This matter came before the court on April 24, 2009, for hearing on defendant's motion to dismiss plaintiff's amended complaint. Plaintiff Peter G. Fritz, proceeding pro se, appeared on his own behalf. Assistant United States Attorney Todd Pickles appeared for the defendant Postmaster General of the United States.
Plaintiff, proceeding pro se, brought this action by filing his complaint on October 3, 2008. Upon granting plaintiff's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, the court dismissed the complaint with leave to amend. On December 8, 2008, plaintiff filed the amended complaint which is the operative pleading in this action. The body of the amended complaint is but two pages in length; however, plaintiff has attached a number of documents thereto. In his amended complaint, plaintiff alleges that he is entitled to relief under a class action settlement agreement reached between the United States Postal Service (USPS) and a class of plaintiffs made up of persons employed by the USPS from 1992 through 2003 who, while in permanent rehabilitation positions, were allegedly denied promotions or advancement opportunities due to discrimination on the basis of their disabilities. Plaintiff alleges that he was offered the sum of $3,029 as part of the class action settlement but "rejected the offer" as unreasonable. (Am. Compl. at 2.) Plaintiff seeks $195,000 in compensatory damages, $100,000 in other damages due to lost retirement pay and costs and attorneys fees. (Id. at 1-2.)
According to documents attached to the amended complaint, plaintiff was a putative member of the plaintiff class in the EEOC proceeding entitled Glover & Albrecht v. Postmaster General. (Am. Compl., Ex. B.) On May 23, 2007, the USPS entered into a Global Settlement Agreement Modifying the Initial Settlement Agreement in that action. (Am. Compl., Ex. F.) Under the Global Settlement Agreement, each class member who filed a claim form which was not dismissed, was eligible for a settlement share in an amount determined pursuant to a distribution plan calculated by class counsel's statistical expert. (Id.) Plaintiff, along with other class members, filed timely objections to the Global Settlement. (Am. Compl., Ex. F at 3.) Nonetheless, on February 14, 2008, the assigned Administrative Law Judge (ALJ) approved the Global Settlement finding it to be a fair resolution of the claims. (Id., Ex. E.) Plaintiff appealed the ALJ's decision to the EEOC, asserting again that his settlement share was not properly calculated along with other objections regarding the distribution of settlement funds. (Id., Ex. C.) The EEOC rejected petitioner's appeal and approved the settlement, finding that none of petitioner's objections called into question the basic fairness of the Global Settlement that had been approved. (Id. Ex. E at 4.)
Defendant characterizes plaintiff's claim as one that he is entitled to more than $3,029 under the Global Settlement Agreement. In moving to dismiss, defendant first argues that this court lacks jurisdiction over plaintiff's claim since judicial enforcement of the settlement is not available to him. (MTD at 6.) Defendant argues that courts have held that judicial enforcement of the settlement agreement is not an option available to a plaintiff in circumstances such as these. (Id.) (citing Frahm v. O'Neill, 492 F.3d 258, 262 (4th Cir. 2007) and Lindstrom v. United States, 510 F.3d 1191, 1994 (10th Cir. 2007)). Likewise, defendant argues, the court lacks jurisdiction to review the EEOC's rejection of plaintiff's objections to the Global Settlement. Specifically, defendant's counsel argues that he has been unable to locate any case law "discussing a district court's jurisdiction to hear a challenge to an order of the EEOC approving a class action settlement." (Id. at 6.) Defendant also argues that plaintiff has failed to state any cognizable claim for relief since there is no authority for the proposition that one has a private right of action to litigate in federal court the share of a class settlement that one is entitled to. (Id. at 8-9.) Finally, defendant argues that any substantive discrimination claim that plaintiff could have once brought was time-barred long ago since the discrimination he claims to have suffered from took place in 1992. (Id. at 9-10.)
Plaintiff opposes the motion based upon a simple argument. Plaintiff notes that in rejecting his objections to the Global Settlement, the EEOC sent him a notice which stated in pertinent part: "You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date you receive this decision." (Opp'n, Attach.)*fn1 Plaintiff asserts that he filed this action within the ninety-day limitations period identified in both the notice and the EEOC's decision. Plaintiff contends that he was entitled to at least $195,000 in compensatory damages based upon the USPS discriminatory practices and that, while some class members were awarded as much as $85,000 in recovery benefits under the Global Settlement, he was offered only $3,029. (Opp'n, at 2.)
In reply, defendant acknowledges that the notice sent to plaintiff by the EEOC contained the right to sue language, but contends that the language was mere "stock or boilerplate," with no citation to authority, which cannot confer jurisdiction. (Reply at 2.) Defendant argues that there is no statutory basis for the court to exercise subject matter jurisdiction over plaintiff's claim. Defendant also asserts that even if the court had jurisdiction, plaintiff has presented no plausible claim that the Global Settlement agreement approved by the EEOC was not fair and reasonable. Finally, defendant repeats the argument that any substantive claim of discrimination on plaintiff's part would clearly be time-barred. (Id. at 3-4.)
Defendant's motion to dismiss has been brought pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
I. Legal Standards Applicable to Motions Brought Pursuant to Fed. R. Civ. P. 12(b)(1) & (6)
Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense, by motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific claims alleged in the action. "A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a 'speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
In the present case, defendants' Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact as to certain claims set forth in plaintiff's amended complaint. When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, no presumption of truthfulness attaches to the plaintiff's allegations. Id. "[T]he district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, plaintiff will have the burden of proving that jurisdiction does in fact exist. Thornhill Publ'g Co., 594 F.2d at 733.
The purpose of a motion to dismiss brought pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). The plaintiff is required to allege "enough ...