Opinion
NO. C-99-01174 TEH
January 22, 2001
ORDER
This matter comes before Court on Defendant's Motion to Dismiss Plaintiff's Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Having carefully considered the parties' written and oral arguments, and the record is herein, the Court hereby GRANTS Defendant's motion.
Dismissal is appropriate under Rule 12(b)(1) when the district court lacks subject matter jurisdiction over the claim. See Fed.R.Civ.P. 12(b)(1). Federal subject matter jurisdiction must exist at the time the action is commenced. See Morongo Band of Mission Indians v. Calif. State Board of Equalization, 858 F.2d 1376 (9th Cir. 1988), cert. denied, 488 U.S. 1006(1989). A district courts' dismissal based on a lack of subject matter jurisdiction is a question of law reviewed de novo by the Court of Appeals. See Owner Operators Ind. Drivers Ass'n v. Skinner, 931 F.2d 582, 584 (9th Cir. 1991); Kruso v. International Tel. Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3217(1990).
Title VII requires exhaustion of administrative remedies as a precondition to filing suit in federal court. See 42 U.S.C. § 2000e-16;Vinieratos v. United States Air Force, 939 F.2d 762 (9th Cir. 1991) ("Title VII specifically requires a federal employee to exhaust his administrative remedies as a precondition to filing suit"); see also Saulsbury Orchards Almond Processing v. Yeutter, 917 F.2d 1190, 1194 (9th Cir. 1990) (exhaustion requirement cannot be waived since it is imposed by statute and is, therefore, a jurisdictional requirement). When a plaintiff fails to exhaust administrative remedies made exclusive by statute, a court generally will be deprived of jurisdiction. See Hironymous v. Bowen, 800 F.2d 888, 892 (9th Cir. 1986); cf. Stauffer Chemical Co. v. Food Drug Administration, 670 F.2d 106, 107 (9th Cir. 1982) (judicially created doctrine of exhaustion of remedies does not limit jurisdiction).
Plaintiff Donald Jasch brought this suit against his employer, the United States Postal Service ("USPS") pursuant to Title VII, alleging that (1) in 1997 he suffered harassment and adverse employment actions in retaliation for his EEO activity and that (2) in 1999 he was denied training and advancement opportunities on the basis of his race, color, sex, age, and/or physical ability. In support of its Motion to Dismiss, Defendant first argues that Plaintiff did not exhaust his administrative remedies for his 1997 claims because Plaintiff failed to wait the required 180-day expiration period before he filed his complaint in federal district court. Second, Defendant contends that Plaintiff did not exhaust his administrative remedies for his 1999 discrimination claims because after opting for the administrative remedy, he failed to provide the EEOC with affidavits in support of his claim.
The factual chronology of Plaintiff's administrative claims are described in detail in this Court's November 7, 2000 Order granting Defendant's Motion to Dismiss Plaintiff's Third and Fourth Causes of Action.
Nonetheless, the agency reviewed the merits of Plaintiff's case and on June 2, 2000, dismissed his complaint for failure to establish a prima facie case of discrimination. After receiving the EEOC's Final Agency Decision, Plaintiff could then file a civil action in federal court within 90 days or appeal to the EEOC. With his 1997 claims pending in federal court, Plaintiff amended his Complaint on July 20, 2000 to include the newly rejected 1999 claims. (See 1st Am. Compl.)
Plaintiff offers no legal argument or factual dispute to rebut the exhaustion allegations. Instead, Plaintiff submits a three-paragraph brief opposing Defendant's Motion to Dismiss on the grounds that the 16 exhibits (representing the EEOC administrative claims documentation) attached to the declaration of Defendant's counsel, Patricia Benton, are inadmissible on evidentiary grounds, and therefore, the motion must be denied. Plaintiff asserts that the exhibits contain inadmissible hearsay and are without proper foundation or authentication of personal knowledge.
We agree with Defendant that Patricia Benton's declaration conforms to Civil Local Rule 7-5 by referring to factual contentions based on documents from Plaintiff's EEO file and the pleadings on record in this matter. Benton reviewed the files to determine whether Plaintiff had exhausted his administrative remedies. Moreover, while the EEO files may technically constitute hearsay, they are admissible under the Federal Rule of Evidence 803(6) hearsay exception for business records and would be admissible at trial.
Civil Local Rule 7-5(b) provides "An affidavit or declarations may contain only facts, must conform as much as possible to the requirements of Federal Rule Civil Procedure 56(e) and must avoid conclusions and argument. Any statement made upon information or belief must specify the basis therefor. An affidavit or declaration not in compliance with this rule may be stricken in whole or in part."
In deciding a motion pursuant to Rule 12(b)(1), the burden of proving the existence of subject matter jurisdiction always rests with the plaintiff. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991); see also Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 378, 114 S.Ct. 1673(1994) (stating "[i]t is to be presumed that a cause lies outside . . . [a federal court's] jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction"(citations omitted).) For challenges to subject matter jurisdiction under Rule 12(b)(1), unlike a motion under Rule 12(b)(6), a defendant may submit affidavits or any other evidence properly before the court. Then the plaintiff may present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction. See Association of American Medical Colleges v. U.S., 217 F.3d 770, 778 (9th Cir. 2000); St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989). Here, Plaintiff presented no evidence to satisfy his burden of showing that this Court possesses subject matter jurisdiction. Accordingly, the Court hereby GRANTS Defendant's Motion to Dismiss.
CONCLUSION
Good cause appearing, THE COURT HEREBY GRANTS Defendant's Motion to Dismiss Plaintiff's Complaint in its entirety.
SO ORDERED.