surveying the Court’s Bivens 3 jurisprudence
How later courts described this case
- surveying the Court’s Bivens 3 jurisprudence
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 GARY D. PEOPLES, JR., No. 2:19-cv-02253 TLN AC PS
12 Plaintiff,
13 v. FINDINGS AND RECOMMENDATIONS
14 NAVY BOARD ANNEX,
15 Defendant.
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17 Plaintiff is proceeding in this matter pro se, and pre-trial proceedings are accordingly
18 referred to the undersigned pursuant to Local Rule 302(c)(21). The case is before the court on
19 defendant’s motion to dismiss under Rule 12(b)(1) and Rule 12(b)(6). ECF Nos. 20 (defendant’s
20 motion), 24 (plaintiff’s opposition).1 For the reasons that follow, the undersigned recommends
21 that defendant’s motion to dismiss be GRANTED without leave to amend.
22 I. BACKGROUND
23 A. Allegations of the Complaint
24 The complaint alleges that the Department of the Navy’s Board for Correction of Naval
25 Records erred by denying plaintiff’s application to upgrade his discharge from “Other Than
26 Honorable by Reason of Misconduct” in a decision from August 2000. ECF No. 1 at 2, 10-11.
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1 Plaintiff also filed a request for status, inquiring whether his opposition was received by the
28 court. ECF No. 26 at 1-2. Plaintiff’s opposition was received and reviewed.
1 The complaint asserts that the Board considered a conviction by a special court-martial that is not
2 part of plaintiff’s military record, and that falsified documents were put into his record. Id.
3 Though the complaint does not specify a basis for subject matter jurisdiction, id. at 1, the proof of
4 service identifies the complaint as a “1983 civil rights complaint,” id. at 3. Plaintiff seeks
5 compensatory and punitive damages. Id. at 7.
6 B. Motion to Dismiss
7 Defendant Navy Board Annex moves to dismiss plaintiff’s complaint under Rule 12(b)(1)
8 and Rule 12(b)(6) because, first, 28 U.S.C. § 1983 does not apply to federal agencies; second,
9 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) does
10 not apply to federal agencies; third, plaintiff has failed to state claim under § 1983 or Bivens;
11 fourth, a claim under the Administrative Procedure Act (“APA”) would be time-barred; and fifth,
12 a claim under the APA would belong in the Court of Federal Claims because of its request for
13 damages. ECF No. 20-1 at 1-2. Defendant cites United States v. Sherwood, 312 U.S. 584, 586
14 (1941) for the proposition that the United States is immune from suit unless it waives sovereign
15 immunity. Id. at 2.
16 II. ANALYSIS
17 A. Dismissal Standard: Subject Matter Jurisdiction
18 Subject matter jurisdiction is a threshold issue; without subject matter jurisdiction, the
19 court generally may not consider other aspects of a case. Bibiano v. Lynch, 834 F.3d 966, 970
20 n.4 (9th Cir. 2016). Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the
21 defense, by motion, that the court lacks jurisdiction over the subject-matter of an entire action or
22 of specific claims alleged in the action. “A motion to dismiss for lack of subject matter
23 jurisdiction may either attack the allegations of the complaint or may be made as a ‘speaking
24 motion’ attacking the existence of subject matter jurisdiction in fact.” Thornhill Publ’g Co. v.
25 Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979) (citations omitted). A “facial” attack
26 accepts the truth of the plaintiff’s allegations but asserts that they “are insufficient on their face to
27 invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.
28 2004). The district court resolves a facial attack as it would a motion to dismiss under Rule
1 12(b)(6): accepting the plaintiff’s allegations as true and drawing all reasonable inferences in the
2 plaintiff’s favor, the court determines whether the allegations are sufficient as a legal matter to
3 invoke the court’s jurisdiction. Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013); Savage v.
4 Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n.1 (9th Cir. 2003).
5 B. Sovereign Immunity
6 The complaint does not support a finding that the United States has waived sovereign
7 immunity, a deficiency that goes to the court’s subject matter jurisdiction. See Tobar v. United
8 States, 639 F.3d 1191, 1195 (9th Cir. 2011). “In an action against the United States, in addition
9 to statutory authority granting subject matter jurisdiction, there must be a waiver of sovereign
10 immunity.” Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1087 n.2 (9th Cir. 2007)
11 (citation and internal quotation marks omitted). This reflects that the “United States, as
12 sovereign, is immune from suit save as it consents to be sued . . . , and the terms of its consent to
13 be sued in any court define that court’s jurisdiction to entertain the suit.” United States v.
14 Mitchell, 445 U.S. 535, 538 (1980) (quoting Sherwood, 312 U.S. at 586). A suit against a federal
15 agency seeking relief against the sovereign is effectively a suit against the sovereign. Larson v.
16 Domestic & Foreign Commerce Corp., 337 U.S. 682, 687-88 (1949). Thus, the principles of
17 sovereign immunity apply whenever a federal agency is sued. Id.; see Beller v. Middendorf, 632
18 F.2d 788, 796-98 (9th Cir. 1980), overruled on other grounds by Lawrence v. Texas, 539 U.S.
19 558 (2003).
20 Here, neither § 1983 nor Bivens provides a waiver of sovereign immunity. As to the
21 former, the United States itself is not a state actor and therefore does not come within the scope of
22 § 1983. Jachetta v. United States, 653 F.3d 898, 908 (9th Cir. 20111). The Navy Board Annex is
23 a federal agency, not a state actor that may be sued under § 1983. As to Bivens, which allows
24 plaintiffs to bring claims for money damages against individual federal officials based on certain
25 constitutional violations, plaintiff cannot state a claim because “no Bivens remedy is available
26 against a federal agency.” W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1119 (9th
27 Cir. 2009). Moreover, even if plaintiff were to amend his complaint to assert a claim against
28 individual agents of the Navy’s Board for Correction of Naval Records, plaintiff would be
1 required to show a violation of plaintiff’s constitutional rights for which a Bivens remedy is
2 available. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1857-58 (2017) (surveying the Court’s Bivens
3 jurisprudence). The facts alleged by plaintiff cannot support such a claim.
4 Defendant maintains that to the extent that the complaint can be read to allege a claim
5 against a federal agency under the APA, such a claim fails because plaintiff seeks $500,000 in
6 compensatory and punitive damages. ECF No. 20-1 at 4. “The APA does not provide for
7 monetary damages.” W. Radio Servs. Co., 578 F.3d at 1123. Section 702 of the APA “was
8 designed to eliminate the defense of sovereign immunity as to any action in a [f]ederal court
9 seeking relief other than money damages and stating a claim based on the assertion of unlawful
10 official action by an agency or by an officer or employee of the agency.” The Presbyterian
11 Church (U.S.A.) v. United States, 870 F.2d 518, 524 (9th Cir. 1989) (citation and internal
12 quotation marks omitted). Here, because plaintiff seeks monetary damages for a federal agency’s
13 allegedly unlawful action, ECF No. 1 at 7, the APA does not establish a waiver of sovereign
14 immunity.
15 C. Timeliness
16 Furthermore, plaintiff’s claim is plainly time-barred. Even if plaintiff were to amend his
17 complaint to seek only a correction of Naval records under the APA, a six-year statute of
18 limitations would apply under 28 U.S.C. § 2401(a). See Wind River Mining Corp. v. United
19 States, 946 F.2d 710, 713 (9th Cir. 1991). Plaintiff challenges a decision dated August 25, 2000 –
20 a decision issued more than 19 years ago. Complaint at 10-11. There is no available remedy for
21 this stale claim.
22 D. Leave to Amend
23 “A district court should not dismiss a pro se complaint without leave to amend unless it is
24 absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Akhtar
25 v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation and internal quotation marks omitted).
26 Here, it is clear that amendment would be futile. Plaintiff’s claim accrued nearly two decades
27 ago. Accordingly, even if plaintiff reconstructed his complaint to seek alternative relief and thus
28 established subject matter jurisdiction, the claim would be time-barred.
1 In his opposition, plaintiff states that he filed a new application in 2017 to change the
2 classification of his discharge; that application also appears to have been denied. ECF No. 24 at
3 4-5. Amendment of the complaint to challenge denial of this subsequent application would not
4 save the claim from untimeliness. A statute of limitations run from the time that a claim accrues.
5 See Lukovosky v. City and County of San Francisco, 535 F.3d 1044, 1051 (9th Cir. 2008). In
6 general, a claim accrues “when the plaintiff knows or has reason to know of the injury which is
7 the basis of the action.” Two Rivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). Here, plaintiff
8 knew of his injury when defendant first declined to upgrade the discharge. Accordingly, plaintiff
9 cannot escape operation of the statute of limitations, and amendment would therefore be futile.
10 E. Plain Language Summary of this Order for a Pro Se Litigant
11 The magistrate judge is recommending that your lawsuit be dismissed without leave to
12 amend. This is because you are suing a federal agency for damages, and no federal law gives the
13 court jurisdiction to hear such a case. Even if you dropped the request for damages, your claim is
14 too old to bring to court. A lawsuit challenging a federal agency decision needs to be filed within
15 six years of the decision. You waited longer than six years after the decision not to upgrade your
16 discharge. These problems cannot be fixed by amending the complaint, so leave to amend is not
17 recommended.
18 III. CONCLUSION
19 Accordingly, the undersigned recommends that the motion to dismiss at ECF No. 20 be
20 GRANTED, without leave to amend.
21 These findings and recommendations are submitted to the United States District Judge
22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days
23 after being served with these findings and recommendations, any party may file written
24 objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a
25 document should be captioned “Objections to Magistrate Judge’s Findings and
26 Recommendations.” Failure to file objections within the specified time may waive the right to
27 ////
28 ////
wOASe 2 ADU VMELYU PRIN □□□ POO eter POY VM VIN
1 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez
2 | v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991).
3 | DATED: April 21, 2020 ~
4 Cthren— Mare
ALLISON CLAIRE
5 UNITED STATES MAGISTRATE JUDGE
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