Lath v. Mattis et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Sanjeev Lath
v. 	Case No. 18-cv-686-JL
Defense Contract Management Agency;
U.S. Dept. of Defense; and
Mark Esper as Secretary of Defense
REPORT AND RECOMMENDATION
Invoking the Administrative Procedure Act (“APA”), see 5
U.S.C. § 551 et seq., pro se plaintiff Sanjeev Lath filed a
complaint in this court seeking review of the Defense Contract
Management Agency’s (DCMA) Equal Employment Opportunity Office’s
(“EEO”) dismissal of his workplace discrimination claim. 	The
EEO dismissed Lath’s claim because Lath already had already
filed a civil suit addressing the same issues. 	As a result, the
EEO did not reach the merits of Lath’s discrimination claim.
See Petition (Doc. No. 1-1), at ¶ 99; Lath v. Def. Contract
Mgmt. Agency, No. 18-cv-611-LM (D.N.H., filed July 6, 2018;
dismissed Mar. 26, 2019). 	The district judge has referred the
defendants’ motion to dismiss (Doc. No. 9) to the undersigned
magistrate judge for a report and recommendation. 	See Referral
Notice, Oct. 28, 2019. 	For the reasons that follow, the
district judge should grant defendants’ motion. 	The defendants
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have agreed to reopen and process the merits of Lath’s claims.
This case is therefore moot.
Background
Lath filed a written complaint with the EEO in April 2017,
alleging that DCMA took a series of adverse employment actions
against him based on his disability and in retaliation for his
previous filing of complaints. 	(Doc. No. 1-1 ¶ 72). 	In June
2018, Lath filed a small claims complaint in the New Hampshire
Circuit Court, seeking monetary damages for certain travel
expenses and reimbursement for leave he took during weather
emergencies. 	That case was subsequently removed to this court.
See Lath, supra. 	In July 2018, the EEO complaint was dismissed,
because, in large part, it appeared Lath had raised the same
issues in court that he had brought to the EEO. 	See DCMA
decision, July 13, 2018 (Doc. 1-2).1
Lath filed the instant lawsuit seeking review of the EEO
dismissal in August 2018. 	He claimed that the EEO acted
“arbitrarily, capriciously and unreasonably.” 	Complaint (Doc.
1 Eight of Lath’s nine claims were dismissed solely because he
had filed a civil claim concerning the same allegations. 	DCMA
decision (Doc. No. 1-2) at 3. 	One claim was dismissed because
Lath was seeking enforcement of a prior New Hampshire state
court ruling, a remedy beyond the purview of the DCMA EEO’s
jurisdiction. 	Id. 	The EEO did not reach the merits of any of
Lath’s claims.
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No. 1) at 2. 	The only specific relief he requested was for this
court to “[r]emand the case back to the agency for further
processing.” 	Id. at 3.
In their motion to dismiss, the defendants indicate that
they reinstated the entirety of Lath’s EEO complaint on
September 4, 2019. 	Lenocci Aff. (Doc. no. 9-2) at 2. 	Lath was
notified in writing of the reinstatement, that an investigator
would be assigned to his case, and that a final decision would
be issued within 120 days of reinstatement. 	Id., Attachments 2-
3 (Doc. Nos. 9-4 and 9-5).
Discussion
The defendants argue that their decision to reopen Lath’s
case and process it on the merits renders this case moot. 	The
court agrees.
A case becomes moot — and therefore no longer a “Case” or
“Controversy” for purposes of Article III of the Constitution -
when the factual disputes and legal issues are “no longer live
or the parties lack a legally cognizable interest in the
outcome. . . . [T]he case is moot if the dispute is no longer
embedded in any actual controversy about the plaintiffs’
particular legal rights.” 	Already, LLC v. Nike, Inc., 568 U.S.
85, 91 (2013) (citations and internal punctuation omitted). 	At
the same time, the Court has “explained that a defendant
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claiming that its voluntary compliance moots a case bears the
formidable burden of showing that it is absolutely clear the
allegedly wrongful behavior could not reasonably be expected to
recur. 	Id.
Here, the only conduct about which Lath complains is the
dismissal of his EEO complaint, and the relief he seeks is
limited to a declaration that his case was wrongly dismissed and
an order remanding the case back to the agency for processing on
the merits. 	He makes no claims for damages resulting from the
dismissal. 	After the defendants have essentially abrogated the
dismissal of Lath’s case, the legal and factual disputes are no
longer “live.” 	Id. 	Moreover, by appointing an investigator and
establishing a timeline for a decision, the defendants have
demonstrated that their “behavior” – dismissal without a
decision on the merits – “could not reasonably be expected to
recur.” 	Id.
In his objection, Lath takes issue only with the
defendants’ characterization of his requested relief as
“injunctive in nature.” 	Def. Mem. (Doc. No. 9-1) at 3; Pltff.
Obj. (Doc. No. 11) at 4. 	This dispute is immaterial. “Even if
an actual case or controversy exists at the inception of
litigation, a case may be rendered moot (and, therefore, subject
to dismissal) if changed circumstances eliminate any possibility
of effectual relief.” 	Me. State Bldg. & Constr. Trades Council,
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AFL-CIO v. U.S. Dep’t of Labor, 359 F.3d 14, 17 (1st Cir. 2004)
(quoting Me. Sch. Admin. Dist. No. 35 v. Mr. and Mrs. R., 321
F.3d 9, 17 (1st Cir. 2003)). 	So it is here. 	Plaintiff has
gotten the relief he requested. 	His case is therefore moot, and
it should be dismissed.
Conclusion
For the reasons set forth herein, the undersigned
recommends that the district judge assigned to this case dismiss
this case as moot. 	Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
this notice. 	See Fed. R. Civ. P. 72(b)(2). 	The fourteen-day
period may be extended upon motion. 	Failure to file objections
within the specified time waives the right to appeal the
district court’s order. 	See Santos-Santos v. Torres-Centeno,
842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
November 12, 2019
cc: 	counsel of record
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