UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

I)ANIEL B. CARRoLL,
Plainriff,

v. Civil Case No. 16-0764 (RJL)
OFFICE OF FEDERAL CONTRACT
COMPLIANCE PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,

Defendant.

MEMoRANDUM oPINIoN
(January?_§, 2017) [Dkt. #3, #5, #6]

Daniel B. Carroll (“plaintiff” or “Carroll”) brings this action pro se against the U.S.
Department of Labor’s Off`lce of Federal Contract Compliance Programs (“defendant” or
“OFCCP”), seeking a declaratory judgment ordering the agency to initiate enforcement
proceedings against his former employer, Vinnell Arabia LLC, for alleged employment
discrimination Before the Court is Defendant’s Motion to Dismiss Plaintiff’s Complaint
(“Motion”) [Dkt. #3].l Upon consideration of the pleadings, relevant law, and the record

herein, defendant’s Motion is GRANTED.

 

l Plaintiff believes defendant’s Motion is untimely, and on that basis, moves to strike
the Motion and for entry of default judgment. Pl.’s Mot. to Strike Def.’s Mot. to Dismiss
[Dkt. #6]; Pl.’s Mot. for Entry of Default J. [Dkt. #5]. Plaintiff is mistaken. The date of
service stamped on the summons is May 10, 2016. Decl. of Reginald D. Rowan ‘|I 2 [Dkt.
#7-1]. Defendant’s Motion was filed on July ll, 2016, and therefore is timely. See Fed.
R. Civ. P. 6(a)(1), 12(a)(2).

BACKGROUND

Carroll seeks enforcement of Executive Order ll246. Compl. ‘W 2-3 [Dkt. #l].
The Order charges the Secretary of Labor with ensuring that federal contractors “will not
discriminate against any employee or applicant for employment because of race, creed,
color, sex, sexual orientation, gender identity, or national origin.” 30 Fed. Reg. 12319,
12320 (Sept. 24, 1965), as amended by Exec. Order No. 13672, 79 Fed. Reg. 42971 (July
2 l, 2014). The Secretary in turn has promulgated regulations tasking OFCCP with carrying
out the responsibilities assigned to him by the Executive Order. 41 C.F.R. § 6()-1.2. These
regulations provide that when OFCCP has reasonable cause to believe that a federal
contractor has violated the Executive Order, OFCCP “may issue a notice requiring the
contractor to show cause” why enforcement proceedings are not warranted. Id. § 60-1.28.
lf the contractor’s response is unsatisfactory, OFCCP may refer the matter “to the Solicitor

of Labor with a recommendation for the institution of administrative enforcement

 

In addition, plaintiff asserts that defendant’s Motion should be struck because
OFCCP did not file a certified list of the contents of the administrative record as directed
by Local Rule 7(n). Pl.’s Mot. to Strike 2; Pl.’s Supp. to Mot. to Strike Def.’s Mot. to
Dismiss 2-3 [Dkt. #12]. Plaintiff does not cite any authority for the proposition that the
failure to include a certified list is grounds for striking a motion to dismiss. Nor should
that result obtain here. The requirement for a certified list “is intended to assist the Court
in cases involving a voluminous record.” LCvR 7(n) cmt. This case does not involve such
a record; indeed, the relevant excerpts consist of just nine pages that are appended to the
complaint. See Docs. App’d to Compl. [Dkt. #l, at 20-28]. Upon review of these
documents, the Court finds that they are sufficient for determining whether the complaint
states a claim upon which relief can be granted. See EEOC v. St. Francis Xavl'er Parochz'al
Sch., l 17 F.3d 621, 624-25 (D.C. Cir. 1997). The Court therefore holds that the omission
of a certified list “is immaterial” to resolution of defendant’s Motion. People for the
Ethical Treatmem‘ ofAm'mals, Inc. v. U.S. Fish & Wila’life Serv., 59 F. Supp. 3d 91, 94 n.2
(D.D.C. 2014) (waiving compliance with LCvR 7(n) and dismissing complaint). The Court
will deny plaintiff”s motions to strike and for entry of default judgment.

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proceedings, which may be brought to enjoin violations, to seek appropriate relief, and to
impose appropriate sanctions.” ]a'. § 60-1.26(b)(l).

On May 15, 2013, Carroll filed a charge of discrimination with another federal
agency, the U.S. Equal Employment Opportunity Commission (“EEOC”), asserting that
his former employer, Vinnell Arabia LLC, a subsidiary of Northrop Grumman
Corporation, denied him a promotion to senior accountant because he is white and Jewish.
Vinnell Arabia denied the allegations on the merits, but declined to provide documentation
for its position on the ground that the EEOC lacked jurisdiction because Vinnell Arabia is
a foreign company and the alleged discrimination occurred in a foreign country. On
February 12, 2015, the EEOC’s Jackson Area Offlce issued a Determination. That order
did not address Vinnell Arabia’s jurisdictional argument, but nevertheless found that the
“absence of evidence” resulting from the company’s lack of production entitled Carroll “to
the presumption that documents would have shown that he was discriminated against.”
Carroll v. VinnellArabia LLC, Charge No. 423-2013-01326 (EEOC JAO 2015) [Dkt. #l,
at 25]. Shortly thereafter, the agency issued Carroll a Notice of Right to Sue under Title
Vll of the Civil Rights Act. Compl. 111 40, 43-44.

Carroll did not bring suit in federal court. lnstead, he forwarded EEOC’s
Determination to OFCCP and requested that OFCCP sanction Vinnell Arabia for
“exhibit[ing] appallingly bad faith with the EEOC.” Id. jj 5. In a letter dated July l6, 2015,
the agency notified Carroll that “OFCCP cannot intervene in a matter that has been
investigated by EEOC.” Letter from Marika Litras, Dir., Div. of Program Operations,

OFCCP, to Daniel B. Carroll (July 16, 2015) [Dkt. #l, at 20]. In response to further
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correspondence from Carroll, OFCCP issued a second letter reiterating its decision not to
intervene, explaining that it had “reviewed the charge you filed with EEOC and the findings
of the investigation and determined that there is no basis for OFCCP to seek sanctions
against your former employer for discrimination.” Letter from Marika Litras, Dir., Div. of
Program Operations, OFCCP, to Daniel B. Carroll (Mar. l, 2016) [Dkt #l, at 21]. The
letter advised Carroll that the Notice of Right to Sue issued by the EEOC provided him
with an opportunity for a hearing before a court pursuant to Title VH.

Rather than pursue a Title VII claim, Carroll filed this lawsuit to compel OFCCP to
enforce Executive Order 11246 against Vinnell Arabia. The gravamen of the complaint is
that Carroll is entitled to a declaratory judgment under the Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 551-706, directing OFCCP to issue a notice to Vinnell Arabia
requiring it to show cause why enforcement proceedings are not warranted, and directing
OFCCP to “devote good faith” to considering sanctions against the company. Compl. jj 66.
The complaint also seeks to compel the production of OFCCP communications pertaining
to Vinnell Arabia, and the award of costs. Ia’. The agency moves to dismiss pursuant to
Federal Rule of Civil Procedure lZ(b).

STANDARD OF REVIEW

OFCCP moves to dismiss the complaint on the ground that enforcement decisions
are committed to agency discretion by law and are therefore immune from judicial review.
See 5 U.S.C. § 701(a)(2). OFCCP styles this defense as a motion to dismiss for lack of
subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure l2(b)(l). However,
because the Court is mindful of this Circuit’s teaching that dismissal based on commitment

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to agency discretion must occur “under Rule 12(b)(6), not under the jurisdictional provision
of Rule 12(b)(1),” Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011), the Court
will evaluate whether dismissal is “proper based on failure to state a claim under Federal
Rule of Civil Procedure l2(b)(6).” EEOC v. SZ. Francz`s Xavier Parochl'al Sch., 117 F.3d
621, 624 (D.C. Cir. 1997).

Under Rule 12(b)(6) the Court must ascertain whether the complaint contains
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.”’ Ashcrofl v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlam‘ic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Because this action is brought by apro se plaintiff,
the Court has an obligation to construe his “filings liberally, and to consider his filings as
a whole before dismissing [the] complaint.” Schnitzler v. Um'tea’ States, 761 F.3d 33, 38
(D.C. Cir. 2014). Nevertheless, the case must be dismissed “if as a matter oflaw ‘it is clear
that no relief could be granted under any set of facts that could be proved consistent with
the allegations.”’ Nel'tzke v. Wz`lliams, 490 U.S. 319, 327 (1989).

ANALYSIS
I. Carroll’s Enforcement Claim

Executive Order 1 1246, as amended, does not provide for judicial review of agency
decisions. lf review is available, then, it is only through the APA. Although the APA
generally “favor[s] judicial review of administrative action,” Mach Mining, LLC v. EEOC,
135 S. Ct. 1645, 1651 (2015), it excludes from review action that is “committed to agency
discretion by law,” 5 U.S.C. § 701(a)(2). In Heckler v. Chaney, 470 U.S. 821, 831 (1985),

the Supreme Court held that “[r]efusals to take enforcement steps” are discretionary and

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therefore presumptively unreviewable That presumption is not absolute, however, and
“may be rebutted where the substantive [law] has provided guidelines for the agency to
follow in exercising its enforcement powers.” Id. at 832-33. To determine whether an
action is reviewable, a court must “‘consider both the nature of the administrative action at
issue and the language and structure of the [law] that supplies the applicable legal standards
for reviewing that action.”’ Sierra Club, 648 F.3d at 855 (quoting Sec’y of Labor v.
Twenlymile Coal Co., 456 F.3d 151, 156 (D.C. Cir. 2006)).

OFCCP invokes Chaney to argue that its decision not to sanction, or to issue a show
cause notice to Vinnell Arabia, is discretionary and therefore unreviewable. Carroll
concedes that enforcement discretion is generally unreviewable, but contends that the
sanctions process is not an enforcement action and thus does not fall within the Chaney
presumption According to Carroll, “[s]anctions - and the decision whether to begin the
sanctions process with a show cause notice - are not quite the same as enforcement
proceedings” and do not involve “enforcement action per se.” Pl.’s l\/Iem. of P. & A.
Addressing Def.’s Mot. to Dismiss Pl.’s Compl. 20 (“Pl.’s Mem.”) [Dkt. #9].
Unfortunately, Carroll is mistaken. Department of Labor regulations provide that OFCCP
may only “impose . . . sanctions” for violations of the Executive Order through “institution
of administrative enforcement proceedings.” 41 C.F.R. § 60-1.26(b). ln other words, a
sanctions proceeding is an enforcement proceeding Thus, when OFCCP declines to
initiate a sanctions proceeding, it declines to take “enforcement steps.” Chaney, 470 U.S.
at 831; Cf. Drake v. FAA, 291 F.3d 59, 70 (D.C. Cir. 2002) (holding agency decision to

dismiss employment complaint “without a hearing was equivalent to a decision not to

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commence an enforcement action”). That act of prosecutorial discretion is presumptively
unreviewable

To determine whether the presumption against judicial review is dispositive in this
case, the Court must examine “the language and structure” of the regulatory scheme.
Sz'erra Club, 648 F.3d at 855. After reviewing Executive Order 11246 and its implementing
regulations, the Court concludes that neither provides “guidelines for [OFCCP] to follow
in exercising its enforcement powers.” Chaney, 470 U.S. at 833. The Order instructs the
Secretary of Labor to “adopt such rules and regulations and issue such orders as he deems
necessary and appropriate.” 30 Fed. Reg. 12319. The regulations adopted pursuant to this
authorization provide that OFCCP “may” issue a notice to show cause when OFCCP
believes that a federal contractor has violated the Executive Order, 41 C.F.R. § 60-1.28,
and “may” refer the matter for enforcement if the contractor’s response to the notice is
unsatisfactory, ia’. § 60-1.26(b)(1). In addition to using this permissive language, neither
the Order nor the implementing regulations “list factors for the agency to use in reaching
its determination.” Gibson v. L.K. Comstock, Inc., 900 F.2d 259, *2 (6th Cir. 1990)
(unpublished); see also Clementson v. Brock, 806 F.2d 1402, 1404 (9th Cir. 1986)
(Kennedy, J.).

Carroll contends that in this context “may” is not permissive but imposes a
mandatory duty on the agency. He asserts that the regulations employ “may” where they
mean “shall” because “‘[m]ay’ is essentially synonymous with ‘shall’ but appears more
discreet, not as officious.” Pl.’s Mem. 15. He explains that “when the regulations were

drafted” everyone assumed “OFCCP had a well-defined job and would conscientiously do

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it” without “devis[ing] pretexts to . . . shirk its responsibility” and thus that “no need was
discerned to magisterially resort to imperatives.” Ia’. Needless to say, courts have been
much less cavalier than Carroll about conflating “may” and “shall.” See, e.g.,
Kz`nga’omware Techs., Inc. v. Unitea’ States, 136 S. Ct. 1969, 1977 (2016) (“Unlike the word
‘may,’ which implies discretion, the word ‘shall’ usually connotes a requirement.”); Sierra
Club, 648 F.3d at 856 (“[W]hen a statute ‘uses both “may” and “shall,” the normal
inference is that each is used in its usual sense_the one act being permissive, the other
mandatory.”’ (quoting Oljato Chapl‘er of the Navajo Tribe v. Train, 515 F.2d 654, 662
(D.C. Cir. 1975)). Carroll’s theory that the regulation’s drafters used “may” to mean
“shall” in order to avoid appearing “officious” or “magisterial” is unpersuasive

Carroll also seeks to locate a non-discretionary enforcement duty in the prefatory
language of the regulations, which among other things provides that the “[f]ailure of a
contractor or applicant to comply with any provision of the regulations in this part shall be
grounds for the imposition of any or all of the sanctions authorized by the order.” 41 C.F.R.
§ 60-1.1. Carroll believes that the phrase “shall be grounds” obligates OFCCP to issue a
show cause notice in response to the EEOC Determination. Compl. 1111 54-56; Pl.’s Mem.
12-13. But this language simply puts federal contractors on notice that their discriminatory
conduct is punishable The Court finds that this “use of the mandatory ‘shall”’ in prefatory
language that does not purport to instruct the agency “is not sufficient to provide legal
standards for judicial review.” Sierra Club, 648 F.3d at 856; see also Twem‘ymile Coal,

456 F.3d at 157-58.

In sum, the enforcement scheme established by Executive Order 11246 and its
implementing regulations is “fraught with discretion.” Welch v. Donovan, 551 F. Supp.
809, 811 (D.D.C. 1982) (dismissing claim seeking to compel OFCCP enforcement of
Executive Order 11246). Because the APA excludes from judicial review actions
committed to agency discretion by law, 5 U.S.C. § 701(a)(2), the Court must dismiss
Carroll’s enforcement claim pursuant to Rule 12(b)(6).

II. Carroll’s Remaining Claims

ln addition to seeking enforcement, Carroll “also prays OFCCP be ordered to
promptly and fully disclose all communications, including notes of such, it has had with
Vinnell Arabia, with Northrop Grumman, internally within the DOL, and with the EEOC
pertaining to Vinnell Arabia.” Compl. ‘H 66. To the extent this lone statement can be
construed liberally as a request for records pursuant to the Freedom of lnformation Act
(“FOIA”), 5 U.S.C. § 552, it fails to state a claim upon which relief can be granted. To
obtain records from OFCCP, Carroll must first file a FOIA request with the agency, and
then exhaust any administrative appeals. See, e.g., Hia’algo v. FB], 344 F.3d 1256,
1259-60 (D.C. Cir. 2003) (remanding with instructions to dismiss complaint under Rule
12(b)(6) for failure to exhaust administrative remedies). Because Carroll cannot seek
judicial redress in this Court before exhausting his administrative remedies, the claim must
be dismissed

Finally, Carroll asks this Court to direct OFCCP “to immediately recompense
Carroll for his costs associated with this lawsuit.” Compl. 11 66. Although Congress has
provided for recovery of costs following an APA action in some circumstances, see 28

9

U.S.C. § 2412, as a prerequisite for relief a litigant must show that he was the “prevailing
party” in the relevant action, see, e.g., In re Long-Dz'stance Tel. Serv. Fed. Excise T ax
Refuna’ Litz'g., 751 F.3d 629, 634 (D.C. Cir. 2014). Because Carroll cannot make such a
showing at this stage in the litigation, he is not entitled to costs.
CONCLUSION
F or all of the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss
Plaintiff’s Complaint. An Grder consistent with this decision accompanies this

Memorandum Opinion. *

 

UNITED ST S DISTRICT JUDGE

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