Brainard v. U.S. Department of Homeland Security

Filing 33

Order: This case be, and the same hereby is, dismissed for lack of subject-matter jurisdiction. Judge James G. Carr on 11/7/16. (C,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Mary Brainard,

Case No. 3:14CV1439
Plaintiff,

v.

ORDER

U.S. Department of Homeland Security,
Defendant

This is a federal worker’s employment-discrimination case.
The pro se plaintiff, Mary Brainard, alleges that her co-workers discriminated against her on
the basis of sex, and that her supervisor retaliated against her for complaining about the
discrimination.
In a prior order, I granted in part and denied in part the government’s motion to dismiss.
Brainard v. U.S. Dep’t of Homeland Security, 2016 WL 1719314 (N.D. Ohio).
I concluded that Brainard’s complaint was timely, but that one of her three claims was
implausible. Id. at *2–4. I also rejected the government’s argument that Brainard’s failure to name
the Secretary of Homeland Security as a defendant deprived me of subject-matter jurisdiction. Id.
at *1–2. Finally, I ordered the government to show cause why I should not, sua sponte, substitute
Secretary Jeh Johnson in place of the Department.
Pending are the government’s response to the show-cause order (Doc. 29), Brainard’s
response to the government’s brief (Doc. 30), and the government’s reply (Doc. 31).

Discussion
A. Jurisdiction
The first issue is subject-matter jurisdiction.
The government renews its contention that, due to Brainard’s naming the Department of
Homeland Security rather than its Secretary as the defendant, I lack subject-matter jurisdiction.
Though I was originally skeptical of this argument, I now agree, after further study, that it is correct.
The United States enjoys sovereign immunity from suit except insofar as it has waived that
immunity.
Congress has waived the United States’s immunity in Title VII cases where the federal
government is the employer. Taylor v. Geithner, 703 F.3d 328, 333 (6th Cir. 2013); Frahm v. U.S.,
492 F.3d 258, 262 (6th Cir. 2007). In waiving that immunity, the government correctly observes,
Congress provided that “the head of the department, agency, or unit . . . shall be the defendant.” 42
U.S.C. § 2000e–16(c). Entities like the Department of Homeland Security itself retain sovereign
immunity and are not amenable to suit in a Title VII case.
Multiple authorities have recognized that a plaintiff’s failure to name a departmental head
creates a defect in the court’s subject-matter jurisdiction. Hancock v. Egger, 848 F.2d 87, 88 (6th
Cir. 1988) (affirming dismissal of Title VII case for want of subject-matter jurisdiction because
plaintiff named IRS as defendant); Soto v. USPS, 905 F.2d 537, 539 (1st Cir. 1990); Warren v. Dep’t
of the Army, 867 F.2d 1156, 1158 (8th Cir. 1989); Ellis v. USPS, 784 F.2d 835, 838 (7th Cir. 1986)
Because “[s]overeign immunity is a jurisdictional bar,” U.S. v. Testan, 424 U.S. 392, 399
(1976), the proper remedy for failing to name a departmental head as a defendant is a dismissal for
lack of subject-matter jurisdiction. E.g., Taylor, supra, 703 F.3d at 335 (because Congress did not
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waive sovereign immunity for breach-of-settlement claims under Title VII, district court lacked
subject-matter jurisdiction).
For these reasons, Brainard’s pleading error bars her suit unless she can amend her complaint
now to name Secretary Johnson as a defendant.
B. Proposed Amendment
In her opposition brief, Brainard argues that I should permit her to amend her complaint to
name Secretary Johnson, and that this amended pleading would relate back to her original complaint.
I reject this request for procedural and substantive reasons.
Contrary to Rule 15(a)(2), Brainard did not file a motion for leave to amend her complaint.
See Louisiana Sch. Emps’. Ret. Sys. v. Ernst & Young, LLP, 622 F.3d 471, 486 (6th Cir. 2010)
(“[P]laintiffs failed to follow the proper procedure for requesting leave to amend. They did not
actually file a motion to amend[.]”). Nor did Brainard tender a proposed amended complaint.
“Normally, a party seeking an amendment should attach a copy of the amended complaint” to a
motion for leave. Kuyat v. BioMimetic Therapeutics, Inc., 747 F.3d 435, 444 (6th Cir. 2014).
Given these procedural deficiencies, I decline to allow Brainard to amend her complaint.
But even assuming that Brainard’s request were procedurally in order, I would not allow her
to amend the complaint.
In deciding whether to permit an amendment, I consider “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] the
futility of the amendment.” Leary v. Daeschner, 349 F.3d 888, 905 (6th Cir. 2003).

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Most importantly, Brainard’s own conduct has unduly prolonged this litigation and
essentially brought the case to a standstill.
Brainard began the case by misrepresenting her financial circumstances, thereby winning
pauper status to which she had no claim. I dismissed the case without prejudice, and, when Brainard
filed a renewed motion to proceed in forma pauperis, she attached an affidavit that was misleading
at best. (Doc. 12 at 3, 5) (detailing omissions and misstatements in second motion to proceed in
forma pauperis).
The fee issue did not come to an end until March 27, 2015 – some nine months after she filed
her complaint – when Brainard, no longer claiming to be a pauper, paid the filing fee in full.
Moreover, Brainard acknowledges that she knew she had to name Secretary Johnson as a
defendant. (Doc. 15 at 1) (Brainard declaring that “I have a right to file in U.S. District Court against
the U.S. Department of Homeland Security Jeh Johnson, Secretary”). Nevertheless, the case remains
without a proper defendant more than two-and-a-half years after its inception.
I am of course mindful of Brainard’s pro se status, and I have tried to give her a reasonable
amount of leeway in prosecuting her case. But pro se litigants, just like their counseled adversaries,
must follow the Rules of Civil Procedure. Graham-Humphreys v. Memphis Brooks Museum of Art,
Inc., 209 F.3d 552, 557 (6th Cir. 2000).
Brainard’s conduct in seeking pauper status was in bad faith, and her failure to take the
relatively simple steps of filing a proper motion for leave to amend and submitting an amended
complaint demonstrates an unwillingness to litigate, or a lack of interest in litigating, the case within
the framework of the Federal Rules.

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For these reasons, the interests of justice do not support Brainard’s request for leave to amend
her complaint. That being so, and as the only defendant in the case is immune from suit, I will
dismiss this case for lack of subject-matter jurisdiction.
Conclusion
It is, therefore,
ORDERED THAT this case be, and the same hereby is, dismissed for lack of subject-matter
jurisdiction.
So ordered.
/s/ James G. Carr
Sr. U.S. District Judge

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