BLD-277                                                   NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                                 No. 14-1952
                                 ___________

             VALENTINE B. ANDELA, d/b/a CANCER-AFRICA,

                                             Appellant

                                       v.

         ADMINISTRATIVE OFFICE OF UNITED STATES COURTS;
   UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION;
 UNITED STATES DEPARTMENT OF EDUCATION- OFFICE OF CIVIL RIGHTS;
    UNKNOWN NAMED OFFICIALS IN THEIR INDIVIDUAL CAPACITIES
                ____________________________________

                On Appeal from the United States District Court
                   for the Eastern District of Pennsylvania
                        (D.C. Civil No. 2-13-cv-00865)
                  District Judge: Honorable J. Curtis Joyner
                 ____________________________________

                    Submitted for Possible Summary Action
               Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 June 12, 2014

          Before: AMBRO, CHAGARES and VANASKIE, Circuit Judges

                         (Opinion filed: June 17, 2014)
                                  _________

                                  OPINION
                                  _________
PER CURIAM

       Valentine B. Andela, proceeding pro se, appeals from the District Court’s denial

of his motion for reconsideration pursuant to Federal Rule of Civil Procedure 59(e). For

the reasons set forth below, we will summarily affirm.1

                                             I.

       Andela filed a complaint against the defendants in which he alleged that the

defendants mishandled his employment discrimination claim, conspired to deprive him of

his constitutional rights, and failed to provide him with certain information under the

Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq. In 2007, Andela filed a

charge of employment discrimination with the Equal Employment Opportunity

Commission (“EEOC”) against the University of Miami and the University of North

Carolina at Chapel Hill. He subsequently filed a complaint with the U.S. Department of

Education’s Office for Civil Rights (“OCR”) alleging retaliation as a result of his EEOC

claim. An administrative law judge rejected his claims of employment discrimination,

and the Florida Commission for Human Relations (“FCHR”) upheld that decision on

appeal. Andela then requested that the EEOC perform a Substantial Weight Review of

the FCHR’s decision. He also appealed the FCHR’s ruling to the Florida District Court

of Appeals, which affirmed the FCHR’s decision. The next day, the EEOC issued a

1
 We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291. We may affirm
on any basis supported by the record. Murray v. Bledsoe, 

, 247 (3d Cir.
2011) (per curiam).

                                             2
notice of a right-to-sue letter indicating that it had adopted the FCHR’s determination.

Andela alleged that the EEOC should have completed its review in time for the state

appellate court to use it in making its determination, but the EEOC’s issuance of its

decision immediately after the state court’s rejection of his appeal is “[s]trongly revealing

of a conspiracy.” Dkt. No. 6, at 6.

       Andela then made a FOIA request for the EEOC’s Substantial Weight Review.

The request was not answered, and when he made a second request, he was told that the

EEOC did not have a record of his initial request but would process his second request by

August 3, 2009. Andela was not provided with the document as of that date, however.

       Around that same time, Andela filed a lawsuit in the Southern District of Florida,

pursuant to Title VI and Title VII, against the University of Miami and the University of

North Carolina. The district court dismissed some of Andela’s claims, granted summary

judgment to defendants on others, and declined to exercise supplemental jurisdiction over

any state law claims. Andela appealed, and the Eleventh Circuit dismissed part of the

appeal while affirming the dismissal of his remaining claims.

       Andela subsequently filed several FOIA requests and appeals to the OCR and the

EEOC. In response, the EEOC released a redacted copy of its Substantial Weight

Review, signed by a district director who, according to Andela, was later demoted “based

on her allegedly unacceptable performance.” 

(citation omitted).




                                              3
       Based on these facts, Andela made the following claims: (1) a FOIA claim against

the EEOC based on the EEOC’s failure to provide him with an unredacted copy of the

substantial weight review; (2) claims against all of the defendants under the Declaratory

Judgment Act; (3) claims against the government agents involved in the procedural

handling of his Title VI and Title VII claims, pursuant to Bivens v. Six Unknown Named

Agents of the Federal Bureau of Narcotics, 

(1971); (4) claims against all of

the defendants pursuant to 42 U.S.C. § 1985, based on his allegations that they conspired

to undermine his constitutional rights; (5) claims against all of the defendants pursuant to

42 U.S.C. § 1986, based on his allegations that they failed to prevent interference with his

civil rights; and (6) a claim under the Federal Tort Claims Act (“FTCA”) against the

EEOC. He sought injunctive relief under FOIA, a declaration that he was continuously

prevented from properly litigating his Title VI and Title VII claims due to the defendants’

conduct, and damages. The District Court dismissed all of his claims save for the FOIA

claim against the EEOC, denied Andela’s motion pursuant to Federal Rule of Civil

Procedure 60(b), and denied Andela’s motion to recuse. The FOIA claim was terminated

when the District Court granted summary judgment for the defendants. Andela then

moved for reconsideration pursuant to Federal Rule of Civil Procedure 59(e). The

District Court denied the motion, and Andela timely appealed.2


2
 While Andela did not explicitly state that he was appealing from the denial of his
motion for recusal pursuant to 28 U.S.C. § 455, we review this decision for abuse of
discretion, see In re Kensington Int’l, Ltd., 

, 300-01 (3d Cir. 2004), and find
                                             4
                                               II.

       We exercise plenary review over the District Court’s dismissal order. See Allah v.

Seiverling, 

, 223 (3d Cir. 2000). Dismissal is appropriate where the pleader

has not alleged “sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 

, 678 (2009) (internal quotations

omitted).

       The District Court’s dismissal of Andela’s claim for a declaratory judgment was

correct. Declaratory judgments are meant to define the legal rights and obligations of the

parties in the anticipation of some future conduct. See Terra Nova Ins. Co. v. 900 Bar,

Inc., 

, 1224 (3d Cir. 1989) (stating that a district court must consider,

among other factors, whether a declaratory judgment will resolve the uncertainty of

obligation that gave rise to a controversy). Declaratory judgments are not meant simply

to proclaim that one party is liable to another. See Loveladies Harbor, Inc. v. United

States, 

, 1553 (Fed. Cir. 1994) (en banc) (concluding that the plaintiff’s

prayer for a “declaration” of a regulatory taking was “different from a formal declaration

under the Declaratory Judgment Act.”). Andela’s complaint demanded a declaration that

he was “continuingly prevented from properly litigating his Title VI and Title VII

claims” because the defendants “actively misled [him] respecting his cause of action” and

none here. See Securacomm Consulting, Inc. v. Securacom Inc., 

, 278 (3d
Cir. 2000) (“We have repeatedly stated that a party’s displeasure with legal rulings does
not form an adequate basis for recusal, and we reiterate that principle here.”) (citations
omitted).
                                               5
“prevented [him] from asserting his rights,” as well as that he “timely asserted his tort

claims mistakenly in the wrong forum.” Dkt. No. 6, at 16. Andela argued in his motion

pursuant to Federal Rule of Civil Procedure 60(b) that the future conduct at issue was the

handling of other administrative claims he had filed and their legal effect, such as

equitable tolling and the apportionment of liability among the defendants. Dkt. No. 8, at

3-4. These circumstances are not the type of uncertainty contemplated by the

aforementioned case law, and this Court cannot make speculative rulings as to future

litigation. See U.S. Const. art. III, § 2; Armstrong World Indus., Inc. v. Adams, 

, 410 (3d Cir. 1992). Furthermore, Andela explicitly stated that “[t]he last OCR and

EEOC action that allegedly violates Andela’s substantive rights were [sic] done from July

to October, 2012 . . . .” Dkt. No. 6, at 11. Because the conduct alleged in the complaint

took place in the past, Andela’s claim for a declaratory judgment was properly dismissed.

       The District Court also properly dismissed Andela’s Bivens claim against those

“involved in the procedural handling of [his] Title VI and Title VII claims” who allegedly

“actively undermined his substantive and constitutionally guaranteed rights.” Dkt. No. 6,

at 11. No due process right is implicated in the investigative, non-adjudicatory

procedures of the EEOC. Georator Corp. v. EEOC, 

, 768–69 (4th Cir.

1979). Furthermore, it is apparent from Andela’s complaint that he received considerable

process in the state and federal courts and had ample opportunity to be heard. Cf.

Mathews v. Eldridge, 

, 348 (1976) (“The essence of due process is the

                                              6
requirement that a person in jeopardy of serious loss be given notice of the case against

him and opportunity to meet it.”) (internal citations omitted). To the extent Andela

alleged a violation of his substantive due process rights, none of the facts alleged

supports such a claim. See Chainey v. Street, 

, 219 (3d Cir. 2008) (“To

establish a substantive due process claim, a plaintiff must prove the particular interest at

issue is protected by the substantive due process clause and the government’s deprivation

of that protected interest shocks the conscience.”).

       We also agree with the District Court’s dismissal of Andela’s claims pursuant to

42 U.S.C. §§ 1985 and 1986. The District Court correctly determined that the federal

agencies sued by Andela are immune from suit. See Smith v. Casellas, 

, 34

(D.C. Cir. 1997) (“Congress has not authorized, either expressly or impliedly, a cause of

action against the EEOC for the EEOC’s alleged negligence or other malfeasance in

processing an employment discrimination charge.”).

       The District Court also correctly dismissed these claims against the unnamed

agency employees. To state a claim under §§ 1985(2) or (3), a plaintiff must allege four

things: (1) a conspiracy; (2) motivated by a racial or class-based discriminatory animus

designed to deprive, directly or indirectly, any person or class of persons of the equal

protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to

person or property or the deprivation of any right or privilege of a citizen of the United

States. See Griffin v. Breckenridge, 

, 102–03 (1971); see also Brawer v.

                                              7
Horowitz, 

, 839 (3d Cir. 1976). Andela failed to allege facts suggesting that

agency employees engaged in a conspiracy or acted out of racial or class-based

discriminatory animus. Furthermore, the facts giving rise to his claim cannot establish

that he was deprived of any right or privilege of a citizen of the United States, as

discussed in the preceding paragraph regarding his Bivens claim.

       The District Court’s dismissal of Andela’s FTCA claim against the EEOC

defendants was also proper. The FTCA provides a limited waiver of immunity for

actions in tort against the United States for the actions or negligence of employees of the

government. 28 U.S.C. § 2674; § 2675(a). The District Court correctly stated that

agencies of the government, such as the EEOC, cannot be named as defendants in FTCA

suits. 28 U.S.C. § 2680(a). Furthermore, employees of the EEOC cannot be sued under

the FTCA based on alleged failures in handling a complaint, as there is no private

analogue to the EEOC’s work in processing and investigating discrimination charges.

See, e.g., United States v. Muniz, 

, 153 (1963) (“Whether a claim could be

made out would depend upon whether a private individual under like circumstances

would be liable under state law . . . .”). Finally, as the District Court noted, constitutional

torts are not cognizable under the FTCA. F.D.I.C. v. Meyer, 

, 477-78

(1994).

       The District Court correctly denied all of the above claims with prejudice. While

a district court should ordinarily allow a pro se plaintiff to file an amended complaint, it

                                               8
need not do so if amendment would be inequitable or futile. See Grayson v. Mayview

State Hosp., 

, 114 (3d Cir. 2002). The facts alleged by Andela preclude

relief on all of his claims, rendering amendment futile. Furthermore, the denial of his

motion pursuant to Federal Rule of Civil Procedure 60(b)(1), which we review for abuse

of discretion, was also proper as Andela failed to prove any mistake or neglect on the

Court’s part. See Brown v. Phila. Hous. Auth., 

, 342 (3d Cir. 2003) (stating

the applicable standard of review).

                                            III.

       Andela’s remaining claim, that the EEOC violated FOIA by not providing him

with an unredacted copy of the Substantial Weight Review, was terminated when the

District Court granted the EEOC’s summary judgment motion. We employ a two-tiered

test in reviewing an order of a District Court granting summary judgment in proceedings

seeking disclosure under FOIA. We must “first decide whether the district court had an

adequate factual basis for its determination.” McDonnell v. United States, 

,

1242 (3d Cir. 1993) (citations omitted). If it did, we “must then decide whether that

determination was clearly erroneous.” 

Under this standard, we

will reverse “only if the findings are unsupported by substantial evidence, lack adequate

evidentiary support in the record, are against the clear weight of the evidence or where

the district court has misapprehended the weight of the evidence.” 

v.

U.S. Dep’t of Justice, 

, 70 (3d Cir. 1985)).

                                             9
      After review, we conclude that the District Court’s grant of summary judgment

was proper. “Upon request, FOIA mandates disclosure of records held by a federal

agency, see 5 U.S.C. § 552, unless the documents fall within enumerated exemptions, see

§ 552(b).” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 

, 7

(2001). These exemptions are to be construed narrowly. FBI v. Abramson, 

, 630 (1982). Section 552(b)(5) exempts from disclosure “inter-agency or intra-

agency memorandums or letters which would not be available by law to a party other

than an agency in litigation with the agency.” It shields those documents that would be

“normally privileged in the civil discovery context.” Conoco Inc. v. U.S. Dep’t of

Justice, 

, 727 (3d Cir. 1982) (citing NLRB v. Sears, Roebuck & Co., 

, 149-50 (1975)). One such privilege is the “deliberative process privilege,”

which covers “documents reflecting advisory opinions, recommendations and

deliberations comprising part of a process by which governmental decisions and policies

are formulated.” 

(citation omitted).

      We conclude that the District Court had an adequate factual basis for exempting

the unredacted Substantial Weight Review from disclosure. The Substantial Weight

Review is dated March 26, 2009, and the EEOC’s Dismissal and Notice of Rights letter

to Andela is dated March 31, 2009. The Substantial Weight Review is therefore pre-

decisional. Stephanie Garner, Assistant Legal Counsel for FOIA Programs in the

EEOC’s Office of Legal Counsel, submitted a declaration in which she described the

                                           10
substantial weight review process. See Dkt. No. 34-1, at 3-4. She explained that the

EEOC contracts with Fair Employment Practices Agencies such as FCHR to process

charges of discrimination, and that substantial weight reviews are done to ensure that the

contract agency conducted an appropriate investigation and made a proper determination.

Andela argued in his cross-motion for summary judgment that his charges of

discrimination were mishandled and that the Garner declaration and index of redacted

material were not entitled to the presumption of good faith. These arguments were

insufficient to create a genuine issue of material fact, however. Accordingly, the District

Court’s factual determinations were not clearly erroneous and the grant of summary

judgment was proper.3

          Both parties have requested summary action in this case. As no substantial

question was presented by Andela’s appeal, we grant the Appellees’ request for summary

action and deny Andela’s. In light of our disposition, we deny as moot Andela’s motion

to expedite the appeal.

                                             IV.

          There being no substantial question presented on appeal, we will summarily

affirm.



3
  Andela’s motion pursuant to Federal Rule of Civil Procedure 59(e) to amend the
summary judgment order was also properly denied, as he did not point out any error on
the part of the District Court.

                                              11