United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
RE: DKT. NOS. 8, 13
M WHYTE United States District Judge
Mark Feathers, proceeding pro se, brings a claim for judicial
deception against defendant Roger D. Boudreau, an accountant
for the Securities and Exchange Commission. Dkt. No. 1.
Defendant moves to dismiss for lack of subject matter
jurisdiction and failure to state a claim. Dkt. Nos. 8, 13.
Plaintiff opposes the motion. Dkt. No. 11. The court heard
oral argument on April 29, 2016. For the reasons set forth
below, the court grants defendant’s motion to dismiss.
21, 2012, the SEC filed an enforcement action against
plaintiff and certain entities controlled by plaintiff.
See SEC v. Small Bus. Capital Corp., Case No.
12-cv-03237-EJD, Dkt. No. 1. On the same day, the SEC moved
ex parte for a temporary restraining order seeking, among
other relief, to freeze plaintiff's assets and appoint a
receiver. Id., Dkt. No. 5. The temporary restraining
order was granted, and plaintiff later consented to entry of
a preliminary injunction. Id., Dkt. Nos. 16, 29, 34.
In support of its ex parte motion, the SEC submitted a
declaration from Roger D. Boudreau, a senior accountant in
the SEC’s enforcement division and the defendant in
this case. Id., Dkt. No. 8.
challenged the accuracy of defendant’s accounting and
moved for sanctions against defendant during the course of
the SEC enforcement action. See, e.g., Case No.
12-cv-03237-EJD, Dkt. Nos. 96, 126. Plaintiff’s motions
for sanctions against defendant were denied. Id.,
Dkt. No. 272. The court subsequently granted summary judgment
for the SEC and awarded injunctive and monetary relief.
Id., Dkt. Nos. 591, 622. The SEC did not rely on Mr.
Boudreau’s declaration in its motion for summary
judgment or its motion for injunctive relief and monetary
remedies. See Id . Dkt. Nos. 477, 602.
Plaintiff’s appeals of these orders are pending.
Id., Dkt. Nos. 593, 623.
then challenged the accuracy of defendant’s accounting
in a federal action against the United States. See
Feathers v. United States, Case No. 5:15-CV-2194-PSG,
Dkt. No. 1. Plaintiff’s complaint against the United
States sought relief under the Federal Tort Claims Act, the
Civil Rights Act, and the Privacy Act. Id. The court
dismissed plaintiff’s tort claims, finding that the
discretionary function exception of the FTCA deprived the
court of subject matter jurisdiction. Id., Dkt. No.
30 at 6-7. The court dismissed plaintiff’s § 1983
claim for lack of subject matter jurisdiction based on
sovereign immunity. Id. at 7-8. The court dismissed
plaintiff’s Privacy Act claim relating to the release
of information by the SEC for failure to state a claim.
Id. at 8. Plaintiff amended his complaint to allege
new constitutional causes of action against the United States
based on “largely the same body of facts, ” but
the court dismissed plaintiff’s constitutional claims
for lack of subject matter jurisdiction, finding that
plaintiff’s constitutional claims could not satisfy the
requirements for waiver of sovereign immunity under the
Administrative Procedures Act, under the FTCA, or through a
Bivens action. Id., Dkt. No. 47 at 3, 5-6.
The court denied plaintiff leave to amend, noting that
plaintiff had “not suggested that further leave to
amend would solve the difficulty of sovereign
immunity.” Id. at 6. The court specifically
noted that “amending his complaint to name the
accountant would not allow Feathers to successfully present a
Bivens claim, because the court previously found
that Feathers’ injury was caused by the SEC’s
decision to bring a civil enforcement action against him, not
by the accountant’s alleged error.” Id.
case, plaintiff appears to present a Bivens claim
for “judicial deception” naming the SEC
accountant. The elements of a judicial deception claim
are 1) an officer’s “deliberate falsehood or
reckless disregard for the truth, ” and 2) the
materiality of the dishonesty such that “but for the
dishonesty, the challenged action would not have
occurred.” See Butler v. Elle, 281 F.3d 1014,
1024 (9th Cir. 2002).
plaintiff alleges that defendant was grossly reckless when he
departed from accepted accounting practices, specifically by
falsely labeling “his accounting charts, tables, and
narratives with the public accounting reference of
‘distributions’ in his testimony, ” even
though the labeled figures “were not actually
distributions at all.” Id. ¶¶ 2-3,
7-8, 11. According to plaintiff, defendant’s accounting
made it appear that plaintiff’s “investment funds
were distributing more than twice the amount of capital
distributions as they actually distributed.”
Id. ¶ 14.
to plaintiff, defendant provided these false accountings
“under oath, ” in his declaration, and the SEC
incorporated defendant’s accountings throughout the
complaint. Id. ¶¶ 2, 12. Plaintiff further
alleges that defendant’s “false material
accountings caused a wrongful seizure” of
plaintiff’s assets when the court granted the temporary
restraining order, thereby depriving plaintiff of “the
ability to employ counsel and expert witnesses.”
Id. ¶ 4. Plaintiff further alleges that the
wrongful seizure resulted in plaintiff giving
“uninformed consent” to the entry of the
preliminary injunction. Id. ¶ 7. Plaintiff also
claims harm to his reputation and loss of revenue, and seeks
to represent the class “of all persons similarly
situated and who suffered a loss from their
investments” the entities controlled by plaintiff,
“directly or indirectly.” Id.
¶¶ 32, 33, 26.
moves to dismiss the complaint on four grounds: 1) the FTCA
judgment bar, 2) res judicata, 3) absolute witness immunity,
and 4) qualified immunity. Because the court finds that
defendant is entitled to absolute witness immunity, the court
does not reach the question of qualified immunity.
Federal Tort Claims Act § 2676 Judgment Bar
FTCA provides limited waiver of sovereign immunity,
permitting plaintiffs to seek damages for certain torts
committed by federal employees. See 28 U.S.C. §
1346(b). The statute contains “Exceptions” to the
waiver of sovereign immunity for certain categories of
claims. See 28 U.S.C. § 2680. The statute also
contains a “judgment bar, ” such that any
judgment in an FTCA action “shall constitute a complete
bar to any action by the claimant, by reason of the same
subject matter, against the employee of the government whose
act or omission gave rise to the claim.” 28 U.S.C.
§ 2676. In Feathers v. United States, the court
dismissed plaintiff’s tort claims against the United
States as barred by the “discretionary function”
exception of the FTCA. See Case No.
5:15-CV-2194-PSG, Dkt. No. 30 at 6-7 (“The only
plausible reality is that Feathers’ injuries were
caused by the SEC’s decision to bring a civil
enforcement action against him, not Boudreau’s
accounting error. That decision by the SEC satisfies both
elements of the discretionary function exception.”).
argued in his motion to dismiss that plaintiff’s
judicial deception claim is barred by the earlier dismissal
of plaintiff’s tort claims. After the hearing on
defendant’s motion, however, the Supreme Court held the
judgment bar does not apply to suits that are dismissed as
falling within one of the statutory “Exceptions”
of the FTCA. See Simmons v. Himmelreich, No. 15-109,
2016 WL 3128838, at *5-7 (U.S. June 6, 2016) (concluding that
plaintiff’s second suit against individual prison
employees should be permitted to go forward where
plaintiff’s first suit against the United States was
dismissed based on FTCA’s discretionary function
exception). Defendant conceded at ...