                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
YANELLE STRONG-FISHER,        )
                              )
          Plaintiff,          )
                              )
          v.                  )      Civil Action No. 07-265 (RWR)
                              )
RAY LAHOOD,                   )
                              )
          Defendant.          )
______________________________)


                         MEMORANDUM OPINION

     Plaintiff Yanelle Strong-Fisher brings this suit against the

Secretary of the Department of Transportation (“DOT”)1 alleging

that she was subject to employment discrimination, retaliation,

and a hostile work environment in violation of 42 U.S.C. § 1981

while employed within the Federal Aviation Administration, a

division of the DOT.    After the Secretary failed to answer or

respond to Strong-Fisher’s amended complaint, Strong-Fisher

secured an entry of default against the Secretary and has moved

for default judgment.    The Secretary has moved to set aside the

clerk’s entry of default under Federal Rule of Civil Procedure

55(c) and to dismiss the complaint under Rules 12(b)(1) and

12(b)(6) for lack of subject matter jurisdiction and failure to

state a claim upon which relief can be granted.     Because the



     1
     Ray LaHood is substituted for Mary E. Peters under Federal
Rule of Civil Procedure 25(d).
                                -2-
Secretary has shown good cause to set aside the entry of default

and because the United States has not waived its sovereign

immunity under 42 U.S.C. § 1981, the Secretary’s motion to set

aside entry of default and to dismiss the complaint will be

granted and Strong-Fischer’s motion for default judgment will be

denied as moot.

                            BACKGROUND

     In her original complaint, Strong-Fisher brought claims

against the Secretary under both Title VII of the Civil Rights

Act of 1964 and 42 U.S.C. § 1981 alleging that she was subjected

to racial and sexual discrimination, retaliation, and a hostile

work environment.   The Secretary moved to dismiss the claims

under both statutes arguing that Strong-Fischer’s claims were

untimely and that Strong-Fischer failed to timely serve process.

The Secretary’s motion was treated as one for summary judgment,

and judgment was entered for the Secretary on Strong-Fisher’s

Title VII claims because they were barred by the ninety-day

filing deadline and equitable tolling was not warranted.   See

Strong-Fisher v. Peters, 554 F. Supp. 2d 19, 25 (D.D.C. 2008).

Strong-Fisher’s § 1981 claims were not dismissed, however,

because she properly served the Secretary with a copy of the

complaint within the extended time afforded her.   See id. at 26.

Strong-Fisher later filed an amended complaint bringing official

capacity claims against the Secretary solely under § 1981.    The
                                   -3-
Secretary failed to file a response within the time allowed under

Rule 15(a)(3), and Strong-Fisher secured entry of default.

     The Secretary has moved under Rules 55(c), 12(b)(1), and

12(b)(6) to set aside the default and to dismiss the complaint,

arguing that the United States has not waived its sovereign

immunity under 42 U.S.C. § 1981, and, as result, Strong-Fisher

has failed to state a claim upon which relief can be granted.

Strong-Fisher has filed a motion for default judgment, contending

that default judgment should be granted in this case because the

Secretary deliberately failed to respond to her amended

complaint.

                             DISCUSSION

I.   MOTION TO SET ASIDE ENTRY OF DEFAULT

     A court can set aside a default under Rule 55(c) “for good

cause.”   Fed. R. Civ. P. 55(c).    Default judgments are generally

disfavored by courts “perhaps because it seems inherently unfair

to use the court’s power to enter and enforce judgments as a

penalty for delays in filing.”     Jackson v. Beech, 636 F.2d 831,

835 (D.C. Cir. 1980); see Webb v. District of Columbia, 146 F.3d

964, 971 (D.C. Cir. 1998) (“[A] default judgment must be a

sanction of last resort to be used only when less onerous methods

. . . will be ineffective or obviously futile.” (internal

quotation marks omitted)).   Thus, while a trial court has

discretion whether to set aside an entry of default, “there is a
                                -4-
strong policy favoring the adjudication of a case on its

merits[.]”   Baade v. Price, 175 F.R.D. 403, 405 (D.D.C. 1997).     A

court should consider three factors when determining whether to

set aside an entry of default: “‘whether (1) the default was

willful, (2) a set-aside would prejudice the plaintiff, and (3)

the alleged defense was meritorious.’”   Jackson, 636 F.2d at 836

(quoting Keegel v. Key West & Caribbean Trading Co., 627 F.2d

372, 374 (D.C. Cir. 1980)); see Canales v. A.H.R.E., Inc., 254

F.R.D. 1, 8-12 (D.D.C. 2008) (applying the Jackson three-factor

test); Baade, 175 F.R.D. at 405-06.

     Regarding the first factor, “‘the boundary of willfulness

lies somewhere between a case involving a negligent filing error,

which is normally considered an excusable failure to respond, and

a deliberate decision to default, which is generally not

excusable.’”   Canales, 254 F.R.D. at 8 (quoting Int’l Painters &

Allied Trades Union & Industry Pension Fund v. H.W. Ellis

Painting Co., 288 F. Supp. 2d 22, 26 (D.D.C. 2003)) (finding the

defendant’s conduct to be willful when it failed to respond to

the lawsuit for more than a year and three months after the

answer was due and failed to respond for more than eight months

after default judgment was ordered).   Strong-Fischer contends

that the Secretary’s default was willful because the Secretary

repeatedly missed filing deadlines, despite notice from the court

that failure to timely respond could result in default.    (Pl.’s
                                -5-
Opp’n at 2-3.)   Specifically, the Secretary failed to answer the

plaintiff’s original complaint within the time permitted by Rule

12 after the Secretary’s motion to dismiss was denied, even after

a show cause order was issued suggesting that Strong-Fischer

could seek entry of default, and the Secretary later failed to

timely respond to Strong-Fischer’s amended complaint.     In light

of the Secretary’s repeated failures to timely participate in

this action, Strong-Fischer arguably has made a colorable showing

that the Secretary’s default was willful, rather than the result

of excusable neglect.

     However, regarding the prejudice factor, “‘[d]elay in and of

itself does not constitute prejudice[.]’”     Capital Yacht Club v.

Vessel AVIVA, 228 F.R.D. 389, 393-94 (D.D.C. 2005) (quoting KPS &

Assocs., Inc. v. Designs by FMC, Inc., 318 F.3d 1, 15 (1st Cir.

2003)).   “The issue is not mere delay, but rather its

accompanying dangers: loss of evidence, increased difficulties of

discovery, or an enhanced opportunity for fraud or collusion.”

KPS & Assocs., 318 F.3d at 15 (internal quotation marks omitted).

Strong-Fisher has made no showing that the Secretary’s delay in

responding to her amended complaint has created any of these

dangers that might have an impact upon her ability to

successfully prosecute her claim.     Because Strong-Fischer has

shown only mere delay, without more, setting aside entry of

default would not prejudice her.
                                -6-
     In addition, the Secretary has raised a meritorious defense

that favors setting aside the entry of default.   See Jackson, 636

F.2d at 836; Canales, 254 F.R.D. at 11 (requiring that the

asserted defense be one that “may be proven at trial,” but not

mandating that the defendant prove the defense in a motion to set

aside default).   The Secretary asserts that the court lacks

subject matter jurisdiction over Strong-Fischer’s § 1981 claims

because the United States has not waived its sovereign immunity

under 42 U.S.C. § 1981.   For the reasons discussed below, this

defense is meritorious.   On balance, although Strong-Fischer has

made some showing regarding willfulness, but there has been no

prejudice caused by the Secretary’s delay in responding to the

amended complaint and the Secretary has raised a meritorious

defense, he has shown good cause to set aside entry of default.

Thus, his motion to set aside entry of default will be granted,

and Strong-Fisher’s motion for default judgment will be denied as

moot.2




     2
     In the alternative, Strong-Fischer’s motion for default
judgment must be denied because default judgment is barred by
Rule 55(d), which states that “default judgment may be entered
against the United States, its officers, or its agencies only if
the claimant establishes a claim or right to relief by evidence
that satisfies the court.” Fed. R. Civ. P. 55(d); see also O-J-R
v. Ashcroft, 216 F.R.D. 150, 152 (D.D.C. 2003). For the reasons
discussed below, Strong-Fischer has not established, and cannot
establish, that the court has subject matter jurisdiction over
her claims, and thus has failed to carry her burden under Rule
55(d).
                                  -7-
II.   MOTION TO DISMISS

      The Secretary argues that Strong-Fischer’s claims must be

dismissed under Rule 12(b)(1) for lack of subject matter

jurisdiction because the government has not waived sovereign

immunity under § 1981 or otherwise consented to suit.    A

plaintiff bears the burden of establishing a court’s subject

matter jurisdiction.   See Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 103 (1998) (“The party invoking federal

jurisdiction bears the burden of establishing its existence.”).

      “[T]he United States, as sovereign, is immune from suit save

as it consents to be sued . . . , and the terms of its consent to

be sued in any court define that court’s jurisdiction to

entertain the suit.”   United States v. Mitchell, 445 U.S. 535,

538 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 586

(1941)).   A court cannot infer a waiver of sovereign immunity; it

“‘must be unequivocally expressed.’”    Id. (quoting United States

v. King, 395 U.S. 1, 4 (1969)).    A suit against a government

official in his official capacity is a suit against the United

States if “‘the judgment sought would expend itself on the public

treasury or domain, or interfere with the public

administration.’”   Galvan v. Fed. Prison Indus., Inc., 199 F.3d

461, 463 (D.C. Cir. 1999) (quoting Dugan v. Rank, 372 U.S. 609,

620 (1963)).   Because Strong-Fischer’s amended complaint seeks

damages from the Secretary that would be paid from the public
                                -8-
treasury, her suit must be construed as a suit against the United

States.   Strong-Fischer, then, bears the burden of establishing

that the United States has waived its sovereign immunity under 42

U.S.C. § 1981.

     In Brown v. General Services Administration, 425 U.S. 820

(1976), the Supreme Court concluded that Title VII of the Civil

Rights Act of 1964 “provides the exclusive judicial remedy for

claims of discrimination in federal employment.”   Id. at 835; see

Williams v. Bentsen, No. 93-5192, 1993 WL 469110 at *1 (D.C. Cir.

Nov. 5, 1993) (“[I]t is well established that Title VII provides

the exclusive judicial remedy for claims of discrimination in

federal employment.”).   Because Title VII provides an exclusive

remedy, claims covered by Title VII may not be brought under

other federal statutes, including 42 U.S.C. § 1981.   Kizas v.

Webster, 707 F.2d 524, 542 (D.C. Cir. 1983); Torre v. Barry, 661

F.2d 1371, 1374 (D.C. Cir. 1981) (“[A] federal employee who is

covered by section 717 [of Title VII] may not sue under section

1981 or the Fifth Amendment.”); Prince v. Rice, 453 F. Supp. 2d

14, 25 (D.D.C. 2006) (noting that the court of appeals has

interpreted the Supreme Court’s ruling in Brown v. GSA to

preclude discrimination claims against the federal government

brought under § 1981).

     In addition, the plain language of § 1981 “support[s] the

conclusion that instrumentalities of the federal government may
                                  -9-
not be sued under § 1981.”   Prince, 453 F. Supp. 2d. at 26.

“Section 1981, by its terms, protects certain enumerated rights

‘against impairment by nongovernmental discrimination and

impairment under color of State law.’”     Id. at 25 (quoting 42

U.S.C. § 1981(c) (emphasis added)).     Because the language of

§ 1981(c) “simply ‘does not apply to actions taken under color of

federal law,’” it does not cover alleged actions of federal

officials acting in their official capacities.     Id. at 25

(emphasis added) (quoting Davis v. U.S. Dep’t of Justice, 204

F.3d 723, 725 (7th Cir. 2000) (per curiam)).     Further, because a

waiver of sovereign “cannot be implied but must be unequivocally

expressed,” King, 395 U.S. at 4, “[t]he absence of any language

in § 1981 indicating that the statute authorizes suits against

the federal government or its employees . . . demonstrates that

the United States has not waived its sovereign immunity” under

the statute.   Prince, 453 F. Supp. 2d at 26.    Thus, the United

States has not waived its immunity under § 1981, and the court

lacks jurisdiction over Strong-Fischer’s claims against the

Secretary brought under § 1981.    See Save Our Schools-S.E. & N.E.

v. D.C. Bd. of Educ., Civil Action No. 04-1500 (HHK), 2006 WL

1827654, at *6 (D.D.C. July 3, 2006) (finding that § 1981 did not

apply to the actions of the Secretary of Education acting under

federal law); Brown v. United States, 271 F. Supp. 2d 225, 229

(D.D.C. 2003) (maintaining that the plaintiff’s § 1981 claim
                               -10-
against the United States and USDA were barred because of the

absence of statutory language covering actions taken under

federal law); Williams v. Glickman, 936 F. Supp. 1, 5 (D.D.C.

1996) (dismissing the plaintiff’s claim against the Secretary of

Agriculture because of a failure to “allege impairment of rights

by nongovernmental discrimination or impairment under color of

state law”).   Since Strong-Fischer’s claims in her amended

complaint are brought solely under § 1981, the Secretary’s motion

to dismiss the amended complaint will be granted.

                            CONCLUSION

     Because the Secretary has established good cause to set

aside entry of default, the entry of default will be set aside

and Strong-Fischer’s motion for default judgment will be denied

as moot.   In addition, because the United States has not waived

its sovereign immunity under 42 U.S.C. § 1981, the Secretary’s

motion to dismiss the amended complaint will be granted.   A

final, appealable Order accompanies this Memorandum Opinion.

     SIGNED this 30th day of April, 2009.



                               ________/s/_________________
                               RICHARD W. ROBERTS
                               United States District Judge
