United States District Court, S.D. California
Dennis Moore, Plaintiff, Pro se, Inglewood, CA.
For Susan Tsui Grundmann, Chairman U.S. Merit Systems Protection Board, Anne M. Wagner, Vice-Chairman U.S. Merit Systems Protection Board, Defendants: U S Attorney CV, Dianne Schweiner, LEAD ATTORNEYS, U S Attorneys Office Southern District of California, Civil Division, San Diego, CA; Laura Grimes, LEAD ATTORNEY, U.S. Attorney's Office, San Diego, CA.
For United States, William D Spencer, Clerk, U.S. Merit Systems Protection Board, Bernard Parker, Information Management Specialist, U.S. Merit Systems Protection Board, Defendants: Dianne Schweiner, LEAD ATTORNEY, U S Attorneys Office Southern District of California, Civil Division, San Diego, CA; Laura Grimes, LEAD ATTORNEY, U.S. Attorney's Office, San Diego, CA.
ORDER: (1) GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S THIRD AMENDED COMPLAINT (2) VACATING HEARING DATE [Dkt. No. 101.]
HON. GONZALO P. CURIEL, United States District Judge.
Before the Court is Defendants Susan Tsui Grundmann, Anne M. Wagner, Bernard Parker, and William D. Spencer's (" Defendants") motion to dismiss Plaintiff Dennis Moore's (" Plaintiff") Third Amended Complaint (" TAC"). (Dkt. No. 101.) Plaintiff has filed an opposition. (Dkt. No. 105.) The Court finds the matter suitable for resolution without oral argument pursuant to Local Civil Rule 7.1(d)(1). For the reasons set out below, the Court GRANTS Defendants' motion to dismiss and DISMISSES WITHOUT LEAVE TO AMEND Plaintiff's TAC.
In May 1983, Plaintiff appealed to the Merit Systems Protection Board (" MSPB") the Defense Logistics Agency's removal of Plaintiff from his position as an Accounting Technician based on attendance related misconduct. (Dkt. No. 86 ¶ 1; Dkt. No. 101-4 at 17, 33-34. In August 1983, the MSPB dismissed the appeal without prejudice. (Dkt. No. 101-4 at 17-19.) In February 1985, following remand from the Federal Circuit, the MSPB affirmed Plaintiff's removal after conducting a full hearing on the merits. (Id. at 33-46.) Plaintiff appealed to the Northern District of Illinois, which affirmed the MSPB's decision. See Moore v. Defense Logistics Agency, 670 F.Supp. 800 (N.D.Ill. 1987). Plaintiff subsequently appealed to the Seventh Circuit, which affirmed the district court. See Moore v. Carlucci, 893 F.2d 1337 (7th Cir. 1989).
Over twenty years later, on April 15, 2011, Plaintiff made a request for " records of my initial filing" from the MSPB and sought to reopen his appeal based on " new information." (Dkt. No. 101-4 at 7.) On April 21, 2011, the MSPB provided Plaintiff a docket sheet listing four cases related to Plaintiff and a copy of the initial 1983 MSPB decision of his appeal, but informed him that his file had been destroyed in accordance with their case retention policy. (Id. at 6-7, 13, 15.)
On April 27, 2011, Plaintiff submitted a " FOIA appeal." (Id. at 21.) On June 1, 2011, the MSPB granted in part and denied in part Plaintiff's appeal under the Freedom of Information Act (" FOIA") and the Privacy Act. (Id. at 26-27.) The MSPB granted in part Plaintiff's appeal by providing the Westlaw and MSPB bound reporter copies of the short form dismissal of his petition for review by the MSPB. (Id.) The MSPB denied the appeal to the extent Plaintiff was requesting additional documents because Plaintiff's remaining case files were destroyed pursuant to the MSPB's policy to destroy all closed case files after six years. (Id.)
On July 1, 2011, the Clerk of the MSPB sent Plaintiff a letter regarding his request that the MSPB reopen his appeal, and informed him that he did not have a right to further administrative review. (Dkt. No. 101-6 at 5.) On September 8, 2011, Plaintiff submitted another request that the MSPB reopen his appeal. (Id. at 7.) On January 18, 2012, the Clerk of the MSPB sent Plaintiff another letter, again informing him that he did not have a right to further administrative review. (Id. at 21.)
III. PROCEDURAL HISTORY
Plaintiff, proceeding pro se, originally filed this action on July 15, 2011. (Dkt. No. 1.) On July 10, 2012, Plaintiff filed a First Amended Complaint (" FAC"). (Dkt. No. 29.) Plaintiff appealed the MSPB's denial of his request to reopen his appeal and alleged claims under FOIA and the Privacy Act regarding the MSPB's denial of his request for records. (Id.) Plaintiff also alleged tort, Title VII, and criminal claims. (Id.)
On May 5, 2013, the Court granted Defendants' motion to dismiss Plaintiff's FAC, setting forth detailed reasons why the FAC failed to state a claim upon which this Court may grant relief. (Dkt. No. 45.) Specifically, the Court found that: (1) it lacked subject matter jurisdiction over Plaintiff's appeal of the MSPB's denial of Plaintiff's request to reopen his case because the MSPB Clerk's administrative response was not a final order; (2) Plaintiff had failed to show any legal error or new and material evidence to support his claim that it was an " abuse of discretion" for the MSPB not to reopen his case; (3) Plaintiff's FOIA and Privacy Act claims were moot because the existing responsive documents had already been produced; (4) Plaintiff failed to allege exhaustion of administrative remedies as required to bring a tort claim under the Federal Tort Claims Act (" FTCA") or a discrimination claim under Title VII of the Civil Rights Act; (5) the Court lacked subject matter jurisdiction over Plaintiff's Notification and Federal Employees Antidiscrimination Act claim because no private cause of action exists under the Act; and (6) Plaintiff lacked authority to bring criminal claims against Defendants, and failed to sufficiently allege a civil Racketeer Influenced and Corrupt Organizations Act (" RICO") claim. (Id.) The Court granted Plaintiff leave to amend the deficiencies in his FAC.
Plaintiff filed his Second Amended Complaint (" SAC") on September 3, 2013. (Dkt. No. 50.) On April 10, 2014, the Court granted Defendants' motion to dismiss Plaintiff's SAC for failure to comply with Federal Rule of Civil Procedure 8. (Dkt. No. 84.) Specifically, the Court found that Plaintiff's SAC did not contain the allegations that appeared in his prior complaints, but instead quoted extensively from the Court's prior orders, referenced documents previously filed with the Court, and set forth legal arguments and authority in response to the Court's May 5, 2013 Order. (Id.) The Court granted Plaintiff leave to file a Third Amended Complaint. (Id. at 4.) However, the Court cautioned Plaintiff that his Third Amended Complaint must be complete within itself without reference to any superceded pleading or filed document. (Id.) In addition, the Court advised Plaintiff that it would not grant leave to file a Fourth Amended Complaint, and this was Plaintiff's final opportunity to file a complaint that stated a claim to relief. (Id.) Otherwise, his action would be dismissed with prejudice. (Id.)
Plaintiff filed the operative TAC, nunc pro tunc to May 30, 2014. (Dkt. No. 86.) He named as Defendants Susan Tsui Grundmann, MSPB Chairman; Anne M. Wagner, MSPB Vice-Chairman; Bernard Parker, MSPB Information Management Specialist; and William D. Spencer, MSPB Clerk. (Id. at 1.) In the TAC, Plaintiff alleges that: (1) the MSPB erroneously denied his FOIA and Privacy Act request for records; (2) the MSPB abused its discretion in declining to reopen Plaintiff's MSPB appeal of his termination; (3) Defendants violated his due process rights under the Fifth and Fourteenth Amendments to the U.S. Constitution; (4) Defendants violated RICO; (5) Defendants intentionally inflicted emotional distress; and (6) Defendants obstructed justice.
On October 8, 2014, Defendants filed the instant motion to dismiss Plaintiff's TAC under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. No. 101.) Plaintiff filed a response on November 14, 2014. (Dkt. No. 105.) Defendants did not file a reply.
IV. LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)
A defendant may raise the defense of lack of subject matter jurisdiction by motion pursuant to Federal Rule of Civil Procedure 12(b)(1). A motion to dismiss under Rule 12(b)(1) may present either a facial or factual challenge. Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012). A facial challenge, like that presented here, asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction, and is reviewed under the same standard as a motion brought under Rule 12(b)(6). Id.
" Ordinarily, a case dismissed for lack of subject matter jurisdiction should be dismissed without prejudice so that a plaintiff may reassert his claims in a competent court." Frigard v. United ...