United States District Court, D. Idaho
AMBER D. JENKINS, Plaintiff,
SALLY JEWELL, Secretary of the U.S. Department of Interior, in her official capacity, Defendant.
MEMORANDUM DECISION AND ORDER
EDWARD J. LODGE, District Judge.
Pending before the Court in the above-entitled matter is the Defendant's Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1). The time for filing responsive briefing has passed and the matter is ripe for the Court's consideration. Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately represented in the briefs and record. Accordingly, and in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the Motion shall be decided on the record before this Court without oral argument.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Amber D. Jenkins filed the Complaint in this matter against the Secretary of the Department of the Interior, arguing she was unlawfully discriminated against because she was not hired back following her pregnancy. (Dkt. 1, 7.) The claim appears to raise a cause of action asserting a violation of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (42 U.S.C. § 2000e(k)). (Dkt. 2, 7.) The Defendant has filed the instant Motion to Dismiss arguing jurisdiction is lacking in this case because the United States has not waived sovereign immunity. (Dkt. 13.) The Plaintiff has not filed any response to the Motion and the time for doing so has expired.
STANDARD OF LAW
Federal courts are courts of limited jurisdiction and, until proven otherwise, cases lie outside the jurisdiction of the court. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377-78 (1994). A Rule 12(b)(1) jurisdictional attack may be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).
The attack may be a "facial" one where the defendant attacks the sufficiency of the allegations supporting subject matter jurisdiction. See Thornhill Publ'g Co., Inc. v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). In a facial attack, the complaint is challenged as failing to establish federal jurisdiction, even assuming all the allegations are true and construing the complaint in the light most favorable to plaintiff. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004); see also Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1988) (When considering a "facial" attack made pursuant to Rule 12(b)(1), courts consider the allegations of the complaint to be true and construe them in the light most favorable to the plaintiff.).
By contrast, in a factual attack, the challenger provides evidence that an alleged fact is false resulting in a lack of subject matter jurisdiction. Safe Air for Everyone, 373 F.3d at 1039. A "factual" attack challenges "the existence of subject matter jurisdiction in fact." Thornhill, 594 at 733. The Defendant in this case has raised a factual attack to subject matter jurisdiction. (Dkt. 13.)
In these circumstances, the allegations are not presumed to be true and "the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). "Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003). When considering a factual attack on subject matter jurisdiction, "the district court is ordinarily free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983) (citing Thornhill, 594 F.2d at 733). "[N]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill, 594 F.2d at 733 (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).
Jurisdictional dismissal is "exceptional" and warranted only "where the alleged claim under the constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining federal jurisdiction or where such claim is wholly insubstantial and frivolous.'" Safe Air for Everyone, 373 F.3d at 1039 (quoting Bell v. Hood, 327 U.S. 678, 682-83 (1948)). However, "[t]he relatively expansive standards of a 12(b)(1) motion are not appropriate for determining jurisdiction... where issues of jurisdiction and substance are intertwined. A court may not resolve genuinely disputed facts where the question of jurisdiction is dependent on the resolution of factual issues going to the merits.'" Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (quoting Augustine, 704 F.2d at 1077). In such a case, "the jurisdictional determination should await a determination of the relevant facts on either a motion going to the merits or at trial." Augustine, 704 F.2d at 1077 (citing Thornhill, 594 F.2d at 733-35).
In June of 2006, Plaintiff began working as a contract employee at the National Interagency Fire Center's Casual Payment Center (CPC), an Interior Department Agency of the Bureau of Land Management (BLM). Plaintiff alleges she was told that she would be hired and promoted but her training and promised promotion were delayed after she returned from maternity leave. Plaintiff makes various allegations concerning statements made by Kristy Valentine, including that it would be difficult for Plaintiff to go through training "with an infant in the office." Plaintiff further contends that she had favorable performance appraisals prior to her pregnancy but after she informed Ms. Valentine that she was pregnant and would be taking maternity leave she was not rehired for her position. Plaintiff claims, among other things, that her employment was cancelled and she was not rehired for her position because of her new pregnancy and not, as her employer told her, due to staffing needs and budgetary constraints.
The materials submitted with her Amended Complaint show that Plaintiff filed a discrimination claim against CPC which was dismissed. (Dkt. 7-1.) Plaintiff then filed a formal complaint with the BLM which was also dismissed for lack of standing finding Plaintiff was not a federal employee but, instead, an employee of ATA Services, Inc. (ATA) - a private ...