McMillan v. Garland

• Court: District Court, D. Arizona
• Decided: January 5, 2022
• Docket: 2:21-cv-00911
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

Peter A . McMillan, ) No. CV-21-00911-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) Merrick Garland, et al., ) 12 ) 13 Defendants. ) ) 14 )

15 Before the Court is a Motion to Dismiss for Lack of Subject Matter Jurisdiction 16 (Doc. 18) filed by Defendants Merrick Garland and the United States Drug Enforcement 17 Administration (“Defendants”). The Motion has been fully briefed and is ready for review.1 18 (Docs. 18, 25, 27). For the reasons that follow, the Motion will be granted. 19 I. BACKGROUND 20 On April 11, 2020, Plaintiff retired—or, in Plaintiff’s words, was “constructively 21 discharged”—from the United States Drug Enforcement Administration (“DEA”). (Doc. 1 22 at 4). Plaintiff asserts that DEA refused to issue retirement credentials to Plaintiff, despite 23 Plaintiff’s asserted qualifications for such credentials and repeated requests for them in the 24 months after his retirement. (Id.). 25 On May 24, 2021, Plaintiff filed a Complaint against Defendants DEA and United 26

27 1 Because it would not assist in resolution of the instant issues, the Court finds the pending motion is suitable for decision without oral argument. See LRCiv. 7.2(f); Fed. R. 28 Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 1 States Attorney General Merrick Garland, in his official capacity on behalf of the 2 Department of Justice. (Id. at 2). In his Complaint, Plaintiff alleges that Defendants violated 3 the Law Enforcement Officers Safety Act (“LEOSA”) of 2004, 18 U.S.C. § 926C, when 4 DEA “unlawfully deni[ed] Plaintiff—a qualified retired law enforcement officer— 5 retirement credentials and the carrying of a concealed firearm.” (Id. at 4). Plaintiff asserts 6 that DEA used a “bogus” Office of Professional Responsibility (“OPR”) investigation and 7 a “fraudulent claim of law enforcement privilege” to deny the retirement credentials. (Id.). 8 Plaintiff seeks an order from this Court compelling DEA to issue “official retirement 9 credentials which enable Plaintiff to carry a concealed firearm in accordance with the 10 LEOSA of 2004.” (Id. at 5). 11 As to the basis for federal court jurisdiction, Plaintiff asserts that this is a federal 12 question case under 28 U.S.C. § 1331. (Id. at 3, 7). Plaintiff also cites 42 U.S.C. § 1983 13 and the Privacy Act of 1974, 5 U.S.C. § 552a, as grounds for subject-matter jurisdiction. 14 (Id.). Because Plaintiff alleges that Defendants violated LEOSA, 18 U.S.C. § 926C—a 15 federal statute—this Court will also consider any basis for subject-matter jurisdiction 16 which may be grounded in that statute. In the present Motion, Defendant challenges the 17 subject-matter jurisdiction of Plaintiff’s claim, asserting that Plaintiff’s Complaint “fails to 18 establish a waiver of sovereign immunity” for the claim asserted. (Doc. 18 at 1). 19 II. LEGAL STANDARD 20 A. Motion to Dismiss for Lack of Subject-Matter Jurisdiction 21 Federal Rule of Civil Procedure (“Rule”) 12(b)(1) “allows litigants to seek the 22 dismissal of an action from federal court for lack of subject matter jurisdiction.” Kinlichee 23 v. United States, 929 F. Supp. 2d 951, 954 (D. Ariz. 2013) (internal quotation marks 24 omitted). “A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) 25 may attack either the allegations of the complaint as insufficient to confer upon the court 26 subject matter jurisdiction, or the existence of subject matter jurisdiction in fact.” Renteria 27 v. United States, 452 F. Supp. 2d 910, 919 (D. Ariz. 2006); see also Edison v. United States, 28 822 F.3d 510, 517 (9th Cir. 2016). “When the motion to dismiss attacks the allegations of 1 the complaint as insufficient to confer subject matter jurisdiction, all allegations of material 2 fact are taken as true and construed in the light most favorable to the nonmoving party.” 3 Renteria, 452 F. Supp. 2d at 919. “When the motion to dismiss is a factual attack on subject 4 matter jurisdiction, however, no presumptive truthfulness attaches to the plaintiff’s 5 allegations, and the existence of disputed material facts will not preclude the trial court 6 from evaluating for itself the existence of subject matter jurisdiction in fact.” Id. “A 7 plaintiff has the burden of proving that jurisdiction does in fact exist.” Id. 8 B. Establishing Subject-Matter Jurisdiction Against United States 9 The doctrine of sovereign immunity shields the Federal Government—including its 10 agencies and federal officers sued in their official capacity—from suit. Harger v. Dep’t of 11 Labor, 569 F.3d 898, 903 (9th Cir. 2009) (citations omitted). Unless sovereign immunity 12 is waived and the Federal Government consents to be sued, a court lacks subject matter 13 jurisdiction over any claims brought against the Federal Government. Id. (citations 14 omitted). “A waiver of the Federal Government’s sovereign immunity must be 15 unequivocally expressed in statutory text . . . and will not be implied” by the court; waivers 16 are to be strictly construed in favor of the sovereign. Id. (citation omitted) (internal 17 quotations omitted). 18 Merely establishing a waiver of sovereign immunity is not enough, however, to 19 confer subject-matter jurisdiction to a federal court in an action against a sovereign. 20 Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1016 (9th Cir. 2007). A Plaintiff 21 must also show statutory authority vesting a district court with subject-matter jurisdiction. 22 Id. (citing Arford v. United States, 934 F.2d 229, 231 (9th Cir. 1991)). Thus, to establish 23 subject-matter jurisdiction, Plaintiff must show both an express, statutory waiver of 24 sovereign immunity by the United States and statutory authority vesting this Court with 25 subject-matter jurisdiction. 26 /// 27 /// 28 /// 1 III. DISCUSSION 2 Plaintiff asserts four potential grounds for subject-matter jurisdiction: (i) 28 U.S.C. 3 § 1331; (ii) 42 U.S.C. § 1983; (iii) the Privacy Act of 1974, 5 U.S.C. § 552a; and (iv) 4 LEOSA, 18 U.S.C. § 926C. The Court will address each possible jurisdictional basis in 5 turn, looking for the above-mentioned requirements—a waiver of sovereign immunity and 6 statutory authority vesting the district courts with subject-matter jurisdiction. 7 A. Federal Question Jurisdiction, 28 U.S.C. § 1331 8 “The federal question statute, 28 U.S.C. § 1331, gives federal district courts 9 jurisdiction over civil actions that arise under the Constitution, laws, and treaties of the 10 United States.” Castaneda v. United States, No. CV-18-02809-PHX-ESW, 2019 WL 11 2076036, at *2 (D. Ariz. May 10, 2019). However, § 1331 “neither waives the federal 12 government’s sovereign immunity to suit nor indicates the appropriate forum for 13 adjudication of the controversy.” Kester v. Campbell, 652 F.2d 13, 15 (9th Cir. 1981); see 14 also Castaneda, 2019 WL 2076036, at *2 (“The Ninth Circuit has consistently held that 15 § 1331 does not waive the government’s sovereign immunity from suit.”). Thus, Plaintiff 16 cannot establish subject-matter jurisdiction under § 1331 because the statute does not waive 17 the Federal Government’s sovereign immunity. 18 B. Jurisdiction Under 42 U.S.C. § 1983 19 Plaintiff asserts that this Court has jurisdiction “to hear and decide this case pursuant 20 to . . . 42 USC § 1983.” (Doc. 1 at 7). “Section 1983 provides a federal cause of action 21 against any person who, acting under color of state law, deprives another of his federal 22 rights.” Conn v. Gabbert, 526 U.S. 286, 290 (1999) (citing 42 U.S.C. § 1983). In some 23 circumstances, this could encompass a suit against a federal official, but only if that federal 24 official was conspiring or acting jointly with state actors to deprive a plaintiff of his or her 25 constitutional rights. Radcliffe v. Rainbow Constr. Co., 254 F.3d 772, 783 (9th Cir. 2001). 26 Section 1983 does not, however, “provide a cause of action against federal officers acting 27 under the color of federal law.” Morgan v. United States, 60 Fed.Appx. 180, 181 (9th Cir. 28 2003) (citing Billings v. United States, 57 F.3d 797, 801 (9th Cir. 1995)). Instead, the 1 Federal Government—including its agencies and officials acting in their official 2 capacity—is protected from suit under § 1983 by the doctrine of sovereign immunity. See 3 Jachetta v. United States, 653 F.3d 898, 908 (9th Cir. 2011) (rejecting argument that § 1983 4 waived federal agency’s sovereign immunity because Ninth Circuit found “no evidence in 5 [the statute] that Congress intended to subject federal agencies to § 1983 . . . liability”). 6 Here, Plaintiff does not claim that DEA or Attorney General Garland were acting in 7 concert with any state officials. Nor does Plaintiff argue that either were otherwise acting 8 under the color of state law. Thus, even though Plaintiff asserts a violation of a federal 9 right—i.e., his right, as a “qualified law enforcement officer,” to carry a concealed weapon 10 under LEOSA—Defendants here cannot be subjected to a § 1983 suit because they are 11 shielded by sovereign immunity. Section 1983 cannot serve as a jurisdictional basis for 12 Plaintiff’s claim because it does not waive Defendants’ sovereign immunity.2 13 C. Jurisdiction Under LEOSA, 18 U.S.C. § 926C 14 Plaintiff alleges that Defendants violated LEOSA, 18 U.S.C. § 926C, a federal 15 statute that establishes the right of qualified law enforcement officers, both active and 16 retired, to carry a concealed weapon if they meet certain conditions. Plaintiff argues that 17 because LEOSA is federal law, this Court has authority “to hear and decide this case 18 pursuant to 28 USC § 1331 – Federal Question.” (Doc. 25 at 4). However, as discussed 19 20 2 The Court acknowledges, and rejects, Plaintiff’s reliance on DuBerry v. District of Columbia, 824 F.3d 1046 (D.C. Cir. 2016). While the Federal Government is excluded 21 from the scope of § 1983, Congress explicitly included the District of Columbia in the statute: 22 Every person who, under color of any statute, ordinance, 23 regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, . . . any citizen of the United 24 States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . . shall be 25 liable. 26 42 U.S.C. § 1983 (emphasis added). While it is true that DuBerry is analogous insofar as the plaintiffs in that case asserted that they were deprived of a federal right under LEOSA, 27 the key difference—for purposes of sovereign immunity and federal jurisdiction—is that the DuBerry defendants were District of Columbia officials (and are within the scope of 28 § 1983), whereas Defendants here are federal government officials. 1 above, Plaintiff does not establish subject-matter jurisdiction by merely having a claim 2 based on federal law; instead—because Plaintiff is suing the Federal Government and one 3 of its officers in his official capacity—Plaintiff must also point to an express, statutory 4 waiver of sovereign immunity by the Federal Government. See supra pt. III, sec. A. 5 Because § 1331 contains no such waiver, Plaintiff’s jurisdictional argument is sufficient 6 only to the extent that LEOSA itself contains a waiver of sovereign immunity. Plaintiff has 7 failed to show any legal authority indicating that LEOSA contains or has been interpreted 8 to contain an express waiver of sovereign immunity. Moreover, after reviewing the 9 statutory language, this Court itself does not find any waiver contained in the statute. In 10 fact, courts have found that LEOSA does not even provide a private right of action, let 11 alone a waiver permitting suit against the Federal Government. See Friedman v. Las Vegas 12 Metro. Police Dep’t, No. 2:14-cv-0821-GMN-GWF, 2014 WL 5472604, at *4 (D. Nev. 13 Oct. 24, 2014) (listing cases). Because LEOSA does not waive the Federal Government’s 14 sovereign immunity, Plaintiff cannot establish subject-matter jurisdiction under the statute. 15 D. Jurisdiction Under Privacy Act of 1974, 5 U.S.C. § 552a 16 On page three of the Complaint, Plaintiff specifically lists “Privacy Act of 1974, 5 17 USC § 552a” as a basis for federal question jurisdiction. (Doc. 1 at 3). In their Motion, 18 Defendants assert that Plaintiff cannot rely on the Privacy Act for jurisdiction because 19 Plaintiff does not plead a cognizable claim under the Act. (Doc. 18 at 5–6). However, in 20 the Response, Plaintiff explicitly denies having cited to the Privacy Act for subject-matter 21 jurisdiction; instead, Plaintiff asserts that “Defendant is attempting to manufacture an issue 22 not in controversy . . . in order to deliberately mislead the court.” (Doc. 25 at 1, 6). The 23 Court rejects Plaintiff’s assertion that Defendants are attempting to “mislead” the Court— 24 after all, Plaintiff explicitly refers to the Privacy Act as a federal statute “at issue” in this 25 case. (Doc. 1 at 3). Nonetheless, the Court will accept Plaintiff’s concession that the 26 Privacy Act is not at issue in this case and is therefore not a basis for jurisdiction. 27 /// 28 /// 1 IV. CONCLUSION 2 Plaintiff has failed to meet his burden of proving that this Court has subject-matter jurisdiction over his LEOSA claim. Therefore, the Court must dismiss the case in its 4) entirety. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). However, “[a] district court should not dismiss a pro se complaint without leave to amend unless it is absolutely clear 6 | that the deficiencies of the complaint could not be cured by amendment.” Akhtar v. Mesa, 7| 698 F.3d 1202, 1212 (9th Cir. 2012) (internal quotation marks omitted). In this case, 8 | amendment of Plaintiff’s claims against the Federal Defendants would be futile because the Court’s lack of subject matter jurisdiction is incurable. See Saul v. United States, 928 10| F.2d 829, 843 (9th Cir. 1991). Accordingly, 11 IT IS ORDERED that the Motion to Dismiss (Doc. 18) is granted. Plaintiffs claim against Defendants Merrick Garland and the Drug Enforcement Administration are 13 | dismissed without prejudice. 14 IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action. 15 Dated this 5th day of January, 2022. 16

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