Opinion
NO. 4:01-CV-0258-A
September 7, 2001
MEMORANDUM OPINION and ORDER
Came on for consideration the cross-motions of plaintiffs Tommy Swanson, et al., for class certification and of defendant, Stephen A. Perry, Administrator, General Services Administration ("GSA"), to dismiss. The court having considered the motions, responses, replies, pleadings, and applicable authorities finds (1) that defendant's motion to dismiss should be denied; (2) that plaintiffs file an amended complaint alleging facts that establish standing; and (3) that plaintiffs motion for class certification be held in abeyance.
I. Plaintiffs' Complaint
On October 25, 2000, plaintiffs filed their complaint in the United States District Court for the Eastern District of Louisiana. By order signed March 26, 2001, the action was transferred to the Northern District of Texas, Fort Worth Division where it was assigned to the docket of the undersigned judge. By their complaint, plaintiffs seek injunctive relief and damages for discrimination on the basis of sex and race in violation of Title VII. The named plaintiffs bring this action on behalf of themselves, and on behalf of a putative class consisting of other similarly situated black male employees of GSA Region Seven.
II. Grounds of the Motions
By their motion plaintiffs seek certification of a class action pursuant to Rule 23. Defendant's cross-motion seeks dismissal of the complaint on the grounds (1) that the complaint fails to demonstrate that the plaintiffs meet the threshold requirement of standing to bring a Title VII action, (2) that plaintiffs have failed to exhaust their administrative remedies, and (3) that plaintiffs' claims are barred by the doctrine of issue preclusion.
Defendant offers an argument under the heading of "Injunction" as an additional basis for dismissal pursuant to Rule 12(b)(6). This argument, however, appears directed at the issue of class certification and not dismissal.
III. Defendant's Motion to Dismiss
The Fifth Circuit Court of Appeals has held that it is appropriate for courts to rule on pending Rule 12 motions to dismiss or Rule 56 motions for summary judgement prior to determining the question of class certification. See Floyd v. Bowen, 833 F.2d 529, 534 (5th Cir. 1987).A. Plaintiffs' Standing To Bring This Action
Standing is a jurisdictional requirement and is defined as "whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498 (1975). At a constitutional minimum, standing is satisfied by a showing (1) that the plaintiff suffered an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent; (2) that the injury is "fairly traceable" to the challenged action of the defendant; and (3) that it is "likely" that the injury could be redressed by a favorable decision. Lujan v. Defenders of Wildlife. 504 U.S. 555, 560-61 (1992) (internal citations omitted). The burden is upon the plaintiff to establish standing as of the time the complaint was filed. See Pederson v. Louisiana State University, 213 F.3d 858, 870-71 (5th Cir. 2000).
As a preliminary matter, the court notes that it would be inappropriate to focus on the ultimate merits of the case when considering standing. See Pederson v. Louisiana State University, 213 F.3d 858, 870 (5th Cir. 2000). Consequently, the court does not consider, and makes no recommendation as to, the merits of the suit.
In reviewing a motion to dismiss for want of standing this court must accept as true all material allegations of the complaint. See Warth v. Seldin, 422 U.S. 490, 501 (1974).
In the class action context, each representative of the putative class, "must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent." Warth, 422 U.S. at 502. Indeed, if a putative class representative lacks standing, his suit may not continue, "even if the persons described in the class definition would have standing themselves to sue." Brown v. Sibley, 650 F.2d 760, 771 (5th Cir. 1981). To satisfy the requirements of standing, each named plaintiff "must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants." Warth, 422 U.S. at 501.
In the present case, plaintiffs' complaint consists primarily of conclusory allegations regarding the class as a whole and provides little information on the issue of whether the named plaintiffs are entitled individually to the relief they seek. Plaintiffs, therefore, have failed to satisfy the requirements of standing.
The court, however, is not required to dismiss the complaint. See id. Instead, the court may exercise its discretionary power and allow plaintiffs to supply, by an amended complaint, "further particularized allegations of fact deemed supportive of plaintiff's standing." Id. In the present context, each named plaintiff seeking to represent the putative class may establish standing by alleging sufficient facts to demonstrate (1) that he is a member of a protected class; (2) that he applied for an open position or promotion; (3) that he was qualified; and (4) that his application was rejected in favor of an eligible candidate that was not a member of the same protected class. See, e.g., Danner v. United States Civil Serv. Com'n, 635 F.2d 427, 431 (1981).
B. Failure To State A Claim
Defendant also moves to dismiss pursuant to Rule 12(b)(6). Defendant asserts that plaintiffs' claims are barred by the doctrines of exhaustion of administrative remedies and issue preclusion. In support of these contentions, the defendant submits factual affidavits. As defendant's motion is pursuant to rule 12(b)(6) and not Rule 56, the court must exclude all materials outside of the pleadings in making its determination. See Fed.R.Civ.P. 12(b).
Plaintiffs also submitted factual affidavits with their response.
For purposes of a motion to dismiss, the court construes the complaint in the light most favorable to the plaintiff and takes plaintiffs' allegations as true. See Scheuer v. Rhodes, 416 U.S. 232 (1974). Upon review of the pleadings, the court does not find a basis to grant defendant's motion to dismiss pursuant to Rule 12(b)(6). The court notes that plaintiffs have been granted leave to amend their complaint, which may obviate the substance of defendant's motion. Should defendant wish to pursue further his contentions that plaintiffs' claims are barred by the doctrines of failure to exhaust administrative remedies and issue preclusion, the court expects it to do so by a Rule 56 motion for summary judgment filed within the time limit fixed by this order.
IV. Plaintiffs' Motion For Class Certification
As noted above, a motion for class certification may be halted by a Rule 12 motion to dismiss or a Rule 56 motion for summary judgment. See Floyd, 833 F.2d at 534. As plaintiffs have been granted leave to file an amended complaint in response to a Rule 12 motion to dismiss, the court finds that plaintiffs' motion for class certification be held in abeyance.
V. ORDER
For the reasons discussed herein,
The court ORDERS that:
A. Defendant's motion to dismiss be, and is hereby, denied.
B. Plaintiffs file by 4:30 p.m. on September 21, 2001, an amended complaint in which they allege with specificity as to each named plaintiff the facts that would establish that plaintiff's standing to bring this action, which facts shall include as to each plaintiff the date when the plaintiff suffered any adverse employment action, a description of each such adverse employment action, and all other facts that, if proved, would support a conclusion that the plaintiff has a viable claim against defendant based on the adverse employment action or actions asserted by that plaintiff.
C. If defendant wishes to pursue his defenses that the claims of the named plaintiffs are barred by the doctrines of failure to exhaust administrative remedies and issue preclusion, or either such doctrine, defendant file an appropriate Rule 56 motion for summary judgment, together with supporting summary judgment evidence, no later than 4:30 p.m. on October 12, 2001.