Stuker v. United States Department of Labor

• Court: District Court, W.D. Washington
• Decided: February 3, 2025
• Docket: 2:24-cv-01772
• Status: Unknown

Opinion

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3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 MELISSA STUKER, CASE NO. 2:24-cv-1772-JNW 8 Petitioner, ORDER OF DISMISSAL 9 v. 10 UNITED STATES DEPARTMENT OF 11 LABOR,

12 Respondent. 13 1. INTRODUCTION 14 This matter comes before the Court on Defendant United States Department 15 of Labor’s (DOL) motion to dismiss Petitioner Melissa Stuker’s case. Dkt. No. 15. 16 Stuker’s filings are difficult to follow, but no matter how the Court construes them, 17 Stuker’s action cannot proceed—either because the Court lacks jurisdiction or 18 because Stuker fails to state a claim. Thus, the Court GRANTS DOL’s motion to 19 dismiss in part, and DISMISSES this case without prejudice and with leave to 20 amend. 21 22 23 1 2. BACKGROUND 2 On August 18, 2022, Stuker filed a complaint with the DOL’s Occupational

3 Safety and Health Administration (OSHA), Case No. 301024234, alleging that the 4 Boeing Company (“Boeing”) violated the employee protection provisions of the 5 Sarbanes Oxley Act, 18 U.S.C. § 1514A, 29 C.F.R. Part 1980. See In the matter of 6 Melissa Stuker v. The Boeing Co., No. 2024-SOX-00013, Order Vacating Hearing 7 and Staying Case, available at: https://oalj.dol.gov/DECISIONS/ALJ/SOX/2024/ 8 Stuker_v_THE_BOEING_COMPANY_2024SOX00013_(JUL_22_2024)_1

9 43759_HRGCL_PD.PDF.1 10 OSHA dismissed Stuker’s complaint and she appealed to the Office of 11 Administrative Law Judges, Case No. 2024-SOX-00013. See id. In July 2024, Stuker 12 filed a document titled, “Appeal & Objections Federal United States District Court 13 5th and 9th,” which the Administrative Law Judge (ALJ) construed as Stuker 14 “exercising her statutory right to ‘bring[] an action at law or equity for de novo 15 review in the appropriate district court of the United States[,]” citing 18 U.S.C. §

16 1514A(b)(1)(B); 29 C.F.R. § 1980.114. Id. The ALJ stayed the appeal and ordered 17 Stuker to file her complaint with this District within 30 days. Id. 18 1 The Court takes judicial notice of In the matter of Melissa Stuker v. The Boeing 19 Co., No. 2024-SOX-00013, Order Vacating Hearing and Staying Case, available at: https://oalj.dol.gov/DECISIONS/ALJ/SOX/2024/Stuker_v_THE_BOEING_COMPAN 20 Y_2024SOX00013_(JUL_22_2024)_143759_HRGCL_PD.PDF. Under Rule 201(b), courts may take judicial notice of a fact that is not subject to reasonable dispute 21 when it “can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.” Fed. R. Evid. 201(b)(2). Judicial notice may be 22 taken “of court filings and other matters of public record.” Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). 23 1 Instead, Stuker filed several documents with the Ninth Circuit Court of 2 Appeals in September 2024. Stuker v. United States Dep’t of Lab., No. 24-5186 (9th

3 Cir. 2024). Around a month later, in October 2024, the Ninth Circuit transferred 4 Stuker’s filings to this Court. Dkt. No. 1. Stuker styles her filings as a “motion for 5 injunctive relief from sophisticate[d] parties,” “motions for emergency injunctive 6 relief,” “motion for appointment of counsel,” “motion of continuance and review,” 7 and “motion for de novo review.” Dkt. Nos. 2, 3, 4, 5, 10, 14. Stuker names DOL as 8 the sole Defendant.

9 Stuker’s filings are difficult to follow, but most important for the Court’s 10 analysis here, Stuker states that she is a IAM751 union member and “SOX 11 Whistleblower[.]” Dkt. No. 2 at 2. She fears “being attacked, called names, and 12 . . . [o]uted without [her] [c]onsent[.]” Id. Stuker asks that the Court to appoint pro 13 bono counsel, and provide the contact information for the DOL, the Department of 14 Justice, Boeing, and the Fifth Circuit Court of Appeals. Dkt. No. 4 at 1. Stuker does 15 not state any legal claims against DOL.

16 3. DISCUSSION 17 3.1 Legal standards. 18 3.1.1 Rule 12(b)(1). 19 The Court must dismiss a complaint under Rule 12(b)(1) if it lacks subject 20 matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) jurisdictional attack 21 may be facial, in which the defendant asserts the allegations within the complaint 22 are not enough on their face to invoke federal jurisdiction, or factual, in which the 23 1 defendant disputes the truth of the factual claims. Safe Air for Everyone v. Meyer, 2 373 F.3d 1035, 1039 (9th Cir. 2004). The court “resolves a facial attack as it would a

3 motion to dismiss under Rule 12(b)(6): Accepting the plaintiff’s allegations as true 4 and drawing all reasonable inferences in the plaintiff’s favor, the court determines 5 whether the allegations are sufficient as a legal matter to invoke the court's 6 jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). In a factual 7 attack, however, “[t]he court need not presume the truthfulness of the plaintiff’s 8 allegations,” and it may “review evidence beyond the complaint without converting

9 the motion to dismiss into a motion for summary judgment.” Safe Air, 373 F.3d at 10 1039. 11 3.1.2 Rule 12(b)(6). 12 The Court will grant a Rule 12(b)(6) motion to dismiss only if the complaint 13 fails to allege “enough facts to state a claim to relief that is plausible on its face.” 14 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility 15 when the plaintiff pleads factual content that allows the court to draw the 16 reasonable inference that the defendant is liable for the misconduct alleged.” 17 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). The plausibility 18 standard is less than probability, “but it asks for more than a sheer possibility” that 19 a defendant did something wrong. Id. (citations omitted). “Where a complaint 20 pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of 21 the line between possibility and plausibility of ‘entitlement to relief.’” Id. (quoting 22 Twombly, 550 U.S. at 557). In other words, a plaintiff must have pled “more than an 23 1 unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. When considering 2 a motion to dismiss, the Court accepts factual allegations pled in the complaint as

3 true and construes them in the light most favorable to the plaintiff. Lund v. Cowan, 4 5 F.4th 964, 968 (9th Cir. 2021). But courts “do not assume the truth of legal 5 conclusions merely because they are cast in the form of factual allegations.” Fayer v. 6 Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (citations omitted). Thus, “conclusory 7 allegations of law and unwarranted inferences are insufficient to defeat a motion to 8 dismiss.” Id. (internal quotation marks omitted).

9 Pro se pleadings, such as the complaint here, are to be liberally construed on 10 a motion to dismiss. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (while 11 Twombly-Iqbal imposed a “higher” plausibility standard, they did not alter courts’ 12 obligation to construe pro se complaints “liberally when evaluating them under 13 Iqbal”). 14 3.1.3 Sarbanes-Oxley § 806, 18 U.S.C. § 1514A. 15 “Congress enacted the Sarbanes-Oxley Act of 2002, . . . to ‘safeguard investors 16 in public companies and restore trust in the financial markets[.]’” Erhart v. BofI 17 Holding, Inc., 612 F. Supp. 3d 1062, 1082 (S.D. Cal. 2020) (quoting Lawson v. FMR 18 LLC, 571 U.S. 429, 432 (2014)). Accordingly, Section 806 of Sarbanes-Oxley 19 established whistleblower protections for employees of publicly traded companies 20 who report information they reasonably believe violates certain federal laws 21 relating to fraud enumerated in the statute. 18 U.S.C. § 1514A(a). 22 23 1 “To pursue a Sarbanes-Oxley whistleblower retaliation claim, a plaintiff must 2 first initiate an administrative action by filing a complaint with the Secretary of

3 Labor[,]” specifically, through OSHA. Erhart, 612 F. Supp. 3d at 1083 (citing 18 4 U.S.C. § 1514A(b)(1)(A)); see also 29 C.F.R. § 1980.103. OSHA then investigates the 5 complaint and determines whether there is reasonable cause to believe that the 6 accused company retaliated against the employee. 29 C.F.R. § 1980.104. If the 7 employee disagrees with OSHA’s determination, they may appeal to an ALJ. 29 8 C.F.R. § 1980.106(a). From there, if the employee receives an adverse ruling from

9 the ALJ, they may appeal to the DOL’s Administrative Review Board, which has 10 discretion to accept or decline review of the case. 29 C.F.R. § 1980.110(a)-(b). After 11 the employee exhausts these administrative avenues, they can seek review by the 12 local court of appeal under the Administrative Procedure Act. 29 C.F.R. 13 § 1980.112(a)-(b). 14 Alternatively, “if the Secretary [of Labor] has not issued a final decision 15 within 180 days of the filing of a complaint and there is no showing that such delay

16 is due to the bad faith of the claimant,” the employee-claimant can abandon the 17 administrative proceeding and bring “an action . . . for de novo review in the 18 appropriate district court of the United States[.]” 18 U.S.C. § 1541A(b)(1)(B). In 19 these cases, the employee must sue their employee. The district court then 20 adjudicates the whistleblower claim rather than the agency. 21

22 23 1 3.2 Stuker fails to state a claim against DOL and, if she seeks review of DOL’s handling of her administrative case, this Court lacks 2 jurisdiction to consider her petition for review. In its motion to dismiss, DOL asks the Court to construe Stuker’s filings as 3 either an attempt to seek review of the agency’s action or to exercise her statutory 4 right to bring a whistleblower claim in district court under 18 U.S.C. 5 § 1541A(b)(1)(B), either of which—according to DOL—should be dismissed. The 6 Court agrees. 7 DOL argues that no court has jurisdiction over Stuker’s case because she 8 seeks review of a non-final agency action, i.e., the ALJ’s order staying the case. This 9 Court need not decide whether DOL’s action is final for the purposes of judicial 10 review because, either way, Stuker must file with the Ninth Circuit, not the district 11 court. 29 C.F.R. § 1980.112(a)-(b). Stuker already attempted to do just that, and the 12 Ninth Circuit transferred her case here. Accordingly, a better interpretation of 13 Stuker’s filings is that she intends to exercise her right to abandon her 14 administrative case and proceed in this Court. 15 Stuker fails to name the correct defendant—she sues DOL, but fails to state a 16 claim against DOL or name some other proper defendant. Therefore, the Court 17 must dismiss Stuker’s filings for failing to state a claim. 18 19 3.3 Leave to amend is granted. 20 Ordinarily, when a court dismisses a pro se plaintiff’s complaint for failure to 21 state a claim, it must grant leave to amend even when no request to amend is made. 22 Yagman v. Garcetti, 852 F.3d 966, 976 (9th Cir. 2022). But “[a]n action may be 23 1 dismissed for lack of subject matter jurisdiction, without leave to amend, when it is 2 clear the jurisdiction deficiency cannot be cured by amendment.” Johnson v. Biden,

3 No. C21-466 MJP, 2021 WL 1894012, at *1 (W.D. Wash. May 11, 2021) (quoting 4 May Dep’t Store v. Graphic Process Co., 637 F.2d 1211, 1216 (9th Cir. 1980)). And 5 leave to amend may be denied where amendment would be futile. Flowers v. First 6 Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002). The Court concludes that leave 7 to amend to name the proper Defendant is warranted here. Stuker must file an 8 amended complaint by no later than 21 days from the date of this order.

9 Because it is unclear from Stuker’s filings what injunctive relief she seeks 10 from the Court, it denies her motions at Dkt. Nos. 2, 3, 4. Further, because Stuker 11 shows neither that she is financially eligible nor that she is likely to succeed on the 12 merits, the Court denies her requests for pro bono counsel, Dkt. No. 5. Webb v. 13 NaphCare, Inc., No. 3:21-CV-05761-TL, 2022 WL 16744509, at *1 (W.D. Wash. Nov. 14 7, 2022) (citing Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991)) (“[In 15 assessing a motion for pro bono counsel], the Court must evaluate . . . the likelihood

16 of success on the merits[.]”); General Order No. 07-23, § 3(b) (“A completed copy of a 17 declaration stating the movant cannot afford to hire an attorney shall be attached to 18 the motion [for pro bono counsel].”) Finally, the Court denies Stuker’s remaining 19 motions, Dkt. Nos. 10 and 14, as moot. 20 3.4 Stuker’s has not paid the filing fee or moved to proceed in forma pauperis. 21 Stuker has neither paid the filing fee nor moved to proceed in forma pauperis. 22 “A party must pay the Civil Filing Fee when it files . . . any civil action except for 23 1 proceedings in forma pauperis under LCR 3(c) or as otherwise exempted by law.” 2 LCR 3(b); see also 28 U.S.C. § 1914(a). An action may proceed without the

3 immediate payment of a filing fee only for parties proceeding in forma pauperis 4 (IFP). See 28 U.S.C. § 1915. Absent IFP status, failure to pay the filing fee results in 5 dismissal without prejudice. See Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 6 1995). Accordingly, in addition to naming the correct defendant or stating a claim 7 against DOL, Stuker must pay the filing fee or request for to procced IFP, if she 8 files an amended complaint.

9 4. CONCLUSION 10 In sum, the Court GRANTS DOL’s motion to dismiss in part and DISMISSES 11 this case without prejudice. 12 • Stuker must file an amended complaint naming the proper defendant, 13 or stating a claim against DOL, and must pay the filing fee or move to 14 proceed in forma pauperis, by no later than 21 days from the date of 15 this Order.

16 • The Court DENIES Stuker’s remaining motions at Dkt. Nos. 2, 3, 4, 5, 17 10, and 14. 18 Dated this 3rd day of February, 2025. 19 A 20 Jamal N. Whitehead 21 United States District Judge 22 23