as attorney
for, the person on whose behalf the complaint is
submitted and commence an action for relief under this
chapter for such person.
38 U.S.C. § 4323(a)(1) (2008). The DOJ maintains that its decision
not to represent Charcalla was made pursuant to this provision,
and was discretionary.
Charcalla does not contest that the DOJ’s
decision to represent a veteran under USERRA is discretionary and
not reviewable. See Wood, 2009 WL 4667087, at *2 (noting plaintiff
“correctly
conceded
that
the
Attorney
General’s
decision
to
appoint counsel [under 38 U.S.C. § 4323] is discretionary and not
subject to the Court’s review.”).
Charcalla insists that the VRRA, rather than USERRA, applies
to his claim against the DOJ.
See Maher v. City of Chicago, 406
F. Supp. 2d 1006, 1012 (N.D. Ill. 2006) (USERRA applies only to
causes of action that accrued “on or after the first day after the
sixty-day period beginning on October 13, 1994,” and is not applied
retroactively).
In deciding whether to apply the VRRA or USERRA,
courts consider when the veteran’s claims arose.
See, e.g.,
Watters v. Tilden Min. Co., L.C., 409 Fed. Appx. 812, 815 (6th
Cir. 2010) (applying VRAA in effect when veteran’s reemployment
was initiated in 1988); Maher, 406 F. Supp. 2d at 1012 (finding
14
that “[s]ince the amended complaint claims spans the period from
February 1991 through March 1998, some claims fall under VRRA, and
some fall under USERRA.”).
While Charcalla maintains that his
claims against his former employer and the DOJ arise under the
VRRA, this issue is far from clear. Charcalla cites correspondence
from the Department of Labor stating that his claim against his
former employer falls under the VRRA because his “performance of
military service occurred 1982 thru 1985.”
(DE# 31 at 11.)
However, the Amended Petition alleges that the DOJ refused to
represent Charcalla in “a USERAA claim” in 2009.
7.)
(DE# 15 at 2,
Because the Court concludes that representation decisions are
discretionary and unreviewable under both the VRRA and USERRA, it
need not decide which statute applies to Charcalla’s claim against
the DOJ.
The VRRA’s enforcement provision stated in part:
Upon application to the United States attorney or
comparable official for any district in which such
private employer maintains a place of business, or in
which such State or political subdivision thereof
exercises authority or carries out its functions, by any
person claiming to be entitled to the benefits provided
for in such provisions, such United States attorney or
official, if reasonably satisfied that the person so
applying is entitled to such benefits, shall appear and
act as attorney for such person in the amicable
adjustment of the claim or in the filing of any motion,
petition, or other appropriate pleading and the
prosecution thereof specifically to require such
employer to comply with such provisions.
15
38 U.S.C. § 2022 (1984) (emphasis added).
Charcalla insists that
the word “shall” in this sentence indicates a lack of discretion
in representing veterans.
The Seventh Circuit has looked beyond a provision’s use of
the term “shall” to determine whether agency discretion precludes
review under 5 U.S.C. § 701(a)(2).
In Andrews v. Consolidated
Rail Corporation, 831 F.2d 678 (7th Cir. 1987), the plaintiff
challenged the Department of Labor’s decision not to prosecute a
discrimination claim under section 503 of the Rehabilitation Act
of 1973.
503,
The Seventh Circuit considered the language of section
which
provided
that
“[t]he
Department
[of
Labor]
shall
promptly investigate such complaint and shall take such action
thereon as the facts and circumstances warrant. . . .”
(emphasis added).
Id. at 686
Regardless of the fact that this provision
included the term “shall,” the Seventh Circuit concluded that the
Department’s decision “was clearly within its discretion under 5
U.S.C. § 701(a)(2)” and not reviewable.
Id. at 687.
The Court
explained that “Congress in enacting [section 503] neither set
substantive priorities nor otherwise limited the Department of
Labor’s discretion in choosing which claims to prosecute.”
686.
Id. at
It also noted that the regulation’s language “[i]f the
Director decides not to initiate . . .” supported the conclusion
that the Department was within its discretion in deciding when and
when not to pursue enforcement actions.
16
Id.
Focusing on the term “shall,” Charcalla ignores other text in
the VRRA enforcement provision indicating agency discretion.
The
VRRA provision began by focusing on a veteran’s ability to pursue
a claim against an employer in federal court, stating in relevant
part that, “[i]f any employer . . . fails or refuses to comply
with [the VRRA], . . . upon the filing of a motion, petition, or
other appropriate pleading by the person entitled to the benefits
of such provisions,” the district court has the power to require
the employer to comply with such provisions.
(1974) (emphasis added).3
8 U.S.C. § 2022
While the provision also stated that an
3
The VRRA enforcement provision in effect at the time of Charcalla’s alleged
reinstatement and termination stated in its entirety:
If any employer, who is a private employer or a State or political
subdivision thereof, fails or refuses to comply with the provisions
of section 2021(a), (b)(1), or (b)(3), or 2024 of this title, the
district court of the United States for any district in which such
private employer maintains a place of business, or in which such
State or political subdivision thereof exercises authority or
carriers out its functions, shall have the power, upon the filing
of a motion, petition, or other appropriate pleading by the person
entitled to the benefits of such provisions, specifically to require
such employer to comply with such provisions and to compensate such
person for any loss of wages or benefits suffered by reason of such
employer's unlawful action.
Any such compensation shall be in
addition to and shall not be deemed to diminish any of the benefits
provided for in such provisions. Upon application to the United
States attorney or comparable official for any district in which
such private employer maintains a place of business, or in which
such State or political subdivision thereof exercises authority or
carries out its functions, by any person claiming to be entitled to
the benefits provided for in such provisions, such United States
attorney or official, if reasonably satisfied that the person so
applying is entitled to such benefits, shall appear and act as
attorney for such person in the amicable adjustment of the claim or
in the filing of any motion, petition, or other appropriate pleading
and the prosecution thereof specifically to require such employer
to comply with such provisions. No fees or court costs shall be
taxed against any person who may apply for such benefits. In any
such action only the employer shall be deemed a necessary party
respondent.
No State statute of limitations shall apply to any
proceedings under this chapter.
17
official “shall” appear on a veteran’s behalf, the official would
only do so if “reasonably satisfied” that the veteran is entitled
to the benefits sought.
The VRRA does not specifically define the
basis upon which the official may or may not be “reasonably
satisfied.”
As such, representation decisions are discretionary
under the VRRA. See Boe v. Colello, 438 F. Supp. 145, 152 (D.C.N.Y.
1977) (where a regulation provided that the town clerk is to be
“reasonably satisfied” with an applicant’s qualifications, without
further guidance, the decision to issue a peddling license was in
the clerk’s “unbridled discretion”).
USERRA’s enforcement provision states that if “reasonably
satisfied” as to the merit of the veteran’s claim, the Attorney
General
“may”
4323(a)(1).
appear
This
on
behalf
language
of
a
clearly
veteran.
38
indicates
the
U.S.C.
§
Attorney
General’s discretion in deciding whether to represent a veteran.
See The USERRA Manual § 8:2 (“Government-assisted court actions
are possible, but not an automatic right, for persons who believe
a private employer, state, or local government has violated their
rights under USERRA.”); The USERRA Manual Appendix C, USSERA
Regulations, § 1002.292(b) (“If the Attorney General determines
that the individual’s complaint does not have merit, the Attorney
General may decline to represent him or her.”).
38 U.S.C. § 2022 (1984).
18
The provision
also states that if the Attorney General decides not to represent
a veteran, he or she may file an action against an employer.
See
38 U.S.C. § 4323(a)(3)(2008) (“A person may commence an action for
relief with respect to a complaint against . . . a private employer
if the person . . . (C) has been refused representation by the
Attorney
General
with
respect
to
the
complaint
under
such
paragraph.”). As in Andrews, this language supports the conclusion
that
the
Attorney
General’s
representation
decision
is
discretionary.
Courts have refused to review the DOJ’s decision not to
represent a party under other federal statutes.
See, e.g.,
Falkowski v. E.E.O.C., 764 F.2d 907, 911 (D.C. Cir. 1985) (“DOJ’s
decision not to provide [plaintiff] with counsel was within the
agency’s unreviewable discretion” under 28 U.S.C. § 517); Turner
v. Schultz, 187 F. Supp. 2d 1288, 1294 (D. Colo. 2002) (noting
permissive language of 28 U.S.C. § 517, and that the “DOJ has
enjoyed
a
lengthy
history
representation decisions”).
of
discretionary
authority
in
In doing so, they relied upon the
superiority of the DOJ as a decision maker on the questions at
issue,
and
the
absence
of
any
cabining the agency’s discretion.
congressional
pronouncements
See Falkowski, 764 F.2d at 911;
Turner, 187 F. Supp. 2d at 1294 (noting the statute “is drawn so
that a court would have no meaningful standard against which to
judge the agency’s exercise of discretion”).
19
Here, neither the
VRRA nor USERRA provisions indicate congressional intent to limit
agency discretion, or offer any meaningful standard against which
to
judge
the
exercise
represent a party.
of
discretion
in
deciding
See Heckler, 470 U.S. at 830.
whether
to
The VRAA and
USERRA provide “no basis for a reviewing court to properly assess
a representation decision, short of cross-examining the Attorney
General on his views” on the merits of a veteran’s claims.
Turner,
187 F. Supp. 2d at 1296 (citing Webster, 486 U.S. at 600).
As
such, the Court holds that representation decisions under the
enforcement provisions of the VRRA and USERRA are not reviewable.
Because a challenge to an unreviewable agency decision necessarily
fails to state a claim for relief, DeLuca v. Lariva, 586 Fed. Appx.
239, 241 (7th Cir. 2014), the DOJ’s Motion to Dismiss is GRANTED.
Motion for Summary Judgment
Charcalla’s
entirety:
motion
for
summary
judgment
states
in
its
“Pursuant to Fed. R. Civ. P[.] 56(a), plaintiff moves
for summary judgment to issue a writ of mandamus to the Director
of Civil Rights Division DOJ based on supporting arguments for the
Amended Petition for a Writ of Mandamus.” (DE# 32 at 1.) Charcalla
did not submit any brief or other pleading in support of this
motion, and the DOJ did not respond to the motion.
Northern District of Indiana Local Rule 7-1 requires a moving
party to file a supporting brief with any motion under Rule 56.
20
N.D. Ind. L.R. 7-1(b)(3).
Local Rule 56-1 requires the moving
party to include a section labeled “Statement of Material Facts”
in the brief or brief’s appendix, identifying the facts that the
party contends are not genuinely disputed.
1(a).
N.D. Ind. L.R. 56–
“The obligations set forth by a court’s local rules are not
mere formalities.”
Zuppardi v. Wal-Mart Stores, Inc., 770 F.3d
644, 648 (7th Cir. 2014).
While Charcalla is a pro se plaintiff,
his
not
pro
se
status
procedural rules.
does
relieve
him
from
complying
with
See Anderson v. Hardman, 241 F.3d 544, 545 (7th
Cir. 2001) (explaining that pro se litigants must still comply
with procedural rules); Bordelon v. Chicago Sch. Reform Bd. of
Trustees, 233 F.3d 524, 527 (7th Cir. 2000) (upholding strict
compliance with local rules governing summary judgment given “the
important function served by local rules that structure the summary
judgment
process”).
Charcalla’s
single
sentence
motion
for
summary judgment fails to satisfy Local Rules 7-1 and 56-1.
See
Williams v. Gene B. Glick Co., Inc., 501 Fed. Appx. 543, 545 (7th
Cir. 2013) (affirming summary judgment where pro se plaintiff
“failed to submit any evidence to support these claims at summary
judgment”) (emphasis in original).
judgment is DENIED.
21
Charcalla’s motion for summary
CONCLUSION
For the reasons set forth above, the Third Motion for Default
Judgment (DE# 22) is DENIED; the Motion to Dismiss Plaintiff’s
Amended Petition for a Writ of Mandamus for Failure to State a
Claim on Which Relief Can Be Granted and for Insufficient Service
of Process (DE# 28) is GRANTED; and the Motion for Summary Judgment
for a Writ of Mandamus (DE# 32) is DENIED.
Plaintiff’s Amended
Petition for a Writ of Mandamus (DE# 15) is DISMISSED.
DATED:
August 7, 2015
/s/ RUDY LOZANO, Judge
United States District Court
22
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