EDMUND F. BRENNAN, Magistrate Judge.
This case was before the court on October 26, 2016, for hearing on defendants' motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1) and for failure to state a claim pursuant to Rule 12(b)(6) (ECF No. 22), and plaintiff's motion for sanctions pursuant to Rule 11 (ECF No. 25).
This action proceeds on plaintiff's first amended complaint, which purports to assert claims against the United States Department of Defense and James Mattis, the Secretary of Defense. ECF No. 16. Plaintiff, a 58 year old African American male, was previously employed as a federal police officer with the Defense Logistics Agency ("DLA") who had his security clearance revoked. Id. ¶¶ 25, 26.
Plaintiff alleges that throughout his employment with the DLA he received fully successful performance ratings with exceptional rankings from his superiors. Id. ¶ 27. However, on November 19, 2012, things changed. He was cited by a California Highway Patrol officer for having tinted windows and an expired vehicle registration. Id. ¶ 37. In light of the circumstances of that traffic stop, the DLA opened an investigation regarding the traffic citations and plaintiff was placed on administrative duties. Id. ¶¶ 39, 40. Shortly thereafter, District Attorney's office notified the DLA that a criminal complaint was filed against plaintiff charging him with three felonies. Id. ¶ 42. Specifically, plaintiff was charged with theft of a vehicle, receiving stolen property, and vehicle license forgery. Defs.' Req. for Judicial Notice ("RJN"), Ex. A.
Although the DLA contends that the revocation of the security clearance and the disciplinary actions of which plaintiff complains were the result of the information obtained from the state criminal charges, the crux of plaintiff's complaint is that the various disciplinary decisions directed at him were motivated by race and age discrimination. He contends that the discipline he received was disproportionate to the discipline administered to other non-African American DLA police officers under the age of 40 for similar conduct. Id. ¶¶ 1-8. He also claims that he was denied multiple promotions based on discrimination, and that he was defamed, libeled, and slandered by statements related to the disciplinary events. Id. ¶¶ 9-19.
He asserts claims styled as (1) race discrimination under Title VII; (2) age discrimination under the Age Discrimination Act of 1967; (3) "harmful procedural error;" and (4) violation of his due process rights under the Fifth Amendment. Although not identified as a separate cause of action, the complaint contains numerous allegations accusing defendants of defaming plaintiff's character.
Plaintiff filed an appeal with the Merits Systems Protection Board ("MSPB") challenging the agency's March 15, 2013 decision to suspend him indefinitely without pay.
The following month, an MSPB Administrative Law Judge ("ALJ") issued an initial decision, subsequently affirmed by the Board, that reversed plaintiff's indefinite suspension. The ALJ found that the criminal complaint, without more, was insufficient to sustain the indefinite suspension. RJN Exs. C, D. The MSPB ordered the agency to cancel the suspension; reinstate plaintiff effective April 1, 2013; and pay plaintiff back pay and other benefits. RJN Ex. C at 10. The agency complied and plaintiff's suspension was subsequently canceled. He was returned to his position, but because of the loss of the security clearance he was placed "in an administrative leave status." Eskew Decl. ¶ 11. Plaintiff alleges that placing him in that status was also motivated by discriminatory animus. ECF No. 16 at 1-8.
In January 2014, the agency issued a decision to terminate his employment effective February 4, 2014. Id. ¶ 13-15, Exs. E-F. Plaintiff responded with anther MSPB appeal challenging his termination (RJN Ex. F), and an ALJ again reversed the agency's decision. The ALJ found that the agency violated plaintiff's due process rights by relying on evidence not identified in the notice of removal as the basis for terminating his employment.
Plaintiff also filed two petitions with the MSPB seeking enforcement of its ruling. One sought enforcement of the order reversing his indefinite suspension and the other related to the decision reversing his termination. RJN Exs. E, G. He argued that the agency failed to comply with the MSPB's orders by refusing to return plaintiff to active duty, failing to reinstate certain benefits of employment, and improperly calculating his back pay and benefits. Id. The MSPB denied both petitions, finding that plaintiff had failed to demonstrate noncompliance. Id.
Although it appears that plaintiff was successful in obtaining reinstatement and back pay in his appeals before the MSPB, he nonetheless has filed a "mixed case"
On a Rule12(b)(1) motion to dismiss for lack of subject matter jurisdiction, plaintiff bears the burden of proof that jurisdiction exists. See, e.g., Sopcak v. Northern Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir. 1995); Thornhill Pub. Co. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979). Different standards apply to a 12(b)(1) motion, depending on the manner in which it is made. See, e.g., Crisp v. U.S., 966 F.Supp. 970, 971-72 (E.D. Cal. 1997). "A Rule 12(b)(1) jurisdictional attack may be facial or factual." Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial attack "asserts that the lack of subject matter jurisdiction is apparent from the face of the complaint." Id. If the motion presents a facial attack, the court considers the complaint's allegations to be true, and plaintiff enjoys "safeguards akin to those applied when a Rule 12(b)(6) motion is made." Doe v. Schachter, 804 F.Supp. 53, 56 (N.D. Cal. 1992).
Conversely, a factual attack challenges the truth of the allegations in the complaint that give rise to federal jurisdiction. If the motion makes a "factual attack" on subject matter jurisdiction, often referred to as a "speaking motion," the court does not presume the factual allegations of the complaint to be true. Thornhill, 594 F.2d at 733. In a factual attack, defendant challenges the truth of the jurisdictional facts underlying the complaint. "Faced with a factual attack on subject matter jurisdiction, the trial court may proceed as it never could under Rule 12(b)(6). . . . No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. (quotations and citation omitted). The court may consider evidence such as declarations or testimony to resolve factual disputes. Id.; McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). "However, when `ruling on a jurisdictional motion involving factual issues which also go to the merits, the trial court should employ the standard applicable to a motion for summary judgment.' Under this standard, `the moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.'" Trentacosta v. Frontier Pacific Aircraft Industries, Inc., 813 F.2d 1553, 1558 (9th Cir. 1987) (quotations and citations omitted) (emphasis added).
Here, defendants present a facial attack. The question raised by the defense can be resolved by the allegations of the complaint itself and documents subject to judicial notice. Accordingly, the court applies the Rule 12(b)(6) standards to this motion.
To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more. . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "[A] complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Aschroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithem, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The court will "presume that general allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972); Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985). The Ninth Circuit has held that the less stringent standard for pro se parties is now higher in light of Iqbal and Twombly, but the court still continues to construe pro se filings liberally. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, the court's liberal interpretation of a pro se litigant's pleading may not supply essential elements of a claim that are not pled. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Furthermore, "[t]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
In deciding a Rule 12(b)(6) motion to dismiss, the court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987), and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986).
As noted, defendants argue that subject jurisdiction is lacking as to the majority of plaintiff's claims, and that his factual allegations fail to state a claim as to the others. ECF No. 22-1.
Plaintiff raises a threshold argument that the defendants' motion is untimely and should not be considered. ECF No. 24 at 27. The argument lacks merit. Defendants moved to dismiss plaintiff original complaint on June 21, 2016. ECF No. 13. In response, plaintiff amended his complaint pursuant to Rule 15 by filing a first amended complaint on June 29, 2016.
Turning to the merits of defendants' motion, they first argue that the majority of plaintiff's claims must be dismissed for lack of jurisdiction. They note that these claims are dependent upon a review of the decision to revoke plaintiff's security clearance, and any claims requiring review of that decision are barred. ECF No. 22-1 at 11-14.
In Dep't of Navy v. Egan, 484 U.S. 518 (1988), the Supreme Court held that the MSPB lacks authority to review a decision denying an individual a security clearance, reasoning that security clearance determinations are "sensitive and inherently discretionary" and are "committed by law to the appropriate agency of the Executive Branch." 484 U.S. at 527-29. Egan was extended by the Ninth Circuit to also preclude judicial review of security clearance decisions, finding that the reviewability of such decisions "applie[d] no less to the federal courts than to the MSPB." Dorfmont v. Brown, 913 F.2d 1399, 1401 (9th Cir. 1990).
Egan and Dorfmont have also been applied to preclude jurisdiction over a Title VII claim alleging that a revocation of a security clearance was the result of race discrimination. Brazil v. Dep't of Navy, 66 F.3d 193 (9th Cir. 1995). The court in Brazil explained that the resolution of the Title VII claim would necessarily require an evaluation of whether the reasons for revoking the security clearance were valid. Id. at 197. It explained that under the McDonnell Douglas
Here, plaintiff's amended complaint specifically claims that defendants' decision to suspend his security clearance violated his right to due process and was based on harmful procedural errors and discrimination in violation of Title VII and the Age Discrimination in Employment Act ("ADEA"). ECF No. 16 ¶ 5. As such, his claim is indistinguishable from Brazil and his challenge is barred.
Plaintiff's claims related to his placement on administrative leave and denial of promotions occurring after June 11, 2013—the date his security clearance was suspended—are similarly barred. A prerequisite to plaintiff resuming his positions as a police officer or receiving a promotion was his holding of a valid security clearance. Thus, resolution of these claims would also require review of the merits of the decision to suspend plaintiff's clearance. One necessarily follows the other. As explained by Carl Eskew, the Chief of Security and Emergency Services at DLA's Defense Distribution Depot San Joaquin, the decisions to preclude plaintiff from entering the DLA base, and to place him on administrative leave instead of returning him to his duties as a police officer after the MSPB reversed the agency's decisions were based, at least in part, on plaintiff's security clearance having been suspended. Eskew Decl. ¶ 21. He explains that all DLA police officers are required to maintain at least a "Secret" level security clearance. Eskew Decl. ¶ 4. Without his security clearance, plaintiff was not able to return to his job as a police officer. Id. ¶¶ 12, 21. Consequently, he was placed on administrative leave and barred from entering the DLA base. Id. ¶ 21. Mr. Eskew further states that plaintiff was not qualified for a promotion to a Sergeant or Lieutenant, as one cannot hold those positions without a security clearance. Id. ¶ 22.
Review of these determinations necessitates an evaluation of whether defendants' "proffered reasons [for suspending plaintiff's security clearance] were legitimate" or "whether the given reasons were mere pretext." Brazil, 66 F.3d at 197; see Drazich v. Mubuz, 2014 WL 2069474 (N.D. Cal. May 16, 2014) (court lacked jurisdiction over plaintiff's discriminatory termination claim where plaintiff "was terminated because his security clearance was revoked, and the clearance was a requirement of his job."). As the Ninth Circuit has explained in Brazil, review of the clearance decision in this context is barred. Therefore these claims must be dismissed without leave to amend.
As with the Title VII claims, any of plaintiff's age discrimination claims that call into question the revocation of his security clearance are also barred. But defendants also argue that the age discrimination claim related to the challenged disciplinary action is moot. ECF No. 22-1 at 14-15 (noting plaintiff's successful appeal before the MSPB). Id. at 16.
"The doctrine of mootness, which is embedded in Article III's case or controversy requirement, requires that an actual, ongoing controversy exists at all stages of federal court proceedings." Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir. 2011). A case is moot "if events subsequent to the filing of the case resolve the parties' dispute." Id. at 1087. Under such circumstances the court must dismiss the action because it does "not have the constitutional authority to decide moot cases." Id.
Defendants observe that the decisions to indefinitely suspend plaintiff and remove him from federal service were reversed by the MSPB and that plaintiff was awarded all available remedies. ECF No. 22-1 at 8-9. Thus, defendants contend, plaintiff's age discrimination and claim based on these disciplinary actions is now moot. Id. Indeed, it appears that plaintiff already obtained any relief available on his age claim. Under the Age Discrimination in Employment Act, relief "is limited to `judgments compelling employment, reinstatement, or promotion,' the recovery of unpaid minimum wages or overtime pay, and reasonable attorneys' fees and costs." Ahlmeyer v. Nevada Sys. of Higher Education, 555 F.3d 1051, 1059 (9th Cir. 2009) (citing 29 U.S.C. §§ 216(b), 626(b)). Punitive damages and compensatory damages for pain and suffering are not available under the ADEA. Id.
Plaintiff was successful in having his indefinite suspension and removal from his employment overturned. On July 17, 2013, an Administrative Law Judge found that the decision to indefinitely suspend plaintiff was based solely on the criminal complaint filed in state court, and that such evidence alone was insufficient to support the decision. See RJN Ex. C. An ALJ ordered "the agency to cancel the suspension and retroactively restore [plaintiff] effective April 1, 2013," and to pay plaintiff the appropriate amount of back pay. Id. at 8. That order was affirmed by the MSPB. RJN Ex. D. Furthermore, the MSPB subsequently found that the agency complied with its order "reversing the [plaintiff's] indefinite suspension and making the appellant whole." RJN Ex. E, ¶ 6.
The MSPB also found that in terminating plaintiff's employment, the agency violated plaintiff's procedural due process rights and ordered plaintiff returned to service and awarded back pay. RJN Ex. F. Accordingly, the agency canceled plaintiff's removal and awarded him back pay. RJN Ex. G. This demonstrates that plaintiff already received all the relief he is entitled to under his ADEA claim. Ahlmeyer, 555 F.3d at 1059. But plaintiff argues that he was not returned to duty as a police officer. Thus, he insists, he was not given back pay for overtime hours he would have received had he been restored as a police officer. Thus, he argues, his age claim is not moot. ECF No. 24 ¶¶ 26, 28, 30, 31. This argument cannot overcome the Egan bar. As discussed above, having a security clearance is a prerequisite to assuming the duties of a police officer and his argument calls into question the suspension or revocation of his security clearance. As such, it is barred. Brazil v. Dep't of Navy, 66 F.3d at 197.
To be sure, the MSPB reversed the suspension without pay, but its initial decision ordering cancellation of the indefinite suspension and retroactive restoration was not issued until July 17, 2013. RJN Ex. C. By that time, plaintiff's security clearance had already been revoked. Consequently, although he could be restored to some type of duty, he was barred from resuming active duty as a federal police office. Thus, while the MSPB could award back pay and direct a return to service in some other capacity, it could not—nor could this court—order reinstatement of a security clearance that would permit him to resume duties requiring such a clearance. As the determination "necessarily requires the court to perform some review of the merits of the security clearance decision," the claim is barred for lack of jurisdiction. Brazil, F.3d at 196.
Plaintiff next argues that these claims are not moot because defendants failed to "properly restore" his Thrift Savings Plan account and withheld $21,760 of his back pay "for unemployment earnings without providing the requisite proof to the Plaintiff and the MSPB [that] the Defendants in fact repaid" that sum on money to the State of California. ECF No. 24 ¶¶ 34-35. These new allegations, however, are raised only in plaintiff's opposition to defendants' motion; the complaint itself is devoid of allegations concerning plaintiff's Thrift Savings Plan and unemployment earnings. Accordingly, they do not show that the claims in the complaint are not moot. See Schneider v. Cal. Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (new allegations presented in an opposition are irrelevant in evaluating the sufficiency of the claims); Safe Air for Everyone, 373 F.3d at 1039 (once moving party has presented evidence refuting jurisdiction, the opposing party must produce "evidence necessary to satisfy its burden of establishing subject matter jurisdiction."). They do, however, suggest that the dismissal of the claim should be with leave to amend to allow plaintiff an opportunity to allege a claim that remains ripe for review.
Defendants further argue that plaintiff fails to state a claim for age discrimination based on his allegations that he was wrongfully denied promotions. ECF No. 22-1 at 16. To state a claim for violation of the ADEA, plaintiff must allege that he "was (1) at least forty years old, (2) qualified for the position for which an application was submitted, (3) denied the position, and (4) the promotion was given to a substantially younger person." Shelley v. Geren, 666 F.3d 599, 608 (9th Cir. 2012).
His complaint alleges that plaintiff is over forty (ECF No. 16 ¶ 25), but does not allege that he was qualified for the positions he was denied. In fact, plaintiff does not even allege that he applied for the positions he was allegedly wrongfully denied. Furthermore, plaintiff does not identify the age of the individuals that were given the position. See ECF No. 16 ¶¶ 9-14. Rather, he merely alleges that many of the individuals that were granted promotions were under the age of 40. Id ¶ 63(k). This allegation is insufficient to show that the promotions were given to individuals that were substantially younger than plaintiff. Thus, he fails to allege claims for age discrimination. Accordingly, plaintiff's ADEA claim must be dismissed with leave to amend granted only to the extent that an amended claim is not predicated on any challenges to the suspension of plaintiff's security clearance. See Noll v. Carlson, 809 F.2d at 1448.
Plaintiff's fourth cause of action alleges that defendants violated his right to due process under the Fifth Amendment.
Plaintiff's fourth cause of action might also be read as an attempt to request review of the MSPB decision based on alleged due process violations, raising the question of whether leave to amend to clearly assert such a claim is appropriate. He claims that his due process rights were violated because he was never returned to the workplace and that the post-suspension and post-removal processes were defective for a variety of reasons, including: the MSPB did not sanction the DLA for discovery motion violations; the ALJ allowed DLA officials to commit perjury and testify without providing documentation to support their testimony; and the DLA never provided plaintiff with a statement explaining the amount of back pay he was entitled to receive. ECF No. 16, ¶¶ 97-98. Lastly, he alleges that the agency committed numerous procedural errors in deciding to place him on administrative leave, suspending him without pay, not promoting him, and terminating his employment. Id. ¶¶ 88-93. But as defendants argue, plaintiff's due process allegations necessarily fail because his own complaint and documents subject to judicial notice demonstrate that plaintiff received all the process he was due. ECF No. 22-1 at 17. As noted above, plaintiff not only availed himself of the opportunity to challenge his indefinite suspension before the MSPB, he was successful in having it overturned. RJN Exs. C, D. Although he quibbles with the extent of relief granted by the board, his own complaint shows that he was not deprived of due process. As argued by defendants, "[t]hese allegations show that Mr. Brown's true gripe is that he did not get the particular outcome that he wanted at the MSPB . . . ." ECF No. 22-1 at 17. However, the allegations do not demonstrate that he was deprived of reasonable notice and a meaningful opportunity to be heard. Brewster v. Bd. Of Educ. Of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998). Not only did he receive such process, he was ultimately successful in challenging his removal.
Given that judicially-noticeable documents demonstrate that he was afforded due process, the dismissal must be without leave to amend. See Noll v. Carlson, 809 F.2d at 1448.
Plaintiff's complaint, without specifically saying so, vaguely suggests a claim for defamation. Defendants argue, among other things, that a defamation claim fails as a matter of law due to plaintiff's failure to exhaust his administrative remedies under the Federal Tort Claims Act. ECF No. 22-1 at 18.
As a sovereign, the United States is immune from suit except according to its consent to be sued. Lehman v. Nakshian, 453 U.S. 156, 160 (1981). It necessarily follows that where Congress waives the immunity of the United States any terms and conditions that it places on the waiver are jurisdictional and must be strictly construed. See Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U.S. 273, 287 (1983); Jerves v. United States, 966 F.2d 517, 521 (9th Cir. 1992). Congress has waived the immunity of the United States for certain tort claims as provided in the FTCA,
Although Congress has consented to suits against the United States under the FTCA, prior to litigating a tort claim against the United States, a plaintiff must first file an administrative claim with the appropriate federal agency. 28 U.S.C. § 2675(a). Presentation of an FTCA claim must be made within two years of the accrual of the claimant's cause of action. 28 U.S.C. § 2401(b). A claim is deemed "presented" to the federal agency upon its receipt. See 28 C.F.R. § 14.2(a); Vacek v. U.S. Postal Service, 447 F.3d 1248, 1251 (9th Cir. 2006) (mailbox rule does not apply to FTCA cases). A civil action may not be instituted until an administrative claim has "been finally denied by the agency in writing and sent by certified or registered mail." 28 U.S.C. § 2675(a). As noted, the administrative claim requirement under the FTCA is jurisdictional and cannot be waived. Cadwalder v. United States, 45 F.3d 297, 300 (9th Cir.1995). In addition, courts are required to strictly construe the exhaustion requirement. Vacek, 447 F.3d at 1250 (where exhaustion conditions not satisfied, action may not proceed "merely because dismissal would visit a harsh result upon the plaintiff.").
There is no indication from the record that plaintiff presented his an administrative tort claim regarding his allegations of defamation with any federal agency. Plaintiff's failure to exhaust his administrative remedies deprives this court of subject matter jurisdiction over this claim. More significantly, even had he filed an administrative claim, the FTCA does not extend to "any claim arising out of . . . libel . . . [or] slander . . . ." 28 U.S.C. § 2680(h). As the United States has not waived its immunity for claims of defamation, this claim must be dismissed with prejudice for lack of subject matter jurisdiction. See Wilborn v. Napolitano, 2012 WL 354494, at * 9 (S.D. Cal. Feb. 2, 2012).
Plaintiff seeks sanctions against defendants pursuant to Rule 11, arguing that their motion to dismiss mischaracterizes the facts of this case and that the declarations of Carl A. Eskew, submitted in support of defendants' motion, contains false statements. ECF No. 25.
"Rule 11 requires the imposition of sanctions when a motion is frivolous, legally unreasonable, or without factual foundation, or is brought for an improper purpose." Conn v. Borjorquez, 967 F.2d 1418, 1420 (9th Cir. 1992). "The central purpose of Rule 11 is to deter baseless filings." United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 254 (9th Cir. 1992) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990)). An "improper purpose" is a purpose to "harass or to cause unnecessary delay or needless increase in the cost of litigation." Fed. R. Civ. P. 11(b)(1). The test for improper purpose is an objective one. G.C. and K.B. Invs., Inc. v. Wilson, 326 F.3d 1096, 1109 (9th Cir. 2003).
Defendants' motion was not filed for an improper purpose. Rather, as explained above, it presents meritorious arguments supporting the dismissal of plaintiff's first amended complaint. Plaintiff's motion for sanctions lacks merit and is denied.
Based on the foregoing, what remains of plaintiff's complaint are portions of his Title VII claim concerning agency action that predate the suspension of his security clearance, which the government did not move to dismiss. See supra note 11. All other claims must be dismissed. However, plaintiff is granted leave to amend the portions of his purported ADEA claim that would not barred by Egan, if he can allege sufficient facts in support of such a claim. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity to amend to correct any deficiency in their complaints). Should plaintiff choose to file an amended complaint, the amended complaint shall clearly set forth the allegations against defendants and shall specify a basis for this court's subject matter jurisdiction. Any amended complaint shall plead plaintiff's claims in "numbered paragraphs, each limited as far as practicable to a single set of circumstances," as required by Federal Rule of Civil Procedure 10(b), and shall be in double-spaced text on paper that bears line numbers in the left margin, as required by Eastern District of California Local Rules 130(b) and 130(c). Any amended complaint shall also use clear headings to delineate each claim alleged and against which defendant or defendants the claim is alleged, as required by Rule 10(b), and must plead clear facts that support each claim under each header.
Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to make an amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once plaintiff files an amended complaint, the original no longer serves any function in the case. Therefore, "a plaintiff waives all causes of action alleged in the original complaint which are not alleged in the amended complaint," London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to comply with the Federal Rules of Civil Procedure, this court's Local Rules, or any court order may result in a recommendation that this action be dismissed. See Local Rule 110.
Accordingly, it is hereby ORDERED that:
1. Defendants' motion for leave to file a supplement to the motion to dismiss (ECF No. 40) is denied as moot; and
2. Plaintiff's motion for sanctions (ECF No. 25) is denied.
Further, it is RECOMMENDED that defendants' motion to dismiss (ECF No. 22) be granted as follows:
1. Plaintiff's Title VII and ADEA claims be dismissed without leave to amend to the extent they are predicated on agency action that occurred after June 11, 2013. The balance of plaintiff's age discrimination claim be dismissed with leave to amend.
2. Plaintiff's defamation claim and due process claims (and related harmful procedural error claim) be dismiss without leave to amend.
3. Plaintiff be granted thirty days from the date of any order adopting these findings and recommendations to file an amended complaint as provided herein. The amended complaint must bear the docket number assigned to this case and must be labeled "Second Amended Complaint." Should plaintiff fail to timely file an amended complaint, this action will proceed on plaintiff's Title VII claim challenging defendants' conduct prior to the suspension of his security clearance.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Id. at 2130 (quotations and citations omitted).
When an employee seeks review of an agency's decision by the MSPB, the case may be referred to an Administrative Law Judge, who will issue an initial decision. 5 C.F.R. § 1201.111. A dissatisfied party may seek review of the initial decision by filing a petition for review with the full Board. 5 C.F.R. § 1201.114. Upon review, the Board may, among other things, issue a final decision resolving the case. 5 C.F.R. § 1201.117. However, if neither party seeks review, the initial decision will become the Board's final decision 35 days after its issuance. 5 C.F.R. § 1201.113.
