DATE: September 28, 1995
CASE NO. 94-TSC-5
IN THE MATTER OF
JUDY K. STEPHENSON,
COMPLAINANT,
v.
NATIONAL AERONAUTICS & SPACE
ADMINISTRATION,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
ORDER OF REMAND
This case arises under the employee protection provision of
the Clean Air Act (CAA), 42 U.S.C. § 7622 (1988). On August
21, 1995, I issued a Decision and Order of Remand. Respondent
thereafter filed a motion for reconsideration, which I granted.
Upon reconsideration, the August 21 decision IS VACATED.
Currently at issue is the Administrative Law Judge's (ALJ)
August 4, 1995, Recommended Order (R. O.) in which he granted
what Respondent had designated a motion to dismiss the complaint
for lack of subject matter jurisdiction under Rule 12(b)(1) of
the Federal Rules of Civil Procedure. I am not persuaded that
Respondent's designation is altogether correct. On the one hand,
the Secretary is empowered under the CAA whistleblower provision
to hear and decide complaints brought by employees against
employers alleging discrimination motivated by protected
activity. In this sense, the challenge is jurisdictional.[1]
On the other hand, proof that a complainant is an "employee"
within the meaning of the CAA is a component of the complainant's
prima
[PAGE 2]
facie case which requires a determination on the merits. In
order to establish that she is entitled to relief under the CAA,
Complainant first must show that she is covered by its
provisions. In this context, the challenge to Complainant's
employment status also resembles a Rule 12(b)(6) motion to
dismiss for failure to state a claim upon which relief can be
granted.[2] In cases where the defendant's Rule 12(b)(1) motion
constitutes "an indirect attack on the merits of the plaintiff's
claim," courts may treat the motion as a Rule 12(b)(6) motion to
dismiss for failure to state a claim upon which relief can be
granted. Peckmann v. Thompson, 966 F.2d 295, 297 (7th
Cir. 1992); Malak v. Associated Physicians, Inc., 784 F.2d
277, 280 (7th Cir. 1986); Williamson v. Tucker, 645 F.2d
404, 415 (5th Cir.), cert. denied, 454 U.S. 897 (1981);
Student Government Ass'n of Wilberforce Univ. v. Wilberforce
Univ., 578 F. Supp. 935, 940 (S.D. Ohio 1983).
This treatment follows from the holding in Bell v.
Hood, 327 U.S. 678, 682 (1945), that subject matter
jurisdiction cannot be defeated by the possibility that a
plaintiff has not stated a cause of action upon which to recover.
Rather, dismissal on jurisdictional grounds is valid only
if the claim "clearly appears to be immaterial and made solely
for the purpose of obtaining jurisdiction or where such a claim
is wholly insubstantial and frivolous." Id. at 682-683.
If the question of whether a court has jurisdiction is
"intertwined" with the merits of the case, the court should rule
on the merits rather than dismiss initially for lack of
jurisdiction. Tilton v. Richardson, 6 F.3d 683, 686 (10th
Cir. 1983). As the Supreme Court stated:
Whether the complaint states a cause of action on which
relief could be granted is a question of law [which]
must be decided after and not before the court has
assumed jurisdiction over the controversy. If the
court does later exercise its jurisdiction to determine
that the allegations in the complaint do not state a
ground for relief, then dismissal of the case would be
on the merits, not for want of jurisdiction.
Bell v. Hood, 327 U.S. at 682.
In Holt v. United States, 46 F.3d 1000, 1002-1003
(10th Cir. 1995), the court noted that Rule 12(b)(1) motions
generally take two forms: (1) a facial attack on the complaint's
allegations challenging their sufficiency in which all
allegations are presumed to be true, and (2) a factual attack
proceeding beyond the allegations in which the allegations are
not presumed to be true. The latter requires "a court to convert
a Rule 12(b)(1)
[PAGE 3]
motion to dismiss into a Rule 12(b)(6) motion or a Rule 56
summary judgment motion when resolution of the jurisdictional
question is interwined with the merits of the case [which occurs]
if subject matter jurisdiction is dependent on the same statute
which provides the substantive claim in the case." Id.[3]
Here, Respondent does not challenge the facial sufficiency
of the complaint. Complainant alleges that she was an employee
subject to retaliation because of her protected activity which
ostensibly brings her complaint within the purview of the
employee protection provision of the CAA. Instead, Respondent
factually attacks Complainant's status as an "employee" under the
standard adopted in Reid v. Methodist Medical Center of Oak
Ridge (Reid), Case No. 93-CAA-4, Sec. Dec., Apr. 3, 1995,
slip op. at 8-19, appeal docketed, No. 95-3648 (6th Cir.
June 1, 1995). The question of whether Complainant is an
"employee" is central to determining (1) whether the CAA empowers
me to hear the complaint and (2) whether Complainant is entitled
to relief under the CAA. In these circumstances, I will treat
Respondent's Rule 12(b)(1) motion to dismiss for lack of subject
matter jurisdiction as a Rule 12(b)(6) motion to dismiss for
failure to state a claim upon which relief can be granted.[4]
In its motion, Respondent presented matters outside the
pleadings. Rule 12 requires that such filings be treated as
motions for summary judgment under Rule 56, or in this case under
29 C.F.R. § 18.40 (1994).[5] See 29 C.F.R. §
18.1(a).
"Under the summary judgment standard . . . the moving party
must demonstrate that 'there is an absence of evidence to support
the nonmoving party's case.' The burden to establish that no
relevant facts are in dispute must be borne by the movant,
against whom all ambiguities are resolved." EEOC v. New
Cherokee Corp., 829 F. Supp. 73, 77 (S.D.N.Y. 1993),
quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). In its motion, Respondent tenders limited argument
supported by only three cursory, conclusory affidavits. This
proof hardly appears sufficient to establish that there is no
genuine issue as to any material fact and that Respondent is
entitled to judgment as a matter of law.[6] As evidenced in
Reid, slip op. at 23-40, the question of employment status
can be involved and may require extensive record development that
is absent here.
In the interest of fairness to both parties, I remand the
case to the ALJ for further development. Rule 12 stipulates that
in cases of summary disposition all parties be given reasonable
opportunity to present all material made pertinent to such a
motion. Pleadings, depositions, answers to interrogatories and
admissions are considered in conjunction with the affidavits.
"[W]henever the moving party denies access to information by
means of discovery to a party opposing the motion," the ALJ may
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deny the motion. 29 C.F.R. § 18.40(d). Cf. Peckmann v.
Thompson, 966 F.2d at 298 (granting summary judgment without
permitting a reasonable opportunity to submit opposing
documentation deprives nonmovant of opportunity to be heard); 2A
James W. Moore et al., Moore's Federal Practice ¶
12.07 & n.29 (2d ed. 1995) (reasonable discovery should be
allowed; failure to permit such discovery usually treated as
reversible error). Therefore, each party shall be given an
appropriate opportunity to submit evidence in support of its
position. Relevant discovery should be allowed. Accordingly,
this case IS REMANDED for proceedings consistent with this
decision.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
Once subject matter jurisdiction is challenged under Rule
12(b)(1), the burden to establish jurisdiction rests on the party
asserting jurisdiction. A Rule 12(b)(1) dismissal is not on the
merits and is not accorded res judicata effect. 2A James
W. Moore et al., Moore's Federal Practice ¶ 12.07 (2d
ed. 1995).
[2]
Under Rule 12(b)(6), all of a plaintiff's factual allegations
are presumed to be true, and all reasonable inferences are made
in favor of the non-moving party. Kowal v. MCI Communications
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). A Rule 12(b)(6)
dismissal is on the merits and is accorded res judicata
effect.
[3]
In contrast, a factual attack under Rule 12(b)(1) is not
converted into a Rule 12(b)(6) motion or a Rule 56 summary
judgment motion where the jurisdictional issue is not intertwined
with the merits of a plaintiff's case, e.g., where the
defendant government's immunity from suit under the Flood Control
Act (jurisdictional issue) did not depend on plaintiff's
substantive claim under the Federal Tort Claims Act (merits
issue). Holt v. United States, 46 F.3d at 1003.
[4]
Respondent's motion thus was properly filed under Rule
12(h)(2) and 12(c) as a motion for judgment on the pleadings
despite the fact that it constituted the second or third Rule 12
motion filed by Respondent in the case. See Rule 12(g).
For purposes of these judgments, all well-pleaded allegations of
the
non-moving party's pleading are presumed true, and all
allegations of the moving party which have been denied are
presumed false. A court may grant judgment on the pleadings only
if the moving party is clearly entitled to judgment. 2A James W.
Moore et al., Moore's Federal Practice ¶ 12.15 (2d
ed. 1995).
[5]
In Reid, slip op. at 20-22, I disposed of the
employment status issue under Rule 12(b)(1), treating
Respondents' motion as a factual attack on subject matter
jurisdiction. In retrospect, consideration of the merits under
Rule 12(b)(6) and Rule 56 would have been more appropriate.
However, as noted in footnote 22, slip op. at 20, the outcome in
Reid would have been the same if the issue had been
analyzed under the summary decision rules.
[6]
The Reid criteria, slip op. at 13, adopted from
Nationwide Mut. Ins. Co. v. Darden, 112 S.Ct. 1344, 1348
(1992), are illustrative only. Respondent has not even
mentioned, much less explored, several of these criteria, and the
pertinent employment contracts have not been produced.
Furthermore, although the scant record suggests that, at least in
terms of duties, elements of a shared or co-employment
relationship may exist, Respondent's affidavits, particularly
that of David R. White, are not forthcoming on this point.
