United States District Court, D. Hawaii
RICHARD J. SANDOWSKI, Plaintiff,
KIRSTJEN M. NIELSEN; DOUG ROLEFSON; GENOA LOPEZ; JOAN DE LA CRUZ; MARC MAYAKAWA; and STAN TADAKI, Defendants.
ORDER GRANTING DEFENDANT KIRSTJEN NIELSEN'S
MOTION TO PARTIALLY DISMISS PLAINTIFF'S COMPLAINT AND
GRANTING LEAVE TO AMEND
OKI MOLLWAY UNITED STATES DISTRICT JUDGE
the court is Defendant Kirstjen Nielsen's Motion to
Partially Dismiss Plaintiff's Complaint. See ECF
No. 37. Plaintiff Richard Sandowski, proceeding pro
se, was formerly employed by the Transportation Security
Administration (“TSA”), an agency of the United
States Department of Homeland Security (“DHS”).
He filed a complaint (“Complaint”) against
Nielsen,  who is the Secretary of DHS, and against
five current or former TSA employees. See ECF No. 1,
PageID # 5. The Complaint asserts that Defendants
discriminated against him in violation of Title VII of the
Civil Rights Act of 1964. See id.
motion seeks to dismiss Sandowski's claims of perjury,
obstruction of justice, physical assault, and abuse of
authority for failure to exhaust administrative remedies or,
in the alternative, for failure to state a claim upon which
relief can be granted. See ECF No. 37-1, PageID #
225. Additionally, Nielsen argues that the Complaint should
be dismissed as to the TSA employee defendants because she,
as head of DHS, is the only proper defendant. See
Id. at 225-26.
court grants Nielsen's motion for partial dismissal. The
court further grants Sandowski leave to file an amended
complaint should he wish to do so.
was employed by TSA on the island of Lanai until his
termination on August 30, 2006. See ECF No. 1,
PageID #s 2-7. On January 18, 2007, Sandowski filed an
employment discrimination complaint against TSA and DHS with
the Equal Employment Opportunity Commission
(“EEOC”). See Id. at 20. After a hearing,
an EEOC Administrative Judge (“AJ”) issued a
decision finding no discrimination, which was adopted by the
DHS Office of Civil Rights and Civil Liberties
(“CRCL”) in a final order issued on January 28,
2016. See id. at 10, 20-21; ECF No. 37-4. On
February 29, 2016, Sandowski appealed to the EEOC's
Office of Federal Operations (“OFO”), and on July
7, 2017, the OFO affirmed the CRCL's final order adopting
the AJ's decision. See ECF No. 1, PageID # 21.
The OFO's decision stated that Sandowski had a right to
file a civil action in federal district court. See
Id. at 22.
September 19, 2017, Sandowski filed his Complaint in this
court, asserting employment discrimination claims against
Defendants under Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e to 2000e-17. See Id. at
2-5. He alleges that, between October 2004 and August 2006,
Defendants discriminated against him on the basis of his race
and religion and that he was wrongfully terminated. See
Id. at 2-7, 20. The Complaint attaches Sandowski's
appeal letter to the EEOC dated February 29, 2016, and the
OFO's decision dated July 7, 2017. See Id. at 7,
Complaint lists the following seven claims: unequal
treatment, retaliation, wrongful termination, perjury,
obstruction of justice, physical assault, and abuse of
authority. Id. at 6-7. As relief, Sandowski seeks
reinstatement, back pay for wages and benefits, and to be
“made whole.” Id. at 8.
29, 2018, Nielsen filed the present motion. See ECF
No. 37-1. The motion attaches two documents: (1) a TSA letter
dated April 24, 2007, informing Sandowski that TSA accepted
and would investigate certain claims from his EEOC complaint,
and (2) the CRCL's final order of January 28, 2016,
adopting the AJ's decision. See ECF Nos. 37-3,
37-4. The court held a hearing on the motion on August 13,
STANDARD OF REVIEW.
motion was brought under both Federal Rule of Civil Procedure
12(b)(1) for lack of subject matter jurisdiction and Rule
12(b)(6) for failure to state a claim upon which relief can
be granted. See ECF No. 37-1, PageID # 229. The
citation to Rule 12(b)(1) was likely due to the prior
treatment of a failure to exhaust administrative remedies
under Title VII as a jurisdictional defect. See Lyons v.
England, 307 F.3d 1092, 1103 (9th Cir. 2002) (“To
establish federal subject matter jurisdiction, a plaintiff is
required to exhaust his or her administrative remedies before
seeking adjudication of a Title VII claim.”).
in Arbaugh v. Y&H Corp., 546 U.S. 500 (2006),
the Supreme Court clarified that administrative exhaustion
requirements were not prerequisites to subject matter
jurisdiction unless “the Legislature clearly states
that a threshold limitation on a statute's scope shall
count as jurisdictional.” Id. at 515
(“[W]hen Congress does not rank a statutory limitation
on coverage as jurisdictional, courts should treat the
restriction as nonjurisdictional in character.”).
with this holding, the Ninth Circuit has stated that a Title
VII exhaustion requirement “is not a jurisdictional
prerequisite for suit in federal court, ” but that
failure to comply with the requirement may be fatal to the
claim. Kraus v. Presidio Tr. Facilities Div./Residential
Mgmt. Branch, 572 F.3d 1039, 1043 (9th Cir. 2009);
see also Daniels v. Donahoe, 901 F.Supp.2d 1238,
1245 (D. Haw. 2012) (stating that “[t]he exhaustion
requirement is a condition of bringing a Title VII claim in
court, ” but is not a jurisdictional
limitation).The Ninth Circuit in Kraus did not
cite Arbaugh, but the Ninth Circuit has applied
Arbaugh in several non-Title VII cases to hold that
prerequisites to a statute's applicability are not
jurisdictional. See, e.g., Trader Joe's Co.
v. Hallatt, 835 F.3d 960, 968-69 (9th Cir. 2016)
(“We hold that the extraterritorial reach of the Lanham
Act is a merits question that does not implicate federal
courts' subject-matter jurisdiction.”); Leeson
v. Transamerica Disability Income Plan, 671 F.3d 969,
971 (9th Cir. 2012) (holding that whether plaintiff was a
plan participant under ERISA is “a substantive element
of his claim, not a prerequisite for subject matter
jurisdiction”); Forester v. Chertoff, 500 F.3d
920, 928-29 (9th Cir. 2007) (holding that the 30-day waiting
period in 29 U.S.C. § 633a(d) is “not
jurisdictional in the sense that a district court lacks any
authority to grant relief when a complaint is filed
prematurely”). And at the hearing on the motion,
Nielsen's counsel recognized that recent Ninth Circuit
case law stated that failure to exhaust is not an issue of
subject matter jurisdiction. Thus, this court reviews
Nielsen's motion under Rule 12(b)(6).
Rule 12(b)(6), a complaint may be dismissed for failure to
state a claim upon which relief can be granted. The
court's review is generally limited to the contents of a
complaint. Sprewell v. Golden State Warriors, 266
F.3d 979, 988 (9th Cir. 2001); Campanelli v.
Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996). If
matters outside the pleadings are considered, the Rule
12(b)(6) motion is treated as one for summary judgment.
Keams v. Tempe Tech. Inst., Inc., 110 F.3d 44, 46
(9th Cir. 1997); Anderson v. Angelone, 86 F.3d 932,
934 (9th Cir. 1996). However, the court may take judicial
notice of and consider matters of public record without
converting a Rule 12(b)(6) motion to dismiss into a motion
for summary judgment. Lee v. City of Los Angeles,
250 F.3d 668, 688 (9th Cir. 2001); Emrich v. Touche Ross
& Co., 846 F.2d 1190, 1198 (9th Cir. 1988).
Rule 12(b)(6) motion to dismiss, all allegations of material
fact are taken as true and construed in the light most
favorable to the nonmoving party. Fed'n of African
Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207
(9th Cir. 1996). However, conclusory allegations of law,
unwarranted deductions of fact, and unreasonable inferences
are insufficient to defeat a motion to dismiss.
Sprewell, 266 F.3d at 988; Syntex Corp. Sec.
Litig., 95 F.3d 922, 926 (9th Cir. 1996). Dismissal
under Rule 12(b)(6) may be based on either “lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal ...