United States District Court, C.D. California
CIVIL MINUTES - GENERAL
CHRISTINA A. SNYDER, District Judge.
Proceedings: (IN CHAMBERS): MOTION TO DISMISS FOR LACK OF JURISDICTION (Dkt. #14, filed April 4, 2014)
The Court finds this motion appropriate for decision without oral argument. Fed.R.Civ.P. 78; Local Rule 7-15. Accordingly, the hearing date of May 5, 2014, is vacated, and the matter is hereby taken under submission.
Plaintiff Alina Korsunka filed this action on September 20, 2013, against Janet Napolitano, in her official capacity as Secretary of the United States Department of Homeland Security. Dkt. #1. The operative first amended complaint ("FAC") asserts a single claim for retaliation in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e, et seq. ("Title VII"). Dkt. #12.
On April 4, 2014, defendant filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Dkt. #14. Plaintiff filed an opposition on April 15, 2014. Dkt. #19. No reply has been filed. After considering the parties' arguments, the Court finds and concludes as follows.
Plaintiff alleges that she is a resident of California, and that defendant is the Secretary of the United States Department of Homeland Security. FAC ¶¶ 3-4. Plaintiff alleges that her employment as an Immigration Services Officer of the Department of Homeland Security was terminated on October 15, 2009, because of her religion and national origin. Id . ¶ 8. Plaintiff alleges that, after her termination, she filed a charge of discrimination with the EEOC in January 2010 (the "January 2010 Charge"). Id . ¶ 10, Ex. A. Plaintiff avers that this charge was settled in June 2010. Id . ¶ 11. The settlement agreement provides, in relevant part that, "[u]pon request, [the Department of Homeland Security] will provide a neutral reference to potential employers." Def. Ex. A at 1.
Plaintiff contends that, after the settlement agreement was signed, she applied for several positions with private companies and other federal agencies, but was not selected for any of these positions. Id . ¶ 14. Plaintiff claims that she began to suspect that defendant was impeding her attempts to obtain new employment. Id . ¶ 16. Plaintiff avers that defendant's agents are engaging in a scheme to give inaccurate information to plaintiff's prospective employers. Id . ¶ 19. According to plaintiff, defendant's agents are engaging in this scheme as retaliation for her filing the January 2010 Charge. Id.
Plaintiff alleges that, on or about August 15, 2011, she filed a charge of discrimination with the EEOC, in which she alleged that defendant was retaliating against her. Id . ¶ 6, Ex. B. Plaintiff further alleges that she received a "right to sue" letter on or about June 20, 2013. Id . ¶ 7, Ex. C.
III. LEGAL STANDARD
A motion to dismiss an action pursuant to Fed.R.Civ.P. 12(b)(1) raises the question of the federal court's subject matter jurisdiction over the action. The objection presented by this motion is that the Court has no authority to hear and decide the case. This defect may exist despite the formal sufficiency of the allegations in the complaint. See T.B. Harms Co. v. Eliscu , 226 F.Supp. 337, 338 (S.D.N.Y. 1964), aff'd 339 F.2d 823 (2d Cir. 1964) (the formal allegations must yield to the substance of the claim when a motion is filed to dismiss the complaint for lack of subject matter jurisdiction). When considering a Rule 12(b)(1) motion challenging the substance of jurisdictional allegations, the Court is not restricted to the face of the pleadings, but may review any evidence, such as declarations and testimony, to resolve any factual disputes concerning the existence of jurisdiction. See McCarthy v. United States , 850 F.2d 558, 560 (9th Cir. 1988).
The burden of proof in a Rule 12(b)(1) motion is on the party asserting jurisdiction. See Sopcak v. N. Mountain Helicopter Serv. , 52 F.3d 817, 818 (9th Cir. 1995); Ass'n of Am. Med. Coll. v. United States , 217 F.3d 770, 778-79 (9th Cir. 2000). If jurisdiction is based on a federal question, the pleader must show that he has alleged a claim under federal law and that the claim is not frivolous. See 5B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 1350, pp. 211, 231 (3d ed. 2004). On the other hand, if jurisdiction is based on diversity of ...