Kenneth Robinson v. Henry Paulson

MEMORANDUM

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 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…