Grounds v. United States of America Department of Energy et al

Filing 37

OPINION & ORDER. Defendants motion to dismiss 21 for lack of subject matter jurisdiction is granted. Plaintiff is granted leave to amend the Complaint within 14 days of the date below. If Plaintiff does not file an amended complaint within 14 days of the date below, this case will be dismissed without further notice. Signed on 3/18/2019 by Judge Marco A. Hernandez. (jp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JANICE GROUNDS,

No. 3:17-cv-01190-HZ
Plaintiff,

v.
UNITED STATES OF AMERICA,
acting by and through the Department
of Energy and the Bonneville Power
Administration, and RICK PERRY,
Secretary of the Department of Energy,
Defendants.
Beth Ann Creighton
Michael E. Rose
CREIGHTON & ROSE, PC
Powers Building
65 SW Yamhill Street, Suite 300
Portland, OR 97204
Attorneys for Plaintiff

1- OPINION & ORDER

OPINION & ORDER

Dianne Schweiner
US ATTORNEY’S OFFICE – DISTRICT OF OREGON
Civil Division
1000 SW Third Avenue, Suite 600
Portland, OR 97204
Attorney for Defendant
HERNÁNDEZ, District Judge:
Plaintiff Janice Grounds brings this employment discrimination action against
Defendants United States of America, acting by and through the Department of Energy and the
Bonneville Power Administration (“BPA”); and Rick Perry, Secretary of the Department of
Energy. Plaintiff alleges discrimination based on gender under Title VII of the Civil Rights Act
of 1964 and Oregon’s analogous statute, Oregon Revised Statute § (“O.R.S.”) 659A.030(1)(b).
Plaintiff also alleges a violation of the Equal Pay Act, 29 U.S.C. § 206(d).
Defendants move to dismiss Plaintiff’s complaint for lack of subject matter jurisdiction.
The Court grants Defendants’ motion and dismisses Plaintiff’s case.
BACKGROUND
On February 4, 2012, Plaintiff began working at BPA, a federal non-profit agency which
is part of the United States Department of Energy. Compl. ¶¶ 4-5, ECF 1. She alleges that she
was discriminated against in the terms and conditions of her employment and was not promoted
because she is a woman. Id. at ¶ 22. She also alleges that she was paid less than her male
counterparts. Id. at ¶¶ 6-20.
Plaintiff’s Complaint alleges that she was hired, employed, and paid by BPA. Compl.
¶¶ 3-7. However, in a declaration attached to her Opposition to Defendants’ Motion to Dismiss,
Plaintiff declares that her employer is Flux, a temporary agency that paid her for her work at

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BPA. Grounds Decl. Dec. 28, 2018 (“Grounds Decl.”) ¶¶ 6, 11, ECF 28. For the purposes of this
Opinion, the Court assumes that Plaintiff alleges that both BPA and Flux are her employers.
STANDARDS
I.

Subject Matter Jurisdiction
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(1)

addresses the court’s subject matter jurisdiction. The party asserting jurisdiction bears the burden
of proving that the court has subject matter jurisdiction over her claims. Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A Rule 12(b)(1) motion may attack the substance
of the complaint’s jurisdictional allegations even though the allegations are formally
sufficient. See Corrie v. Caterpillar, Inc., 503 F.3d 974, 979–80 (9th Cir. 2007) (court treats
motion attacking substance of complaint’s jurisdictional allegations as a Rule 12(b)(1)
motion); Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) (“[U]nlike a Rule 12(b)(6)
motion, a Rule 12(b)(1) motion can attack the substance of a complaint’s jurisdictional
allegations despite their formal sufficiency[.]”) (internal quotation omitted). Additionally, the
court may consider evidence outside the pleadings to resolve factual disputes. Robinson v.
United States, 586 F.3d 683, 685 (9th Cir. 2009); see also Dreier v. United States, 106 F.3d 844,
847 (9th Cir. 1996) (a challenge to the court’s subject matter jurisdiction under Rule 12(b)(1)
may rely on affidavits or any other evidence properly before the court). “No presumptive
truthfulness attaches to plaintiff’s allegations.” Id. at 685 (internal quotation omitted). “Once
challenged, the party asserting subject matter jurisdiction has the burden of proving its
existence.” Rattlesnake Coal. v. E.P.A., 509 F.3d 1095, 1102 n. 1 (9th Cir. 2007).

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DISCUSSION
I.

Title VII Claim
Defendants argue that Plaintiff failed to exhaust her administrative remedies and, thus,

this Court lacks subject matter jurisdiction over her Title VII gender discrimination claim. The
Court agrees.
Before bringing a Title VII claim, a federal employee must first exhaust all administrative
remedies. 42 U.S.C. § 2000e-16(c); Sommatino v. United States, 255 F.3d 704, 707-708 (9th Cir.
2001). Under the Title VII statutory and regulatory scheme, a federal employee must notify an
Equal Employment Opportunity (“EEO”) Counselor of discriminatory conduct within 45 days of
the alleged conduct. Id.; 29 C.F.R. § 1614.105(a)(1); see also Kerr v. Jewell, 836 F.3d 1048,
1054 (9th Cir. 2016). If the matter is not resolved by the counselor, the employee may file a
formal discrimination complaint with the agency’s EEO office. See Kerr, 836 F.3d at 1054
(citing 29 C.F.R. §§ 1614.105(d), 1614.106(a)). When the EEO office issues a final decision, the
employee has the right to appeal the decision to the EEOC or file a civil action in federal district
court. Id.
Title VII’s regulatory deadlines for administrative exhaustion are not a jurisdictional
requirement; rather, they are conditions precedent to filing an action which are subject to waiver,
estoppel, or equitable tolling. Sommatino, 255 F.3d at 708; 29 C.F.R. § 1614.604. However,
“substantial compliance with the presentment of discrimination complaints to an appropriate
administrative agency is a jurisdictional prerequisite” to a Title VII claim. Id. The district court
does not have subject matter jurisdiction in “cases where a plaintiff has never presented a
discrimination complaint to the appropriate administrative authority.” Id. (citing Blank v.

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Donovan, 780 F.2d 808, 809 (9th Cir. 1986); Scott v. Perry, 569 F.2d 1064, 1065–66 (9th Cir.
1978)).
Plaintiff does not contend that waiver, estoppel, or equitable tolling apply to excuse her
from compliance with §1614.05. Pl.’s Resp. Defs.’ Mot. Dismiss 6, ECF 27 (“[W]aiver,
estoppel, and equitable tolling . . . are not at issue in the present motion.”) Therefore, whether her
Title VII claim was administratively exhausted “depends solely upon whether she ‘initiate[d]
contact with a Counselor within 45 days of the date of [each] matter alleged to be
discriminatory.’” Kraus v. Presidio Tr. Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039,
1043 (9th Cir. 2009) (quoting 29 C.F.R. §1614.105(a)(1)).
Plaintiff filed this lawsuit on July 31, 2017. Compl. Prior to filing her lawsuit, Plaintiff
did not present her discrimination complaint to any administrative authority—she did not contact
an EEO counselor, nor did she file a formal discrimination complaint with BPA’s EEO office.
Therefore, this Court lacks subject matter jurisdiction over Plaintiff’s Complaint.
While implicitly acknowledging her failure to present her discrimination complaint to the
appropriate administrative authority prior to filing suit, Plaintiff nevertheless argues that she
demonstrated “substantial compliance” and should be allowed to proceed. Her “substantial
compliance” argument is based upon her formal EEOC complaint in August of 2017 and her
contact of an EEO counselor in January of 2018. The Court address each in turn.
A. EEOC Complaint
Plaintiff argues that, because she filed a complaint with the EEOC, she demonstrated
substantial compliance with the requirement to present her complaint to an appropriate
administrative agency. Plaintiff’s argument is unavailing.

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On August 22, 2017, three weeks after filing the present lawsuit, Plaintiff filed a
complaint with the EEOC against BPA, alleging that Plaintiff was discriminated against by BPA
and David Evans Enterprises (which had formed the temporary agency Flux). Pl.’s Opp. Defs.’
Mot. Dismiss, Ex. B, ECF 28-2. On September 5, 2017, EEOC Administrative Judge Steven
Gaffin responded to Plaintiff’s attorney in a letter and stated that it was not clear from Plaintiff’s
EEOC complaint whether Plaintiff is a federal employee. Pl.’s Opp. Defs.’ Mot. Dismiss, Ex. C,
ECF 28-3. Judge Gaffin wrote the following:
If she is [a federal employee], she must first contact an equal employment opportunity
(EEO) counselor at the BPA where she worked . . . within 45 days of the personnel action
or conduct causing her to believe she was discriminated against.” Id.
He also explained that if Plaintiff intended to file a charge of discrimination against David Evans
Enterprises (aka Flux), then she must contact the EEOC and file a private sector charge. Id.
On December 5, 2017, Defendants filed a motion to dismiss Plaintiff’s Title VII claim for
failure to exhaust her administrative remedies. Defs.’ Mot. Dismiss, Dec. 5, 2017, ECF 4.
Defendants argued that Plaintiff had not filed an EEO complaint with BPA. Id. at 4. Defendants
moved to dismiss Plaintiff’s claim or, if Plaintiff intended to file an EEO complaint, to stay
proceedings until administrative remedies were exhausted. Id. at 5.
On January 16, 2018, Plaintiff filed an unopposed motion to stay all proceedings. Pl.’s
Mot. Stay, ECF 9. In her motion, Plaintiff wrote:
Plaintiff filed a complaint with the EEOC in August of 2017. The filing was not
processed because she did not exhaust the EEO process at BPA. She has since initiated
the EEO process at BPA and is awaiting a response. Defendant BPA agrees to stay this
case while the administrative process is pending.
Id. Plaintiff did not specify in her motion when she initiated the EEO process at BPA. However,
Plaintiff does not contest the date in a declaration submitted by Defendant from BPA Equal
Employment Specialist Angela Dowling, who states that she received a voicemail from Plaintiff

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regarding filing an EEO complaint on January 12, 2018. Dowling Dec. 6, 2018 Decl. (“Dowling
Decl.”) ¶ 3, ECF 22. Thus, the Court accepts as true that Plaintiff’s first contact with Ms.
Dowling was on January 12, 2018.1
Plaintiff and Defendants agree that Ms. Dowling returned Plaintiff’s phone call and left a
voicemail message. They disagree about the contents of the message. Plaintiff declares that Ms.
Dowling “informed me that I was not a federal employee so I did not need to use the EEO
process and to call her back if I had any questions.” Grounds Decl. ¶ 15. Ms. Dowling declares
that her voicemail message simply indicated that Ms. Dowling was returning Plaintiff’s call.
Dowling Decl. ¶ 3. Ms. Dowling declares that she never said that Plaintiff was precluded from
filing an EEO complaint. Id. at ¶ 5. There is no dispute that Plaintiff never called Ms. Dowling
back after the voicemail message and she took no further action to pursue filing an EEO
complaint.
A plaintiff does not necessarily have to contact the agency’s designated EEO counselor to
comply with the requirement to contact an EEO counselor. See, e.g., Kraus, 572 F.3d at 1044-46
(finding a complaint to an agency’s EEO “officer” sufficient to comply with the requirement to
contact the EEO “counselor”). However, in order to meet the requirement, a plaintiff must at
least initiate contact an “agency official logically connected with the EEO process” and exhibit
“an intent to begin the EEO Process.” Id. at 1044 (quoting EEOC Management Directive 110, at
ch. 2, § I.A. n. 1). “[T]he purpose of Title VII's exhaustion requirements . . . is to provide

Justice v. Rockwell Collins, Inc., 117 F. Supp. 3d 1119, 1134 (D. Or. 2015), aff'd, 720 F. App’x 365 (9th
Cir. 2017) (“if a party fails to counter an argument that the opposing party makes in a motion, the court
may treat that argument as conceded”); see also Samper v. Providence St. Vincent Med. Ctr., 2010 WL
3326723, *16 (D. Or. Aug. 23, 2010), aff'd, 675 F.3d 1233 (9th Cir. 2012) (“[plaintiff] does not address
this argument in her opposition and, thus, she appears to concede that she is unable to state a claim”);
Blanck v. Hager, 220 Fed. Appx. 697, 698 (9th Cir. 2007) (determining that Appellant forfeited his right
to challenge a dispositive issue by not raising it in his opening or reply brief).
1

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[agencies with] an opportunity to reach a voluntary settlement of . . . employment discrimination
dispute[s]” through informal processes before resorting to the formal EEO complaint
process. Jasch v. Potter, 302 F.3d 1092, 1094 (9th Cir. 2002); see also Kraus, 572 F.3d at 1045
(explaining that the goal requiring exhaustion under Title VII is to give federal agencies an
opportunity to handle matters internally whenever possible).
This Court has previously held that “contacting the EEOC, an entirely separate agency, is
not a contact with the agency at issue.” Tocci v. Napolitano, 791 F. Supp. 2d 994, 1004 (D. Or.
2011). Thus, Plaintiff’s EEOC complaint does not comprise compliance with the requirement to
initiate contact with an agency official logically connected with the EEO process.
In addition, even assuming Judge Gaffin qualifies as an agency official logically
connected with the EEO process, Plaintiff’s actions fail to exhibit an intent to begin the EEO
process. Despite being informed by Judge Gaffin that contacting an EEO counselor at BPA
within 45 days of the discriminatory conduct was a prerequisite to exhausting her administrative
remedies, Plaintiff failed to initiate contact with an EEO counselor for four months after Judge
Gaffin’s letter. See, e.g. Williams v. McDonald, No. 3:15-CV-01710-HZ, 2016 WL 868803, at *3
(D. Or. Mar. 6, 2016), aff'd sub nom. Williams v. Sec'y of Veterans Affairs, 682 F. App’x 615
(9th Cir. 2017) (finding that “the fact that Plaintiff possessed the correct information but failed to
follow up with an EEO counselor ultimately show[ed] a lack of intent to file an EEO complaint).
Thus, Plaintiff’s complaint with the EEOC in August of 2017 does not satisfy the requirement of
presenting her discrimination complaint to the appropriate administrative agency.

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B. Phone calls to Ms. Dowling
On the other hand, Plaintiff’s phone call to Ms. Dowling on January 12, 2018 is sufficient
to constitute contact with an EEO Counselor.2 However, Plaintiff’s phone call does not exhibit
an intent to begin the EEO process.
Even taking all the facts alleged by Plaintiff as true, at most she states that she left a
voicemail for Ms. Dowling stating that she worked for David Evans (Flux), she had been at BPA
for five years, she had been doing the same job “as everyone in [her] group” but making half the
pay, and she wanted to know if the EEOC process for federal employees applied to contractors
as well. Grounds Decl. ¶ 14. Plaintiff’s voicemail did not allege gender discrimination, nor did
she state that she wanted to file an EEO complaint. Further, after she received a call back from
Ms. Dowling, Plaintiff took no further action to begin the EEO process.
In Plaintiff’s response brief, she puts forth an argument that resembles a futility
defense—she states that the Court should deem her in substantial compliance with the
requirement to exhaust her administrative remedies because Ms. Dowling’s voicemail foreclosed
her from proceeding further and compromised her ability to pursue her administrative remedies.
Pl.’s Resp. Defs.’ Mot. Dismiss 6. Plaintiff cites You v. Longs Drugs Stores California, LLC, 937
F. Supp. 2d 1237, 1250 (D. Haw. 2013), aff'd sub nom. You v. Longs Drug Stores California
LLC, 594 F. App’x 438 (9th Cir. 2015), for the proposition that a plaintiff may be found in
substantial compliance when she was prevented from “even get[ting] though the EEOC’s front
door.” However, the court in You discussed this principle in a case where there was no dispute

2

EEO Counselor contact is interpreted pragmatically to include contact with agency officials who have
EEO counseling responsibilities or counseling connections, without attributing dispositive significance to
job titles. Kraus, 572 F.3d at 1045. Ms. Dowling declares that she was the sole Equal Employment
Specialist responsible for EEO intake at BPA. Dowling Decl. ¶ 2. Thus, the Court assumes for the
purposes of this motion that Ms. Dowling qualifies as an “EEO Counselor.”

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that the EEOC would have refused the claimant’s claim. Id. Here, Plaintiff was represented by an
attorney and she was provided guidance by the EEOC ALJ on how to pursue her allegations of
discrimination, yet she never called Ms. Dowling back or made any other effort to pursue her
claim. Any argument that it would have been futile to pursue her complaint is purely
speculative.3
Furthermore, even if Plaintiff’s call to Ms. Dowling exhibited an intent to begin the EEO
process, Plaintiff offers no argument, such as waiver, estoppel, or equitable tolling, as to why she
should be excused from the requirement to initiate contact with an EEO Counselor before filing
her claim in court. See Sommatino, 255 F.3d at 707 (“In order to bring a Title VII claim in
district court, a plaintiff must first exhaust her administrative remedies) (emphasis added) (citing
42 U.S.C. § 2000e–16(c)). No matter how the Court construes the facts, Plaintiff never presented
a discrimination complaint to Ms. Dowling or anyone else at BPA before she filed this lawsuit
and she offers no argument as to why she should be excused from this requirement. In sum, the
Court finds that Plaintiff failed to exhaust her administrative remedies.
II.

State Law Discrimination Claim – O.R.S. 659A.030(1)(b)
Plaintiff also brings a discrimination claim under Oregon state law. However, the

remedies for a federal employee’s discrimination claims are found in federal, not state statutes.

3

The Court also notes that the Ninth Circuit has declined to rule on whether a futility exception exists to
the exhaustion requirements of Title VII, Thomas v. McCarthy, 714 F. App'x 674, 676 (9th Cir. 2017),
and the You decision cited by Plaintiff also noted the lack of authority to support a “futility” exception.
See You, 937 F. Supp. 2d at 1250, (citing Woodward v. Salazar, 731 F. Supp. 2d 1178, 1192–93 (D. N.M.
2010) (noting a plaintiff's failure to cite authority that Title VII allows futility to excuse exhaustion);
Murphy v. West, 945 F. Supp. 874, 876 (D. Md. 1996), aff'd on other grounds, 172 F.3d 863 (4th Cir.
1999) (“Plaintiffs have cited no case authority for their extraordinary proposition, and my own research
has not located any substantial support for the creation of a ‘futility’ exception to the Title VII exhaustion
requirement, and certainly no support for the assertion that the administrative process may be disregarded
in its entirety.”)).

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Williams v. McDonald, No. 3:15-CV-01710-HZ, 2016 WL 868803, at *4 (D. Or. Mar. 6,
2016), aff'd sub nom. Williams v. Sec'y of Veterans Affairs, 682 F. App'x 615 (9th Cir. 2017); see
also Charles v. Garrett, 12 F.3d 870, 873 (9th Cir. 1993) (“A federal employee’s exclusive
remedy to challenge discriminatory employment practices in the federal government is Section
717 of Title VII of the Civil Rights Act[.]”). As a result, the Court dismisses Plaintiff’s state law
claim.
III.

Equal Pay Act
Defendants move to dismiss Plaintiff’s Equal Pay Act claim, arguing that Plaintiff is

required to bring her claim in the Court of Federal Claims. The Court agrees.
The Equal Pay Act (“EPA”) was enacted in 1963 as an amendment to the Fair Labor
Standards Act and was extended to apply to the Federal Government in 1974. 29 U.S.C. §§ 201,
203(e)(2). An employee alleging a violation of the EPA may file an action against her employer
“in any Federal or State court of competent jurisdiction.” 29 U.S.C. § 216(b). All EPA claims
brought in district court must satisfy the jurisdictional requirements of 28 U.S.C. §§ 1491 (the
“Tucker Act”) and 1346(a)(2) (the “Little Tucker Act”). Bowe-Connor v. Shinseki, 845 F. Supp.
2d 77, 95 (D.D.C. 2012); Doe v. Dep't of Justice, 753 F.2d 1092, 1101 (D.C. Cir. 1985).
Plaintiff argues that the Court of Federal Claims’ jurisdiction over EPA claims is
concurrent with that of the district court. Plaintiff is correct as to claims for less than $10,000.
The Little Tucker Act confers concurrent jurisdiction in a federal district court and the Court of
Federal Claims for non-tort civil actions against the United States for amounts not exceeding
$10,000. 28 U.S.C. § 1346(a)(2). For claims exceeding $10,000, however, jurisdiction lies
exclusively with the Court of Federal Claims. Id. at § 1491.

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Therefore, whether this Court has jurisdiction over Plaintiff’s EPA claim hinges upon the
amount of Plaintiff’s claim. The Complaint does not assert a specific amount claimed.
Defendants, however, contend that the Court may infer that Plaintiff’s claim exceeds $10,000
because “when calculating the dates and amounts alleged in Plaintiff’s complaint wherein
Plaintiff alleges she was paid less than her male counterparts, Plaintiff’s EPA claim seeks over
$250,000 in damages.” Defs.’ Mot. Dismiss 9.
Plaintiff does not provide any argument or evidence showing that her claim does not
amount to at least $10,000 and, thus, she seemingly concedes Defendants’ position that her claim
exceeds that amount. See supra p.7 n.1 (citing authority for the proposition that where a plaintiff
does not address an argument in her opposition, the court may treat that argument as conceded).
Instead, Plaintiff argues that “it may be” that the Court of Federal Claims lacks jurisdiction over
her EPA claim, regardless of the amount of her claim. Pl.’s Resp Defs.’ Mot. Dismiss 9.
According to Plaintiff, an EPA claim is a claim that sounds in tort and, because the Court of
Federal Claims does not have jurisdiction to hear tort claims, it lacks jurisdiction to hear EPA
claims.
Agreeing with Plaintiff would mean finding that the Court of Federal Claims has erred
for over thirty years in resolving EPA claims. Since at least 1987, the Court of Federal Claims
has exercised jurisdiction over EPA claims. Molden v. United States, 11 Cl. Ct. 603, 604 (1987).
And, both the Court of Federal Claims and Court of Federal Appeals continue to assert
jurisdiction over EPA claims.4 See, e.g., Kaplan v. United States, 727 F. App’x 1011, 1015 (Fed.

This Court’s cursory search of cases from the Court of Federal Claims found at least 40 cases in which
the Court of Federal Claims decided Equal Pay Act cases in the last 10 years, including at least six in
2018 and 2019. See, e.g., King v. United States, 112 Fed. Cl. 396, 400 (2013) (“The COFC has long been
recognized by the Federal Circuit and other circuit courts of appeals as the exclusive ‘federal court’ with
jurisdiction to hear FLSA claims by federal employees in excess of $10,000 under the provisions of the
Tucker Act.”).
4

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Cir. 2018) (affirming the Court of Federal Claims’ judgment on an EPA claim); see also
Tallacus v. United States, 113 Fed. Cl 149, 156 (2013) (denying a motion to transfer plaintiff’s
EPA claim to the District Court of Oregon and holding that the Court of Federal Claims had
jurisdiction to adjudicate plaintiff’s EPA claim). Further, although the Court does not find a
controlling decision from the Ninth Circuit regarding this precise issue, numerous district courts
and appellate courts from all over the country have confronted this issue and concluded that EPA
claims in excess of $10,000 must be brought in the Court of Federal Claims. See, e.g., Conner v.
West, 56 F. App’x 229, 231 (6th Cir. 2003) (district court lacked jurisdiction over EPA claim
because it exceeded $10,000); Barnes v. Levitt, 118 F.3d 404, 410 (5th Cir. 1997) (“Under the
Tucker Act, 28 U.S.C. § 1491, a plaintiff asserting an Equal Pay Act cause of action must bring
that action in the Court of Federal Claims if the claim, including the fees sought, exceeds
$10,000.”); Philbert v. Wilkie, No. 217CV00929CASKKX, 2018 WL 1918518, at *2 (C.D. Cal.
Apr. 20, 2018) (transferring plaintiff’s EPA claim to the Court of Federal Claims because the
district court lacked jurisdiction based on the amount in controversy); Ashbourne v. Geithner,
No. CIV.A. RWT-11-2818, 2012 WL 2874012, at *4 (D. Md. July 12, 2012), aff'd, 491 F. App’x
429 (4th Cir. 2012) (dismissing EPA claim for lack of jurisdiction where the claim exceeded
$10,000); Scott v. McHugh, No. 5:10CV00184 SWW, 2011 WL 1464853, at *3 (E.D. Ark. Apr.
15, 2011) (dismissing EPA claim where the plaintiff did not provide an “unequivocal limitation
of her damages to $10,000.00 which would allow the Court to conclude it has subject matter
jurisdiction); Moorehead v. Chertoff, No. C05-1767JLR, 2007 WL 737370, at *2 (W.D. Wash.
Mar. 5, 2007) (acknowledging that the Ninth Circuit has not decided this precise jurisdictional
question but transferring plaintiff’s EPA claim to the Court of Federal Claims based on the
rationale of prior cases and the plain language of 28 U.S.C. § 1346); Bolden v. Ashcroft, 515 F.

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Supp. 2d 127, 136 (D.D.C. 2007) (dismissing claim for lack of jurisdiction because it far
exceeded “the $10,000 limit); Iyer v. Everson, 382 F. Supp. 2d 749, 759 (E.D. Pa.
2005), aff'd, 238 F. App'x 834 (3d Cir. 2007) (dismissing plaintiff’s EPA claim for lack of
jurisdiction because it exceeded $10,000).
Notably, Plaintiff cites no case that holds that the Court of Federal Claims lacks authority
to hear EPA claims because they are tort claims. Considering the numerous cases finding that
Plaintiff must bring her EPA claim exceeding $10,000 in the Court of Federal Claims and the
absence of any authority to the contrary, the Court dismisses Plaintiff’s EPA claim for lack of
jurisdiction.
IV.

Leave to Amend
Plaintiff requests leave to amend her Complaint. Federal Rule of Civil Procedure 15(a)

provides that a trial court shall grant leave to amend freely “when justice so requires.” “[A]
district court should grant leave to amend . . . unless it determines that the pleading could not
possibly be cured by the allegation of other facts.” Doe v. United States, 58 F.3d 494, 497 (9th
Cir. 1995). Because there are facts that could cure the lack of subject matter jurisdiction, such as
an amount claimed of less than $10,000, the Court grants Plaintiff leave to amend the Complaint.

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CONCLUSION
Defendants’ motion to dismiss [21] for lack of subject matter jurisdiction is granted.
Plaintiff is granted leave to amend the Complaint within 14 days of the date below. If Plaintiff
does not file an amended complaint within 14 days of the date below, this case will be dismissed
without further notice.
IT IS SO ORDERED.

Dated this _______________ day of_________________________, 2019.

MARCO A. HERNÁNDEZ
United States District Judge

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