                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          NOV 13 2002
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    STAN K. BUCK,

                 Plaintiff - Appellant,

    v.                                             Nos. 01-4224 & 01-4261
                                                   D.C. No. 2:01-CV-416-ST
    INDUSTRIAL COMMISSION OF                              (D. Utah)
    UTAH; EQUAL EMPLOYMENT
    OPPORTUNITY COMMISSION,
    Western Region Office,

                 Defendants - Appellees.


                              ORDER AND JUDGMENT          *




Before HENRY , ANDERSON , and HARTZ , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff Stan K. Buck, proceeding pro se, appeals the dismissal of his case.

The district court held that the Eleventh Amendment barred Mr. Buck’s claims

against the Industrial Commission of Utah and that Mr. Buck had failed to state a

claim upon which relief can be granted against the Equal Employment

Opportunity Commission (EEOC), under Fed. R. Civ. P. 12(b)(6). The district

court entered separate orders dismissing each defendant. Mr. Buck filed a notice

of appeal from each order. We consolidated the appeals. Our jurisdiction arises

from 28 U.S.C. § 1291. We affirm.

                                     Background

      Mr. Buck sustained an injury while working for a private employer. He

asserts that his employer failed to provide a reasonable duty of care, failed to

accommodate his disability, wrongfully terminated his employment, and retaliated

against him for exercising his rights. As required by Utah workers’ compensation

procedures, he filed a claim with the Industrial Commission. After many months

passed without resolution of his claims, Mr. Buck filed a lawsuit in state court

based on his injury, although he has not made clear the nature of his claims or the

identity of the parties. He alleges his state-court case was compromised by the

Industrial Commission’s delays in processing his claims, which included

transferring them to the EEOC. The EEOC declined Mr. Buck’s requests for a

right-to-sue letter, at first because it had not received the claim from the


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Industrial Commission, and later because it had not had an opportunity to conduct

an investigation. Mr. Buck alleged that this caused additional delay and further

hampered his state-court case.

       Mr. Buck then filed this lawsuit in federal court alleging that the Industrial

Commission violated his federal rights to due process and equal protection when

it failed to notify him timely that it had terminated its proceedings and failed to

maintain accurate records and to make them available to him. R. doc. 1, at 2. He

further claimed that the Industrial Commission violated an implied contract to

protect his civil rights in the worker’s compensation and discrimination claims

and that it engaged in unlawful conduct when it gave him false and misleading

directions to take his case to federal court before it would release its records.    Id.

Mr. Buck alleged that the EEOC failed to afford him the required

substantial-weight review and it failed to investigate his claims.        Id. Mr. Buck’s

former employer is not a party to this action.

       In dismissing Mr. Buck’s case, the district court also denied Mr. Buck’s

request to amend his complaint, finding that amendment would be futile.

Mr. Buck appeals.

                                         Discussion

       We review de novo the district court’s orders dismissing Mr. Buck’s claims

against the Industrial Commission based on Eleventh Amendment sovereign


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immunity. Joseph A., ex rel. Wolfe v. Ingram       , 275 F.3d 1253, 1259 (10th Cir.

2002). We also review de novo the district court’s ruling under Rule 12(b)(6) that

Mr. Buck failed to state a claim against the EEOC on which relief can be granted.

Ruiz v. McDonnell , 299 F.3d 1173, 1181 (10th Cir. 2002). Mr. Buck maintains

he is entitled to damages against the Industrial Commission under 42 U.S.C.

§ 1983; the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12202 &

12203; and Title VII, 42 U.S.C. § 2000e. For his claims against the EEOC,

Mr. Buck relies on Title VII, the ADA and the Administrative Procedures Act

(APA), 5 U.S.C. §§ 522a(g)(4), 702, 704 & 706. He has abandoned on appeal his

claim against the EEOC based on § 1983.        Because he is representing himself on

appeal, his pleadings will be liberally construed. Haines v. Kerner, 404 U.S. 519,

520 (1972).

       Mr. Buck does not contest the district court’s finding that the Industrial

Commission is an arm of the State of Utah. Therefore, we accept this underlying

factual finding.   1
                       Cf. Hein v. TechAmerica Group, Inc.   , 17 F.3d 1278, 1279 (10th

Cir. 1994) (accepting district court’s findings as undisputed because not expressly

appealed). The Eleventh Amendment bars Mr. Buck’s claim under § 1983



1
       Our decision to affirm the district court’s conclusion that the Industrial
Commission is an arm of the state is based solely on the fact that Mr. Buck does
not dispute this underlying factual finding. The record provides no basis to
evaluate whether the finding is correct.

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because the State is not a “person” against whom § 1983 claim can be brought.

Will v. Mich. Dep’t of State Police   , 491 U.S. 58, 71 (1989). It also precludes his

claim under the ADA because the ADA’s attempt to waive sovereign immunity

has been rejected.   See Bd. of Trustees of Univ. of Ala. v. Garrett    , 531 U.S. 356,

374 (2001) (invalidating waiver of states’ immunity under Title I of ADA);

Thompson v. Colorado , 278 F.3d 1020, 1034 (10th Cir. 2001) (same for Title II of

ADA), cert. denied , 122 S. Ct. 1960 (2002). As for Mr. Buck’s assertion that

Title VII authorizes his damages claim against the Industrial Commission, this

issue is deemed waived because he failed to argue it in his appellate briefs.     See

Abercrombie v. City of Catoosa     , 896 F.2d 1228, 1231 (10th Cir. 1990).

Therefore, we affirm the order dismissing the complaint against the Industrial

Commission.

       We also affirm the district court’s dismissal of Mr. Buck’s claims against

the EEOC for failure to state a claim upon which relief can be granted. “The

circuits which have addressed the issue have uniformly held that no cause of

action against the EEOC exists for challenges to its processing of a claim.”

Scheerer v. Rose State Coll. , 950 F.2d 661, 663 (10th Cir. 1991) (quotation

omitted) (collecting cases);   accord Smith v. Casellas , 119 F.3d 33, 34 (D.C. Cir.

1997) (collecting cases holding “Congress has not authorized, either expressly or




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impliedly, a cause of action against the EEOC for the EEOC’s alleged negligence

or other malfeasance in processing an employment discrimination charge.”).

       Mr. Buck asserts that the APA provides a civil remedy against the EEOC.

He relies on 5 U.S.C. § 552a(g)(4)(A) & (B).      2
                                                      To maintain a suit under that

section, a plaintiff must establish that “the agency acted in a manner which was

intentional or willful.” 5 U.S.C. § 552a(g)(4). “Intentional or willful” is defined

as “action so patently egregious and unlawful that anyone undertaking the conduct

should have known it unlawful, or conduct committed without grounds for

believing it to be lawful or action flagrantly disregarding others’ rights under

[§ 552a(g)(4)].”   Pippinger v. Rubin , 129 F.3d 519, 530 (10th Cir. 1997)

(quotation omitted). Alleging gross negligence is insufficient.        See Andrews v.

Veterans Admin. , 838 F.2d 418, 425 (10th Cir. 1988). Mr. Buck’s allegations fall

short of the “intentional or willful” standard; therefore, he has failed to state a

claim upon which relief can be granted.

       The other sections of the APA Mr. Buck cites apply to judicial review of

agency action, not to claims for damages against an agency. Consequently, they

do not apply to this case brought against a federal agency. Accordingly,




2
       Mr. Buck’s appellate brief cites 5 U.S.C. § 522a, but it is clear that he
relies on § 552a.

                                            -6-
Mr. Buck’s claim against the EEOC for mishandling his charge of discrimination

was properly dismissed under Rule 12(b)(6).

      Finally, we consider Mr. Buck’s claim that the district court erred in

denying him leave to amend his complaint to include claims based on 42 U.S.C.

§ 1985, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics                   ,

403 U.S. 388 (1971), and the Federal Tort Claims Act (FTCA). The district court

correctly determined that Mr. Buck could not state a claim under any of those

authorities.

      Mr. Buck failed to allege the requisite racial or class-based animus for a

claim under § 1985.   See Griffin v. Breckenridge , 403 U.S. 88, 102 (1971). A

Bivens action alleging that a federal actor violated a plaintiff’s constitutional

right cannot be maintained against a federal agency.          FDIC v. Meyer , 510 U.S.

471, 485-86 (1994). Mr. Buck’s failure to exhaust administrative remedies on his

FTCA claim precludes filing suit. 28 U.S.C. § 2675(a). Therefore, it is “patently

obvious” that Mr. Buck cannot prevail on his proposed amendments, “and

allowing him an opportunity to amend his complaint would be futile.”             Curley v.

Perry , 246 F.3d 1278, 1281-82 (10th Cir.),         cert. denied , 122 S. Ct. 274 (2001).




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     The judgment of the United States District Court for the District of Utah

AFFIRMED. The mandate shall issue forthwith.



                                                  Entered for the Court



                                                  Robert H. Henry
                                                  Circuit Judge




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