TABLE OF CONTENTS

TABLE OF AUTHORITIES............................................................................. ii

STATEMENT OF JURISDICTION................................................................. 1

ISSUE FOR REVIEW...................................................................................... 1

STATEMENT OF THE CASE......................................................................... 2

1. Statement of Facts and Procedural History........................................ 2

2. The District Court Decision and Later Proceedings............................ 6

ARGUMENT.................................................................................................... 7

The District Court Correctly Dismissed Johnson’s Claim

Against The EEOC For Conspiracy and Improper Processing

Of His Charge Of Discrimination...................................................................... 7

A. Johnson’s service of process on the EEOC

was insufficient under Rule 4(i).......................................................... 7

B. The court lacks subject matter jurisdiction over Johnson’s

damage claims against the EEOC Defendants.................................... 9

C. The district court correctly dismissed Johnson’s conspiracy

claim against the EEOC Defendants under Federal Rule 12(b)(6).... 13

D. Johnson’s other arguments do not warrant reversal........................ 15

CONCLUSION............................................................................................... 22

CERTIFICATE OF COMPLIANCE............................................................... 23

CERTIFICATE OF SERVICE........................................................................ 24

TABLE OF AUTHORITIES

Cases

Affiliated Professional Home Health Care Agency v. Shalala,

164 F.3d 282 (5th Cir. 1999)................................................................ 11

Baba v. Japan Travel Bureau Int’l, Inc.,

111 F.3d 2 (2d Cir. April 2, 1997)....................................................... 12

Belue v. Leventhal,

640 F.3d 567 (4th Cir. 2011)................................................................ 16

Bland v. Britt,

271 F.2d 193 (4th Cir. 1959).................................................................. 9

Buschi v. Kirven,

775 F.2d 1240 (4th Cir. 1985)........................................................ 14, 15

County Motors v. General Motors Corp.,

278 F.3d 40 (1st Cir. 2002)................................................................... 19

Crispin-Taveras v. Municipality of Carolina,

647 F.3d 1 (1st Cir. 2011)....................................................................... 8

Danik v. Housing Authority of Baltimore City,

2010 WL 3681274 (4th Cir. Sept. 15, 2010)........................................... 8

Davis v. United States Department of Justice,

204 F.3d 723 (7th Cir. 2000)................................................................ 11

Dickerson v. Napolitano,

604 F.3d 732 (2d Cir. 2010).................................................................... 8

Food Town Stores, Inc. v. EEOC,

708 F.2d 920 (4th Cir. 1983)........................................................... 10-11

Francis-Sobel v. University of Maine,

597 F.2d 15 (1st Cir. 1979).............................................................. 12-13

TABLE OF AUTHORITIES (cont’d)

Friedman’s, Inc. v. Dunlap,

290 F.3d 191 (4th Cir. 2002)........................................................... 18-19

GE Investment Private Placement Partners II v. Parker,

247 F.3d 543 (4th Cir. 2001)................................................................ 13

Georator Corp. v. EEOC,

592 F.2d 765 (4th Cir. 1979)........................................................... 11-12

Greene v. Holloway,

2000 WL 296314 (4th Cir. March 22, 2000)........................................... 8

Gibson v. Missouri Pacific Railroad. Co.,

579 F.2d 890 (5th Cir. 1978)................................................................ 12

Gorczakoski v. EEOC,

1993 WL 302386 (1st Cir. Aug. 9, 1993).............................................. 12

Griffin v. Breckenridge,

403 U.S. 88 (1971)................................................................................ 14

Haddad v. EEOC,

111 Fed.Appx. 413 (6th Cir. 2004)....................................................... 12

Holland v. Big River Minerals Corp.,

181 F.3d 597 (4th Cir. 1999)................................................................ 17

Koehler v. Dodwell,

152 F.3d 304 (4th Cir. 1998) ............................................................. 7-8

Kolon Industries, Inc. v. E.I. DuPont de Nemours & Co.,

748 F.3d 160 (4th Cir. 2014)........................................................... 15-16

Liteky v. United States,

510 U.S. 540 (1994).............................................................................. 16

TABLE OF AUTHORITIES (cont’d)

Marshall v. Warwick,

155 F.3d 1027 (8th Cir. 1998)................................................................ 8

Mayfield v. National Ass’n for Stock Car Auto Racing, Inc.,

674 F.3d 369 (4th Cir. 2012)........................................................... 17-18

McCottrell v. EEOC,

726 F.2d 350, 351 (7th Cir. 1984)........................................................ 12

McMasters v. United States,

260 F.3d 814, 817-20 (7th Cir. 2001).................................................... 9

Nguyen v. CNA Corp.,

44 F.3d 234 (4th Cir. 1995).................................................................. 21

Ponton v. AFSCME,

395 Fed.Appx. 867 (3d Cir. Sept. 23, 2010)......................................... 12

Prewitt Enterprises, Inc. v. Org. of Petroleum Exporting Countries,

353 F.3d 916 (11th Cir. 2003) ............................................................... 8

Research Triangle Institute v. Bd. of Govs. of the Federal Reserve Sys.,

132 F.3d 985 (4th Cir. 1997)................................................................ 10

Richmond, Fredericksburg & Potomac R. Co. v. United States,

945 F.2d 765 (4th Cir. 1991)................................................................ 10

Scheerer v. Rose State College,

950 F.2d 661 (10th Cir. 1991).............................................................. 12

Smith v. Casellas,

119 F.3d 33 (D.C. Cir. 1997)................................................................ 12

Stewart v. EEOC,

611 F.2d 679 (7th Cir. 1979)................................................................ 12

TABLE OF AUTHORITIES (cont’d)

Taylor v. Kellogg Brown & Root Servs., Inc.,

658 F.3d 402, 408 (4th Cir. 2011)........................................................ 10

Theriault v. Silber,

579 F.2d 302 (5th Cir. 1978)................................................................ 18

United States v. Mitchell,

445 U.S. 535, 538 (1980)............................................................... 10, 11

United States v. Mitchell,

886 F.2d 667 (4th Cir. 1989)................................................................ 16

United States v. Testan,

424 U.S. 392 (1976).............................................................................. 11

Ward v. EEOC,

719 F.2d 311 (9th Cir. 1983)................................................................ 12

Wright v. Collins,

766 F.2d 841 (4th Cir. 1985)................................................................ 10

Statutes

42 U.S.C. §§ 2000e et seq........................................................................ passim

42 U.S.C. § 1985(3)................................................................................. passim

28 U.S.C. § 1291.............................................................................................. 1

28 U.S.C. § 1331........................................................................................ 1, 11

28 U.S.C. § 1343.............................................................................................. 1

Federal and Local Rules

Fed. R. Civ. P. 4(i)..................................................................................... 3, 6-8

Fed. R. Civ. P. 12(b)(1)................................................................................. 3, 9

Fed. R. Civ. P. 12(b)(6)............................................................................... 3, 12

Fed. R. Civ. P. 72(b)(2)................................................................................... 20

Fed. R. App. P. 4(a)(1)..................................................................................... 1

Local Civil Rule 7.1 (W.D.N.C.)................................................................ 18-20

STATEMENT OF JURISDICTION

This suit was brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”), as well as 42 U.S.C. § 1985(3) and 28 U.S.C. §§ 1331 and 1343. Subject matter jurisdiction is lacking over the claims against the U.S. Equal Employment Opportunity Commission and two agency officials (collectively, “EEOC Defendants”) because no federal statute grants jurisdiction to district courts to hear claims regarding the EEOC’s handling of administrative charges of employment discrimination, and Congress has not waived the EEOC’s sovereign immunity with respect to such claims. See infra at pp.6-8. Final judgment was entered against Plaintiff Raymond Johnson on April 25, 2014. R.53.[1] Johnson filed a timely notice of appeal on May 27, 2014, R.56. See Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction over the appeal under 28 U.S.C. § 1291.

ISSUE FOR REVIEW

Did the district court correctly dismiss Johnson’s claims against the EEOC for conspiracy and improper processing of his charge of discrimination against a private employer, where service was improper, subject matter jurisdiction is lacking, and the claim for conspiracy is not plausibly supported by facts alleged in the complaint?

STATEMENT OF THE CASE

1. Statement of Facts and Procedural History

Plaintiff-Appellant Raymond Johnson filed five charges of discrimination with the EEOC against various auto dealerships from 2008 to 2013. See R.1 (various correspondences between Johnson and EEOC regarding five separate charges). Johnson filed his most recent charge, Charge No. 430-2013-00408, against Scott Clark Honda, also named as a defendant in this case. R.1, p.8. On May 28, 2013, the EEOC Charlotte District Office issued Johnson a Notice of Right to Sue regarding his charge against Scott Clark Honda. R.1, p.7. The Notice indicated that the EEOC had terminated its processing of his charge and that Johnson had the right to file a lawsuit on the charge within 90 days of receipt of the Notice. Id. On May 28 and May 29, 2013, Johnson sent EEOC customer service complaints, in which he alleged the EEOC handled his charge in an illegal and unethical manner. R.1, pp.21-22. In response, the Director of the Charlotte District Office, Reuben Daniels, Jr., sent a letter to Johnson on June 4, 2013, stating that the EEOC found no evidence of such conduct in EEOC’s handling of the charge. Id.

Johnson filed suit, pro se, seeking money damages against the EEOC, Reuben Daniels, and Charlotte Enforcement Manager Gloria Barnett, and against Scott Clark Honda, Shalanna L. Pirtle, Randy Threatt, and Parker Poe Adams & Bernstein LLP, on August 26, 2013. R.1. Johnson mailed a summons and complaint to the EEOC Charlotte District Office and to the Office of the Chair at EEOC’s headquarters in Washington, D.C. R.2, pp.1-3. He did not, however, serve the U.S. Attorney General. In his complaint, Johnson alleged, among other things, that the EEOC discriminated against him in its investigation of his charges against multiple auto dealerships between February 2008 and July 1, 2013. R.1, p.3. He also alleged that the EEOC Defendants conspired internally and with Scott Clark Honda during the processing of his charge to deprive him of equal protection of the laws in violation of 42 U.S.C. § 1985(3). Id.

On October 2, 2013, Johnson filed a motion to recuse Magistrate Judge David Keesler, R.12, arguing that he could not get due process because the judge was involved in previous cases that he had filed in the district court. Id. at p.2. The district court denied this motion on October 7, 2013, R.18, on the ground that Johnson had alleged “no facts to support a showing of partiality or personal bias against him by Magistrate Keesler.” Id. at p.2. On October 31, 2013, EEOC moved for dismissal under Fed. R. Civ. P. Rules 4(i), 12(b)(1), and 12(b)(6). R.26. The EEOC argued that Johnson’s service of process was insufficient, the district court lacked subject matter jurisdiction over his claims against the EEOC, and Johnson failed to allege sufficient facts to state a claim upon which relief could be granted under 42 U.S.C. § 1985(3). Id. On November 8, 2013, Johnson submitted a motion for sanctions against EEOC attorney Danielle Hayot, R.32, arguing that she “willfully misfil[ed] false misrepresentation to this Court” because EEOC’s motion to dismiss, dated October 31, was not sent until November 4, 2013, thus depriving him of sufficient time to respond. Id. at pp. 1-2. The magistrate denied the motion on November 12, 2013, finding that the issue was moot because the EEOC filed an amended motion on November 7, 2013, and the court had then extended Johnson’s deadline to respond until November 25. R.33, p.2. The magistrate also found that Johnson did not “show[] good cause for sanctions, or that he suffered any prejudice” from the filing. Id.

On November 19, 2013, Johnson submitted a second motion for recusal of the magistrate, R.35, arguing that the magistrate was helping the defendants in the current case. R.35, pp.15-16. That same day, Johnson also appealed the decision denying his first sanctions motion. R.36. The district court denied Johnson’s second motion for recusal and his appeal of his November 8 motion for sanctions on January 10, 2014. R.40. The court stated that, like his first recusal motion, Johnson’s second recusal motion did not identify any personal bias or prejudice on the part of the magistrate. In addition, the court concluded, the magistrate’s denial of Johnson’s motion for sanctions was not clearly erroneous and Johnson did not raise any new objections on appeal. R.40, pp.2-3.

In a Memorandum and Recommendations (“M&R”) issued on February 28, 2014, the magistrate recommended that the EEOC’s motion to dismiss be granted in full on the grounds that service on the EEOC Defendants was insufficient, the court lacked subject matter jurisdiction over the claims against the EEOC, and Johnson’s claim for conspiracy failed to state a claim upon which relief could be granted. R.42, pp.15-18.[2] Johnson then moved for an extension of time in which to file his objection to the M&R. R.43. The magistrate granted this motion in part on March 11, 2014. R.44. Under the order, Johnson’s objection would be due on March 24, and responses by the defendants, including EEOC, would be due just six days later, on Sunday, March 30, 2014. Id.

In his objection, timely filed on March 24, Johnson argued that, with respect to the EEOC, service of process upon the EEOC was proper and there were sufficient facts to support a claim of conspiracy. R.45. Johnson also claimed that the EEOC and Scott Clark Honda conspired against his discrimination claims. Id. In docketing Johnson’s brief, the court then gave defendants until April 10, 2014, to reply to Johnson’s objection. R.45 (notation on docket sheet). EEOC filed its reply on April 9, 2014. R.48. On April 14, 2014, Johnson filed a second motion for sanctions claiming that he suffered emotional distress as a result of the EEOC’s purportedly late filing of its reply. R.48. The magistrate denied that motion on April 24, 2014, reasoning that Johnson had shown no prejudice from the filing date and cautioning that he could be sanctioned himself for filing frivolous motions. R.52. Johnson did not appeal the denial of his second motion for sanctions to the district court.

2. The District Court Decision and Later Proceedings

On April 25, 2014, the district court affirmed the magistrate’s Memorandum and Recommendations in full. See R.53. The court granted EEOC’s motion to dismiss on three grounds. R.53, p.5. First, the court ruled that Johnson did not properly serve the EEOC because he did not send a copy of the summons and complaint to the U.S. Attorney General, nor to the U.S. Attorney for the district in which the action was brought, as required by Fed. R. Civ. P. 4(i). R.53, p.5. Second, the court ruled that it did not have subject matter jurisdiction because “Title VII does not provide either an express or implied cause of action against the EEOC for [improper processing and investigation of his charge].” Id. Third, the court ruled that even if it did have jurisdiction, Johnson failed to state a claim upon which relief could be granted: “Plaintiff’s claim of conspiracy among the EEOC Defendants is not plausibly supported by the facts alleged in his complaint.” Id.

Johnson filed a notice of appeal to this Court on April 27, 2014, R.56, and filed his informal appellate brief on June 23, 2014. App.7. Johnson settled and released his claims against the non-federal defendants in June 2014. App.14, pp.3-4; see also R.58 (stipulation of dismissal of remaining retaliation claim). In light of the settlement and release, on July 9, 2014, Appellees Scott Clark Honda, et al., moved to dismiss the appeal as to all of the non-federal defendants. App.14.

ARGUMENT

The District Court Correctly Dismissed Johnson’s Claim Against The EEOC For Conspiracy and Improper Processing Of His Charge Of Discrimination.

The district court correctly determined that Johnson cannot pursue a claim against the EEOC for conspiracy or improper processing of his charge of discrimination. This decision is legally sound, and none of Johnson’s other arguments warrant reversal of the judgment.

A. Johnson’s service of process on the EEOC was insufficient under

Rule 4(i).

The district court correctly ruled that Johnson insufficiently served the EEOC Defendants under Federal Rule of Civil Procedure 4(i). R.53, p.5. While there is little case law on point, it appears that this Circuit reviews de novo a dismissal for insufficient service of process. See Koehler v. Dodwell, 152 F.3d 304, 306-07 (4th Cir. 1998) (no personal jurisdiction over improperly served defendant, and determination that court lacked personal jurisdiction is reviewed de novo); but see Danik v. Housing Authority of Baltimore City, 2010 WL 3681274, *1 (4th Cir. Sept. 15, 2010) (reviewing dismissal for insufficient service of process under abuse of discretion standard); Greene v. Holloway, 2000 WL 296314, at *1 (4th Cir. March 22, 2000) (de novo review for determination that service of process was insufficient and abuse of discretion review for decision to dismiss complaint). Even under this deferential standard, the decision below should be upheld.[3]

Under Rule 4(i) of the Federal Rules of Civil Procedure, to serve a federal government agency, such as the EEOC, a party must “deliver” or “send” by registered or certified mail a copy of the summons and complaint to: (1) the U.S. Attorney, Assistant U.S. Attorney, or a designated employee for the district in which the action is brought, (2) the Attorney General of the United States, and (3) the agency or employee(s) named in the suit. See Fed. R. Civ. P. 4(i)(1)-(2). Johnson did not comply with this rule.

When initiating the present suit, Johnson mailed a summons and complaint to the EEOC Charlotte District Office and the Office of the Chair at EEOC Headquarters in Washington, D.C. R.2. In addition, for the first time in his objection to the M&R, Johnson proffered evidence that he had eventually served the U.S. Attorney for the Western District of North Carolina. See R.45, p.8-9. He did not, however, offer any evidence or allege that he had served the U.S. Attorney General, in accordance with Rule 4(i). The district court therefore reasonably concluded that Johnson failed properly to effect service on the EEOC Defendants. Johnson’s appellate brief does not address this ruling. As a result, this Court should find that the district court correctly dismissed the claims against the EEOC for insufficient service of process. See McMasters v. United States, 260 F.3d 814, 817-20 (7th Cir. 2001) (dismissing suit against the United States due to improper service by Plaintiff); Bland v. Britt, 271 F.2d 193, 194 (4th Cir. 1959) (same).

B. The court lacked subject matter jurisdiction over Johnson’s damage claims against the EEOC Defendants.

In his objection to the M&R, Johnson failed to object to the magistrate’s conclusion that the court lacked subject matter jurisdiction over his claims against the EEOC Defendants. His appellate brief likewise contains no argument on this issue. Accordingly, any argument challenging this conclusion has been waived. See, e.g., Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985) (failure to file specific objection to magistrate’s recommendation waives appellate review of district court’s ruling based on that recommendation).

Even if such an argument were not waived, this Court should find that the district court correctly ruled that it lacked subject matter jurisdiction over Johnson’s claims against the EEOC Defendants. See R.53, p.5. This Court reviews the decision to dismiss a complaint for lack of jurisdiction de novo. Taylor v. Kellogg Brown & Root Servs., Inc., 658 F.3d 402, 408 (4th Cir. 2011); Research Triangle Inst. v. Bd. of Govs. of the Fed. Reserve Sys., 132 F.3d 985, 987 (4th Cir. 1997) (addressing sovereign immunity). Dismissal under Rule 12(b)(1) is proper if “the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

A federal court is without jurisdiction to entertain a suit against the United States for money damages unless there has been a waiver of sovereign immunity. United States v. Mitchell, 445 U.S. 535, 538 (1980). And because a suit against a federal agency such as the EEOC and/or its officials is in fact “against the United States,” “[t]he doctrine of sovereign immunity [also] applies” to such suits. See, e.g., Food Town Stores, Inc. v. EEOC, 708 F.2d 920, 922 (4th Cir. 1983). A waiver of sovereign immunity cannot be implied; it must be unequivocally expressed. Mitchell, 445 U.S. at 538. As a result, the EEOC may be sued only if the United States has expressly consented to the suit. United States v. Testan, 424 U.S. 392, 399 (1976); Food Town Stores, 708 F.2d at 922.

Here, there has been no such waiver. Johnson alleges that the EEOC Defendants violated his rights under 42 U.S.C. § 1985(3), but the United States has not consented to suit under that statute. See, e.g., Davis v. U.S. Dep’t of Justice, 204 F.3d 723, 726 (7th Cir. 2000) (holding that suit against the United States and its officers under § 1985(3) is barred by sovereign immunity); Affiliated Prof’l Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999) (same). Therefore, the district court was without subject matter jurisdiction over any claim against EEOC under § 1985. See Food Town Stores, 708 F.2d at 922 (“Absent . . . a statutory waiver of immunity, the district court was without 28 U.S.C. § 1331(a) federal question jurisdiction.”) (internal citations omitted).

Johnson also suggested that the EEOC’s investigation and processing of his charge violated his rights under Title VII. However, this and every other Circuit that has considered the issue has held that Congress did not provide either an express or an implied cause of action against the EEOC for such claims. See Georator Corp. v. EEOC, 592 F.2d 765, 767 (4th Cir. 1979) (stating that “Title VII details the procedures for civil action in an employment discrimination case, but does not provide for preliminary review of the Commission's determination of reasonable cause,” ading that “due process rights do not attach to the EEOC investigative process”); see also Ponton v. AFSCME, 395 Fed.Appx. 867, 872 (3d Cir. Sept. 23, 2010) (no express or implied cause of action against EEOC for negligence or other malfeasance in processing a charge); Haddad v. EEOC, 111 Fed.Appx. 413, 415 (6th Cir. Sept. 17, 2004) (same); Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997) (same); Baba v. Japan Travel Bureau Int’l, Inc., 111 F.3d 2, *5-*6 (2d Cir. April 2, 1997) (same); Scheerer v. Rose State College, 950 F.2d 661, 662-63 (10th Cir. 1991) (“no cause of action against the EEOC exists for challenges to its processing of a claim”); McCottrell v. EEOC, 726 F.2d 350, 351 (7th Cir. 1984) (same); Ward v. EEOC, 719 F.2d 311, 312-14 (9th Cir. 1983) (same); Stewart v. EEOC, 611 F.2d 679, 681-82 (7th Cir. 1979) (no express or implied right of action against EEOC under Title VII); Francis-Sobel v. Univ. of Maine, 597 F.2d 15, 17 (1st Cir. 1979) (same, no right to favorable resolution of EEOC charge either); Gibson v. Missouri Pac. R.R. Co., 579 F.2d 890, 891 (5th Cir. 1978) (same). “Indeed, [i]t is well established that Congress has not authorized, either expressly or impliedly, either in Title VII or elsewhere, a cause of action directly against the EEOC for misprocessing of claims asserted against third-party employers.” Gorczakoski v. EEOC, 1993 WL 302386, *1 (1st Cir. Aug. 9, 1993) (citing Scheerer). If a charging party is not satisfied with the EEOC’s administrative processing, the exclusive statutory remedy provided by Congress is for the charging party to file a lawsuit against his employer or prospective employer in federal court. See, e.g., Francis-Sobel, 597 F.2d at 17. As a result, this Court should hold that the district court properly concluded that it lacked subject matter jurisdiction and, so, the claims against the EEOC Defendants must be dismissed.

C. The district court correctly dismissed Johnson’s conspiracy claim against the EEOC Defendants under Federal Rule 12(b)(6).

The district court correctly ruled that Johnson failed to state a claim against the EEOC for conspiracy under 42 U.S.C. § 1985(3). R.53, p.5. This Court reviews a dismissal under Rule 12(b)(6), Fed. R. Civ. P., de novo. GE Inv. Private Placement Partners II v. Parker, 247 F.3d 543, 548 (4th Cir. 2001).

Section 1985(3) proscribes any conspiracy which has the “purpose of depriving . . . any person or class of persons of equal protection under the laws, or of equal privileges and immunities under the laws.” 42 U.S.C § 1985(3). To state a conspiracy claim pursuant to §1985(3), the plaintiff must allege: (1) a conspiracy of two or more persons; (2) who were motivated by a specific class- or race-based discriminatory animus; (3) to deprive plaintiff of equal enjoyment of rights secured by the law to all; (4) which results in injury to plaintiff; (5) as a consequence of an overt act committed by defendants in connection with the conspiracy. Buschi v. Kirven, 775 F.2d 1240, 1257 (4th Cir. 1985); see also Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971) (stressing that “there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ actions”).

The allegations in Johnson’s complaint fall far short of the minimum needed to state a conspiracy claim under Buschi and Griffin. Nowhere in Johnson’s complaint against the EEOC does he allege facts that satisfy any prong of the test. See R.1. Johnson’s complaint accuses the EEOC investigator of a number of actions, such as: (i) notifying Scott Clark Honda’s attorney of Johnson’s name; (ii) prohibiting Johnson from speaking directly with Scott Clark Honda’s attorney during settlement negotiations; (iii) failing to review documents Johnson had faxed to her and not telling him which of his witnesses she had spoken to; and finally, (iv) telephoning Johnson to discuss his case while Scott Clark Honda’s attorney was listening in on the conversation. Id. As the district court recognized, however, Johnson offered no evidentiary support for these allegations, R.53, p.5, and his appellate brief does not correct this flaw. See App.7, p.1.

Moreover, even if true, the allegations would not add up to a claim of conspiracy under § 1985(3) — most importantly because Johnson does not even intimate that the EEOC was motivated by his race or class. As the magistrate stated in the M&R, “There is no allegation of class or race based animus against EEOC.” R.42, p.7. Further, the magistrate noted that Johnson likewise failed to identify “the equal enjoyment of rights he was denied, or any injury he suffered as a result of the alleged conspiracy.” Id. As this Court has recognized, “It is well settled that mere allegations of conspiracy, backed up by no factual showing of participation in a conspiracy, are insufficient to support such an action against a motion for summary judgment.” Buschi, 775 F.2d at 1248. Therefore, this Court should find that the district court properly held that Johnson failed to state a claim on which relief can be granted because Johnson’s claim of conspiracy is “not plausibly supported by the facts alleged in his complaint.” R.53, p.5.

D. Johnson’s other arguments do not warrant reversal.

In his appellate brief, Johnson makes four additional arguments which, he suggests, would justify reversing the judgment. None has merit.

Initially, Johnson argues that the district court erred in denying his motions to recuse Magistrate Keesler. App.7, p.1. Johnson asserts that Magistrate Keesler showed personal bias against him by giving special treatment to opposing counsel, having improper ex-parte communication with opposing counsel, violating his right to a fair hearing, and allowing opposing counsel to file motions after the court deadline. Id.

This Court reviews the district court’s decision to deny Johnson’s motion for recusal for abuse of discretion. Kolon Indus. Inc. v. E.I. DuPont de Nemours & Co., 748 F.3d 160, 167 (4th Cir. 2014); United States v. Mitchell, 886 F.2d 667, 671 (4th Cir. 1989). To compel recusal, a judge must be shown to have “personal bias or prejudice concerning a party.” 28 U.S.C. § 455(b)(1); see also Mitchell, 886 F.2d at 671 (discussing recusal generally). The bias or prejudice at issue must “result in an opinion on the merits [of a case] on some basis other than what the judge learned from his participation in the case.” Belue v. Leventhal, 640 F.3d 567, 572-73 (4th Cir. 2011) (quoting Liteky v. United States, 510 U.S. 540, 545 n.1 (1994)). Allegations of bias or prejudice in a judge’s rulings that arise from current proceedings are not grounds for recusal unless the judge’s actions “display a deep-seated favoritism or antagonism that would make fair judgments impossible.” Liteky, 510 U.S. at 555. As the district court found here, however, Johnson did not provide any facts to support his claim that the magistrate displayed any partiality or personal bias against him. R.53, p.2. Nor does Johnson’s appellate brief contain any additional facts upon which this Court could find an abuse of discretion. See App.7, p.1. As a result, Johnson’s argument that the district court abused its discretion in refusing to grant his motion to recuse Magistrate Keesler should be rejected.

Second, Johnson asserts that the district court erroneously failed to rule on his appeals of the magistrate’s denial of his motions for sanctions. App.7, p.2. As noted above, Johnson filed two motions for sanctions against EEOC attorney Danielle Hayot. R.32; R.49. The magistrate denied both motions. R.33; R.52.

On appeal, Johnson argues, without citation to the record, that he appealed both of these denials to the district court. App.7, p.2. According to the docket sheet, however, he appealed only the denial of the first motion for sanctions. R.36. And contrary to Johnson’s argument here, the district court did rule on the appeal: the court denied it, suggesting that the sanctions motion and other filings were “frivolous” and/or “ad hominem arguments.” See R.40. This ruling was entirely reasonable, and Johnson’s appellate brief does not contend that it was erroneous on the merits. As for the second motion, Johnson cites nothing, and the EEOC is aware of nothing, suggesting that he appealed the denial of that motion. As a result of Johnson’s failure to appeal the magistrate’s ruling to the district court, or the correctness of the district court’s ruling on his first motion, these issues have been waived. See Holland v. Big River Minerals Corp., 181 F.3d 597, 605 (4th Cir. 1999) (stating that “issues that were not raised in the district court will not be addressed on appeal” unless there are “exceptional circumstances”); Mayfield v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 674 F.3d 369, 376-77 (4th Cir. 2012) (stating that a party’s failure to raise an issue in its initial appellate brief is an abandonment of that issue).[4]

Third, Johnson argues that the district court gave the EEOC special treatment by stating in an order that the EEOC did not have to reply to his “motion or appeal.” App.7, p.2. Johnson’s brief does not identify either the order or the particular motion or appeal to which it relates. Since he submitted numerous appeals and motions to the district court, it is unclear in which “order” — if any — the court made such a pronouncement. In any event, with or without such an order, EEOC was under no general obligation to respond to Johnson’s motions and appeals. Cf. Local Rule 7.1(E) (W.D.N.C.) (acknowledging that a party might not to file a response to a motion, adding that “[t]he filing of a reply brief is not mandatory”). Moreover, for the most part, EEOC did reply to Johnson’s motions, and, so, Johnson’s point is largely moot. See Friedman’s, Inc. v. Dunlap, 290 F.3d 191, 197 (4th Cir. 2002) (“‘When circumstances change from the time the suit is filed to the time of appeal, so that the appellate court can no longer serve the intended harm-preventing function or has no effective relief to offer, the controversy is no longer live and must be dismissed as moot’”) (quoting County Motors v. General Motors Corp., 278 F.3d 40, 43 (1st Cir. 2002)).

Johnson further asserts that the “order” excusing EEOC from responding “violat[ed] [his] civil right to an equal and fair hearing.” App.7, p.2. To the contrary, nothing suggests that Johnson’s ability to present his views to the court was at all impaired by any decision by EEOC to file – or not to file – a reply.

Lastly, Johnson asserts, without explanation, that the district court and the magistrate erred in allowing the EEOC to violate Local Rule 7.1 by “not filing on time responses to motion.” App.7, p.3. Johnson does not specify which documents he believes were untimely, nor does he explain why he believes the filings violated Local Rule 7.1. That said, the EEOC assumes that Johnson is referring to the two documents that he claimed the EEOC filed out of time in his two motions for sanctions: (a) EEOC’s motion to dismiss, R.26, and (b) EEOC’s response to Johnson’s objection to the magistrate’s Memorandum and Recommendations, R.48. In his first motion, Johnson argued that because the court allowed the EEOC extra time in which to file its motion to dismiss, Johnson did not have 14 days to respond, as required under Local Rule 7.1. See R.32, p.2 (seeking sanctions for EEOC’s motion to dismiss). In his second motion, he simply contended that the EEOC filed its response after the original deadline. See R.49, p.6 (seeking sanctions for EEOC’s response to the M&R). Assuming these are the filings that Johnson is challenging, his arguments have no merit.

Initially, the EEOC notes that neither document was untimely. Regarding EEOC’s motion to dismiss, the district court docket sheet indicates that the EEOC filed its original motion on October 31, 2013, and filed an amended motion on November 7, 2013. R.27. Any defects in the original service were therefore corrected by the EEOC’s filing and proper service of its amended motion. Johnson moved for sanctions on November 7, arguing that he received the first motion on November 6, and therefore did not have 14 days to respond. R.32, p.2. However, on receiving EEOC’s amended motion, the court sua sponte gave Johnson a new 14-day window — until November 25 — in which to file his reply. R.28. Thus, as the magistrate correctly pointed out in denying the sanctions, the issue was moot. See R.33, p.2 (order denying sanctions). Having received slightly more than the requisite two weeks in which to respond to EEOC’s motion, Johnson was not prejudiced by the November 7 filing.

As for EEOC’s reply to Johnson’s objection to the magistrate’s Memorandum and Recommendations, it was filed in a timely manner on April 9, 2013. R.48. Johnson’s confusion — and belief that it was not timely — may stem from the fact that the due date for the defendants’ replies changed twice after Johnson moved for an extension of time to file his objection to the M&R. R.33. The order partially granting that motion indicated that Johnson’s objection would be due on March 24, 2014, and replies to Johnson’s objection would be due just six days later, on March 30, a Sunday. R.44, p.2. When Johnson actually filed his objection on March 24, R.45, however, the same docket entry indicates that reply briefs would be due on April 10, 2014. Id.; compare R.52 (order denying second sanctions motion, noting that Fed. R. Civ. P. 72(b)(2) allows parties more than a mere six days to respond to objections). Under the new deadline, EEOC’s April 9 reply was in fact one day early. R.48.

Finally, the EEOC notes that even if one or both documents were untimely – which they were not – Johnson could not show that the magistrate’s decision to accept them out of time was an abuse of discretion. See Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995) (stating that the decision to admit late documents as timely is reviewed for an abuse of discretion). Significantly, Johnson has identified no harm from the decisions. Like his other arguments, therefore, this argument should be rejected.

CONCLUSION

Because the district court correctly determined that Johnson’s claims against the EEOC could not stand, and none of Johnson’s other arguments warrant reversal, the judgment of the district court dismissing the claims against the EEOC Defendants should be affirmed.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

CAROLYN L. WHEELER

Acting Associate General Counsel

JENNIFER S. GOLDSTEIN

Acting Assistant General Counsel

s/ Barbara L. Sloan

BARBARA L. SLOAN

Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

131 M Street, N.E., 5th Floor

Washington, DC 20507

Phone: 202-663-4721

FAX: 202-663-709

Dated: 10 July 2014 barbara.sloan@eeoc.gov

[1] “R.” will be used to denote the document number from the district court docket. “App.” will be used to denote the document number from this Court’s docket.

[2] The magistrate also recommended dismissing the claims against all the other defendants except for a retaliation claim against Scott Clark Honda and Randy Threatt. See generally id. at 18. The district court upheld this recommendation. See R.53 (Order).

[3] Other circuits are split on the issue. Compare, e.g., Crispin-Taveras v. Municipality of Carolina, 647 F.3d 1, 3 (1st Cir. 2011) (abuse of discretion); Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir. 2010) (same); with Prewitt Enters, Inc. v. Org. of Petroleum Exporting Countries, 353 F.3d 916, 920 (11th Cir. 2003) (de novo review of dismissal for insufficient service of process and clear error review for any related factual findings); Marshall v. Warwick, 155 F.3d 1027 (8th Cir. 1998) (de novo review for determination that service was insufficient and abuse of discretion review for decision to dismiss complaint).

[4] Johnson also complains that the court cautioned him that it could and would impose sanctions on him if he continued filing frivolous or abusive documents; in his view, the court failed to afford him deference as a pro se litigant. App.7, p.2. In fact, however, the court expressly refrained from imposing sanctions because of Johnson’s pro se status. See R.40 at 3. And sanctions clearly could be imposed for abusive conduct even though Johnson is pro se. Cf. Theriault v. Silber, 579 F.2d 302, 303 (5th Cir. 1978) (noting that liberal pro se practice is “a shield against the technical requirements of a past age,” not “a sword with which to insult a trial judge” or other litigant).