                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 13 2009

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

KENNETH ROBINSON; TONY
HAWKINS; RUDY JACKSON; PERCY
MCINTOSH; RICK SPIGHT; NICOLE                              No. 08-16396
WILLIAMS; NORMAN ALSTON,
                                                 D.C. No. 1:05-cv-01258-LJO-GSA
             Plaintiffs-Appellants
                                                        MEMORANDUM*
and

TYRONE WATSON,

             Plaintiff,

v.

TIMOTHY F. GEITHNER, Secretary of
the United States Department of Treasury;
INTERNAL REVENUE SERVICE,

             Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Eastern District of California
                  Lawrence J. O' Neill, District Judge, Presiding

                      Argued and Submitted October 7, 2009
                            San Francisco, California

_____________________

      *      This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SCHROEDER and BERZON, Circuit Judges, and STROM,** District
Judge.

             This is an action under Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e, et seq., brought by current and former employees of the Internal

Revenue Service (“IRS”). Plaintiffs-appellants (collectively, “appellants”),

Kenneth Robinson, Tony Hawkins, Rudy Jackson, Percy McIntosh, Rick Spight,

Nicole Williams, and Norman Alston, appeal the district court’s order dismissing

their claims in the second amended complaint with prejudice under Federal Rule of

Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. The district court

found all of appellants’ claims were either unexhausted, time-barred, or barred by

arbitration election. We AFFIRM in part and REVERSE in part.

I. Subject Matter Jurisdiction

             We review de novo the district court’s dismissal for lack of subject

matter jurisdiction. See Sommatino v. United States, 255 F.3d 704, 707 (9th Cir.

2001). When considering a factual challenge to subject matter jurisdiction, a court

may rely on evidence extrinsic to the pleadings and is not required to presume the



_____________________

      **      The Honorable Lyle E. Strom, Senior United States District Judge for
the District of Nebraska, sitting by designation.


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truthfulness of the complaint’s allegations. See White v. Lee, 227 F.3d 1214, 1242

(9th Cir. 2000). In this case, appellants bear the burden of proving that subject

matter jurisdiction exists. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

375, 377 (1994).

             “To establish federal subject matter jurisdiction, a plaintiff is required

to exhaust his or her administrative remedies before seeking adjudication of a Title

VII claim.” Lyons v. England, 307 F.3d 1092, 1103 (9th Cir. 2002). In order to

exhaust administrative remedies, federal employees, such as the appellants, must

first consult with an Equal Employment Opportunity (“EEO”) counselor within 45

days of the alleged discriminatory matter, and if the matter is not resolved, file a

formal administrative complaint with the agency that allegedly discriminated

against them within 15 days of receiving notice from the EEO counselor. 29

C.F.R. § 1614.105(a), (d); 29 C.F.R. § 1614.106(a), (b).

             An employee may file a civil action: (1) within 90 days of receipt of

notice of final action taken by the agency, or by the Equal Employment

Opportunity Commission (“EEOC”), if the agency’s decision is appealed to the

EEOC, or (2) after 180 days from the date of filing the administrative complaint if

an appeal has not been filed and final action has not been taken, or after 180 days

from the date of filing an appeal with the EEOC if there has been no final decision


                                          -3-
by the EEOC. 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407. The permissible

scope of a Title VII civil action is limited to the scope of the administrative

complaint and the EEOC investigation. See B.K.B. v. Maui Police Dep’t, 276 F.3d

1091, 1100 (9th Cir. 2002). Incidents of discrimination not alleged in the

administrative complaint may not be considered by a federal court, unless the new

claims are “like or reasonably related” to those alleged in the administrative

complaint, or “fell within the scope of the EEOC's actual investigation or an EEOC

investigation which can reasonably be expected to grow out of the [administrative]

charge of discrimination.” Id. (citations and emphasis omitted). Language in an

administrative complaint must be construed liberally when determining whether

allegations in the civil complaint are exhausted. Id. However, “discrete

discriminatory acts are not actionable if time barred, even when they are related to

acts alleged in timely filed charges.” Nat'l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 113 (2002).

             With these principles in mind, we consider the specific claims asserted

by each appellant, and whether the district court properly dismissed the claims for

lack of subject matter jurisdiction.




                                          -4-
             Alston concedes that he has not filed an administrative complaint. As

such, the district court properly dismissed Alston’s claims for lack of subject

matter jurisdiction.

             Each of the remaining appellants has filed at least one administrative

complaint, and therefore, the Court must determine whether claims in the second

amended complaint are within the scope of the administrative complaints and are

otherwise properly exhausted and timely asserted. The administrative complaints

are not in the record, but appellants stipulated during oral argument that we may

rely on the agency’s descriptions of the administrative complaints, which are in the

record, as the basis for our review.

             The district court properly dismissed all of the claims of Hawkins,

Spight, and Williams because these appellants failed to establish that their claims

are within the scope of any administrative complaints. Hawkins argues the claims

in paragraph 97 of the second amended complaint are within the scope of claims

asserted in administrative complaint Case No. TD 00-4202T; however, the claims

in paragraph 97 and the claims in the administrative complaint appear to involve

different incidents that occurred during different time periods, and Hawkins has

not sufficiently shown that the two sets of claims are reasonably related. Hawkins

also failed to show that any of his remaining claims were timely exhausted.


                                         -5-
Similarly, the record does not sufficiently support a finding that Spight’s or

Williams’ claims are within the scope of administrative complaints in the record.

Accordingly, the district court did not err when it dismissed the claims of Hawkins,

Spight, and Williams for lack of subject matter jurisdiction.

             With regard to Robinson, Jackson, and McIntosh, they have

sufficiently established federal subject matter jurisdiction over some of their

claims. Specifically, the record before the Court sufficiently supports the

following: the claims in paragraph 25 of the second amended complaint are within

the scope of administrative complaint Case No. TD 03-4024T and were timely

asserted; the claims in paragraphs 38 and 39 of the second amended complaint are

within the scope of administrative complaint Case No. TD 01-4145T and were

timely asserted; and the claims in paragraph 69 of the second amended complaint

are within the scope of administrative complaint Case No. TD 03-4154T and were

timely asserted.1 The district court erred when it dismissed Robinson’s claims in

paragraph 25, McIntosh’s claims in paragraphs 38 and 39, and Jackson’s claims in

paragraph 69 of the second amended complaint.


      1
         Discovery may reveal that the discriminatory conduct alleged in paragraphs
25, 38, 39, and 69 of the second amended complaint is different than the
discriminatory conduct alleged in the respective administrative complaints, and the
district court may find after a more developed record that it does not have
jurisdiction over the allegations in one or more of those paragraphs.
                                         -6-
             The district court properly dismissed the remainder of Robinson’s,

Jackson’s, and McIntosh’s claims. Jackson specifically challenges the dismissal of

claims in paragraphs 64-68 of the second amended complaint, but the record

indicates the claims were not timely asserted, and Jackson has failed to show that

the claims are actionable and not time-barred. McIntosh specifically challenges the

dismissal of the claims in paragraph 42 of the second amended complaint;

however, he has failed to sufficiently show that claims in paragraph 42 are within

the scope of the administrative complaints in the record. Robinson, Jackson, and

McIntosh do not meaningfully challenge the dismissal of their remaining claims,

and the record supports a finding that the remaining claims are either unexhausted,

barred by arbitration election, or time-barred. The district court did not err when it

dismissed all of Robinson’s, Jackson’s, and McIntosh’s claims, except those claims

contained in paragraphs 25, 38, 39, and 69 of the second amended complaint.

II. Leave to Amend the Second Amended Complaint

             Having found the district court properly dismissed several claims, we

must next determine whether the district court properly dismissed the claims with

prejudice, or whether the district court should have sua sponte granted appellants

leave to amend the second amended complaint. The district court found the

jurisdictional defects could not be cured by amendment. We review de novo


                                          -7-
whether leave to amend would be futile. See Zucco Partners, LLC v. Digimarc

Corp., 552 F.3d 981, 1007 (9th Cir. 2009).

             In the case of Alston, it is clear that any amendment would be futile

because he has not filed an administrative complaint covering claims in the second

amended complaint. With regard to the remaining appellants, amendment would

similarly be futile. To the extent Robinson, Hawkins, Jackson, McIntosh, Spight,

and Williams failed to assert claims in this action that were asserted in prior

administrative complaints, the record before the Court establishes that such claims

are now time-barred because the time for filing a judicial action regarding those

claims has expired. As to those claims that were properly dismissed by the district

court, we affirm its decision to dismiss the claims with prejudice.

             Based on the foregoing, the district court’s dismissal of claims

contained in paragraphs 25, 38, 39, and 69 is reversed, and the district court’s order

dismissing appellants’ claims is affirmed in all other respects.

             AFFIRMED in part, REVERSED in part; each party shall bear its

own costs.




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