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