FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFFREY K. PLASKETT,

Plaintiff-Appellant,

v.

CHRISTINE WORMUTH, Secretary, 

U.S. Department of the Army,

Defendant-Appellee.

No. 19-17294

D.C. No.

5:18-cv-06466-

EJD

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 goodfaith 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.