McMillan v. United States Department of Justice

• Court: District Court, D. Arizona
• Decided: September 29, 2023
• Docket: 2:22-cv-00174
• Status: Unknown

Opinion

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

9 Peter A McMillan, No. CV-22-00174-PHX-DLR

10 Plaintiff, ORDER

11 v.

12 United States Department of Justice, et al.,

13 Defendants. 14 15 Plaintiff formerly worked for the United States Drug Enforcement Administration 16 (“DEA”). Plaintiff alleges that he was “constructively discharged” from the DEA and 17 brings claims for violations of (1) his constitutional rights under Bivens v. Six Unknown 18 Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), (2) the Uniformed 19 Services Employment Rights Act (“USERRA”), (3) the Privacy Act, and (4) the Freedom 20 of Information Act (“FOIA”). This is the fourth case Plaintiff has filed in this District 21 related to the circumstances surrounding his separation from the DEA. See McMillan v. 22 Lavigne et al., Case No. 2:20-cv-02397-JJT; McMillan v. Garland et al., Case No. 2:21- 23 cv-00911-SPL; McMillan v. Garland et al., Case No. 2:21-cv-01036-SPL. Those prior 24 cases all were dismissed. At issue is Defendants’ motion to dismiss this case (Doc. 62), 25 which is fully briefed (Docs. 63, 67) and will be granted. 26 I. Personal Jurisdiction 27 The Court begins with personal jurisdiction. Among the litany of defendants 28 Plaintiff has named in this lawsuit are the following 21 non-resident individuals: Matthew 1 Donahue (Virginia), Preston Grubbs (Virginia), James Doby (Florida), Reinaldo Lopez 2 (Washington), Gregory Calam (Virginia), Brook DuBois (Maryland), William Hughes 3 (Virginia), Leslie Schumacher (Virginia), Robert DiBella (Washington, D.C.), Marcia 4 Tiersky (Virginia), Patrick Boulay (Virginia), Patricia Sykes (Virginia), Timothy Crowley 5 (New Jersey), William Torrans (Virginia), Lucius Drawhorn (Oklahoma), Rebecca Klein 6 (California), Maarla Milligan (Michigan), Rachel Bailey (Washington), Vincent DeMedici 7 (Pennsylvania), Nancy Ise (California), and Patrick Forrest (Maryland). Defendants argue 8 the Court lacks personal jurisdiction over these non-resident individuals, and the Court 9 agrees. 10 “Where a defendant moves to dismiss a complaint for lack of personal jurisdiction, 11 the plaintiff bears the burden of demonstrating that jurisdiction is appropriate.” 12 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). To do so, 13 the plaintiff must show both that the forum state’s long-arm statute confers jurisdiction 14 over the non-resident defendant and that the exercise of jurisdiction comports with due 15 process. Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 269 (9th Cir. 1995). 16 Where, as here, the state’s long-arm statute confers jurisdiction co-extensive with the limits 17 of the due process clause, the two inquiries merge and the court need consider only whether 18 the exercise of jurisdiction comports with due process. Id.; Doe v. Am. Nat’l. Red Cross, 19 112 F.3d 1048, 1050 (9th Cir. 1997); Ariz. R. Civ. P. 4.2(a). The exercise of jurisdiction 20 comports with due process when the non-resident defendant has “certain minimum contacts 21 with [the forum] such that the maintenance of the suit does not offend traditional notions 22 of fair play and substantial justice.” Int’l Shoe v. Washington, 326 U.S. 310, 316 (1945) 23 (internal quotation and citation omitted). 24 The Court’s exercise of personal jurisdiction may take two forms: general 25 jurisdiction and specific jurisdiction. Davis v. Cranfield Aerospace Sols., Ltd., 71 F.4th 26 1154, 1161 (9th Cir. 2023). General jurisdiction requires the defendant to “engage in 27 continuous and systematic” contacts in the forum state. Schwarzenegger, 374 F.3d at 801 28 (internal quotation and citation omitted). “This is an exacting standard, as it should be, 1 because a finding of general jurisdiction permits a defendant to be haled into court in the 2 forum state to answer for any of its activities anywhere in the world.” Id. Plaintiff makes 3 no showing that these non-resident individuals engage in continuous and systematic 4 contacts with Arizona. 5 Specific jurisdiction is more limited and only appropriate when “the specific cause 6 of action arises out of a defendant’s more limited contacts with the state.” Roth v. Garcia 7 Marquez, 942 F.2d 617, 620 (9th Cir. 1991). This Court uses the three-prong “minimum 8 contacts” test to determine whether specific personal jurisdiction exists: 9 (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or 10 resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the 11 forum, thereby invoking the benefits and protections of its laws; 12 (2) the claim must be one which arises out of or relates to the 13 defendant’s forum-related activities; and 14 (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. 15 16 Schwarzenegger, 374 F.3d at 802. The plaintiff bears the burden on the first two prongs, 17 and a failure to satisfy either is fatal. Id. But “[i]f the plaintiff succeeds in satisfying both 18 of the first two prongs, the burden then shifts to the defendant to present a compelling case 19 that the exercise of jurisdiction would not be reasonable.” Id. (internal quotation and 20 citation omitted). Plaintiff fails to allege facts showing that any of these non-resident 21 individuals purposefully directed their activities here. Accordingly, the claims against these 22 21 individuals will be dismissed. 23 II. USERRA 24 Defendants argue that the Court lacks jurisdiction over Plaintiff’s USERRA claim. 25 The Court agrees. 26 USERRA “prohibits employers, including federal agencies, from discriminating 27 against employees on the basis of their military status.” Guli v. United States Attorney’s 28 Off. of the N. Dist. of California, No. 3:15-CV-03307-LB, 2015 WL 7759488, at *3 (N.D. 1 Cal. Dec. 2, 2015) (citing 38 U.S.C. §§ 4311, 4324). To bring a USERRA claim against 2 federal agencies, a plaintiff must submit a complaint to the Merit Systems Protection Board 3 (“MSPB”), after which he may appeal to the United States Court of Appeals for the Federal 4 Circuit if dissatisfied with the result. Id. (citing 38 U.S.C. § 4324). Plaintiff cannot bypass 5 this process by filing his USERRA claim in this District. His USERRA claim therefore is 6 dismissed for lack of subject-matter jurisdiction. 7 III. Bivens 8 Defendants argue that Plaintiff’s Bivens claim is untimely and also not cognizable. 9 The Court does not address the timeliness argument because it agrees that there is no 10 cognizable Bivens claim here. 11 In Bivens, the Supreme Court held that a citizen whose Fourth Amendment rights 12 were violated by a federal officer could sue for damages. 403 U.S. at 396-97. This marked 13 the first time that the Supreme Court recognized “an implied private action for damages 14 against federal officers alleged to have violated a citizen’s constitutional rights.” Corr. 15 Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). The Supreme Court has extended Bivens 16 only twice: first to a gender discrimination claim brought under the equal protection 17 component of the Fifth Amendment’s Due Process clause, and later to an Eighth 18 Amendment violation by prison officials. Davis v. Passman, 442 U.S. 228, 248-49 (1979); 19 Carlson v. Green, 446 U.S. 14, 24-25 (1980). “Since Carlson, however, the Supreme Court 20 has consistently refused to extend Bivens liability to any new context or new category of 21 defendants.” W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1119 (9th Cir. 2009) 22 (internal quotations and citation omitted). For example, the Supreme Court has declined to 23 extend Bivens to claims of First Amendment violations by federal employers, Bush v. 24 Lucas, 462 U.S. 367 (1983), and due process violations stemming from wrongful denials 25 of Social Security disability benefits, Schweiker v. Chilicky, 487 U.S. 412 (1988). 26 Cautioning that a “freestanding damages remedy for a claimed constitutional 27 violation . . . is not an automatic entitlement,” the Supreme Court has articulated a two- 28 step test for determining whether to recognize a Bivens remedy. Wilkie v. Robbins, 551 1 U.S. 537, 550 (2007). First, the Court determines whether there is “any alternative, existing 2 process for protecting the interest[.]” Id. “Such an alternative remedy would raise the 3 inference that Congress ‘expected the Judiciary to stay its Bivens hand[.]’” W. Radio Servs., 4 578 F.3d at 1120 (quoting Wilkie, 551 U.S. at 554.) This is true even if the alternative 5 process does not afford complete relief; “[s]o long as the plaintiff ha[s] an avenue for some 6 redress, bedrock principles of separation of powers foreclose[] judicial imposition of a new 7 substantive liability.” Corr. Servs. Corp., 534 U.S. at 69. If the Court finds “that Congress 8 intended a statutory remedial scheme to take the place of a judge-made remedy,” the 9 inquiry ends. See W. Radio Servs., 578 F.3d at 1120. If the Court cannot draw this 10 inference, it moves to step two and “asks whether there nevertheless are ‘factors counseling 11 hesitation’ before devising such an implied right of action.” Id. (quoting Wilkie, 551 U.S. 12 at 550). 13 Here, Plaintiff’s Bivens claim appears to be based on alleged discrimination related 14 to his military service. But USERRA provides an alternative remedial system for 15 addressing this sort of claim, the availability of which forecloses the Court from implying 16 a cause of action under Bivens. The claim is dismissed. 17 IV. FOIA 18 Subject to exceptions, FOIA offers a procedure for the public to gain access to 19 government records. See Windom v. Drug Enf’t Agency, No. 20-CV-02431-JCS, 2020 WL 20 3791643, at *2-3 (N.D. Cal. July 7, 2020). A person may seek relief in district court from 21 the denial of a FOIA request, but only after exhausting his administrative remedies. See 5 22 U.S.C. § 552(a)(6)(A)(i)-(ii); In re Steele, 799 F.2d 461, 466 (9th Cir. 1986). Moreover, 23 once in district court, the plaintiff must plead sufficient facts identifying the FOIA requests 24 at issue and when and how the defendant(s) responded, and showing that he exhausted 25 administrative remedies. See Windom, 2020 WL 3791643, at *3. 26 Plaintiff has not met this minimal pleading burden. He alleges only that the 27 defendant agency “redacts/denies material re: FOIA-PA exceptions.” (Doc. 57 at 4-5.) He 28 fails to plead the content of his FOIA requests, when or how the defendant agency || responded, or that he exhausted his administrative remedies as to these requests. □□ Accordingly, his FOIA claim is dismissed. 3 V. Privacy Act 4 Lastly, Plaintiff alleges a Privacy Act claim against Defendant Cheri Oz. But 5 || individual agency employees are not proper defendants under the Privacy Act. See 5 U.S.C. § 552a(g)(1); Dittman v. California, 191 F.3d 1020, 1026 (9th Cir.1999) (“[T]he private 7\|| right of civil action created by the Privacy Act ... is specifically limited to actions against 8 || agencies of the United States Government.” (quotation and citations omitted)). This claim is dismissed. 10 VI. Leave to Amend 11 Ordinarily, leave to amend should be given freely. Fed. R. Civ. P. 15(a)(2). But the 12 || Court may deny leave to amend if it finds bad faith, undue delay, prejudice to the opposing || party, and/or futility, or if the plaintiff has previously amended his complaint. See Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990). Here, the Court denies leave to 15 || amend. Many of the defects identified in this order go to subject-matter jurisdiction and therefore are unlikely to be curable by further amendment. What’s more, Plaintiff already 17 || has amended his complaint twice in this action (Docs. 6, 57), and this is his fourth federal lawsuit raising claims related to his “constructive discharge.” By now, Plaintiff has had || ample opportunity to plead whatever claims he believes he has. The Court finds further 20 || amendment is likely to be futile and will serve only to needlessly prolong this serial litigation. 22 IT IS ORDERED that Defendants’ motion to dismiss (Doc. 62) is GRANTED. 23 || The Clerk of the Court is directed to terminate all remaining motions as moot and close 24 || this case. 25 Dated this 29th day of September, 2023. 26 - b 4 bla 28 Do . Rayes United States District Judge

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