Silbaugh v. Federal Aviation Administration et al

Filing 33

ORDER granting Defendant Elaine Chao's 17 Motion to Dismiss. Signed by Judge Ricardo S. Martinez. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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Plaintiff,

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Case No. C17-1759 RSM

ALISHA R SILBAUGH,

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

v.
ELAINE CHAO, Secretary of the
Department of Transportation,

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Defendant.

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I.

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INTRODUCTION

This matter comes before the Court on Defendant Elaine Chao’s Motion to Dismiss
brought under Rule 12(b)(1). Dkt. #17. Defendant argues that Plaintiff Alisha R. Silbaugh’s
claims should be dismissed because she failed to file this action naming the correct defendant

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within the applicable statutory time limit. Id. Plaintiff Silbaugh opposes this Motion. Dkt. #22.

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The Court heard oral argument on June 29, 2018. Dkt. #32. For the reasons set forth below, the

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Court GRANTS Defendant Chao’s Motion and dismisses this case.

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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS - 1

II.

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BACKGROUND1

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Plaintiff Silbaugh is an African American woman who worked for the Federal Aviation

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Administration (“FAA”), part of the Department of Transportation. Dkt. #9 at 2. Ms. Silbaugh

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alleges she has a documented history of major depression and Post Traumatic Stress Disorder

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(“PTSD”). Id. Ms. Silbaugh was terminated by her employer on or about February 17, 2017,
allegedly in violation of Title VII of the Civil Rights Act and the Rehabilitation Act. She

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appealed her termination to the Merit Systems Protection Board (“MSPB”), which affirmed

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Defendant’s decision to terminate Plaintiff.

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Ms. Silbaugh filed this action on November 21, 2017, within 30 days of the MSPB
decision. Dkt. #1. Ms. Silbaugh’s initial Complaint named only the FAA and FAA employee

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Kristopher Kern as defendants. Id. Ms. Silbaugh attempted to serve the FAA in January of 2018

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by sending the complaint and unsigned summonses to the U.S. Attorney in Seattle and the

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Attorney General in D.C. Dkts. #7 at 1, #30 at 3. Five months later, on April 26, 2018, the

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United States of America, on behalf of the FAA, moved to dismiss arguing that Ms. Silbaugh

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had failed to name the correct defendant. Dkt. #5. The next day Ms. Silbaugh amended her

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complaint to name as defendant Elaine Chao, head of the Department of Transportation. Dkt.

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#9. Ms. Silbaugh served the Amended Complaint and summons on the Seattle U.S. Attorney’s

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office and the U.S. Attorney General in D.C. via certified mail two days later. See Dkts. #23-2

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at 2, #30 at 3.
Defendant Chao filed the instant, second Motion to Dismiss on May 10, 2018. Dkt. #17.

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Defendant Chao argues that this case must be dismissed under Rule 12(b)(1) because the correct

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The Court will focus only on those background facts necessary for addressing this Rule 12(b)(1) Motion.

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS - 2

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defendant was not named within the applicable statutory time limit and because the Amended
Complaint does not relate back under Rule 15(c)(1). Id.
III.

DISCUSSION

A. Legal Standard under Rule 12(b)(1)
On a motion to dismiss pursuant to Rule 12(b)(1), the burden is on the plaintiff to establish
subject-matter jurisdiction. See, e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,

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377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994). A defendant may make a jurisdictional attack

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that is either facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.

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2004). A facial attack occurs when the movant “asserts that the allegations contained in a
complaint are insufficient on their face to invoke federal jurisdiction.” Id. A factual attack occurs

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when the movant “disputes the truth of the allegations, that by themselves, would otherwise

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invoke federal jurisdiction.” Id. In a factual challenge, a court may rely on evidence extrinsic to

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the pleadings and resolve factual disputes relating to jurisdiction. St. Clair v. City of Chico, 880

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F.2d 199, 201 (9th Cir. 1989); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). When

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considering a motion to dismiss for lack of subject matter jurisdiction, the federal district court

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is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and

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testimony, to resolve factual disputes concerning the existence of jurisdiction, and consideration

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of material outside pleadings does not convert the motion into one for summary judgment.

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McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). In support of a motion to dismiss
under Rule 12(b)(1), the moving party may submit “affidavits or any other evidence properly

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before the court. It then becomes necessary for the party opposing the motion to present

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affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in

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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS - 3

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fact, possesses subject matter jurisdiction.” Colwell v. Dep't of Health and Human Servs., 558
F.3d 1112, 1121 (9th Cir. 2009).
B. Procedural Requirements at Issue
Title VII, 42 U.S.C. § 2000e-16, bars employment discrimination based on race, color,
religion, sex, and national origin. Section 2000e-16(c) provides that when a Title VII action is
filed, “the head of the department, agency, or unit, as appropriate, shall be the defendant.” “In

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order to bring a Title VII claim in district court, a plaintiff must first exhaust [his or her]

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administrative remedies.” Sommatino v. United States, 255 F.3d 704, 707 (9th Cir. 2001). Under

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5 U.S.C. § 7703(b)(2), an appeal of an MSPB decision must be filed in federal court “within 30
days after the individual filing the case received notice of the judicially reviewable action under
such section 7702.”

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Ms. Silbaugh undisputedly named the wrong party in her original Complaint. See Dkt.

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#1 (naming as defendant the FAA and not Secretary Chao); Dkt. #21 at 1. Plaintiff has since

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attempted to remedy this error in an Amended Complaint. Defendant Chao argues that the

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original complaint was timely but that the Amended Complaint is not. See Dkt. #17. At issue
therefore is whether this amendment relates back.

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Under Rule 15(c)(1), an amendment that changes the party or naming of the party can

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relate back to the date of the original pleading, but there is a timing requirement. In a case such

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as this one with a United States agency defendant, the timing requirement is met if the United
States received notice by delivery or mailing of process to the U.S. Attorney, Attorney General

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of the United States, or officer or agency during the period provided by Rule 4(m) for service,

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i.e. 90 days. Fed. R. Civ. P. 15(c)(2). In other words, the agency is considered to have received

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notice for purposes of relation back even if it was not served, so long as at least one of either the

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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS - 4

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U.S. Attorney or Attorney General received delivery or mailing of process within 90 days of the
original complaint being filed.

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C. Defendant’s Motion

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Defendant Chao argues that the relation back provisions above do not apply if the newly
named defendant did not receive notice within the thirty-day statutory period, citing Romain v.
Shear, 799 F.2d 1416, 1419 (9th Cir. 1986). Dkt. #17 at 8. Defendant also cites to the notice

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requirements of Rule 15(c)(2) above, and several other cases form the 1980s for the same

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proposition. See id.

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In Response, Ms. Silbaugh argues that Romain was overturned by the 1991 amendments
to Rule 15. Dkt. #22. Ms. Silbaugh suggests that Defendant’s Motion violates Rule 11.

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On Reply, Defendant Chao argues that the post-1991 amendment Rule 15(c) is still not

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satisfied here because, although Plaintiff may have “mailed and delivered the original summons

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and Complaint to the U.S. Attorney’s Office within the 90-day period,” “those efforts did not

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serve ‘process’ as required by Rule 15(c)(2) because Plaintiff served only an unsigned summons

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on the U.S. Attorney’s Office.” Dkt. #24 at 8 (citing Chan Decl. at ¶ 2; Hart v. United States,

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817 F.2d 78, 80 (9th Cir. 1987)). Chao points out that Federal Rule of Civil Procedure 4(a)(1)

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requires summonses be signed.2

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At oral argument, and at the Court’s request, Defendant Chao presented further evidence
that Plaintiff Silbaugh failed to mail a signed summons to the Attorney General within the 90day period. See Dkt. #30. Ms. Silbaugh argued that the Court should extend the 90-day period
on a showing of good cause.

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The Court notes that Defendant Chao raises several other arguments in her Reply for the first time. Ms. Silbaugh
moves to strike these arguments in a Surreply. Dkt. #26. The Court will not consider this argument raised for the
first time on Reply. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (citing Koerner v. Grigas, 328 F.3d
1039, 1048 (9th Cir. 2003)).

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS - 5

The Court has considered all of the arguments and evidence submitted and concludes that

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the United States did not receive notice during the period provided by Rule 4(m). Because Ms.

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Silbaugh is “changing the party or the naming of the party against whom a claim is asserted,”

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and because a United States officer has been added as a Defendant, she is required to have

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provided notice to the United States within 90 days of filing the original complaint for her
Amended Complaint to relate back. Otherwise the amended complaint is considered filed as of

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the date of its filing, rather than the date of the original complaint. In this case, the United States

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did not receive notice in January of 2018 because the documents received by the U.S. Attorney

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and the Attorney General did not constitute process under Rule 4(a)(1). The United States did
not receive notice until the end of April or early May 2018. This is well beyond 90 days from

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the original filing of this case in November of 2017. The Court finds that the time period

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prescribed by Rule 15(c) refers to “the period provided by Rule 4(m),” 90 days, and does not on

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its own permit the Court to extend that period for good cause. Even if the Court could so extend

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the time, the Court finds that Plaintiff has failed to demonstrate good cause for her procedural

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errors.

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Since the amended complaint does not relate back, it has been filed beyond the 30-day

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window prescribed by 5 U.S.C. § 7703(b)(2). Accordingly, this case is properly dismissed under

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Rule 12(b)(1). While the Court is loath to throw out cases without reaching the merits, the

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procedural errors in this matter, committed by a plaintiff represented by counsel, are too
significant to excuse.
Given all of the above, the Court declines to consider Rule 11 sanctions against
Defendant.

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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS - 6

IV.

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CONCLUSION

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Having reviewed the relevant pleadings and the remainder of the record, the Court hereby

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finds and ORDERS that Defendants’ Motion to Dismiss (Dkt. #17) is GRANTED. Plaintiff’s

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claims are DISMISSED. This case is CLOSED.

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DATED this 9th day of August 2018.

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A

RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS - 7