Opinion
No. CV05-0081-PHX-SRB.
October 21, 2005
OPINION AND ORDER
Before the Court is Defendant Transportation Security Administration's ("TSA") Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim (Doc. 10). For the reasons that follow, Defendant's Motion is granted.
I. BACKGROUND
Plaintiff Lynda Hobby was employed by TSA for approximately nine months as a security screener at Phoenix Sky Harbor International Airport. TSA discharged Plaintiff from her job on or about May 23, 2003. According to TSA's discharge letter, Plaintiff was terminated for failing to meet the conditions of employment, namely that she failed to list in her employment application a December 10, 1997 arrest for "larceny, carrying a concealed weapon, dangerous drugs, drug paraphernalia, two traffic offenses and making a false report." (Pl.'s Resp., Ex. 3.)
The exact date of Plaintiff's discharge is not determined here because Defendant states that Plaintiff received a notice of discharge on May 23, 2003 (Def.'s Mot. to Dismiss ("Def.'s Mot.") at 2), while Plaintiff says she was terminated on May 30, 2003 (Pl.'s Resp. in Opp. to Def.'s Mot. to Dismiss ("Pl.'s Resp.") at 3.)
Plaintiff filed suit against Thomas Mulhern, a TSA executive officer for employee relations, on January 7, 2005. In her Complaint, Plaintiff alleges that Defendant breached an employment contract with her on April 30, 2003 when she was "terminated for an unsuitability issue." (Compl. ¶ 2.) Plaintiff seeks monetary damages of $50,000 for "18 months lost pay, lost revenue from agency matching contribution savings plan, defamation of character, and mental/emotional anguish." (Compl. ¶ 3.) Plaintiff also asks the Court to reinstate her to her former job with TSA. (Compl. ¶ 3.) The Complaint asserts that this Court has jurisdiction over the matter because Defendant is a representative of the United States Government "and the amount and type of relief sought." (Compl. ¶ 1.)
There seems to be some confusion about Mr. Mulhern's exact position with TSA. Plaintiff captions her Complaint as "Thomas Mulhern, Dir. Empl. Rel. Services — T.S.A.," while Defendant states that Mr. Mulhern is "Program Executive in the Transportation Security Administration's Office of Human Resources." (Def.'s Mot. at 4.) However, the Court's decision is unaffected by Mr. Mulhern's precise title within T.S.A.
Defendant brought the instant Motion to Dismiss on the basis that this Court lacks jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and argues that Plaintiff failed to state a claim. (Def.'s Mot. at 1.) Defendant requests that the Court dismiss the Complaint with prejudice. Plaintiff responded that this Court does have jurisdiction because she has "exhausted all other administrative means" and on the basis of diversity of citizenship. (Pl.'s Resp. at 4.)
II. LEGAL STANDARDS AND ANALYSIS
A. Overview
Defendant has raised two arguments regarding this Court's subject matter jurisdiction, that is, the power to hear this dispute. The Court will address both of these arguments, even though each is dispositive. After examining the preliminary issues, the Court will first address whether Plaintiff has adequately pleaded a basis for this Court's jurisdiction, either under federal question or diversity jurisdiction. Second, the Court will determine whether the United States has consented to be sued. Finally, the Court will address whether it will exercise supplemental jurisdiction over any remaining state law claims.
B. Preliminary Issues
1. Federal Rule 12(b)(1)
When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. See Bell v. Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 776 (1946) (a decision on whether the complaint states a cause of action "must be decided after and not before the court has assumed jurisdiction over the controversy"); Drewien v. Medford Police Dep't, 2004 WL 948347, *1 (D. Or. Apr. 30, 2004) ("[A] motion to dismiss based on lack of subject matter jurisdiction should be addressed by the court before any other Rule 12 motion to prevent a court without jurisdiction from prematurely dismissing a case with prejudice.") (citing Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001)). A court's dismissal of a plaintiff's case because the court lacks subject matter jurisdiction is not a determination of the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977). Because Defendant's jurisdictional attack is dispositive in this case, the Court will not address whether Plaintiff has failed to state a claim.
2. Burden of Proof
A motion to dismiss an action under Rule 12(b)(1) of the Federal Rules of Civil Procedure raises the threshold question of whether the federal district court has subject matter jurisdiction over the action before it. The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. See Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990) ("The party asserting jurisdiction has the burden of proving all jurisdictional facts.") (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S. Ct. 780, 785 (1936)). In this case, Plaintiff is asserting that this Court has jurisdiction to hear her claim. Therefore, Plaintiff bears the burden of proving jurisdiction.
3. Suits Against Federal Agencies
Although Plaintiff brought her suit against an official of the TSA, "[t]he general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter." Hawaii v. Gordon, 373 U.S. 57, 58, 83 S. Ct. 1052, 1053 (1963) (citations omitted); Dugan v. Rank, 372 U.S. 609, 620, 83 S. Ct. 999, 1006 (1963) (a suit is against the sovereign if judgment would come from the public treasury or compel the government to act); Balser v. Dep't of Justice, 327 F.3d 903, 906 (9th Cir. 2003) ("In sovereign immunity analysis, any lawsuit against an agency of the United States or against an officer of the United States in his or her official capacity is considered an action against the United States."); Hill v. United States, 571 F.2d 1098, 1101 n. 5 (9th Cir. 1978) (holding that claims for back pay against individual defendants must be considered a suit against the United States since back pay would come from the federal treasury). An exception to this general rule is when government officials act beyond their statutory powers. See Dugan, 372 U.S. at 622, 83 S. Ct. at 1007 (recognizing that an official may be sued in his individual capacity when the official acts beyond his statutory power or when the official's powers are "constitutionally void").
Because the relief Plaintiff seeks here would come from the federal treasury, and because Plaintiff has not alleged that the named Defendant was acting outside his statutory powers when she was terminated from her position as a security screener, Plaintiff's suit is one against the United States.
C. Subject Matter Jurisdiction
An attack on subject matter jurisdiction is fundamental to a district court's ability to hear a case. See Toumajian v. Frailey, 135 F.3d 648, 652 (9th Cir. 1998) ("[I]n all actions before a federal court, the necessary and constitutional predicate for any decision is a determination that the court has jurisdiction — that is the power — to adjudicate the dispute.") (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803)). A federal court has subject matter jurisdiction when the cause of action either involves a federal question or when diversity jurisdiction exists. Caterpillar Inc. v. Williams, 482 U.S. 386, 391, 107 S. Ct. 2425, 2429 (1987) ("Absent diversity of citizenship, federal-question jurisdiction is required.").
1. Federal-Question Jurisdiction
Under 28 U.S.C. § 1331, a federal district court has original jurisdiction of all civil actions "arising under the Constitution, laws, or treaties of the United States," regardless of the amount in controversy. For purposes of § 1331, a federal claim must appear on the face of the complaint. See Gully v. First Nat'l Bank in Meridian, 299 U.S. 109, 112, 57 S. Ct. 96, 81 (1936) ("[T]he controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal."). Cf. Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1106 (9th Cir. 2000) (noting that under the "well-pleaded complaint rule," federal jurisdiction "exists only when a federal question is presented on the face of the Plaintiff's properly pleaded complaint") (citing Caterpillar, 482 U.S. at 392, 107 S. Ct. at 2429).
In this case, Plaintiff's Complaint does not base jurisdiction on the Constitution, laws, or treaties of the United States. Instead, Plaintiff merely states in her Complaint that Defendant "is a representative of the United States Government, (Trans. Sec. Adm.), and the amount and type of relief sought." (Compl. ¶ 1.) Thus, a federal claim does not appear on the face of Plaintiff's Complaint.
2. Diversity Jurisdiction
Later, in her Response to Defendant's Motion to Dismiss, Plaintiff claims jurisdiction is founded upon diversity of citizenship and because she has exhausted all other administrative means. (Pl.'s Resp. at 4.) Even if Plaintiff had asserted more clearly in her Complaint that jurisdiction was based on diversity of citizenship under 29 U.S.C. § 1332, that argument fails.
In order for jurisdiction to be founded upon diversity of citizenship, the matter in controversy must exceed the sum or value of $75,000, and the action must be between United States citizens who are citizens of different states. See 28 U.S.C. § 1332(a). Plaintiff's claim of diversity jurisdiction fails on both bases. Plaintiff is seeking $50,000 in damages, and so her Complaint does not meet the statutory minimum amount for diversity jurisdiction. Nor is an agency of the United States a citizen of any particular state for diversity purposes. See Hancock Fin. Corp. v. Fed. Sav. Loan Ins. Corp., 492 F.2d 1325, 1329 (9th Cir. 1974). Thus, a federal agency may not be sued on the basis of diversity alone. See Gen. Ry. Signal Co. v. Corcoran, 921 F.2d 700, 703 (7th Cir. 1991) ("Federal jurisdiction over a suit against an agency of the United States is proper when, for example, federal questions exist. . . . U.S. agencies cannot be sued in diversity, however."). Therefore, Plaintiff's suit does not meet either of the requirements for diversity jurisdiction.
Because Plaintiff has failed to establish either federal-question jurisdiction or jurisdiction based on diversity of citizenship, Plaintiff's claim will be dismissed for lack of subject matter jurisdiction.
D. Sovereign Immunity
Even if Plaintiff had succeeded in establishing this Court's subject matter jurisdiction on the basis of either a federal question or diversity, Plaintiff would still bear the burden of showing that the government has consented to be sued. Cato v. United States, 70 F.3d 1103, 1107 (9th Cir. 1995) (citing Baker v. United States, 817 F.2d 560, 562 (9th Cir. 1987)). If the United States has not consented to be sued, then a court has no jurisdiction over the case. Id. (citing F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S. Ct. 996, 1000 (1994)).
When a party sues the United States, a court starts with the assumption that, due to governmental immunity, no relief is available. See Tucson Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 644 (9th Cir. 1998). A party "may sue the United States only if Congress has waived sovereign immunity for the lawsuit, and may bring its claim in federal district court only if Congress has provided for jurisdiction there." N. Star Alaska v. United States, 9 F.3d 1430, 1432 (9th Cir. 1993) (en banc). See also United States v. Mitchell, 463 U.S. 206, 212, 103 S. Ct. 2961, 2965 (1983) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction."). Because Plaintiff's Complaint does not identify any federal law under which she is suing, Congress could not have consented to this suit.
Plaintiff's Response in this case failed to address the issue of sovereign immunity raised by Defendant, except to say that sovereign immunity "should be considered a (desperate) effort by the Defense to over shadow that the Defendant did not answer the March 08th Summons in the correct time frame, and that the TSA terminated the Plaintiff illegally." (Pl.'s Resp. at 6.) Plaintiff is mistaken because the government cannot be sued unless the government has consented to be sued.
Despite Plaintiff's failure to establish the Court's subject matter jurisdiction, the Court will continue its analysis based on her allegation that she had a contract with the United States.
E. Waiver
Congress has waived sovereign immunity in certain cases involving contracts. Under the Tucker Act, the United States Court of Federal Claims has jurisdiction to hear claims against the United States founded upon "any express or implied contract with the United States. . . ." See 28 U.S.C. § 1491(a)(1). Assuming that Plaintiff intended to bring her suit under the Tucker Act, this Court would still lack subject matter jurisdiction.
The jurisdiction of the Court of Claims is exclusive when the amount in controversy is more than $10,000. United States v. Hohri, 482 U.S. 64, 66 n. 1, 107 S. Ct. 2246, 2249 n. 1 (1987). The "Little Tucker Act," on the other hand, gives the district courts concurrent jurisdiction with the Court of Claims when the amount in controversy in less than $10,000. See id.; N. Star Alaska, 9 F.3d at 1432 (citing 28 U.S.C. § 1346(a)(2)).
In this case, even assuming, as Plaintiff alleges, that there is a contract, and because Plaintiff is seeking damages in the amount of $50,000 for an alleged breach of that contract, then the Federal Court of Claims would hold exclusive jurisdiction over this matter, and this Court has no jurisdiction to hear Plaintiff's breach of contract claim.
It is worth noting that the Court of Federal Claims held earlier this year that TSA security screeners were appointed and not contract employees, precluding the screeners' claim that offers of conditional appointment were binding contracts. See Calvin v. United States, 63 Fed. Cl. 468, 473 (2005).
F. Supplemental Jurisdiction
Although not pleaded as such, Plaintiff appears to be asserting state law claims for defamation and negligent or intentional infliction of emotional distress. (Compl. ¶ 4.) If so, this Court could potentially exercise supplemental jurisdiction over these state law claims. See 28 U.S.C. § 1367. Section 1367(a) provides: "In any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." However, a district court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if "the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c). Moreover, when a court has determined that it lacks subject matter jurisdiction over the federal claims in a suit, "the court is compelled to refrain from exercising supplemental jurisdiction over the remaining state law claims as well." Butte Mining PLC v. Smith, 876 F. Supp. 1153, 1168 (D.C. Mont. 1995), aff'd, 76 F.3d 287 (9th Cir. 1996) (citing Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 692 (9th Cir. 1993)).
As this Court has no subject matter jurisdiction over Plaintiff's alleged federal claim, this Court must refrain from exercising supplemental jurisdiction over any remaining state law claims. IT IS ORDERED granting Defendant's Motion to Dismiss for lack of subject matter jurisdiction (Doc. 10).