Case 1:13-cv RBW Document 32 Filed 10/17/14 Page 1 of 6 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:13-cv RBW Document 32 Filed 10/17/14 Page 1 of 6 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CASE NEW HOLLAND, INC., and CNH AMERICA LLC, Plaintiffs, v. Civil Action No. 1:13-cv (RBW EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, and CHETAN PATEL, Federal Investigator, Defendants. ORDER The plaintiffs in this civil action allege that the Equal Employment Opportunity Commission ( EEOC and certain EEOC officials violated the Administrative Procedure Act, ( APA, and the Fourth and Fifth Amendments of the United States Constitution when, on June 5, 2013, the defendants sent s to 1,330 business addresses of [the plaintiffs ] employees. Complaint ( Compl. at 2-3, 18. The EEOC sent the s after commencing a nation-wide review of [the plaintiffs and affiliated businesses] under the federal Age Discrimination in Employment Act. See id. 10. The [s] contained a link to a series of questions relevant to the EEOC s investigation into allegations that [the plaintiffs] discriminated against job applicants and current and former employees. Id The plaintiffs contend that the defendants violated the APA because: (1 the EEOC has not issued any rule or regulation allowing a mass business inquiry of employees through the use of an employer s computer network, id. 49; (2 the s constituted violations of the Fourth and Fifth Amendments of the United States Constitution and therefore were in excess of statutory 1

2 Case 1:13-cv RBW Document 32 Filed 10/17/14 Page 2 of 6 jurisdiction, authority, or limitations, or short of statutory right, id ; and (3 the investigatory technique violated EEOC Compliance Manual Section 23.6(c(1, id. 73. The Fourth Amendment claim stems from the plaintiffs contention that the s constituted an unconstitutional trespass on, and thus an unreasonable search and seizure of, [the plaintiffs ] computer network property. Id. 81. The plaintiffs Fifth Amendment claim is grounded on the premise that the s were distributed through the unauthorized use of the computer network of [the plaintiffs] and thus was a taking of [the plaintiffs ] business domains without compensation. Id. 86. On October 21, 2013, the defendants filed a motion to dismiss, asserting that the Court lacks subject matter jurisdiction over the plaintiffs claims because: (1 the plaintiffs lack standing, Memorandum of Law in Support of the Defendants Motion to Dismiss ( Defs. Mem. at 8-10; (2 the case is not ripe for review, id. at 5-8; and (3 the statutes cited by the plaintiffs do not confer subject matter jurisdiction on the Court, id. at The parties appeared before the Court on September 24, 2014, for a hearing to address the defendants jurisdictional arguments, at which time the Court issued an oral ruling granting the defendants motion to dismiss. That same day, the Court issued a written order memorializing the oral ruling, with a notation that the Court would set forth its reasoning in writing within sixty days of the hearing. This order serves as the Court s written articulation of the reasons for why it must grant the defendant s motion to dismiss. As the Supreme Court has long-held, the irreducible constitutional minimum of standing contains three elements: (1 injury in fact, (2 causation, and (3 the possibility of redress by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992. Injury in fact is an invasion of a legally protected interest which is (a concrete and particularized, and (b 2

3 Case 1:13-cv RBW Document 32 Filed 10/17/14 Page 3 of 6 actual or imminent, not conjectural or hypothetical. Id. at 560 (internal quotation marks omitted. A petitioner bears the burden of establishing each of these elements, id., and [s]ince these elements are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof[.] Jack s Canoes & Kayaks, LLC v. Nat l Park Serv., 933 F. Supp. 2d 58, 68 (D.D.C (citing Lujan, 504 U.S. at 561. Moreover, the plaintiff must demonstrate standing with respect to each claim and form of relief sought. Monsanto Co. v. Geerston Seed Farms, 130 S. Ct. 2743, 2754 (2010. In analyzing whether [a plaintiff] has standing at the dismissal stage, the Court must assume that [the plaintiff] states a valid legal claim and must accept the factual allegations in the complaint as true. Info. Handling Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024, 1029 (D.C. Cir (internal citation omitted. The plaintiffs contend that they were injured-in-fact in two ways: (1 the EEOC s disrupted its business operations[;] and (2 the EEOC s blast trolled for class action plaintiffs to sue [the plaintiffs] and force a monetary settlement regardless of the merits of any claim. Memorandum of Points and Authorities in Opposition to Motion to Dismiss ( Pls. Opp n at 10. With respect to the first alleged injury, the plaintiffs at the hearing drew attention to paragraphs 27 to 31 of the Complaint, wherein they allege as follows: 27. The EEOC and PATEL mass business and Internet link disrupted normal CNH business operations, without any warning to CNH. 28. A Federal Investigation of one s employer is alarming. It suggests wrongdoing (when none exists. It causes employees to become concerned about their employment livelihood. 29. A Federal Investigation by business (or any prompts employees, impulsively, to question what other information the federal government already possesses about them. Recipient employees question, reflexively, whether the 3

4 Case 1:13-cv RBW Document 32 Filed 10/17/14 Page 4 of 6 federal government is on a mission to collect data on them, and excitedly speculate about the purpose of the collection efforts. 30. Mass business s with Internet links that show up in employee business Inboxes divert attention from business operations, and undermine productivity. 31. The EEOC and PATEL mass business and Internet link disrupted the CNH employer-employee relationship. The implicitly communicated to CNH employees that their employer is being cut out of a federal government inquiry. The also communicated that the recipient employees should cease their work for CNH to the extent necessary to answer the federal government s questions, regardless of legitimate work demands or any legitimate concerns of their employer. Compl As the Court explained during the hearing, these claims are conclusory, consisting of generalities and speculation that are insufficient to establish a cognizable injury. And claims of injury that are abstract and conjectural are insufficient to establish standing. See, e.g., Los Angeles v. Lyons, 461 U.S. 95, (1983. The pleadings do not offer concrete assertions of fact that any harm actually occurred, and the Court may not speculate as to whether the s had any particular impact on the plaintiffs business operations. For example, nowhere do the plaintiffs assert that employees actually diverted their attention from their work to answer the survey questions, and even if that occurred, what particularized injury the plaintiffs sustained as a result of the distraction. Therefore, the Court must conclude that these allegations are not sufficiently concrete to establish standing. 1 1 The plaintiffs rely on Hoffman v. United Telecomms., Inc., 111 F.R.D. 332 (D. Kan. 1986, as support for their position that [a]n injury-in-fact can result from a blast EEOC evidence-gathering campaign. Pls. Opp n at 11. In Hoffman, the Court denied a request from the EEOC, as plaintiff-intervenor in an employment discrimination matter, to send a mass-mailing to all employees working for the defendant. 111 F.R.D. at 336. The Court reasoned that the [p]laintiffs already have much of the information requested in the questionnaire, and that the use of the particular letter and questionnaire, as plaintiffs propose, would create a substantial risk of causing confusion, misunderstanding about the case, and unnecessary disruption to the business operations of defendants and working relationships of employees. Id. at 337. But Hoffman is inapposite because it considered EEOC s proposed action from a different context. Hoffman did not examine the proposed communication as a potential injury sufficient to establish standing, but instead addressed a discovery dispute, and was premised on the district court s discretion to limit communications from named plaintiffs and their counsel to prospective claimants in ongoing litigation. See id. at

5 Case 1:13-cv RBW Document 32 Filed 10/17/14 Page 5 of 6 With respect to the second asserted injury, the plaintiffs argue that the purpose of the was for identifying potential class members to engage in employment discrimination litigation against the plaintiffs. Compl. 39. The plaintiffs contend that this is an injury because [c]lass actions often cause defendants to settle the action by paying substantial sums of money, regardless of the merits of the controversy, simply because the cost of defense, including especially the cost of class action discovery, is so great. Id. at 41. This argument fails as speculative. This Circuit has held that [w]hen considering any chain of allegations for standing purposes, we may reject as overly speculative those links which are predictions of future events (especially future actions to be taken by third parties and those which predict a future injury that will result from present or ongoing actions those types of allegations that are not normally susceptible of labelling as true or false. United Transp. Union v. ICC, 891 F.2d 908, 912 (D.C. Cir [T]hreatened injury must be certainly impending to constitute injury in fact, and [a]llegations of possible future injury are not sufficient. Whitmore v. Arkansas, 495 U.S. 149, 158 (1990. Moreover, plaintiffs cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending. Clapper v. Amnesty Int l USA, 133 S. Ct. 1138, 1141 (2013. Nothing in the Complaint or the plaintiffs opposition suggests that class-action litigation is certainly impending, and thus, this alleged injury is also speculative and insufficient to establish standing. Because the plaintiffs have not demonstrated a cognizable injury resulting from the defendants alleged conduct, the plaintiffs do not have standing and the Court lacks jurisdiction to review the merits of their claims. Accordingly, the Court must grant the defendants motion and dismiss this case. In accordance with the Court s oral ruling and written order issued on September 24, 2014, it is hereby 5

6 Case 1:13-cv RBW Document 32 Filed 10/17/14 Page 6 of 6 ORDERED that the Defendants Motion to Dismiss on standing grounds is GRANTED. It is further ORDERED that the case is DISMISSED WITHOUT PREJUDICE. It is further ORDERED that this case is CLOSED. SO ORDERED this 17th day of October, REGGIE B. WALTON United States District Judge 6