United States District Court, W.D. Tennessee, Western Division
REPORT AND RECOMMENDATION
K. VESCOVO CHIEF UNITED STATES MAGISTRATE JUDGE.
September 12, 2017, the plaintiff Anthony Robinson
(“Robinson”) filed a pro se complaint
titled “Complaint for Violation of Civil Rights Under
42 U.S.C. § 1983” against the Equal Employment
Opportunity Commission (“EEOC”) and EEOC
employees Willis Martin, Audrey Bonner, and Jan Mitchell.
(Compl., ECF No. 1.) This case has been referred to the
United States Magistrate Judge for management and for all
pretrial matters for determination and/or report and
recommendation as appropriate. (Admin. Order 2013-05, Apr.
October 10, 2017, the court issued a Report &
Recommendation recommending that the complaint be dismissed
because Robinson failed to set forth § 1983 claims
against the defendants. (See R & R, ECF No.
Robinson did not file timely objections to the Report &
Recommendation, and, on October 30, 2017, the presiding
district court Judge adopted the Report & Recommendation
and entered judgment for the defendants. (ECF Nos. 5, 6.) On
October 30, 2017, Robinson filed his untimely objections to
the Report & Recommendation. (ECF No. 7.) On November 1,
2017, the presiding Judge set aside the judgment and entered
an order reconsidering the Report and Recommendation and
re-characterizing Robinson's action as arising under the
Administrative Procedure Act (“APA”). (ECF Nos.
8, 9.) The case was again referred to the Magistrate Judge
for screening pursuant to 28 U.S.C. § 1915(e)(2). (ECF
No. 9.) The court adopts the proposed findings of
facts and the standard of review for failure to state a claim
as stated in the October 10, 2017 Report &
Recommendation, (ECF No. 4).
APA sets forth the procedures by which federal agencies are
accountable to the public and their actions subject to review
by the courts.” Haines v. Fed. Motor Carrier
Safety Admin., 814 F.3d 417, 423-24 (6th Cir.
2016)(quotation and internal quotation marks omitted). It
A person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review
thereof. An action in a court of the United States seeking
relief other than money damages and stating a claim that an
agency or an officer or employee thereof acted or failed to
act in an official capacity or under color of legal authority
shall not be dismissed nor relief therein be denied on the
ground that it is against the United States or that the
United States is an indispensable party.
5 U.S.C. § 702. Thus, the APA waives the doctrine of
sovereign immunity for claims for equitable relief against
federal officials, but this “waiver of sovereign
immunity does not apply to actions seeking money
damages.” Haines, 814 F.3d at 425 (quotations
and internal quotation marks omitted) (emphasis
omitted). As to the scope of review, the APA
provides that “[t]he reviewing court shall  compel
agency action unlawfully withheld or unreasonably
delayed.” 5 U.S.C. § 706(1). Agency action is
defined in § 551(13) to include “failure to
act.” EEOC regulations provide that after the
complainant files a formal charge with the EEOC, the EEOC
conducts an investigation and sends to the complainant a
written notice of its decision. 29 C.F.R. §§
1601.15 through 1601.29.
the relief requested by Robinson is unclear, he does not
request money damages. (See Compl. 3, ECF No. 1.)
Because the APA waives the doctrine of sovereign immunity for
claims of equitable relief, Robinson may request equitable
relief against the EEOC and the federal officials.
although the complaint contains a myriad of unrelated factual
allegations, part of Robinson's complaint relates to the
EEOC's handling of a charge of discrimination that he
filed against Elite Staffing. Robinson has attached to the
complaint a “formal complaint of discrimination in the
hiring process done by Elite Staffing, ” which appears
to be his charge of discrimination submitted to the EEOC.
(ECF No. 1-3.) Robinson states that the “EEOC has
ignored [his] complaint of discrimination altogether, ”
(Statement of Claim 2, ECF No. 1-1), and that the EEOC and
the individual defendants “would not accept his claim,
” (Additional Statement 1, ECF No. 1-2). Construing the
complaint in a light most favorable to Robinson and accepting
the allegations as true, which the court must do at this
stage, see HDC, LLC v. City of Ann Arbor, 675 F.3d
608, 611 (6th Cir. 2012), Robinson has sufficiently alleged
that the EEOC has unlawfully withheld or delayed action that
it is required to take, which is reviewable under 5 U.S.C.
§ 706(1). See also Norton v. S. Utah Wilderness
All., 542 U.S. 55, 64 (2004)(“Thus, a 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.”); Forest
Guardians v. Babbitt, 174 F.3d 1178, 1187 (10th Cir.
1999)(“Through § 706 Congress has stated
unequivocally that courts must compel agency action
unlawfully withheld or unreasonably delayed.”).
court recommends that the Clerk be directed to issue process
for the EEOC and the individual defendants and to deliver
that process to the marshal for service along with a copy of
the complaint, this Report & Recommendation, and any
order regarding this Report & Recommendation; that
service be made on EEOC and the individual defendants
pursuant to Rule 4(h)(1) of the Federal Rules of Civil
Procedure; and that all costs of service be advanced by the
further recommended that Robinson be ordered to serve a copy
of every document filed in this cause on the attorneys for
the defendants, make a certificate of service on every
document filed, familiarize himself with the Federal Rules of
Civil Procedure and this court's local rules,
promptly notify the Clerk of any change of address or
extended absence, and be warned that failure to comply with
these requirements, or any other order of the court, may
result in the dismissal of his case without further notice.
submitted this 3rd day of November, 2017.
fourteen (14) days after being served with a copy of this
report and recommended disposition, a party may serve and
file written objections to the proposed findings and
recommendations. A party may respond to another party's
objections within fourteen (14) days after being served with
a copy. Fed.R.Civ.P. 72(b)(2). Failure to file ...