Burkhart v. Chertoff et al, No. 2:2006cv00690 - Document 53 (M.D. Fla. 2009)
Court Description: OPINION AND ORDER granting 38 Motion to dismiss individually named defendants and agencies. The individually named defendants and the Transportation Security Administration are dismissed and shall be terminated on the docket. The case shall remain pending against "Michael Chertoff, Secretary of the Department of Homeland Security" only. Signed by Judge John E. Steele on 1/5/2009. (RKM)
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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION WILLIAM J. BURKHART, Plaintiff, vs. Case No. 2:06-cv-690-FtM-99DNF MICHAEL CHERTOFF, TRANSPORTATION SECURITY ADMINISTRATION, ROBERT COHEN, WILLIAM INTIHAR, DAVID DEYO, KEITH HOLMAN, ELAINE CHARNEY AND WILLIAM BARNES, Defendants. ___________________________________ OPINION AND ORDER This matter comes before the Court on defendants Motion to Dismiss Individually Named Defendants and Agencies in the Amended Complaint (Doc. #38) filed on May 2, 2008. Plaintiff filed an Opposition (Doc. #40) on June 9, 2008. Defendants argue that the only proper defendant is the head of the agency or department, i.e., Secretary Michael Chertoff, and the remaining defendants should be dismissed. Plaintiff responds that he was a private employee for some periods and the Transportation Security Administration was organized under law and run as a private company. Rule (Doc. #40, p. 3.) 12(b)(1) motions challenging the subject matter jurisdiction of the court come in two forms, a facial attack motion and a factual attack motion. Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003). subject matter jurisdiction based A facial attack challenges on the allegations in the complaint, and the court takes the allegations in the complaint as true in deciding the motion. Id. at 924 n.5. The complaint may be dismissed for a facial lack of standing only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Jackson v. Okaloosa County, 21 F.3d 1531, 1536 n.5 (11th Cir. 1994)(citation omitted). Plaintiff alleges, in the First Amended Complaint (Doc. #27), that he is a 64 year old male who was employed as a Screening Manager at the Southwest Florida International September 2002 through November 2005. Airport (Doc. #27, ¶¶ 8, 12.) from From the commencement of [his] employment with Defendants through his termination, management. plaintiff reported (Id. at ¶ 13.) unwelcome discrimination to The specific allegations giving rise to plaintiff s claims appear to commence on or about September 2003; however, the Court will take all allegations as true for purposes of this motion and assume the relevant conduct by defendants occurred [f]rom the commencement of his employment. On November 19, 2001, the Aviation and Transportation Security Act1 established the Transportation Security Administration (TSA) 1 Aviation and Transportation Security Act (ATSA), Pub. L. No. 107-71, 115 Stat. 597 (2001)(current version at 49 U.S.C. § 40101, et seq.). -2- as an administration under the Department of Transportation (DOT). Effective February 17, 20022, civil aviation security functions and responsibilities were officially transferred from the Federal Aviation Administration (FAA) to the TSA with the goal that all airport security screeners would be federalized, i.e. TSA federal employees, by November 19, 2002. See Assumption of Civil Aviation Security Functions and Responsibilities, 67 Fed. Reg. 7,939-7,940 (Feb. 20, 2002); Civil Aviation Security Rules, 67 Fed. Reg. 8,3408,341 (Feb. 22, 2002). On November 25, 2002, the Homeland Security Act of 20023 moved the TSA under the purview of established Department of Homeland Security (DHS). the newly Therefore, plaintiff s employer was a governmental agency at all relevant times. Under 42 U.S.C. § 2000e-16(c), a civil action by an employee for discrimination based on race, color, religion, sex, or national origin may be brought naming as defendant department, agency, or unit, as appropriate. v. Department of Interior, 896 F.2d the head of the See, e.g., Barsten 422, 423 (9th Cir. 1990)(finding that the Secretary and not the Department should have been named); Campbell v. Department of Navy, 894 F.2d 401 (4th Cir. 2 The Court notes, although argued to the contrary by plaintiff, that the First Amended Complaint does not allege that plaintiff was a private employee under a private contractor at any relevant time or by any of the agencies. 3 Homeland Security Act of 2002 (HSA), Pub. L. No. 107-296, 116 Stat. 2135 (2002). -3- 1990)(same). Upon review, the Court finds that the proper party in this case would be Secretary Chertoff, Department of Homeland Security.4 Accordingly, it is now ORDERED: Defendants Motion to Dismiss Individually Named Defendants and Agencies in the Amended Complaint (Doc. #38) is GRANTED as follows: a. The individually named defendants and the Transportation Security Administration are dismissed and shall be terminated on the docket; and b. The case shall remain pending against Michael Chertoff, Secretary of the Department of Homeland Security only. DONE AND ORDERED at Fort Myers, Florida, this 5th day of January, 2009. Copies: Counsel of record 4 Although Secretary Peters, Department of Transportation, might also be a proper party to this action, the Secretary was not named in the original or First Amended Complaint and therefore has not received notice of this case. -4-
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