Kimber v. Harker

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 BART D. KIMBER, Case No.: 3:21-cv-1487-BTM-BLM

12 Plaintiff,

ORDER GRANTING DEFENDANT

13 v. CARLOS DEL TORO, SECRETARY

OF THE NAVY’S MOTION TO

14 CARLOS DEL TORO, secretary of the

DISMISS

15 Navy, et. al.,

[ECF NO. 39]

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Defendants.

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Plaintiff Bart D. Kimber (“Plaintiff”) filed a Third Amended Complaint on March

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31, 2023. (ECF No. 33 (“TAC”).) Defendant Carlos Del Toro, Secretary of the Navy

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(“Defendant”) filed a Motion to Dismiss Plaintiff’s Third Amended Complaint. (ECF

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No. 39 (“Def.’s MTD”).) In response, Plaintiff filed an opposition (ECF No. 41 (“Pl.’s

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Opp’n”)), Defendant filed a Reply (ECF No. 45 (“Def.’s Reply”)), and Plaintiff filed a

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Reply in response (ECF No. 46 (“Pl.’s Reply in Resp.”)). Additionally, the Court had

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entered an Order to Show Cause as to why this case should not be dismissed for improper

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1 service on the Secretary of the Navy, and failure to serve the other Defendants. (ECF No.

2 30 (“OSC”).) Plaintiff filed two motions responding to the OSC (ECF No. 33,

3 attachments 1 and 2 (“Motions to Show Cause)), as well as four Motions for Summary

4 Judgment (ECF Nos. 26 (“Pl.’s First MSJ”), 43 (“Pl.’s Second MSJ”), 48 (“Pl.’s Third

5 MSJ”), 51 (“Pl.’s Fourth MSJ”)). For the reasons discussed below, the Court grants

6 Defendant’s Motion to Dismiss.

7 I. BACKGROUND

8 On August 20, 2021, Plaintiff filed suit against Defendant, alleging that a federal

9 employee whom he identifies as “HR1” retaliated against him for nearly 15 years because

10 of his EEO activity during his federal employment. (ECF No. 1 (“Complaint”).) The

11 Court entered an Order for Plaintiff to File a More Definite Statement. (ECF No. 10

12 (“Order for Definite Statement”).) Plaintiff subsequently filed multiple iterations of

13 amended complaints, culminating with the Third Amended Complaint. (ECF No. 33,

14 (“TAC”).)

15 Plaintiff’s Third Amended Complaint asks for declaratory and injunctive relief and

16 damages under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§

17 2000e et seq.; the Rehabilitation Act of 1973 (“the Rehabilitation Act”), 29 U.S.C. §§

18 791 et seq.; the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq.; the Civil

19 Service Reform Act (“CSRA”), 5 U.S.C. § 2302; the Americans with Disabilities Act

20 (“ADA”), 42 U.S.C. § 12101; the Age Discrimination in Employment Act (“ADEA”), 29

21 U.S.C. §§ 621 et seq.; 18 U.S.C. §§ 1922 and 2071; the Fifth Amendment to the U.S.

22 Constitution; and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671 et seq.

23 (ECF No. 33, 14:2–6 (First Cause of Action), 17:23–26 (Second Cause of Action),

24 19:14–17 (Third Cause of Action), 21:22–24 (Fourth Cause of Action), 25:6–9 (Fifth

25 Cause of Action), 26:6–11 (Sixth Cause of Action), 31:13, 32:3 (Eighth Cause of

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1 Action), 33:4–7 (Ninth Cause of Action), 33:21–25 (Eleventh Cause of Action), 36:16–

2 21 (Twelfth Cause of Action).)

3 Plaintiff alleges this retaliation occurred between 2003 and 2017. (ECF No. 33.)

4 From April 2004 to October 2014, HR1 purportedly engaged in “hiding, concealing,

5 discrediting [and] obscuring” Plaintiff’s allegations that he was “secretly monitored” by

6 his employer and coworker in 2003. (Id. at 22.) Sometime after 2012, Plaintiff alleges

7 HR1 gained unauthorized access to Plaintiff’s employment portal and “illicitly entered

8 herself as Plaintiff’s ‘immediate supervisor’ and ‘reviewer’ of claims.” (Id. at 25.) In

9 April 2013, HR1 allegedly “took the malicious action of removing his original paper

10 OPF,” which “obstruct[ed] Plaintiff’s ability to have . . . other agencies review his

11 veteran status.” (Id. at 31.) Plaintiff alleges that, as a result of HR1’s actions, Defendant

12 “miscalculate[d] Plaintiff’s creditable service time to disallow re-employment,” which

13 “block[ed] 34 fire-related applications in 2016-17.” (Id. at 26, 31.) In April 2016, HR1

14 allegedly “eras[ed] . . . Plaintiff’s March 18, 2016, USAJOBS application from the

15 agency’s referral list.” (Id. at 33.) Lastly, Plaintiff alleges an EEO manager lost certain

16 “completed forms” that resulted in a delayed resolution of Plaintiff’s EEO complaint for

17 18 months from 2016 to 2017. (Id. at 30.)

18 II. STANDARD

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Defendant moves to dismiss under Federal Rules of Civil Procedure 8(a) and (d)(1)

20 for failure to make a short and plain statement and 12(b)(6) for failure to state a claim.

21 (ECF No. 39.) In addition, the Court sua sponte raises Plaintiff’s failure to comply with

22 the requirement for numbered paragraphs under Federal Rule of Civil Procedure 10(b).

23 For the reasons discussed below, the Court grants Defendant’s Motion to Dismiss.

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1 A. Motion to Dismiss for failure to make a short and plain statement under

2 8(a) and (d)(1)

3 Defendant challenges the Third Amended Complaint, in part, on the ground that it

4 fails to make a “short and plain statement of the claim” that is “simple, concise, and

5 direct,” and fails to inform Defendant of the specific claims against which it must defend,

6 in violation of Rule 8. Fed. R. Civ. P. 8(a), (d)(1).

7 Rule 8(a) provides that a complaint must contain “a short and plain statement of

8 the claim showing that the plaintiff is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule

9 8(d) further provides that “[e]ach allegation must be simple, concise, and direct.” Fed. R.

10 Civ. P. 8(d)(1). The Court “ha[s] an obligation where the petitioner is pro se, particularly

11 in civil rights cases, to construe the pleadings liberally and to afford the petitioner the

12 benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342, 342 n.7 (9th Cir. 2010) (citing

13 Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)). However, the Court may not

14 “supply essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents

15 of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). The basic pleading

16 requirements of Rule 8 apply to self-represented and represented plaintiffs alike. Ghazali

17 v. Moran, 46 F.3d 52, 54 (9th Cir. 1995); King v. Atiyeh, 814 F.2d 565, 567 (9th

18 Cir.1986) (“Pro se litigants must follow the same rules of procedure that govern other

19 litigants.”).

20 The “essential function” of a pleading is to provide the defendant fair notice of the

21 wrongs allegedly committed. See McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996)

22 (“Something labeled a complaint but written. . . prolix in evidentiary detail, yet without

23 simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails

24 to perform the essential functions of a complaint.”). Otherwise, “Defendants are ... put at

25 risk that ... plaintiffs will surprise them with something new at trial which they

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1 reasonably did not understand to be in the case at all.” Id. at 1179–80. Complaints that

2 are too confusing and prolix to “perform the essential functions of a compliant” are

3 subject to dismissal under Rule 8(a). See id. at 1180.

4 B. Motion to Dismiss for failure to state a claim under 12(b)(6)

5 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be

6 granted only where a plaintiff’s complaint lacks a “cognizable legal theory” or sufficient

7 facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d

8 696, 699 (9th Cir. 1988). When reviewing a motion to dismiss, the allegations of

9 material fact in plaintiff’s complaint are taken as true and construed in the light most

10 favorable to the plaintiff. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484

11 (9th Cir. 1995). Although detailed factual allegations are not required, factual allegations

12 “must be enough to raise a right to relief above the speculative level.” Bell Atlantic v.

13 Twombly, 550 U.S. 544, 555 (2007). Only a complaint that states a plausible claim for

14 relief will survive a motion to dismiss. Id.

15 III. DISCUSSION

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A. Motion to Dismiss for failure to make a short and plain statement under 8(a)

17 and (d)(1)

18 I. Rule 8(a), (d)(1)

19 Defendant first argues that Plaintiff’s Third Amended Complaint should be

20 dismissed because it fails to make a “short and plain statement of the claim” that is

21 “simple, concise, and direct,” and fails to inform Defendant of the specific claims against

22 which it must defend, in violation of Rule 8. Fed. R. Civ. P. 8(a), (d)(1). In response,

23 Plaintiff argues that because Defendant was able to identify his claims and allegations in

24 Defendant’s Motion to Dismiss, that the Third Amended Complaint has shown to be clear

25 enough to inform the Defendant of those claims. (ECF No. 41, 3–4.)

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1 A district court may dismiss a complaint for failure to comply with Rule 8 where it

2 fails to provide the defendant fair notice of the wrongs allegedly committed. See

3 McHenry, 84 F.3d at 1178–80 (upholding Rule 8(a) dismissal of complaint that was

4 “argumentative, prolix, replete with redundancy, and largely irrelevant”); Cafasso,

5 United States ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1059 (9th

6 Cir. 2011) (citing cases upholding Rule 8 dismissals where pleadings were “verbose,”

7 “confusing,” “distracting, ambiguous, and unintelligible,” and “highly repetitious.”).

8 Further, an “amended complaint must be full and complete in and of itself, without

9 reference to any other previously filed document.” Jacobson v. Schwarzenegger, 226

10 F.R.D. 395, 398 (C.D. Cal. 2005); CivLR 15.1(a) (“Every pleading to which an

11 amendment is permitted as a matter of right or has been allowed by court order, must be

12 complete in itself without reference to the superseded pleading. All amended pleadings

13 must contain copies of all exhibits referred to in such amended pleadings.”).

14 Here, Plaintiff’s Third Amended Complaint is incomplete, confusing, repetitive,

15 and conclusory. It makes repeated references to other documents that are not attached to

16 the Third Amended Complaint as exhibits. See CivLR 15.1(a); Jacobson, 226 F.R.D. at

17 398. Because it relies on these references, many crucial facts are omitted from the Third

18 Amended Complaint, leaving bare conclusions. See Hatch v. Reliance Ins. Co., 758 F.2d

19 409, 415 (9th Cir. 1985) (upholding a Rule 8(a) dismissal of a complaint that was

20 confusing and conclusory). Additionally, the Third Amended Complaint unnecessarily

21 restates the same allegations, includes language that does not further any claim, and

22 contains lengthy excerpts from various federal statutes. This extraneous language

23 throughout the pleading makes it difficult to ascertain what Plaintiff alleges occurred and

24 whether those allegations, if true, would satisfy the elements of each claim.

25 Accordingly, the Court GRANTS Defendant’s Rule 8 Motion to Dismiss

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1 Plaintiff’s Third Amended Complaint with leave to amend.

2 II. Rule 10(b)

3 Federal Rule of Civil Procedure 10(b) requires that, in every pleading, “[a] party

4 must state its claims or defenses in numbered paragraphs, each limited as far as

5 practicable to a single set of circumstances. A later pleading may refer by number to a

6 paragraph in an earlier pleading. If doing so would promote clarity, each claim founded

7 on a separate transaction or occurrence--and each defense other than a denial--must be

8 stated in a separate count or defense.”

9 Aside from 12 numbered paragraphs on pages 7–9, Plaintiff’s Third Amended

10 Complaint failed to number its paragraphs. The Court has already informed Plaintiff of

11 this requirement in its November 23, 2021 Order to File a More Definite Statement.

12 (ECF No. 10.) In that Order, the Court specified that “[p]ursuant to Local Civil Rule

13 5.1(k), the amended complaint ‘must be made in numbered paragraphs, each of which

14 must be limited, as far as is practicable, to a statement of a single set of circumstances.’”

15 Accordingly, the Court DISMISSES Plaintiff’s Third Amended Complaint with

16 leave to amend. If Plaintiff files a fourth amended complaint without numbering every

17 paragraph, it will be dismissed without further leave to amend.

18 B. Motion to Dismiss for failure to state a claim under Rule 12(b)(6)

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I. Timeliness of and compliance with the pre-suit administrative processes

20 applicable to Title VII, the Rehabilitation Act, and the ADEA

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In its Motion to Dismiss, Defendant argues that Plaintiff’s Title VII, Rehabilitation

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Act, and ADEA claims must be dismissed for failure to plead exhaustion of

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administrative remedies.

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To establish subject matter jurisdiction over a claim under Title VII or the

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Rehabilitation Act, a plaintiff must timely exhaust administrative remedies. Vinieratos v.

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1 U.S., Dep’t of Air Force Through Aldridge, 939 F.2d 762, 767–68 (9th Cir. 1991) (citing

2 Brown v. General Servs. Admin., 425 U.S. 820, 832 (1976)) (“Title VII specifically

3 requires a federal employee to exhaust his administrative remedies as a precondition to

4 filing suit.”); Nguyen v. Nielsen, 731 F. App’x 687, 688 (citing Boyd v. U.S. Postal Serv.,

5 752 F.2d 410, 412–13 (9th Cir. 1985) (holding “the requirement of exhaustion of

6 administrative remedies applicable to federal employees under Title VII . . . was imported

7 into claims brought under [the Rehabilitation Act]”)). While the ADEA does not require

8 exhaustion of administrative remedies, “an employee who wishes to file [an ADEA] suit

9 without pursuing administrative remedies must give the EEOC notice of intent to sue at

10 least 30 days before filing suit.” Bankston v. White, 345 F.3d 768, 770 (9th Cir. 2003).

11 “There are effectively two limitations periods for Title VII claims. First, a

12 claimant must exhaust administrative remedies by filing a charge with the EEOC or an

13 equivalent state agency. . . and receiv[e] a right-to-sue letter. The charge must be filed

14 within 180 days after the allegedly unlawful employment practice occurred. Second,

15 after exhausting administrative remedies, a claimant has 90 days to file a civil action.”

16 Scott v. Gino Morena Enterprises, LLC, 888 F.3d 1101, 1106 (9th Cir. 2018) (internal

17 citations omitted). Similarly, the private right of action under the Rehabilitation Act

18 contains a “requirement of exhaustion of administrative remedies applicable to federal

19 employees under Title VII.” Boyd, 752 F.2d at 412 (citing Brown, 425 U.S. at 832).

20 A plaintiff must allege satisfaction of these requirements in the complaint. Moore

21 v. Grundmann, 2013 WL 2177775, at *7 (S.D. Cal. May 20, 2013) (granting motion to

22 dismiss as to Title VII claim because “Plaintiff fails to plead in his First Amended

23 Complaint that he has exhausted any administrative remedies in conjunction with his

24 Title VII claim.”); Pringle v. Wheeler, 478 F. Supp. 3d 899, 908 (N.D. Cal. 2020) (“a

25 plaintiff ‘must allege compliance with the [mandatory processing rule] ... in order to state

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1 a claim on which relief may be granted.’”) (internal citations omitted); see Douglass–

2 Woodruff v. Nevada, ex rel. its Dept. of Mental/Health, 23 F. App’x 758, 759 (9th Cir.

3 2001) (noting plaintiff’s pleading could have been “saved by an amendment that alleges

4 that she exhausted her administrative remedies with the EEOC.”).

5 Here, Plaintiff spelled out allegations of administrative exhaustion and attached an

6 EEOC decision regarding this matter in his Reply to Defendant’s Reply. (ECF No. 46,

7 3.) However, Plaintiff failed to include the detailed allegations or any documentation of

8 this exhaustion in his Third Amended Complaint. Plaintiff only made a general reference

9 to the administrative process in the Third Amended Complaint, (ECF No. 33, 6), and

10 listed various agency decisions without explanation and without attaching them as

11 exhibits (id. at 24). This is insufficient to show compliance with the specific process and

12 timeline described above. As discussed in Section III.A.I above, Plaintiff cannot rely on

13 documents outside of the Third Amended Complaint to satisfy pleading requirements.

14 See Jacobson, 226 F.R.D. at 398; CivLR 15.1(a).

15 Accordingly, the Court GRANTS Defendant’s Rule 12(b)(6) Motion to Dismiss

16 for failure to plead compliance with the pre-suit administrative processes applicable to

17 Title VII, the Rehabilitation Act, and the ADEA with leave to amend.

18 II. Sufficiency of FTCA Claims

19 Next, Defendant argues that the FTCA governs Plaintiff’s intentional and negligent

20 infliction of emotional distress claims, and that these claims should also be dismissed for

21 failure to exhaust the administrative process.

22 i. Subject Matter Jurisdiction

23 The exclusive remedy for a suit for damages for injury or loss of property

24 “resulting from the negligent or wrongful act or omission of any employee of the

25 Government while acting within the scope of his office or employment” is a suit against

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1 the United States under the FTCA. 28 U.S.C. § 2679(b)(1). Because “[t]he FTCA

2 immunizes federal employees from individual liability for an ‘action [that] is properly

3 against the United States under the FTCA,’” M.J. ex rel. Beebe v. United States, 721 F.3d

4 1079, 1084 (9th Cir. 2013) (citing Meridian Int’l Logistics, Inc. v. United States, 939

5 F.2d 740, 743 n. 1 (9th Cir.1991)), “the United States is the only proper party defendant

6 in an FTCA action.” Kennedy v. U.S. Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998).

7 Here, the Court lacks subject matter jurisdiction over the FTCA claims because the

8 Third Amended Complaint does not name the United States as a defendant. See

9 Kennedy, 145 F.3d at 1078 (affirming dismissal of complaint “[b]ecause the plaintiff

10 brought an FTCA action against a person and entity not subject to the FTCA.”).

11 ii. Administrative Exhaustion

12 In addition to naming the United States as a defendant, Plaintiff must also allege he

13 exhausted his administrative remedies under the FTCA. A plaintiff seeking to bring suit

14 under the FTCA must affirmatively allege that they filed a claim with the appropriate

15 federal agency and that the agency denied that claim. 28 U.S.C. § 2675(a); Caton v.

16 United States, 495 F.2d 635, 638 (9th Cir. 1974). The plaintiff then has six months from

17 the date of the denial to file an action in federal court. 28 U.S.C. § 2401(b).

18 Here, Plaintiff failed to allege that he administratively exhausted his tort claims in

19 his Third Amended Complaint. As discussed above in Section III.B.I, Plaintiff spelled

20 out allegations of administrative exhaustion in his Reply to Defendant’s Reply, (ECF No.

21 46, 3), but he only made a general reference to the administrative process and listed

22 various agency decisions without explanation in the Third Amended Complaint (ECF No.

23 33, 6, 24). This is insufficient to show administrative exhaustion because, as discussed in

24 Section III.A.I above, Plaintiff cannot rely on documents outside of the Third Amended

25 Complaint to satisfy pleading requirements. See Jacobson, 226 F.R.D. at 398; CivLR

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1 15.1(a). Further, Plaintiff must affirmatively allege that he brought these tort claims

2 before an administrative agency and that the agency’s denial encompassed these claims to

3 show administrative exhaustion under the FTCA.

4 Accordingly, the Court GRANTS Defendant’s Rule 12(b)(6) Motion to Dismiss as

5 to the Second, Fourth, Fifth, Sixth and Eighth Causes of Action to the extent they are

6 based on the FTCA, with leave to amend.

7 III. Title VII Preemption of APA and Fifth Amendment Claims

8 Next, Defendant argues that Title VII preempts Plaintiff’s APA and Fifth

9 Amendment claims.

10 “[T]he Supreme Court has squarely held that a federal employee cannot assert an

11 extra-statutory damages claim for violations arising out of the employment context where

12 an adequate statutory procedure exists for dealing with such claims.” Williams v. U.S.

13 Gen. Servs. Admin., 905 F.2d 308, 311 (9th Cir. 1990) (citing Bush v. Lucas, 462 U.S.

14 367, 374–90 (1983)). “Title VII is. . . ‘an exclusive, preemptive administrative and

15 judicial scheme for the redress of federal employment discrimination.’” Hannon v.

16 Chater, 887 F. Supp. 1303, 1319 (N.D. Cal. 1995) (citing Brown, 425 U.S. at 829); see

17 also White v. General Services Admin., 652 F.2d 913, 916–17 (9th Cir.1981) (explaining

18 that “allowing additional individual remedies” “for claims of discrimination in federal

19 employment” would “permit[] circumvention of administrative remedies”); Vinieratos,

20 939 F.2d at 773 (holding Title VII provides the exclusive channel through which

21 Rehabilitation Act claims may be heard in federal court).

22 Here, Plaintiff’s Second, Third, Sixth, Eleventh, and Twelfth Causes of Action

23 allege tort and/or constitutional claims which seek to impose liability based on

24 Defendant’s allegedly discriminatory employment practices. Due to the employment

25 discrimination subject matter and Defendant’s status as Plaintiff’s government employer

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1 at the time, these claims necessarily fall under Title VII. Title VII preempts litigation

2 based on the same conduct under both Title VII and other laws. White, 652 F.2d at 916.

3 Accordingly, the Court GRANTS Defendant’s Rule 12(b)(6) Motion to Dismiss as

4 to the Second, Third, Sixth, Eleventh and Twelfth Causes of Action, with leave to amend.

5 IV. Sufficiency of the CSRA, ADA, and 18 U.S.C. §§ 1922 and 2071 claims

6 Finally, Defendant argues that none of the remaining statutes on which Plaintiff

7 relies could provide a remedy to Plaintiff in this action.

8 i. CSRA

9 “The CSRA provides a remedial scheme through which federal employees can

10 challenge their supervisors’ ‘prohibited personnel practices.’” Orsay v. U.S. Dep’t of

11 Just., 289 F.3d 1125, 1128 (9th Cir. 2002) (citing 5 U.S.C. § 2302), abrogated by

12 Millbrook v. United States, 569 U.S. 50 (2013). There is no private right of action for a

13 claim under 5 U.S.C. § 2302. Canas v. Raytheon Tech. Servs. Co., LLC, No. EDCV 10-

14 1432-R, 2013 WL 12137760, at *3 (C.D. Cal. June 11, 2013) (citing United States v.

15 Fausto, 484 U.S. 439 (1988)); see Mahtesian v. Lee, 406 F.3d 1131, 1134 (9th Cir. 2005)

16 (“The CSRA limits federal employees challenging their supervisors’ prohibited personnel

17 practices to an administrative remedial system.”).

18 Plaintiff cannot rely on a statute without a private right of action for relief in this

19 civil suit.

20 ii. ADA

21 The ADA provides that “[n]o covered entity shall discriminate against a qualified

22 individual on the basis of disability in regard to job application procedures, the hiring,

23 advancement, or discharge of employees, employee compensation, job training, and other

24 terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A “covered

25 entity” is defined as “an employer, employment agency, labor organization, or joint

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1 labor-management committee.” 42 U.S.C. § 12111(2). The statute explicitly clarifies

2 that the term “employer” does not include the United States. 42 U.S.C. § 12111(5)(B)(i).

3 This exclusion applies to the entire federal government. Henrickson v. Potter, 327 F.3d

4 444, 447 (5th Cir. 2003); see Petramala v. U.S. Dep’t of Just., 481 F. App’x 395, 396

5 (9th Cir. 2012) (“the federal government, its agencies, and its officials are either

6 expressly excluded or otherwise exempt” from the ADA). Accordingly, the ADA

7 provides no remedy to federal employees. E.g., Caul v. Winter, No. 06CV2096 WQH

8 LSP, 2007 WL 2712302, at *7 (S.D. Cal. Sept. 13, 2007) (“a federal employee has no

9 remedy for employment discrimination under the Americans with Disabilities Act”);

10 Drevaleva v. Dep’t of Veterans Affs., 835 F. App’x 221, 223 (9th Cir. 2020) (“The district

11 court properly dismissed Drevaleva’s claim that she was discriminated against in

12 violation of the Americans with Disabilities Act (‘ADA’) because the federal government

13 is excluded from the coverage of the ADA.”).

14 Here, Plaintiff named Carlos Del Toro, the Acting Secretary of the United States

15 Department of the Navy, as the Defendant. Mr. Del Toro’s position as Acting Secretary

16 of the United States Department of the Navy makes him part of the United States federal

17 government. Therefore, he cannot serve as the “covered entity” under the ADA, and

18 Plaintiff, as a federal employee, has no right of action against Mr. Del Toro under the

19 ADA.

20 iii. 18 U.S.C. §§ 1922 and 2071

21 Defendant argues Plaintiff’s claims under 18 U.S.C. § 1922 and 18 U.S.C. § 2071

22 should be dismissed because neither statute creates a private right of action.

23 18 U.S.C. § 1922 criminalizes false reports concerning compensation. This statute

24 “does not provide for a private right of action.” McDaniel v. Potter, 2009 WL 10671422,

25 at *10 (C.D. Cal. May 7, 2009). 18 U.S.C. § 2071 criminalizes the destruction of public

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1 records. This statute also “does not provide a private right of action.” Ingraham v.

2 Lundrigan, 2010 WL 2942658, at *2 (E.D. Cal. July 23, 2010) (citing Dugar v. Coughlin,

3 613 F.Supp. 849, 852 n. 1 (S.D.N.Y.1985)).

4 Plaintiff cannot rely on criminal statutes without any private right of action for

5 relief in this civil suit.

6 Accordingly, the Court GRANTS Defendant’s Rule 12(b)(6) Motion to Dismiss as

7 to the Second, Third, Sixth, Eighth, Eleventh, and Twelfth claims to the extent they are

8 predicated on the CSRA, the ADA, 18 U.S.C. § 1922, or 18 U.S.C. § 2071, without leave

9 to amend.

10 C. Outstanding Motions and Orders

11 I. Order to Show Cause and Responsive Motions

12 The Court entered an Order to Show Cause as to why this case should not be

13 dismissed for improper service on the Secretary of the Navy, and failure to serve the

14 other Defendants. (ECF No. 30.)

15 Federal Rule of Civil Procedure 12(b)(5) provides for a defense for insufficient

16 service of process. A party waives this defense by “failing to either: (i) make it by

17 motion under this rule; or (ii) include it in a responsive pleading or in an amendment

18 allowed by Rule 15(a)(1) as a matter of course.” Fed. R. Civ. Proc. 12(h)(1).

19 Defendant has not raised service in its Motion to Dismiss. (ECF No. 39.)

20 Accordingly, the Order to Show Cause is discharged.

21 II. Plaintiff’s Motions for Summary Judgment

22 Plaintiff has filed four Motions for Summary Judgment. (ECF Nos. 26 (“Pl.’s First

23 MSJ”), 43 (“Pl.’s Second MSJ”), 48 (“Pl.’s Third MSJ”), 51 (“Pl.’s Fourth MSJ”)).

24 For the reasons stated above, the Court grants the Motion to Dismiss. Because the

25 Court grants the Motion to Dismiss, it does not reach the merits of the Motions for

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1 Summary Judgment and therefore denies them as moot. See City of Arcadia v. U.S. Env’t

2 Prot. Agency, 265 F. Supp. 2d 1142, 1151 (N.D. Cal. 2003).

3 Accordingly, the Court DENIES all four Motions for Summary Judgment without

4 prejudice.

5 IV. CONCLUSION

6 For the reasons discussed above, Defendant’s Motion to Dismiss Plaintiff’s Third

7 Amended Complaint is GRANTED. Plaintiff has leave to file a fourth amended

8 complaint resolving the issues described above. The Order to Show Cause is

9 DISCHARGED. Plaintiff’s Motions for Summary Judgment are DENIED without

10 prejudice.

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12 IT IS SO ORDERED.

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Dated: January 16, 2024

14 Hon. Barry Ted. Moskowitz

United States District Judge

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