No. 04-15333 ________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________________________________________ FRED KNOX, Plaintiff-Appellant, v. JOHN POTTER, United States Postmaster General; RICH LENA; GUY ONO; VIRGINIA LABSON; CHARLIE WAMBEKE, of San Mateo Support Services Union; JEANNE M.L. PLAYER, Administrative Judge; CELE GUITERREZ, and FRED ALAVARA, Defendants-Appellees. _______________________________________________________ On Appeal from the United States District Court for the Northern District of California No. 3:03-CV-00229 _______________________________________________________ BRIEF OF DEFENDANT-APPELLEE JEANNE M.L. PLAYER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________________ ERIC S. DREIBAND EQUAL EMPLOYMENT OPPORTUNITY General Counsel COMMISSION Office of General Counsel VINCENT J. BLACKWOOD 1801 L Street, N.W., Room 7030 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4724 CAROLYN L. WHEELER Assistant General Counsel ANNE NOEL OCCHIALINO Attorney TABLE OF CONTENTS PAGE TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . 3 1. Nature of the Case and Course of Proceedings . . . . . . . 3 2. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . 4 A. Factual Allegations . . . . . . . . . . . . . . . . . . 4 B. Procedural Background . . . . . . . . . . . . . . . . 5 i. Knox's first three lawsuits . . . . . . . . . . . . 5 ii. Knox's current lawsuit Knox IV . . . . . 8 iv. Knox's subsequent lawsuit Knox V . . . 11 3. District Court Decision . . . . . . . . . . . . . . . . . . 11 4. Standard of Review . . . . . . . . . . . . . . . . . . . . . 13 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . .. . . . . . . . 14 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 I. THE DISTRICT COURT PROPERLY DISMISSED KNOX'S CLAIMS AGAINST JUDGE PLAYER BECAUSE THEY ARE BARRED BY RES JUDICATA. . . . . . . . . . . . . . . . . . . . 15 II. DISMISSAL OF KNOX'S CLAIMS AGAINST JUDGE PLAYER IS ALSO APPROPRIATE BECAUSE KNOX FAILED TO STATE A CLAIM FOR WHICH RELIEF CAN BE GRANTED AND BECAUSE THE DISTRICT COURT LACKED SUBJECT MATTER JURISDICTION OVER THE CLAIMS. . . . . . . . . . . . . . . . . . . . . . . . 17 A. Knox failed to state a claim against Judge Player for which relief can be granted. . . . . . . . . . . . . .. . 18 1. Title VII claims . . . . . . . . . . . . . . . . . . . . 18 2. Claims under 42 U.S.C.  1981, 1985, 1986, and 29 U.S.C.  158(b) . . . . . . . . . . . . . . . . . . 19 B. The district court lacked subject matter jurisdiction over Knox's claims against Judge Player. . . . . . . . . . . . . 21 III. THE DISTRICT COURT PROPERLY DENIED KNOX'S MOTION TO FILE A REQUEST FOR RECONSIDERATION OF THE COURT'S RELATED CASE ORDER AND HIS MOTION TO DISQUALIFY THE MAGISTRATE JUDGE. . . . . . . . . . . . . . . . . . . . . . . . . 23 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . . . . . . 25 CERTIFICATES OF COMPLIANCE AND SERVICE No. 04-15333 ________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________________________________________ FRED KNOX, Plaintiff-Appellant, v. JOHN POTTER, United States Postmaster General; RICH LENA; GUY ONO; VIRGINIA LABSON; CHARLIE WAMBEKE, of San Mateo Support Services Union; JEANNE M.L. PLAYER, Administrative Judge; CELE GUITERREZ, and FRED ALAVARA, Defendants-Appellees. STATEMENT OF JURISDICTION a. Plaintiff-Appellant Fred Knox ("Knox") asserts that the district court had jurisdiction based on 28 U.S.C.  1343 and 28 U.S.C.  185. See Br. at 2. Defendant-Appellee Administrative Judge Jeanne M.L. Player of the Equal Employment Opportunity Commission ("EEOC" or "Commission") contends, however, that the district court lacked subject matter jurisdiction over Knox's claims against her. No federal statute grants jurisdiction to the district courts to hear claims of individuals employed by third parties who are dissatisfied with the EEOC's administrative process. See infra at III. b. This Court has jurisdiction over the district court's final order and judgment dismissing this action with prejudice pursuant to 28 U.S.C.  1291. c. On October 21, 2003, the district court entered an order adopting the magistrate's recommendation to dismiss Knox's action with prejudice, deny Knox's motion to disqualify the magistrate, and deny Knox's request for reconsideration of the magistrate's related case order. (RE at Ex. U; 10/21/03 order) On January 9, 2004, the district court entered final judgment. (RE at Ex. V; judgment) On February 6, 2004, Knox filed a timely notice of appeal from the judgment. See Fed. R. App. P. 4(a)(1)(B). STATEMENT REGARDING ORAL ARGUMENT The Commission believes oral argument would not significantly aid the decisional process in this case because the issues are not complex and are adequately presented in the briefs. STATEMENT OF THE ISSUES 1. Whether the district court properly dismissed Knox's claims against Judge Player because they are barred by the doctrine of res judicata. 2. Whether dismissal would have also been appropriate under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim because no statute permits third parties to sue an EEOC administrative judge, and whether dismissal also would have been appropriate under Rule 12(b)(1) because the district court lacked subject matter jurisdiction over Knox's claims against Judge Player. 3. Whether the district court properly denied Knox's request for reconsideration of the magistrate's order finding Knox's lawsuit related to his previous lawsuits, which involved the same parties and the same allegations, and whether the district court abused its discretion in denying Knox's motion to disqualify the magistrate. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is the fourth pro se lawsuit Knox has filed against his employer, Defendant-Appellee United States Postal Service ("Postal Service"), and related defendants. Like the three lawsuits that have preceeded it and a fifth lawsuit that has followed it this lawsuit involves allegations that the Postal Service and other defendants subjected Knox to discrimination and retaliation. This is the second lawsuit in which Knox has sued Judge Player because he was unhappy with how she conducted the EEOC administrative hearing on his claims against the Postal Service. Knox does not allege that he was ever employed by the EEOC. 2. Statement of Facts As in all of Knox's lawsuits, this one arises from his employment at the Postal Service as a Data Control Technician. Both the factual allegations and the convoluted procedural history involved in this action are discussed below. A. Factual Allegations Knox claims that he was injured in May of 1995 as the result of a Halon explosion at the San Mateo Information Center. (RE Ex. G, Compl. at 3) He alleges that a number of his supervisors should have known that the Halon machines were leaking irritating odors and failed to correct the leaks. (Id.) Knox also claims that three co-worker deaths (from a heart attack, suicide, and hepatitis) may be attributable to the Halon explosion and that the explosion caused physical injuries for which he has had to seek medical treatment since May of 1995. (Id. at 3-4) According to Knox, the Postmaster and his other supervisors acceded to Knox's request for a medical examination and "caused the plaintiff to be subjected to examination of his penis and genital area" for no reason. (Id. at 4) Knox also alleges he was denied promotions and training opportunities and that he was harassed after he complained about his treatment. (Id. at 6-7) Knox alleges that Judge Player conducted an administrative hearing concerning Knox's discrimination complaint. (Id. at 8) According to Knox, Judge Player failed to adequately investigate his claims of discrimination and refused "to allow the plaintiff witnesses and witness testimony." (Id.) Knox also alleges that Judge Player refused to hold a hearing on his claim that Cele Gutierrez sexually harassed him by ordering medical examinations of his genitals. (Id. at 12) B. Procedural Background i. Knox's first three lawsuits Before filing this lawsuit, Knox filed three other actions. This Court affirmed their dismissal on December 27, 2001. (EEOC RE at 4, slip op.) Knox I Knox filed his first action, Case No. 98-796 JL ("Knox I"), on March 2, 1998. (RE at Ex. A) Judge Player was one of the defendants. (Id.) The other defendants included the United States Postal Service, Postmaster General William J. Henderson, Manager Rich Lena, Supervisor Bob Long, Personnel Assistant Susy Nakai, Supervisor Tom Nesbitt, Computer Systems Administrator Dennis Williams, Manager Cele Gutierrez, Supervisor Roger Hisle, Charlie Wambeke (the former President of the San Mateo Area Local, American-Postal Workers Union, AFL-CIO Local 6669), and the San Mateo Information Service Center of the United States Postal Service ("San Mateo Center"). (Id.) Knox I alleged claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e, et seq., 42 U.S.C.  1981, 42 U.S.C.  1985(2), 42 U.S.C.  1986, and 29 U.S.C.  158(b) for racial discrimination, retaliation, unfair labor practices, breach of contract, intentional infliction of emotional distress, negligent infliction of emotional distress, and violations of the Veterans Preference Act. (Id.) As to Judge Player, Knox alleged that she was biased, denied relevant subpoena records requests, split the case into two separate cases, denied Knox the opportunity to present witnesses, and allowed the defendants to enter all evidence, records, and witnesses in their favor. (Id. at 14) Knox also alleged that the EEOC hearing and investigation was corrupt and that his appeals from the hearing were not timely decided. (Id.) In a July 8, 1998, order, the district court dismissed with prejudice Knox's claims against the EEOC and Judge Player. (RE Ex. V, 12/22/03 order at 4; EEOC RE at 1, 7/8/98 order) The court found that Congress had not created an express or implied cause of action against the EEOC by employees of third parties. (Id.) The court also found that Knox failed to allege specific facts to support his claims under 42 U.S.C.  1981, 1985(b), and 1986 and that these charges were not properly brought. (Id.) Finally, the court ruled that Knox had failed to allege any facts to support his claim under 29 U.S.C.  158(b). (Id.) As discussed below, the district court later consolidated Knox I, II, and III, and this Court affirmed the district court's dismissal of Knox's claims against the EEOC and Judge Player. Knox II One year after filing Knox I, Knox filed his second lawsuit, Case No. 99- 1527 JL ("Knox II"). (RE Ex. V at 5; RE Ex. B) Neither Judge Player nor the EEOC were defendants. The defendants in Knox II were otherwise the same as in Knox I, except that Knox's co-worker, Fred Alvara, was added. (Id.) Knox II alleged many of the same causes of action as Knox I and added a few new ones. Knox alleged claims for racial discrimination, retaliation, unfair labor practices, assault, battery, interference with contract, intentional infliction of emotional distress, and hiring co-workers to harass, retaliate, and stalk Knox. (Id.) The factual allegations of Knox I and Knox II were largely identical. (Id.) Knox III Seven months after Knox filed Knox II, he filed his third lawsuit, Case No. 99-4675 JL ("Knox III"). (RE Ex. V at 7; RE Ex. C, compl.) Again, neither Judge Player nor the EEOC were named as defendants. Knox III alleged claims against Postmaster General William J. Henderson, the San Mateo Center, and co-worker Vic Caparros. Similar to Knox I and Knox II, the causes of action in Knox III include racial discrimination and retaliation, intentional infliction of emotional distress, and negligent infliction of emotional distress arising from Knox's employment at the Postal Service. (RE Ex. V at 7-8; RE Ex. C) Eventually, the district court ordered that Knox I, Knox II, and Knox III were related. (RE Ex. V at 9) On October 6, 2000, the district court entered an order disposing of all remaining claims against all remaining defendants in all three cases. (Id. at 9-10) Knox appealed. After ordering that all three cases be consolidated, this Court affirmed the dismissal of Knox's claims, including the dismissal of his claims against Judge Player for failure to state a claim for which relief could be granted. (Id. at 10-11; EEOC RE at 4, slip op. ) This Court later denied Knox's petition for rehearing, and the Supreme Court denied Knox's petition for certiorari. (RE Ex. R at 7) ii. Knox's current lawsuit Knox IV On January 16, 2003, Knox filed this lawsuit ("Knox IV"). (RE Ex. G) The defendants have all been named at least once in Knox's previous three lawsuits. Besides Judge Player, the Defendants include Postmaster John Potter, Rich Lena, Guy Ono, Virginia Labson, Charles Wambeke, Cele Gutierrez, and Fred Alarva. (Id. at 1) The factual allegations are nearly identical to those in Knox's previous three lawsuits. (Id. at 1-16; RE Ex. V, 12/22/03 order at 8-9) As in Knox I, Knox II, and Knox III, Knox alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e, et seq., the Veterans Preference Act, Pub. L. 103-353, 42 U.S.C.  1981, 42 U.S.C.  1985(2), 42 U.S.C.  1986, and 29 U.S.C.  158(b). (RE Ex. G, Compl. at 2) Knox's claims are for racial and sexual discrimination arising from the Halon gas explosion and subsequent medical exam, racial discrimination arising from a failure to train and promote him, retaliation, unfair labor practices, breach of contract, violation of the Veterans Preference Act, intentional infliction of emotional distress, negligent infliction of emotional distress, and sexual harassment. (RE Ex. G) Specific to Judge Player, Knox alleges in Count I ("Racial and Sexual Discrimination, Halon Explosion Injuries and Subsequent Examination") that she was an administrative law judge acting in the course and scope of her employment. (Id. at 3) In Count III ("Retaliation"), Knox alleges that Judge Player failed to adequately investigate his complaints by "failing and refusing to allow the plaintiff witnesses and witness testimony." (Id. at 7-8) In Count IV ("Unfair Labor Practices"), Knox alleges that each defendant failed to act in accordance with the National Labor Relations Act, 29 U.S.C.  157. (Id. at 8-9) In Counts V ("Breach of Contract") and VI ("Violation of Veterans Preference Act"), Knox alleges that the defendants conspired to breach all covenants of good faith and fair dealing. (Id. at 9-11) In Counts VII and VIII, Knox alleges that the defendants are liable for negligent and intentional infliction of emotional distress. (Id. at 11-13) Knox also alleges that Judge Player refused to hold a hearing on his claims of sexual harassment. (Id. at 12) On April 29, 2003, the magistrate judge issued a related case order finding that Knox IV was related to Knox I (which was related to Knox II and Knox III). (RE Ex. K) On August 22, 2003, the magistrate issued an order recommending dismissal of Knox's claims with prejudice on the grounds of res judicata, denial of Knox's motion to disqualify the magistrate, and denial of Knox's motion for reconsideration of the related case order. (RE, Ex. R) Knox failed to file any objections to the magistrate's recommendation. (RE Ex. U, 10/21/03 order; EEOC RE at 14-15, docket) In an October 21, 2003 order, the district court adopted the magistrate's recommendation. (RE Ex. U, order) On January 9, 2004, the district court entered judgment against Knox and dismissed his claims with prejudice. (RE Ex. V, judgment) The court also denied Knox's motions to disqualify the magistrate judge and to reconsider the magistrate's related case order. (Id.) On February 6, 2004, Knox filed a notice of appeal of the district court's January 9, 2004, judgment. (EEOC RE at 9, 2/6/04 notice) iii. Knox's subsequent lawsuit Knox V After filing his first four lawsuits, Knox filed a fifth one, Case No. 03-3638 JL ("Knox V"). Judge Player is not a defendant in Knox V, although it involves many of the same parties and allegations contained in Knox's earlier suits. On February 9, 2004, the district court entered an order finding Knox V related to Knox IV. (EEOC RE at __, docket at R.56) Knox filed an appeal of Knox V, which is Case No. 04-162000. C. District Court Decision The district court's October 21, 2003, order adopted the magistrate's recommendation to deny reconsideration of the magistrate's related case order, deny Knox's motion to disqualify the magistrate, and dismiss Knox's complaint with prejudice. (RE Ex. U) In its order, the district court noted that Knox had not filed any objections to the recommendation. (Id.) The reasoning for the district court's opinion was set forth in the magistrate's August 22, 2003, recommendation. (RE Ex. R, recommendation) The magistrate denied on two grounds Knox's application to file a request for reconsideration of the court's order finding Knox IV related to Knox's earlier suits. (Id. at 5) First, Knox had failed to file any objections to the Defendants' April 1, 2003, Notice of Related Case within the required ten days. (Id.) Second, Knox was not entitled to file a motion for reconsideration under Civ. L. R. 7- 9(b)(3) because he had not offered any evidence that the court had disregarded "material facts or dispositive legal arguments" in determining that the cases were related. (Id.) Next, the magistrate rejected Knox's argument that the magistrate should be disqualified because he had made rulings in Knox I, Knox II, and Knox III. (Id.) Quoting the Supreme Court's opinion in Liteky v. United States, 510 U.S. 540, 555 (1994), the magistrate stated that "'judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.'" Id. Noting that Knox had presented no evidence that the magistrate was biased or prejudiced, the court refused to disqualify himself. (Id. at 6) Finally, the magistrate dismissed Knox's lawsuit on the grounds of res judicata. (Id. at 6-9) Citing Blonder -Tongue Laboratories v. Univ. of Ill. Found., 402 U.S. 313, 323-24 (1971), court stated that "[a] federal action may be barred by the doctrine of res judicata if an earlier lawsuit involved the same claim as the present suit [and] reached a final judgment on the merits, and involved the same parties or their privies." (Id. at 8) After reviewing and comparing Knox I, Knox II, Knox III, and Knox IV, the court determined that res judicata barred Knox IV. (Id. at 9) Although Knox argued that Knox IV was "substantially different" from his first three lawsuits because it alleged retaliation, the court rejected this argument, finding that Knox II had also alleged retaliation. (Id. at 8). 5. Standard of Review "This Court reviews de novo a dismissal based on res judicata." Western Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997). "The decision of the district court may [also] be affirmed on any ground finding support in the record." Oscar v. Univ. Students Co-operative Ass'n, 965 F.2d 783, 785 (9th Cir. 1992) (en banc). The denial of a motion to recuse a judge is reviewed under an abuse of discretion standard. See Moideen v. Gillespie, 55 F.3d 1478, 1482 (9th Cir. 1995). SUMMARY OF ARGUMENT Unsatisfied with one bite at the apple, Knox seeks a second bite at Judge Player. The district court properly found that Knox is not entitled to it. Several years ago, this Court affirmed the dismissal of Knox's same claims against Judge Player in Knox I. Accordingly, the district court properly found that Knox's current claims against Judge Player are barred by res judicata. Dismissal of Knox's claims was also appropriate under Rule 12(b)(6) of the Federal Rules of Civil Procedure because Knox's claims against Judge Player fail to state a claim for which relief can be granted. Similarly, dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(1) because the district court lacked subject matter jurisdiction over Knox's claims. Finally, dismissal was appropriate because Knox failed to file any objections to the magistrate's recommendation that Knox's claims be dismissed. The district court also properly denied Knox's motion to file a request for reconsideration of the magistrate judge's order finding Knox IV related to Knox I because, as Knox concedes, the cases involve the same parties and the same claims. This Court should also hold that the district court did not abuse its discretion in refusing to disqualify the magistrate. Therefore, this Court should affirm the dismissal of Knox's claims against Judge Player. ARGUMENT I. THE DISTRICT COURT PROPERLY DISMISSED KNOX'S CLAIMS AGAINST JUDGE PLAYER BECAUSE THEY ARE BARRED BY RES JUDICATA. Under the doctrine of res judicata, "a final judgment on the merits bars further claims by parties or their privies based on the same cause of action." Montana v. United States, 440 U.S. 147, 153 (1979). Application of this doctrine is "central to the purpose for which civil courts have been established, the conclusive resolution of disputes within their jurisdiction." Id. "Moreover, a rule precluding parties from the contestation of matters already fully and fairly litigated 'conserves judicial resources' and 'fosters reliance on judicial action by minimizing the possibility of inconsistent decisions." In re Schimmels, 127 F.3d 875, 881 (9th Cir. 1997) (quoting Montana, 440 U.S. at 153-54). Res judicata applies when there is "(1) an identity of claims, (2) a final judgment on the merits, and (3) identity or privity between parties." Western Radio, 123 F.3d at 1192. Here, the district court properly found that res judicata bars Knox's claims against Judge Player. First, as discussed, supra at 2.B., Knox's claims in this case are identical to those he brought in Knox I. (EEOC RE at ; slip op. at 3) In both Knox I and this case, Knox's essential allegation against Judge Player is that she limited Knox's witnesses and their testimony at his administrative hearing on his claims against the Postal Service. (RE Ex. A, compl.; RE Ex. G at 8) Knox even conceded below, and on appeal, that this case "may involve the same claim as prior suits." (RE Ex. N at 9; Resp. to Mo. to Dismiss; Br. at 16) Although he argues that Knox IV is not subject to res judicata because it involves a claim of retaliation, his retaliation claims in Knox IV against Judge Player are based on the same facts as in Knox I and could have been alleged in Knox I. See Tahoe-Sierra Preservation Council Inc. v. Tahoe Regional Planning Agency, 322 F.3d 1064, 1078 (9th Cir. 2003) ("Newly articulated claims based on the same nucleus of facts may still be subject to a res judicata finding if the claims could have been brought in the earlier action"). Second, in Knox I, this Court affirmed the dismissal of the claims against Judge Player on the merits for failure to state a claim upon which relief could be granted. (EEOC RE at 6, slip op. at 3) Third, as Knox admits, Br. at 16, there is privity between the parties because Judge Player was a defendant in Knox I and is a defendant in this case. (RE Ex. N. at 9, Ex. A, Ex. G) Therefore, this Court should affirm the dismissal of Knox's claims against Judge Player because they are barred by res judicata. Dismissal is also warranted because Knox failed to file any objections to the magistrate's recommendation of dismissal. See Fed. R. Civ. P. 72(b) (party may file objections to proposed findings and recommendation); Fed. R. Civ. P. 72(b) advisory committee's note ("Failure to make timely objection to the magistrate's report prior to its adoption by the district judge may constitute a waiver of appellate review of the district judge's order."). II. DISMISSAL OF KNOX'S CLAIMS AGAINST JUDGE PLAYER IS ALSO APPROPRIATE BECAUSE KNOX FAILED TO STATE A CLAIM FOR WHICH RELIEF CAN BE GRANTED AND BECAUSE THE DISTRICT COURT LACKED SUBJECT MATTER JURISDICTION OVER THE CLAIMS. Even if this Court were to determine that Knox's claims against Judge Player should not have been dismissed on res judicata grounds, this Court should affirm on two alternate grounds. See Oscar, 965 F.2d at 785 (appellate court may affirm on any ground supported by the record). First, dismissal of Knox's claims is appropriate under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for which relief can be granted. Second, dismissal is also warranted under Federal Rule of Civil Procedure 12(b)(1) because the district court lacked subject matter jurisdiction over Knox's claims against Judge Player. A. Knox failed to state a claim against Judge Player for which relief can be granted. As discussed below, no statute provides for a claim against an EEOC administrative judge by third-parties who are dissatisfied with the administrative process. Therefore, Knox failed to state a claim for which relief could be granted against Judge Player. 1. Title VII claims Section 717 of Title VII, 42 U.S.C.  2000e-16, "provides the exclusive judicial remedy for claims of discrimination in federal employment." Brown v. General Services Admin., 425 U.S. 820, 835 (1976). Under this section, federal employees claiming discrimination are entitled to de novo trials in federal court against their employing agencies. See Chandler v. Roudebush, 425 U.S. 840, 843- 864 (1976) (section 717 "accord[s] a federal employee the same right to a trial de novo as private-sector employees enjoy under Title VII"). Congress created neither an express nor an implied cause of action against the EEOC by employees of third parties. Ward v. EEOC, 719 F.2d 311, 313 (9th Cir. 1983). Accordingly, the recourse for a federal employee unhappy with the EEOC's processing of a discrimination complaint is to file a de novo action in district court against the employing agency. See, e.g., Chandler, 425 U.S. at 843-64 (holding that section 717 of Title VII accords federal employees the right to a trial de novo in federal court). This is exactly what Knox has done (five times, in fact). Thus, the dismissal of Knox's Title VII claims against Judge Player is appropriate under Rule 12(b)(6). 2. Claims under 42 U.S.C.  1981, 1985, 1986, and 29 U.S.C.  158(b) Knox's claims against Judge Player under 42 U.S.C.  1981, 1985 and 1986, and under 29 U.S.C.  158(b) also fail to state a claim for which relief can be granted. To the extent Knox seeks to claim a substantive violation of 42 U.S.C.  1981 by Judge Player, he has failed to advance sufficient facts to support a claim that he was "denied [ ] any contract rights or the equal benefit of the law." Kuser v. EEOC, 18 FEP Cases (BNA) 1011, 1012 (D. Md. 1978) (holding that plaintiff had no cause of action under section 1981 against the EEOC for issuing a "no cause" determination, which "neither hinders nor circumscribes a charging party's right to bring [an] independent de novo action in federal district court") (citing Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 366 (1977)). Moreover, section 1981 is only violated by intentional racial discrimination, see General Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 391 (1982), which Knox has not alleged against Judge Player. (RE Ex. G). Therefore, Knox's section 1981 claims against Judge Player fail to state a claim upon which relief can be granted. Knox's section 1985 and 1986 claims are similarly defective. To establish a conspiracy to violate civil rights under section 1985, a plaintiff must demonstrate the existence of "an agreement or 'meeting of the minds' to violate his constitutional rights." Ward, 719 F.2d at 314. While such an agreement may be inferred from the parties' conduct, see id., the plaintiff must allege sufficient facts to support his allegation that the defendants conspired together to violate the plaintiff's civil rights. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir. 1988). "A mere allegation of conspiracy without factual specificity is insufficient." Id. (citations omitted). Here, it is patently clear that Knox did not and cannot meet his burden of pleading or proving that the Judge Player entered into a conspiracy with the other Defendants-Appellees to violate Knox's civil rights. Knox's complaint is utterly devoid of any factual allegations that Judge Player had any involvement with the other Defendant-Appellees except that associated with the administrative hearing concerning Knox's discrimination complaints. Because Knox has failed to state a valid section 1985 claim against Judge Player, his section 1986 claim also fails. See Karim-Panahi, 839 F.2d at 626 (stating that a section 1986 claim cannot be maintained without a valid section 1985 claim). Finally, Knox cannot rely on 29 U.S.C.  158(b) to state a claim against Judge Player. That section prohibits unfair labor practices by employers and labor organizations. Knox does not allege that he was employed by Judge Player (or the EEOC). He otherwise fails to allege any facts that could remotely be interpreted as stating a claim under 29 U.S.C.  158(b) against Judge Player. Thus, dismissal of Knox's claims under Title VII, 42 U.S.C.  1981, 1985, and 1986, and his claims under 29 U.S.C.  158(b) is appropriate under Rule 12(b)(6). B. The district court lacked subject matter jurisdiction over Knox's claims against Judge Player. Dismissal of Knox's claims against Judge Player is also warranted under Rule 12(b)(1) of the Federal Rules of Civil Procedure because the district court lacked subject matter jurisdiction over them. The federal courts are courts of limited jurisdiction, deriving their powers from the authority of Congress. Lockerty v. Phillips, 319 U.S. 182, 187 (1943). Thus, in order for a district court to have the authority to hear a case, Congress must have invested the court with the appropriate jurisdiction. See id. In his opening brief, Knox asserts that the district court's subject matter jurisdiction was based on 28 U.S.C.  1343, and 28 U.S.C.  185. Op. Br. at 2. This assertion is unavailing. "28 U.S.C.  1343 does not create an independent basis for federal jurisdiction, but only serves to confer jurisdiction where a federal cause of action is provided by one of the substantive sections of the Civil Rights Act." Ellis v. Cassidy, 625 F.2d 227, 229 (9th Cir. 1980). The jurisdictional requirements of section 1343 are not satisfied where the substantive claim alleged is "wholly insubstantial" or where the complaint alleges insufficient facts to state a cause of action for deprivation of civil rights. Kohl Indus. Park Co. v. County of Rockland, 710 F.2d 895, 899 (2d Cir. 1983) (internal quotations and citations omitted). As discussed, supra, Knox's complaint fails to state a claim for deprivation of his civil rights under 42 U.S.C.  1981, 1985, or 1986. Therefore, section 1343 cannot provide a jurisdictional basis for Knox's claims against Judge Player. Nor does 28 U.S.C.  185 supply a basis for the district court's subject matter jurisdiction. As discussed, supra, that section prohibits unfair labor practices by employer and labor organizations. It does not confer jurisdiction over the district courts to entertain actions by third parties against EEOC administrative judges. Finally, Knox's claims are also barred by the doctrine of sovereign immunity. It is well-established that the United States and its agencies are immune from suit for damages except where they have consented by statute to be sued. See e.g., United States v. Mitchell, 463 U.S. 206, 212 (1983); Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983). A suit against federal employees for actions taken within the scope of their employment and in their official capacity is "'only another way of pleading an action against an entity of which an officer is an agent.'" Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell v. Dep't of Social Services, 436 U.S. 658, 690 n. 55 (1978)). The party attempting to sue the United States or its agencies bears the burden of pointing to the statutory provision that contains "an unequivocal waiver of immunity." Holloman, 708 F.2d at 1401. Here, Knox has failed to meet his burden of showing that any provision in Title VII, or in any other federal statute, constitutes a waiver of the EEOC's sovereign immunity with respect to a claim for damages arising from the EEOC's handling of a discrimination complaint. Therefore, the district court lacked subject matter jurisdiction over Knox's claims against Judge Player. III. THE DISTRICT COURT PROPERLY DENIED KNOX'S MOTION TO FILE A REQUEST FOR RECONSIDERATION OF THE COURT'S RELATED CASE ORDER AND CORRECTLY DENIED KNOX'S MOTION TO DISQUALIFY THE MAGISTRATE. The district court properly denied Knox's motion to file a request for reconsideration of the magistrate's related case order. See United States v. Warren, 601 F.2d 471, 474 (9th Cir. 1979) ("Only in rare cases will [this Court] question the exercise of discretion in connection with the application of local rules."). First, the court properly found that Knox IV was related to Knox I under Civil L. R. 3-12(b) because they involve the same parties and relating the cases avoided "an unduly burdensome duplication of labor and expense." Second, as the court noted, RE Ex. R at 5, Knox failed to file within ten days a response to the Defendants' Notice of Related Case. See Civ. L. R. 3-12(d) (response must be filed within ten days of service of notice of related case). Third, Knox failed to show "a material difference in fact or law" from that originally presented to the court or the "emergence of new material facts or a change of law" that would warrant the filing of a motion for reconsideration of the related case order. Civ. L. R. 7-9(b). The district also acted well within its discretion in denying Knox's motion to disqualify the magistrate. See Moideen, 55 F.3d at 1482 (denial of recusal motion reviewed under abuse of discretion standard). Recusal is appropriate when "a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." In re Yagman, 796 F.2d 1165, 1179 (9th Cir. 1986) (internal quotations and citation omitted). Although Knox argues that the magistrate "had substantially developed prejudgments about the plaintiff- appellant and his causes," Br. at 22, Knox fails to point to any evidence before the district court that would make a reasonable person conclude that the magistrate's impartiality might be questioned. Knox's sole argument seems to be that recusal was warranted because the magistrate had been assigned to Knox I, II, and III. The court properly rejected this argument because, as it said, "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky v. United States, 510 U.S. 540, 555 (1994). Therefore, this Court should hold that the district court did not abuse its discretion in denying Knox's motion to disqualify the magistrate. CONCLUSION This Court should affirm the district court's dismissal of Knox's claims against Judge Player on the grounds of res judicata. While Knox was entitled to one bite at the apple, he was not entitled to two. This Court should also affirm the district court's denial of Knox's motion to file a request for reconsideration of the magistrate's related case order and his motion to disqualify the magistrate. Respectfully submitted, ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ________________________ ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT COMMISSION Office of General Counsel 1801 L Street, N.W., Rm. 7030 Washington, D.C. 20507 (202) 663-4724 July ___, 2004 STATEMENT OF RELATED CASES This case is related to Case No. 04-15156. The Commission filed a motion to consolidate these two cases, but the motion has not yet been ruled upon. The Commission believes that this case is also related to Case No. 04-16200 (the Commission is not a defendant in that case). CERTIFICATE OF SERVICE I, Anne Noel Occhialino, hereby certify that I served two copies of the foregoing brief this ____ day of July, 2004 by first-class mail, postage pre-paid, to the following: Pro Se Plaintiff Fred Knox 27713 Melbourne Ave. Hayward, CA 95454 Counsel for Defendants-Appellees Abraham Simmons Assistant United States Attorney 450 Golden Gate Ave. San Francisco, CA 94102 _____________________ Anne Noel Occhialino Attorney U.S. EQUAL EMPLOYMENT COMMISSION, Office of General Counsel 1801 L Street, N.W., Room 7030 Washington, D.C. 20507 (P)(202) 663-4724 (F)(202) 663-7090 ____________________________________________________________________ 1. In his opening brief, Knox argues that the district court’s December 22, 2003, order violates his Due Process rights under the Fifth Amendment. Br. at 24-27. Because new arguments cannot be raised for the first time on appeal, the Commission will not address this argument. See Arizona v. Components Inc., 66 F.3d 213, 217 (9th Cir. 1995). 2. “RE Ex. *” refers to Knox’s record excerpts and the specific excerpt. 3. “EEOC RE” refers to the Commission’s supplemental record excerpts. 4. The court also ordered Knox to show cause in writing why he should not be deemed a vexatious litigant. (Id.) In its December 22, 2003, order the district court found Knox to be a vexatious litigant. (RE Ex. V) On January 20, 2004, Knox filed a notice of appeal of that order, which was assigned Case No. 04-15156. (EEOC RE at 8, 1/20/04 notice) Although the Commission filed a motion to consolidate that appeal with this one, this Court has not yet ruled on the motion.