United States District Court, W.D. Washington, Seattle
Richard A. Jones, United States District Judge.
matter comes before the Court on Defendant The Boeing
Company's (“Boeing”) Motion to Dismiss. Dkt.
# 61. Plaintiff Michael Neely opposes the Motion. Dkt. # 63.
For the reasons set forth below, the Court GRANTS in
part and DENIES in part Defendant's Motion.
following is taken from Plaintiff's Second Amended
Complaint (“SAC”), which is assumed to be true
for the purposes of this motion to dismiss. Sanders v.
Brown, 504 F.3d 903, 910 (9th Cir. 2007).
is an aerospace engineer who began working at Boeing on May
1, 1995 as a member of the Space and Defense Business Unit.
Dkt. # 57 at ¶ 8. In 2014, Boeing assigned Plaintiff to
support the Commercial Business Unit by working on the Boeing
777x aircraft Electrical Load Management System
(“ELMS”). Id. at ¶ 11. While
working on his first assignment on the 777x ELMS, Plaintiff
alleges that he reported concerns related to Boeing's
failure to comply with U.S. Federal Aviation Administration
(“FAA”) safety regulations related to the
development of the ELMS. Id. at ¶¶ 17-20,
22, 26, 30-32. Plaintiff also alleges that from December 1,
2014 through all of 2015, Boeing continued its failure to
comply with company and program policies and procedures
governed by FAA regulations. Id. at ¶ 20.
Specifically, Plaintiff alleges that he reported that there
were safety issues impacting the ELMS being developed for the
777x aircraft because Boeing was attempting to use the ELMS
from a prior aircraft without properly updating it.
Id. at ¶ 17. These ELMS design requirements did
not meet FAA regulations. Id. at ¶ 18. Boeing
released these ELMS design requirements to its supplier and
then falsely reported completed scheduling milestones.
Id. at ¶ 20. Plaintiff also learned that Boeing
falsified entries in its internal risk management system to
prevent employees from reporting risk issues related to the
development of the 777x aircraft. Id. at ¶ 25.
In 2015, Boeing reported a twenty percent (20%) decrease in
earnings in its 10-K report to the SEC due to the increased
spending on the development of the 777x aircraft.
Id. at ¶ 26. Plaintiff contends that this
increased spending was due to Boeing's failure to adhere
to FAA regulations and its premature release of the ELMS
design requirements to its supplier, and that this
information was withheld from its stockholders. Id.
alleges that he made several complaints to Boeing. The first
was on June 30, 2015. Id. at ¶ 27. Plaintiff
alleged that Boeing was violating internal policies, as well
as the Age Discrimination in Employment Act, 29 U.S.C.
§621, et seq. Id. Plaintiff then filed a
complaint with the Equal Employment Opportunity Commission
(“EEOC”) on August 26, 2015. Id. at
¶ 28. On September 3, 2015, Plaintiff was issued a
written warning for improper use of a company-issued credit
card. Id. at ¶ 29. Plaintiff made a second
internal complaint to Boeing on October 6, 2015, alleging
that Boeing failed to follow internal and external FAA
regulated procedures. Id. at ¶ 31. Plaintiff
made two more complaints to Boeing on November 6, and
November 7, 2015, making the same allegations. Id.
When Boeing took no action in response to these complaints,
Plaintiff filed a complaint with the FAA directly on March 6,
also filed additional complaints with Boeing on November 6,
and November 7, 2015, alleging that he was being retaliated
against for being a whistleblower. Id. at ¶ 32.
A few days later, Plaintiff received a negative performance
review. Id. At some point, Boeing conducted an
investigation in response to Plaintiff's complaints.
Id. at ¶ 33. During his investigative
interviews, Plaintiff was informed that his complaints were
being dismissed and closed without cause. Id.
Plaintiff later filed additional complaints with the
Occupational Safety and Health Administration
(“OSHA”) alleging violations of Section 519 of
the Wendell H. Form Aviation Investment and Reform Act for
the 21st Century (“AIR 21”), 49 U.S.C. §
42121, et seq. and the Sarbanes-Oxley Act of 2002,
18 U.S.C. § 1514A (“SOX”) on February 20,
March 10, and March 14, 2016. Id. at ¶ 33. The
complaints allege that Boeing retaliated against him because
he voiced concerns about FAA violations. Id.
Plaintiff was either laid off or terminated from his
employment on March 25, 2016. Id. at ¶ 34.
filed his original Complaint in the U.S. District Court of
the Central District of California on July 7, 2016. Dkt. # 1.
Plaintiff filed a First Amended Complaint on August 15, 2016.
Dkt. # 14. On October 12, 2016, Boeing filed a motion to
transfer, and the case was transferred to the Western
District of Washington on November 18, 2016. Dkt. ## 24, 26.
The Court granted Plaintiff leave to amend, and he filed a
SAC on September 20, 2017. Dkt. ## 46, 57. Boeing now moves
to dismiss Counts One, Two, Three, Six, Seven, and Ten of the
SAC pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). Boeing also moves to dismiss Plaintiff's claims
for declaratory and injunctive relief. Dkt. # 61.
courts are tribunals of limited jurisdiction and may only
hear cases authorized by the Constitution or a statutory
grant. Kokkonen v. Guardian Life Ins. Co. of
America, 511 U.S. 375, 377 (1994). The burden of
establishing subject-matter jurisdiction rests upon the party
seeking to invoke federal jurisdiction. Id. Once it
is determined that a federal court lacks subject-matter
jurisdiction, the court has no choice but to dismiss the
suit. Arbaugh v. Y & H Corp., 546 U.S. 500, 514
(2006); Fed.R.Civ.P. 12(h)(3) (“If the court determines
at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action.”).
may bring a factual challenge to subject-matter jurisdiction,
and in such cases the court may consider materials beyond the
complaint. PW Arms, Inc. v. United States, 186
F.Supp.3d 1137, 1142 (W.D. Wash. 2016) (citing Savage v.
Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th
Cir. 2003); see also McCarthy v. United States, 850
F.2d 558, 560 (9th Cir. 1988) (“Moreover, when
considering a motion to dismiss pursuant to Rule 12(b)(1) the
district court is not restricted to the face of the
pleadings, but may review any evidence, such as affidavits
and testimony, to resolve factual disputes concerning the
existence of jurisdiction.”).