Jeffrey Plaskett v. Christine Wormuth

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JEFFREY K. PLASKETT, No. 19-17294
Plaintiff-Appellant,
D.C. No.
v. 5:18-cv-06466-
EJD
CHRISTINE WORMUTH, Secretary,
U.S. Department of the Army,
Defendant-Appellee. OPINION

Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding

Argued and Submitted January 15, 2021
San Francisco, California

Filed November 19, 2021

Before: Mary M. Schroeder, Ryan D. Nelson, and
Daniel P. Collins, Circuit Judges.

Opinion by Judge Collins;
Concurrence by Judge Schroeder
2 PLASKETT V. WORMUTH

SUMMARY *

Mandamus Act / Jurisdiction

The panel affirmed the district court’s judgment
dismissing for lack of jurisdiction plaintiff’s action against
the Secretary of the U.S. Department of the Army under the
Mandamus Act and the Administrative Procedure Act
(“APA”) seeking payment of additional claimed backpay
and a sanctions award.

Regardless of whether plaintiff’s claim was viewed as
one under the Mandamus Act, 28 U.S.C. § 1361, or under
the APA, 5 U.S.C. § 706(1), plaintiff was required to plead,
inter alia, that the Army had a clear, certain, and mandatory
duty to pay him the additional backpay he sought, and the
sanctions award that the EEOC had imposed. The district
court dismissed plaintiffs’ claims based solely on lack of
subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1),
and expressly declined to reach the Army’s challenges under
Fed. R. Civ. P. 12(b)(6). As to the sanctions award, the panel
agreed with the district court that the issue of the Army’s
sovereign immunity raised a jurisdictional issue and was
properly resolved under Rule 12(b)(1). As to the issue of
back pay, the panel held that the adequacy of plaintiff’s APA
claim should have been analyzed under Rule 12(b)(6) rather
than Rule 12(b)(1). The panel began by evaluating all of
plaintiff’s claims under the standards applicable to a motion
to dismiss for failure to state a claim. Because the panel
concluded that all of plaintiff’s claims failed under those

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 PLASKETT V. WORMUTH 3

standards, the panel did not consider whether the applicable
Rule 12(b)(1) standards might have made a difference.

The panel held that plaintiff’s claim to additional
backpay rested on an EEOC October 2017 decision, but the
order on its face expressed uncertainty as to what amount, if
any, of additional backpay might be due. Plaintiff’s
complaint failed to plead sufficient facts to show that the
process contemplated by the October 2017 decision had been
completed and that a certain amount of additional backpay
was now clearly owed to him.

Plaintiff nonetheless contended that the Army should be
barred from contesting that it owed him $21,020.01 in
additional backpay. First, plaintiff contended that the Army
effectively conceded that it owed him that amount. On this
record, the panel held that plaintiff had provided no plausible
basis for concluding that the Army had waived its objections
to the adequacy of plaintiff's documentation or to the
correctness of his claim for additional backpay. Second,
plaintiff asserted that the doctrine of laches barred the Army
from contesting the amount of backpay due. As the district
court correctly recognized, a plaintiff cannot invoke the
doctrine of laches based on the premise that the plaintiff was
prejudiced by his opponent’s supposed failure to inform it
about the plaintiff’s own burden of proof under the law. The
panel held that plaintiff failed to state a claim under
28 U.S.C. § 1361 or APA § 706(1) for the payment of
additional backpay, and the district court properly dismissed
plaintiff’s first cause of action.

Concerning plaintiff’s claim for payment of the
sanctions award, the panel considered whether the district
court correctly concluded that the Army’s sovereign
immunity had not been waived. The panel agreed with the
district court’s conclusion, but its reasoning differed.
4 PLASKETT V. WORMUTH

Whether the Army’s sovereign immunity has been waived
here turns on whether an applicable waiver was
unequivocally expressed in statutory text. In contending that
the Army’s immunity from monetary litigation sanctions
was waived, the only statute plaintiff relied on was § 15 of
the Age Discrimination in Employment Act (“ADEA”). The
panel rejected plaintiff’s contention that a sufficient waiver
of the Government’s immunity against monetary litigation
sanctions could be found in § 15’s express statement that the
EEOC could impose appropriate remedies that will
effectuate policies of the section. The panel rejected
plaintiff’s additional arguments, and concluded that
sovereign immunity precluded enforcement of the award
levied by the EEOC in this case. The district court properly
dismissed plaintiff’s second cause of action.

Judge Schroeder concurred, and agreed with the
majority’s conclusion that plaintiff was not entitled to any of
the relief he sought. Plaintiff could not succeed on his claim
for additional backpay because he failed to show that the
amount he sought represented moonlight earnings
improperly deducted as replacement income. This was true
based on either looking at the allegations of the complaint,
as the majority did, or looking through the record, as the
district court did. With respect to sanctions, there was no
legal authority that authorized the EEOC to impose
monetary sanctions against the government for discovery
violations. The EEOC lacked express authority under either
its regulations or the ADEA statute, and the court need not
decide whether that express authority must be by a statutory
amendment or whether an amendment to the EEOC
regulations would be sufficient.
 PLASKETT V. WORMUTH 5

COUNSEL

Wendy E. Musell (argued), Law Offices of Wendy Musell,
Oakland, California, for Plaintiff-Appellant.

Lewis S. Yelin (argued) and Marleigh D. Dover, Appellate
Staff; David L. Anderson, United States Attorney; Ethan P.
Davis, Acting Assistant Attorney General; Civil Division,
United States Department of Justice, Washington, D.C.; for
Defendants-Appellee.

OPINION

COLLINS, Circuit Judge:

In 2012, the Equal Employment Opportunity
Commission (“EEOC”) concluded, after an administrative
proceeding under the Age Discrimination in Employment
Act (“ADEA”), that the U.S. Army had unlawfully
discriminated against Plaintiff Jeffrey Plaskett on the basis
of age when it failed to rehire him for a particular civilian
position in 2010. The EEOC awarded Plaskett reinstatement
and backpay, and it also ordered the Army to pay him
sanctions in light of the Army’s failure to comply with its
discovery obligations during the administrative proceedings.
The Army, however, refused to pay the sanctions award on
the ground that it was barred by sovereign immunity. And
although the Army agreed to hire Plaskett and paid him
backpay, Plaskett subsequently claimed that the Army owed
him additional backpay. Dissatisfied with his efforts to
resolve these disputes directly with the Army or through the
EEOC, Plaskett ultimately filed this civil action seeking
payment of both the additional claimed backpay and the
sanctions award. Plaskett alleged that the Army’s
6 PLASKETT V. WORMUTH

nondiscretionary duty to pay these sums was enforceable
under the Mandamus Act, 28 U.S.C. § 1361, and the
Administrative Procedure Act (“APA”), 5 U.S.C. § 706(1).
The district court dismissed the action for lack of
jurisdiction, concluding that the requirements of mandamus
jurisdiction were not met as to the backpay award and that
the Army’s sovereign immunity barred enforcement of the
sanctions award. Although our reasoning differs in some
respects from that of the district court, we agree that this
action was properly dismissed. We therefore affirm the
district court’s judgment.

I

A

From July 4, 2006 until September 30, 2010, Jeffrey
Plaskett was employed as an Engineering Equipment
Operator by the U.S. Army at Fort Hunter Liggett in Jolon,
California. Shortly after that term appointment expired,
Plaskett applied for one of four open permanent positions for
the same job. However, the 55-year-old Plaskett was not
hired; instead, four younger men ranging in age from 29–45
were selected.

In November 2010, Plaskett filed an administrative
complaint with the EEOC alleging that the Army had
violated § 15 of the ADEA, which generally provides that
“[a]ll personnel actions affecting employees or applicants
for employment who are at least 40 years of age . . . in
military departments . . . , in executive agencies[,]” and
certain other governmental entities “shall be made free from
any discrimination based on age.” 29 U.S.C. § 633a(a).
After hearing testimony over several days, the EEOC
administrative judge on October 18, 2012 issued a decision
specifically finding that “Plaskett was not selected for an
 PLASKETT V. WORMUTH 7

Engineering Equipment Operator position because of his
age” and that the Army had therefore violated the ADEA.
The administrative judge ordered Plaskett to be hired in the
same or a substantially equivalent position and also awarded
him backpay. See 29 U.S.C. § 633a(b) (stating that, in
EEOC proceedings to enforce the ADEA, the EEOC is
authorized to provide “appropriate remedies, including
reinstatement or hiring of employees with or without
backpay”).

In a separate order issued the next day, the administrative
judge ordered the Army to pay Plaskett $7,012.50 as a
sanction for its failure to produce discovery in a timely
manner. The judge concluded that the Army’s efforts to
locate documents had not been sufficiently “diligent,” and
important documents were belatedly produced “at or after”
the hearing, and then only after multiple requests by Plaskett
and the filing of a motion to compel. The sanction amount
was determined by multiplying the “reasonable time” that
Plaskett’s attorney had spent pursuing this discovery
(16.5 hours) by a reasonable hourly rate for attorneys in the
relevant legal community ($425). As authority for imposing
this monetary sanction, the judge cited 29 C.F.R.
§ 1614.109(f)(3). 1 That section provides that, when a
complainant or an agency fails to comply with an
administrative judge’s orders or with discovery requests, the
judge may impose one or more merits-related sanctions
(such as drawing adverse inferences or even terminating

1
The administrative judge’s order actually says “§ 1614.(f)(3),” but
all parties agree that § 1614.109(f)(3) was the intended referent.
8 PLASKETT V. WORMUTH

sanctions) or may “[t]ake such other actions as appropriate.”
Id. 2

Under the EEOC’s regulations, an agency must act on an
administrative judge’s decision by “issuing a final order
within 40 days,” notifying the complainant “whether or not
the agency will fully implement the decision.” 29 C.F.R.
§ 1614.110(a). If the agency’s final order does not fully

2
Subsection (f)(3) provides:

(3) When the complainant, or the agency against
which a complaint is filed, or its employees fail
without good cause shown to respond fully and in
timely fashion to an order of an administrative judge,
or requests for the investigative file, for documents,
records, comparative data, statistics, affidavits, or the
attendance of witness(es), the administrative judge
shall, in appropriate circumstances:

(i) Draw an adverse inference that the requested
information, or the testimony of the requested witness,
would have reflected unfavorably on the party refusing
to provide the requested information;

(ii) Consider the matters to which the requested
information or testimony pertains to be established in
favor of the opposing party;

(iii) Exclude other evidence offered by the party
failing to produce the requested information or
witness;

(iv) Issue a decision fully or partially in favor of the
opposing party; or

(v) Take such other actions as appropriate.

29 C.F.R. § 1614.109(f)(3).
 PLASKETT V. WORMUTH 9

implement that decision, “then the agency shall
simultaneously file an appeal” with the EEOC. Id.
Accordingly, on December 3, 2012, the Army issued a “final
action” notice stating that it would implement the EEOC’s
October 18, 2012 order granting relief for a violation of the
ADEA. However, in the same notice, the Army stated that
it would not implement the EEOC’s October 19, 2012
sanctions order. The Army noted that the U.S. Department
of Justice’s Office of Legal Counsel (“OLC”) “has expressly
opined that there has been no express waiver of sovereign
immunity that would authorize the payment of sanctions in
administrative cases before the EEOC.” See Authority of the
EEOC to Impose Monetary Sanctions Against Federal
Agencies for Failure to Comply with Orders Issued by
EEOC Administrative Judges, 27 Op. O.L.C. 24 (2003). The
Army stated that it was “bound to follow this [OLC]
opinion” over the conflicting views of the EEOC, and it
therefore declined to implement the EEOC’s sanctions order.
Consistent with the regulation, the Army simultaneously
filed an appeal of that order with the EEOC’s “Office of
Federal Operations” (“OFO”), see 29 C.F.R. § 1614.403(a),
which is authorized to issue decisions in such appeals “on
behalf of the Commission,” id. § 1614.405(a).

In its appeal of the sanctions order, the Army relied
solely on sovereign immunity and did not otherwise contest
that the sanction was warranted and proportionate to the
Army’s violation of its discovery obligations during the
administrative proceedings. In August 2015, the OFO issued
an order upholding the sanction and directing the Army to
pay it. The Army timely sought reconsideration of the
OFO’s decision, but reconsideration was denied in May
2016. Plaskett petitioned for enforcement of the order in
July 2016, and the OFO granted that petition in July 2018.
10 PLASKETT V. WORMUTH

B

Meanwhile, in May 2014, Plaskett informed the Army
that he believed that his backpay had been underpaid.
Specifically, Plaskett contended that the Army had
improperly deducted the amount of his private employment
income during the backpay period from the final backpay
awarded. According to Plaskett, the private employment
income at issue, arising from Plaskett’s bulldozing work,
was “moonlighting” income that should not have been
deducted under the applicable regulations. See 5 C.F.R.
§ 550.805(e)(1) (stating that, although “outside earnings . . .
undertaken to replace” the employment from which an
employee has been wrongfully separated should be deducted
in calculating backpay, “earnings from additional or
‘moonlight’ employment the employee may have engaged in
while Federally employed (before separation) and while
erroneously separated” should not be deducted).

After Plaskett did not receive a satisfactory response
from the Army on this issue, Plaskett filed a formal appeal
with the OFO in April 2015, asserting that the Army owed
him $21,020.01 in additional backpay under the December
2012 final action. While the appeal was pending, the Army
sent an email to Plaskett’s counsel noting that, pursuant to
DoD Financial Management Regulation (“FMR”) 7000.14-
R, Vol. 8, Chap. 6, § 060505(C) (2013), “[t]he only earnings
from other employment that are not deducted from back pay
are earnings from outside employment the employee already
had before the period of wrongful suspension or separation”
(emphasis added). 3 Accordingly, the Army requested that
Plaskett provide documentation showing that he had

3
The relevant language is now contained, substantially unchanged,
in § 060405(C) of the current version of the regulation.
 PLASKETT V. WORMUTH 11

engaged in the asserted moonlighting employment before he
left the Army’s employment. Asserting that Plaskett did not
supply such documentation, the Army subsequently declined
to pay any additional backpay.

The OFO issued its decision in Plaskett’s appeal in
October 2017. The OFO noted that the Army conceded that
Plaskett “should be reimbursed for the amount deducted
from back pay that was moonlighting earnings,” but the OFO
stated that “neither party has submitted documentation [of]
the sum thereof.” Accordingly, the OFO ordered the Army
to reimburse Plaskett’s “back pay, with interest, that it
incorrectly deducted as interim earnings but was
moonlighting work.” Plaskett was ordered to “cooperate in
the [Army’s] efforts to compute the amount of back pay and
benefits due” and to “provide all relevant information
requested” by the Army.

In January 2018, Plaskett sought enforcement of the
October 2017 decision, and an EEOC Compliance Officer
requested a compliance report from the Army. The Army
wrote to Plaskett’s counsel in February 2018, stating that,
while it had not yet reimbursed any asserted moonlighting
earnings, that was attributable to “Plaskett’s failure to
provide either time cards or other statements showing he was
engaged in outside employment while still a federal
employee in 2010.” Counsel responded by asserting that
Plaskett had already “provided all of the information he was
required” to provide. At the instructions of the Compliance
Officer, the Army’s attorney in May 2018 sent Plaskett’s
counsel an email explaining that the only outside
employment time cards the Army had received from Plaskett
covered pay periods in 2012 and 2013 and were therefore
inadequate to establish that Plaskett had engaged in such
12 PLASKETT V. WORMUTH

employment before October 2010. Plaskett’s counsel
apparently did not respond to this email.

Subsequently, on May 30, 2018, the OFO docketed
Plaskett’s formal petition for enforcement of the December
2017 order. Plaskett asserted that the Army had failed to
comply with the October 2017 order and that he was owed
$21,020.01 in additional backpay. In its response, the Army
stated that it did not construe the October 2017 order as
requiring the payment of $21,020.01 and that, without
additional documentation from Plaskett, it could not
determine any amount of moonlighting earnings that were
improperly offset against the backpay award.

C

Before the EEOC acted on Plaskett’s petition for
enforcement of the December 2017 order, Plaskett filed this
action in the district court on October 23, 2018. Plaskett’s
first cause of action sought an order directing the Army to
pay him additional backpay in the amount of $21,020.01,
plus interest, and his second cause of action sought an order
requiring payment of the $7,012.50 sanctions award. In
seeking to compel these actions by the Army, Plaskett’s
complaint relied on two sources of authority: (1) the district
court’s jurisdiction over “action[s] in the nature of
mandamus” under the Mandamus Act, see 28 U.S.C. § 1361;
and (2) the judicial review provisions of the APA, which
allow a court to “compel agency action unlawfully withheld
or unreasonably delayed,” 5 U.S.C. § 706(1).

The Army moved to dismiss for lack of subject matter
jurisdiction and for failure to state a claim on which relief
may be granted, see FED. R. CIV. P. 12(b)(1), (6), and the
district court granted that motion in September 2019. The
court concluded that mandamus jurisdiction did not lie as to
 PLASKETT V. WORMUTH 13

the backpay dispute, because Plaskett had not shown a clear
right to the additional sum claimed. For similar reasons, the
court also held that it lacked jurisdiction under the APA. As
to the sanctions award, the district court concluded that it
lacked jurisdiction in light of the Government’s sovereign
immunity. Although the EEOC contended that the
Government’s immunity was waived under the EEOC
regulation at 29 C.F.R. § 1614.109(f)(3), the court held that
the regulation lacked the requisite clear and unequivocal
waiver of sovereign immunity. Accordingly, the district
court dismissed the action. Plaskett timely appealed to this
court.

II

Before turning to Plaskett’s specific claims for additional
backpay and for payment of the sanctions award, we first
review the requirements of the particular sources of authority
that he invoked, viz., the Mandamus Act and the APA.

A

Although the common-law writ of mandamus has been
abolished in the district courts, see FED. R. CIV. P. 81(b), 4 the
Mandamus Act grants district courts “original jurisdiction of
any action in the nature of mandamus” against a federal
officer or agency. 28 U.S.C. § 1361; see generally
33 CHARLES A. WRIGHT, CHARLES H. KOCH, & RICHARD
MURPHY, FEDERAL PRACTICE AND PROCEDURE § 8305 (2d
ed. 2018) (noting that § 1361 “uses the indirect phrasing, ‘in

4
By contrast, the “common-law writ of mandamus against a lower
court” remains available to appellate courts under the All Writs Act,
28 U.S.C. § 1651(a). See Cheney v. U.S. Dist. Ct. for the Dist. of
Columbia, 542 U.S. 367, 380 (2004).
14 PLASKETT V. WORMUTH

the nature of mandamus,’” in light of Rule 81(b)). However,
§ 1361’s grant of such jurisdiction “does not expand the
generally recognized scope of mandamus.” Nova Stylings,
Inc. v. Ladd, 695 F.2d 1179, 1180 (9th Cir. 1983).
Consistent with the limitations that traditionally governed
the common-law writ of mandamus, an action under § 1361
is thus “intended to provide a remedy for a plaintiff only if
he has exhausted all other avenues of relief and only if the
defendant owes him a clear nondiscretionary duty.” Heckler
v. Ringer, 466 U.S. 602, 616 (1984). As we have explained,
“[a]n order pursuant to § 1361 is available only if (1) the
claim is clear and certain; (2) the official’s or agency’s ‘duty
is nondiscretionary, ministerial, and so plainly prescribed as
to be free from doubt’; and (3) no other adequate remedy is
available.” Agua Caliente Tribe of Cupeño Indians of Pala
Rsrv. v. Sweeney, 932 F.3d 1207, 1216 (9th Cir. 2019)
(quoting Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1997)).
Accordingly, to establish his entitlement to mandamus-type
relief, Plaskett had to plead that these three requirements
were met.

B

“The APA authorizes suit by ‘[a] person suffering legal
wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant
statute.’” Norton v. Southern Utah Wilderness All., 542 U.S.
55, 61 (2004) (quoting 5 U.S.C. § 702). “[A]gency action”
is defined to include a “failure to act,” see 5 U.S.C.
§ 551(13), and in a suit brought by an aggrieved person over
such a failure to act, the APA expressly authorizes a court to
“compel agency action unlawfully withheld or unreasonably
delayed,” id. § 706(1). Construing the APA in light of its
antecedents, when judicial review was often sought through
“writs of mandamus,” the Supreme Court has held that “a
 PLASKETT V. WORMUTH 15

claim under § 706(1) can proceed only where a plaintiff
asserts that an agency failed to take a discrete agency action
that it is required to take.” Norton, 542 U.S. at 63–64. Thus,
“§ 706(1) empowers a court only to compel an agency ‘to
perform a ministerial or non-discretionary act,’ or ‘to take
action upon a matter, without directing how it shall act.’” Id.
at 64 (citation omitted); see also Center for Biological
Diversity v. Veneman, 394 F.3d 1108, 1112 (9th Cir. 2005).

We have recognized that, in this respect, the showing
required to support a request for an order under § 706(1)
compelling an agency to take a discrete action mirrors the
showing that is required to obtain mandamus-type relief. See
Agua Caliente Tribe, 932 F.3d at 1216 (considering the two
forms or relief “together because the relief sought is
essentially the same”) (simplified). That is, because a “court
can compel agency action under [§ 706(1)] only if there is ‘a
specific, unequivocal command’ placed on the agency to
take a ‘discrete agency action,’ and the agency has failed to
take that action,” the “agency action must be pursuant to a
legal obligation ‘so clearly set forth that it could traditionally
have been enforced through a writ of mandamus.’” Vietnam
Veterans of Am. v. CIA, 811 F.3d 1068, 1075–76 (9th Cir.
2016) (citations omitted). 5

5
We have suggested that jurisdiction under the Mandamus Act may
not be proper when, as here, Plaskett would have an adequate remedy
under § 706(1) of the APA for any meritorious claim. See Independence
Min. Co. v. Babbitt, 105 F.3d 502, 507 n.6 (9th Cir. 1997) (“[W]e
question the applicability of the traditional mandamus remedy under the
[Mandamus Act] where there is an adequate remedy under the APA.”);
cf. Piledrivers’ Local Union No. 2375 v. Smith, 695 F.2d 390, 392 (9th
Cir. 1982) (“Mandamus jurisdiction” under the Mandamus Act only
“exists when . . . no other adequate remedy is available.”). We need not
address this issue, however, because we have subject matter jurisdiction
16 PLASKETT V. WORMUTH

C

It follows from these settled principles that, regardless of
whether Plaskett’s claim is viewed as one under § 1361 or
under § 706(1), he was required to plead, inter alia, that the
Army had a clear, certain, and mandatory duty to pay him
(1) the additional backpay he sought and (2) the sanctions
award that the EEOC had imposed. In reviewing whether
the district court properly dismissed this action for failure to
carry this burden, we confront an initial question concerning
the proper procedural framework for reviewing the district
court’s decision.

The district court dismissed Plaskett’s claims based
solely on “lack of subject matter jurisdiction” under Rule
12(b)(1) and it expressly declined to “reach [the Army’s]
challenges under Rule 12(b)(6).” As to the sanctions award,
we agree that the issue of the Army’s sovereign immunity
raises a jurisdictional issue that was properly resolved under
Rule 12(b)(1). See Mundy v. United States, 983 F.2d 950,
952 (9th Cir. 1993). But as to the issue of backpay, the
matter is more complicated. We have generally treated the
requirements for obtaining mandamus-type relief under
§ 1361 as jurisdictional in nature, see, e.g., Stang v. IRS,
788 F.2d 564, 565–66 (9th Cir. 1986); but cf. In re First Fed.
Savs. & Loan Ass’n of Durham, 860 F.2d 135, 140 (4th Cir.
1988), but the Army now correctly concedes that it was error
to dismiss Plaskett’s APA claim for backpay for lack of
subject matter jurisdiction. Any deficiencies as to the APA
claim go to the merits of that cause of action rather than to
the subject matter jurisdiction of the court to consider it. See,

over the APA claim under 28 U.S.C. § 1331, and Plaskett’s claims fail
under either the APA or the Mandamus Act given that he lacks any clear
right to relief.
 PLASKETT V. WORMUTH 17

e.g., Califano v. Sanders, 430 U.S. 99, 106–07 (1977)
(holding that the APA is not a jurisdictional provision and
that jurisdiction in APA cases rests on the federal question
statute, 28 U.S.C. § 1331). The adequacy of Plaskett’s APA
claim for additional backpay thus should have been analyzed
under Rule 12(b)(6) rather than Rule 12(b)(1).

We therefore begin by evaluating all of Plaskett’s claims
under the standards applicable to a motion to dismiss for
failure to state a claim. See Atel Fin. Corp. v. Quaker Coal
Co., 321 F.3d 924, 926 (9th Cir. 2003) (“We may affirm a
district court’s judgment on any ground supported by the
record.”). And because, for the reasons explained below, we
conclude that all of his claims fail under those standards, we
need not consider whether the application of Rule 12(b)(1)
standards might have made a difference. Cf. Ass’n of Am.
Med. Colls. v. United States, 217 F.3d 770, 778–79 (9th Cir.
2000) (noting that “motions to dismiss under Rule 12(b)(1),
unlike a motion under Rule 12(b)(6),” may involve
presentation of evidence and findings of fact).

D

Accordingly, in reviewing Plaskett’s claims, we consider
whether, “taking all well-pleaded factual allegations as true,
it contains enough facts to ‘state a claim to relief that is
plausible on its face.’” Hebbe v. Pliler, 627 F.3d 338, 341–
42 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. In applying these
standards, we “consider only allegations contained in the
pleadings, exhibits attached to the complaint, and matters
properly subject to judicial notice.” Swartz v. KPMG LLP,
476 F.3d 756, 763 (9th Cir. 2007). The adequacy of
Plaskett’s claims under these standards raises a question of
18 PLASKETT V. WORMUTH

law that we consider de novo. Id. at 760. Likewise, whether
the Army was entitled to sovereign immunity as to the
sanctions award presents a question of law that we review de
novo. Orff v. United States, 358 F.3d 1137, 1142 (9th Cir.
2004), aff’d, 545 U.S. 596 (2005).

III

We conclude that Plaskett has failed to state a claim,
under either § 1361 or § 706(1), for $21,020.01 in additional
backpay.

A

Plaskett’s claim to additional backpay ultimately rests on
the EEOC’s October 2017 decision, but that ruling does not
establish a “clear and certain” claim resting on a
“nondiscretionary, ministerial” duty to pay additional
backpay that is “so plainly prescribed as to be free from
doubt.” Agua Caliente Tribe, 932 F.3d at 1216 (citations and
internal quotation marks omitted). On the contrary, the order
on its face expresses uncertainty as to what amount, if any,
of additional backpay might be due.

The October 2017 order confirms that there is no dispute
that, if the Army offset its backpay award by amounts that
Plaskett earned as a result of moonlighting work, then
Plaskett is entitled to receive additional backpay reflecting
that improperly deducted amount. See 5 C.F.R.
§ 550.805(e)(1); DoD FMR 7000.14-R, Vol. 8, Chap. 6,
§ 060505(C) (2013); see also supra at 10–11. As the order
explains, the Army “concedes [Plaskett] should be
reimbursed for the amount deducted from back pay that was
moonlighting earnings.” While the order reflects the parties’
apparent assumption that the amount of such reimbursable
moonlighting earnings was not zero, the order does not make
 PLASKETT V. WORMUTH 19

any finding as to what, if any, amount is actually owed. On
the contrary, the order states that “neither party has
submitted documentation [of] the sum thereof.” The order
therefore directs the Army to “determine the appropriate
amount of back pay, with interest,” and it directs Plaskett to
“cooperate in the [Army’s] efforts to compute the amount of
back pay and benefits due” and to “provide all relevant
information requested” by the Army. The order also
specifies that, in the event of a dispute over the exact amount
due, the Army should pay any undisputed amount and
Plaskett should file a “petition for enforcement or
clarification of the amount in dispute.” The order thus
plainly envisions that a further process will need to take
place to determine what additional sum, if any, is due to
Plaskett.

Plaskett’s complaint fails to plead sufficient facts to
show that the process contemplated by the October 2017
order has been completed and that a certain amount of
additional backpay is now clearly owed to him. Instead, the
complaint appears to rest on the premise that, because the
Army inexcusably failed to complete that process within the
60 days specified in the October 2017 order, the Army has
forfeited all objections on this score and therefore must pay
the full $21,020.01 demanded by Plaskett. But nothing in
the October 2017 order (or in anything else that Plaskett has
cited) establishes that this consequence follows from the
Army’s failure to respond in time. On the contrary, when
Plaskett called the Army’s oversight to the attention of the
EEOC, it did not order payment of $21,020.01 but instead
directed the Army to issue a “compliance report” within
20 days.

Judicially noticeable materials in the record further
underscore Plaskett’s failure to plead facts establishing a
20 PLASKETT V. WORMUTH

plausible inference that the uncertain and indeterminate
entitlement to additional backpay referenced in the October
2017 order has crystalized into a fixed obligation to pay a
sum certain. In particular, the parties’ correspondence over
this issue in the period leading up to the filing of this action
confirms that the parties disagree as to whether Plaskett has
supplied the necessary documents to allow a determination
as to whether moonlighting income was improperly offset in
calculating Plaskett’s previous backpay award. 6 Plaskett has
pleaded no facts plausibly showing that he has provided the
Army with the requisite documents, thereby establishing his
entitlement to additional backpay. Nor has Plaskett pleaded
facts showing that the EEOC has taken a position on this
dispute, and the judicially noticeable materials concerning
the parties’ interactions with the EEOC do not indicate that
either. Rather, the dispute was presented to the EEOC in
connection with Plaskett’s petition for enforcement, which
was docketed in May 2018. See supra at 12. However, the
EEOC dismissed that petition in January 2020 on the ground
that, “upon the filing of [this] civil action in October 2018,
the Commission’s jurisdiction over the complaint ceased.”

It is thus clear that Plaskett has failed to plead—and, if
given leave to amend, he could not plead—that any inchoate
entitlement to additional backpay contemplated by the
October 2017 order has been reduced to a “clear and certain”

6
We do not take judicial notice of the truth of the factual assertions
contained in the parties’ correspondence with one another or with the
EEOC, but only of the fact that the parties have made these competing
representations. No party has disputed the authenticity of the documents,
and neither side has objected to the requests for judicial notice made by
the other. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741,
746 n.6 (9th Cir. 2006); Lee v. City of Los Angeles, 250 F.3d 668, 688–
90 (9th Cir. 2001). We accordingly also grant Plaskett’s request for
judicial notice of certain materials from the administrative record.
 PLASKETT V. WORMUTH 21

claim for performance of a “‘nondiscretionary, ministerial’”
duty to pay a determinate sum of any size. Agua Caliente
Tribe, 932 F.3d at 1216 (citation omitted).

B

Plaskett nonetheless contends that, for two reasons, the
Army should be barred from contesting that it owes him
$21,020.01 in additional backpay. The district court
properly rejected both arguments.

First, Plaskett contends that the Army effectively
conceded that it owed him that amount. Plaskett notes that
an Army attorney stated, in an internal email in 2014, that
Plaskett’s request for additional backpay appeared to be
“backed up by documentation from his employers.” Plaskett
further notes that the Army did not affirmatively contend, in
opposing Plaskett’s 2015 appeal to the OFO, that Plaskett
was owed nothing, and the Army did not call attention to its
moonlighting regulation until after that appeal had already
been filed. Moreover, the Army’s opposition to the appeal
blamed Plaskett for being tardy in submitting documentation
and expressed the view that “the additional backpay should
be forthcoming.” None of these actions amounts to either a
binding concession as to Plaskett’s position or a waiver of
the Army’s objections. Indeed, the EEOC itself plainly did
not read the record the way Plaskett does, because in its
October 2017 ruling on the 2015 appeal, it emphasized the
lack of supporting documentation in the record and the need
for the parties to work together to ascertain any additional
amount owed. See supra at 12. On this record, Plaskett has
provided no plausible basis for concluding that the Army
waived its objections to the adequacy of Plaskett’s
documentation or to the correctness of his claim for
additional backpay. See Groves v. Prickett, 420 F.2d 1119,
1126 (9th Cir. 1970) (noting that a claim is waived when a
22 PLASKETT V. WORMUTH

litigant’s conduct is “clear, decisive and unequivocal of a
purpose to waive the legal rights involved” (citation
omitted)).

Second, Plaskett asserts that the doctrine of laches bars
the Army from contesting the amount of backpay due.
According to Plaskett, the Army “failed to seek in a timely
fashion” the “documents it now claims are necessary” under
the applicable regulations, and due to the passage of time,
those documents “may no longer exist.” But as the party
asserting an entitlement to additional backpay, Plaskett at all
times had the burden to establish that he was entitled to that
money in accordance with the applicable law and
regulations. Here, the relevant regulations are all public
documents and, before presenting a claim for additional
backpay, Plaskett and his counsel would be expected to
consult those regulations in order to ensure that they could
satisfy all of their requirements and that Plaskett had a good-
faith basis for requesting additional backpay. At least with
respect to the essential elements of his own claim for relief,
a claimant such as Plaskett cannot invoke laches to complain
that the opposing party failed to tell him what the applicable
law was for the claim he was asserting against it. It may be
that laches might come into play in connection with the
belated assertion of an affirmative defense. Cf. O’Donnell
v. Vencor, Inc., 465 F.3d 1063, 1067 (9th Cir. 2006)
(considering whether a belated assertion of a “statute of
limitations defense” was barred by laches but finding that the
requisite prejudice was not established). But as the district
court correctly recognized, a plaintiff cannot invoke the
doctrine based on the premise that the plaintiff was
prejudiced by its opponent’s supposed failure to inform it
about the plaintiff’s own burden of proof under the law. See
Halcon Int’l, Inc. v. Monsanto Australia Ltd., 446 F.2d 156,
159 (7th Cir. 1971) (stating that laches “is a shield of
 PLASKETT V. WORMUTH 23

equitable defense rather than a sword for the investiture or
divestiture of legal title or right”); 30A C.J.S. Equity § 140
(2021) (“The doctrine of laches cannot be used as a means
to obtain affirmative relief.”).

Accordingly, Plaskett failed to state a claim under either
28 U.S.C. § 1361 or APA § 706(1) for the payment of
additional backpay, and the district court properly dismissed
Plaskett’s first cause of action.

IV

In contrast to his claim for additional backpay, Plaskett’s
claim for payment of the sanctions award presents only a
pure question of law concerning the scope of the
Government’s sovereign immunity. If that immunity has
been waived, it is indisputable that Plaskett has properly
asserted a claim, because then the Army would have a clear,
certain, and ministerial duty to pay that sum to Plaskett, and
the district court would have jurisdiction over that claim.
The only question, therefore, is whether the district court
correctly concluded that the Army’s sovereign immunity had
not been waived. Although we agree with the district court’s
conclusion, our reasoning differs.

“The 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), and the courts “strictly construe”
any such “waivers of sovereign immunity,” Oklevueha
Native Am. Church of Haw., Inc. v. Holder, 676 F.3d 829,
840 (9th Cir. 2012). Here, the district court concluded that
the Government’s sovereign immunity from monetary
sanctions imposed by the EEOC had not been waived
because the applicable EEOC regulation—29 C.F.R.
§ 1614.109(f)(3)—“lack[ed] a ‘clear statement’ that the
United States has waived sovereign immunity to permit the
24 PLASKETT V. WORMUTH

imposition of monetary sanctions against the Army in
administrative proceedings.” In our view, the district court
asked the wrong question.

It is well settled that “[o]nly Congress enjoys the power
to waive the United States’ sovereign immunity.” Dunn &
Black, P.S. v. United States, 492 F.3d 1084, 1090 (9th Cir.
2007). Accordingly, the Supreme Court has long held that,
as a “critical requirement firmly grounded in [its]
precedents,” a “waiver of the Federal Government’s
sovereign immunity must be unequivocally expressed in
statutory text.” Lane v. Peña, 518 U.S. 187, 192 (1996)
(emphasis added); see also FAA v. Cooper, 566 U.S. 284,
290 (2012) (“We have said on many occasions that a waiver
of sovereign immunity must be ‘unequivocally expressed’ in
statutory text.” (citation omitted)). Consistent with this
overwhelming authority, we have squarely held that,
because a “regulation” is “not [an] act[] of Congress,” it
“cannot effect a waiver of sovereign immunity.” Tobar v.
United States, 639 F.3d 1191, 1195 (9th Cir. 2011); see also
Heller v. United States, 776 F.2d 92, 98 n.7 (3d Cir. 1985)
(holding that “government regulations alone, without the
express intent of Congress, cannot waive sovereign
immunity”).

Plaskett notes that we have upheld the imposition of
monetary litigation sanctions by courts under the Federal
Rules of Civil Procedure, see Mattingly v. United States,
939 F.2d 816, 818–19 (9th Cir. 1991) (Rule 11 sanctions);
United States v. Nat’l Med. Enters., Inc., 792 F.2d 906, 910–
11 (9th Cir. 1986) (discovery sanctions under Rule 37(b));
cf. United States v. Woodley, 9 F.3d 774, 781–82 (9th Cir.
1993) (holding that neither local rules, supervisory power,
nor FED. R. CRIM. P. 16(d)(2) authorized sanctions awarded
against the Government in that case), and he argues that
 PLASKETT V. WORMUTH 25

administrative agencies must be deemed to have similar
authority to impose sanctions by regulation. But as Plaskett
recognizes, any power to award monetary litigation
sanctions under the Federal Rules of Civil Procedure draws
upon both the authority delegated to the Supreme Court
under the Rules Enabling Act, see 28 U.S.C. § 2072, and also
upon the inherent authority of the courts to control the
proceedings before them. We have construed the latter
authority as including a limited power to waive the
Government’s immunity from sanctions, see Woodley,
9 F.3d at 782 (“Sovereign immunity does not bar a court
from imposing monetary sanctions under an exercise of its
supervisory powers.”); cf. Chambers v. NASCO, Inc.,
501 U.S. 32, 45 (1991) (“‘[I]n narrowly defined
circumstances federal courts have inherent power to assess
attorney’s fees against counsel.’” (citation omitted)), and in
that respect it is perhaps unsurprising that we have
recognized, under appropriate provisions of the federal rules,
an authority to impose monetary sanctions on the
Government. But in this regard an administrative agency
simply does not stand on the same footing as an Article III
court. “An administrative agency possesses no such inherent
equitable power, however, for it is a creature of the statute
that brought it into existence; it has no powers except those
specifically conferred upon it by statute.” Int’l Union of
Elec., Radio & Mach. Workers v. NLRB, 502 F.2d 349, 352
n.* (D.C. Cir. 1974) (opin. of MacKinnon, J.); see also HTH
Corp. v. NLRB, 823 F.3d 668, 679 (D.C. Cir. 2016) (“As a
creature of statute the Board has only those powers conferred
upon it by Congress.”).

Accordingly, whether the Army’s sovereign immunity
has been waived here turns on whether an applicable waiver
has been “unequivocally expressed in statutory text.” Lane,
518 U.S. at 192. Moreover, even when Congress has waived
26 PLASKETT V. WORMUTH

the Government’s sovereign immunity by statute, the
“scope” of that waiver “will be strictly construed . . . in favor
of the sovereign.” Id. That means that, before a particular
type of monetary exaction may be sought against the
Government, an applicable statutory waiver must be
identified that “extend[s] unambiguously to such monetary
claims.” Id.

In contending that the Army’s immunity from monetary
litigation sanctions has been waived, the only statute on
which Plaskett relies is § 15 of the ADEA. See 29 U.S.C.
§ 633a. That statute establishes a general requirement that
federal personnel decisions “shall be made free from any
discrimination based on age,” id. § 633a(a), and it authorizes
the EEOC to enforce that requirement “through appropriate
remedies, including reinstatement or hiring of employees
with or without backpay, as will effectuate the policies of
this section,” id. § 633a(b). It also gives the agency authority
to issue “such rules, regulations, orders, and instructions as
it deems necessary and appropriate to carry out its
responsibilities under this section.” Id. An aggrieved
plaintiff may invoke this administrative option (as Plaskett
did here), “and then file a civil action in federal district court
if he is not satisfied with his administrative remedies.”
Stevens v. Dep’t of Treasury, 500 U.S. 1, 5 (1991). 7 If, as
here, the plaintiff is generally satisfied with the findings and
remedies provided by the administrative process, he or she
can file “an enforcement action against the agency,” but in

7
Alternatively, the plaintiff “can decide to present the merits of his
claim to a federal court in the first instance,” after giving the required
pre-suit notice to the EEOC. Stevens, 500 U.S. at 6; see also 29 U.S.C.
§ 633a(c), (d). The court presented with a de novo civil action under
either route has the authority to award “such legal or equitable relief as
will effectuate the purposes of this chapter.” 29 U.S.C. § 633a(c).
 PLASKETT V. WORMUTH 27

such an action the “prevailing employee may not challenge
the [EEOC’s] decision regarding either discrimination or
what it found to be appropriate remedies.” Carver v. Holder,
606 F.3d 690, 696 (9th Cir. 2010).

Plaskett first claims that a sufficient waiver of the
Government’s immunity against monetary litigation
sanctions may be found in § 15’s express statement that the
EEOC may impose “appropriate remedies, including
reinstatement or hiring of employees with or without
backpay, as will effectuate the policies of this section.”
29 U.S.C. § 633a(b). We reject this contention. The
statute’s reference to “appropriate remedies” is
unmistakably a reference to remedies for the “discrimination
based on age” that is made unlawful by § 15(a). That is
confirmed by the specific examples that the statute gives—
namely, “reinstatement,” “hiring,” and “backpay”—all of
which provide redress for such underlying discrimination. A
monetary litigation sanction, by contrast, serves as a
“remedy” for “a violation of a discovery order” or other
litigation-related rule. See Woodley, 9 F.3d at 782. The
express authority to impose monetary “remedies” that
redress discrimination (such as “backpay”) is not the same
as an authority to impose monetary remedies to redress
litigation misconduct. This aspect of § 15 thus does not
supply the necessary clear waiver of immunity that would
explicitly extend to this distinct, latter category of monetary
claim. Lane, 518 U.S. at 192.

Plaskett also notes that § 15 authorizes the EEOC to
“issue such rules, regulations, orders, and instructions as it
deems necessary and appropriate to carry out its
responsibilities” and that it requires federal agencies to
“comply with such rules, regulations, orders, and
instructions.” 29 U.S.C. § 633a(b). These provisions cannot
28 PLASKETT V. WORMUTH

supply the requisite waiver of sovereign immunity either. As
we have recognized, the Supreme Court has consistently
affirmed that “a waiver of sovereign immunity must be
‘unequivocally expressed’ in statutory text.” Cooper,
566 U.S. at 290 (emphasis added) (citation omitted).
Because Congress thus must itself supply the requisite
waiver through clear statutory text, a boilerplate delegation
of general enforcement authority to an agency, untethered to
any relevant explicit statutory waiver of sovereign
immunity, cannot be thought to provide such a waiver. To
hold otherwise would be to allow the necessary waiver to be
expressed in “statutory text or regulations,” and that would
be contrary to long-established Supreme Court authority and
to our decision in Tobar. And to rely on a general grant of
enforcement authority, as opposed to an express power to
impose monetary exactions, would violate the rule that a
waiver of sovereign immunity “may not be inferred, but
must be ‘unequivocally expressed.’” United States v. White
Mountain Apache Tribe, 537 U.S. 465, 472 (2003) (citation
omitted).

Finally, Plaskett contends that, if the EEOC cannot
impose monetary litigation sanctions against the
Government, then it will be unable to effectuate its authority
over its own proceedings. This policy concern cannot
overcome the settled caselaw cited above, but in any event,
its premise is incorrect. The Government here expressly
concedes that the EEOC can impose a variety of
nonmonetary sanctions, “such as by drawing adverse
inferences, by excluding evidence, or by taking other action
during the adjudication of a claim.” This range of potent
sanctions gives the agency ample authority to ensure that the
Government, as a litigant in EEOC proceedings, acts in
conformity with lawful rules and orders of the agency.
 PLASKETT V. WORMUTH 29

Because Congress has not “unequivocally expressed in
statutory text” that the EEOC may award monetary litigation
sanctions against the Government, sovereign immunity
precludes enforcement of the award levied by the EEOC in
this case. Lane, 518 U.S. at 192. The district court therefore
properly dismissed Plaskett’s second cause of action.

V

The district court’s judgment dismissing this action is
AFFIRMED.

SCHROEDER, Circuit Judge, concurring:

I agree that the district court’s denial of relief should be
affirmed.

Plaskett cannot succeed on his claim for additional
backpay because he failed to show that the amount he seeks
represents moonlight earnings improperly deducted as
replacement income. This is the correct result whether we
look to the allegations of the complaint, as the majority does,
or look through to the record before the EEOC, as the district
court did.

With respect to sanctions, there is no legal authority that
authorizes the EEOC to impose monetary sanctions against
the government for discovery violations. There is a broad
statutory waiver of sovereign immunity that subjects the
government to liability for violating the ADEA, and requires
it to abide by the EEOC regulations enforcing the statute. As
to ADEA liability, the statute in material part provides:
30 PLASKETT V. WORMUTH

All personnel actions affecting employees or
applicants for employment who are at least
40 years of age . . . shall be made free from
any discrimination based on age.

29 U.S.C. § 633a(a).

As to compliance with EEOC regulations enforcing the
statute, the statute further provides:

[T]he [EEOC] is authorized to enforce the
provisions of subsection (a) through
appropriate remedies, including
reinstatement or hiring of employees with or
without backpay, . . . [and to] issue such
rules, regulations, orders, and instructions as
it deems necessary and appropriate to carry
out its responsibilities under this section.

...

The head of each such department agency, or
unit shall comply with such rules,
regulations, orders, and instructions of the
[EEOC] . . . .

Id. § 633a(b).

Under this statutory authority, the EEOC promulgated a
regulation that allows administrative law judges to sanction
parties who fail to respond to discovery requests. It lists
sanctions that allow ALJs to draw adverse inferences, to
exclude other evidence, and to “[t]ake such other actions as
appropriate.” 29 C.F.R. § 1614.109(f)(3). The list does not
expressly include monetary sanctions. The law of this
Circuit is clear that absent express authority, monetary
 PLASKETT V. WORMUTH 31

sanctions may not be imposed against the government. See
United States v. Woodley, 9 F.3d 774, 792 (9th Cir. 1993).

The EEOC thus lacks express authority under either its
regulations or the statute. We therefore need not decide
whether—given the broad statutory waiver of sovereign
immunity authorizing the EEOC to enforce the ADEA
against the government—that express authority must be by
a statutory amendment or whether an amendment to the
EEOC regulations would be sufficient.

For these reasons, I agree with the majority’s conclusion
that Plaskett is not entitled to any of the relief he seeks.