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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
_____________________________________
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CASE NEW HOLLAND, INC., and )
CNH AMERICA LLC, )
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Plaintiffs, )
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v. ) Civil Action No. 1:13-cv-01176 (RBW)
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EQUAL EMPLOYMENT )
OPPORTUNITY COMMISSION, and )
CHETAN PATEL, Federal Investigator, )
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Defendants. )
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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 J une
5, 2013, the defendants sent emails to 1,330 business email addresses of [the plaintiffs]
employees. Complaint (Compl.) at 2-3, 18. The EEOC sent the emails after commencing
a nation-wide review of [the plaintiffs and affiliated businesses] under the federal Age
Discrimination in Employment Act. See id. 10. The email[s] contained a link to a series of
questions relevant to the EEOCs investigation into allegations that [the plaintiffs]
discriminated against job applicants and current and former employees. Id. 19-20. The
plaintiffs contend that the defendants violated the APA because: (1) the EEOC has not issued
any rule or regulation allowing a mass business email inquiry of employees through the use of an
employers computer network, id. 49; (2) the emails constituted violations of the Fourth and
Fifth Amendments of the United States Constitution and therefore were in excess of statutory
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jurisdiction, authority, or limitations, or short of statutory right, id. 59-62; 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 emails 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 emails were distributed through the unauthorized use of the computer
network of [the plaintiffs] and thus was a taking of [the plaintiffs] business email 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 10-12. 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 Courts written articulation of the reasons for why it must
grant the defendants 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, 56061 (1992). Injury in fact
is an invasion of a legally protected interest which is (a) concrete and particularized, and (b)
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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[.] J acks Canoes & Kayaks, LLC v. Natl Park Serv.,
933 F. Supp. 2d 58, 68 (D.D.C. 2013) (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. 2003) (internal citation
omitted).
The plaintiffs contend that they were injured-in-fact in two ways: (1) the EEOCs email
disrupted its business operations[;] and (2) the EEOCs blast email 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.
Oppn) 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 email and Internet link disrupted
normal CNH business operations, without any warning to CNH.

28. A Federal Investigation of ones 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) email prompts employees,
impulsively, to question what other information the federal government already
possesses about them. Recipient employees question, reflexively, whether the
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federal government is on a mission to collect data on them, and excitedly
speculate about the purpose of the collection efforts.

30. Mass business emails 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 email and Internet link disrupted the
CNH employer-employee relationship. The email implicitly communicated to
CNH employees that their employer is being cut out of a federal government
inquiry. The email also communicated that the recipient employees should cease
their work for CNH to the extent necessary to answer the federal governments
questions, regardless of legitimate work demands or any legitimate concerns of
their employer.

Compl. 27-31. 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, 101102 (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 emails 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.
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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. Oppn 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 EEOCs 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 courts discretion to
limit communications from named plaintiffs and their counsel to prospective claimants in ongoing litigation. See id.
at 333.
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With respect to the second asserted injury, the plaintiffs argue that the purpose of the
email 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 actionsthose 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. 1989). [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 Intl 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 Courts oral ruling and written order issued on
September 24, 2014, it is hereby
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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, 2014.

REGGIE B. WALTON
United States District J udge
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