Munns et al v. Clinton et al

Filing 53

MEMORANDUM and ORDER signed by Judge Morrison C. England, Jr. on 3/27/2012 GRANTING. without leave to amend, 46 Motion to Dismiss Plaintiff's 43 First Amended Complaint. This action will proceed on Plaintiffs remaining claims against the Insurance Defendants. Defendants United States of America, Hillary Diane Rodham Clinton and Jennifer Foo TERMINATED. (Michel, G)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARK MUNNS, et al.,

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No. 2:10-cv-00681-MCE-EFB

Plaintiffs,
v.

MEMORANDUM AND ORDER

HILLARY DIANE RODHAM CLINTON,
et al.,

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Defendants.
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----oo0oo---17
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Presently before the Court is a Motion to Dismiss (“Motion”)

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Plaintiffs’ First Amended Complaint (“FAC”) filed by Defendants

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Hillary Diane Rodham Clinton and Jennifer Foo (collectively

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“Defendants”) in their official capacities as Secretary of State

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of the United States and as an employee of the Office of the

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Secretary of State, respectively.

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successfully moved to dismiss (hereafter “First Motions”)

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Plaintiffs’ original Complaint (“Original Complaint”), see

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Munns v. Clinton, ___ F. Supp. 2d ____, 2011 WL 4566004 (E.D.

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Cal.) (“Original Order”), and now, Plaintiffs’ FAC is DISMISSED

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without leave to amend for essentially the same reasons.
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Defendants already

BACKGROUND

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A.

Factual Background

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Given the substantial similarity between the Original

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Complaint and the FAC, the Court’s iteration of the facts here is

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taken primarily from its Original Order granting Defendants’

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First Motions, motions they filed in both their individual and

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official capacities.

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Unless material differences between the pleadings are

Original Order, 2011 WL 4566004, *1-4.

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specifically identified, all of the below facts were alleged in

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both the Original Complaint and the FAC.

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detail the facts in this manner because, as will become clear

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below, Plaintiffs have not materially amended their Complaint and

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the Court’s resolution of Defendants’ First Motions in its

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Original Order is thus still directly on point here.

The Court has chosen to

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The original Plaintiffs were the families (“Family

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Plaintiffs”) of three men, Joshua Munns, John Young and John

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Cote, who were killed in Iraq in 2008 (“Decedents”).

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were employed by a private contractor, Crescent Security

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(“Crescent”), that performed security functions under contract

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with the United States Government.1

Decedents

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According to the FAC, at some point prior to the events
giving rise to Plaintiffs’ claims, the Government “created an
‘authorized’ list of private contractors.” See, e.g., FAC, ¶ 3.
The Government purportedly “oversee[s]” those private
contractors, including Crescent, and the agreements entered into
by the contractors and their employees. Id. Though Plaintiffs’
attempt to implicate the Government in the FAC is more explicit
than their attempt in their Original Complaint, Plaintiffs
nonetheless made similar allegations that the employment
contracts were “authorized” by the Secretary of State even in
their initial pleading. Original Complaint, p. 12, ¶ 19.
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In addition, Gary D. Bjorlin, a former Marine who is

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presently classified as a contractor, has now also been joined as

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a Plaintiff.

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previously served in Iraq.

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FAC, ¶ 9.

According to the FAC, Mr. Bjorlin
Id.

The events underlying the Complaint were triggered in 2006

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when Crescent assigned Decedents and four other men to guard a

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one and one-half mile long military convoy traveling from Kuwait

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to Southern Iraq.2

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men substandard equipment, ordered another security team that was

According to Plaintiffs, Crescent issued the

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supposed to assist in the duty to stand down, and failed to

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provide the men proper instructions or job guidelines.

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addition, Iraqi security team members, who were also Crescent

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employees, failed to appear for the assignment, leaving only the

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seven men to guard the convoy.

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In

While under Decedents’ guard, the convoy stopped at an Iraqi

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checkpoint.

After three to five minutes of waiting, a white

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pickup truck approached and shot at the rear vehicle, which was

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not occupied by any of the Decedents.

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however, were also stopped by Iraqi men in police uniforms.

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were stripped of their communications gear and weapons, bound and

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forced into the backs of different vehicles.

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one of the Iraqi officers was a former Crescent employee and that

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Crescent’s Iraqi interpreter was also working with the group

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orchestrating the hijacking.

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///

Decedents themselves,
They

Plaintiffs allege

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Plaintiffs note in the FAC that “[t]he war in Iraq was
declared officially ended” several years earlier, in May of 2003.
Id., ¶ 16.
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When the Iraqi men eventually received a phone call

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notifying them that the United States military was en route, the

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men packed up and left with Decedents as captives.

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individuals were left behind and were able to relay the

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aforementioned facts.

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other things, that the kidnapping took place in full view of the

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United States military, but that the Government did nothing to

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intercede.

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Other

Plaintiffs have since been told, among

According to Plaintiffs, from this point forward, “federal

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officials who were assigned to assist the families while they

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sought the return of their adult children, such as Defendant

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Jennifer Foo, actually worked to impede the families’ work and

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created ‘government policies’ to block their efforts to save

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their sons.”

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Members of the State Department, including Defendant Foo, also

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allegedly: 1) failed or refused to relay information to

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Plaintiffs; 2) advised members of the families they should not

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meet with an individual3 who had reportedly obtained information

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on the location and condition of the missing men; 3) refused to

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distribute or blocked the distribution of leaflets asking for

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information about the hostages; 4) told families the FBI was

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pursuing leads that would not be described; and 5) claimed to

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have relevant information that could not be relayed to Plaintiffs

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because it was “classified.”

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Original Complaint, p. 7, ¶ 7; see also FAC, ¶ 24.

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In the FAC, Plaintiffs clarify that this individual was a
fellow United States citizen. FAC, ¶ 25.
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More specifically, Plaintiffs allege, among other things,

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that they had collected funds and prepared 90,000 flyers (printed

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in English and Iraqi) for distribution in the Middle East.

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flyers offered a reward for information pertaining to the missing

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men, but the State Department blocked their distribution.

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Plaintiffs contend in their FAC that “[o]ther families, whose

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children were not under contract with the State Department or the

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DOD, were allowed to freely negotiate for the return of their

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children” and that “there is no provision in the contracts signed

These

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by the decedents that provided a waiver of any of the private

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citizen’s rights.”

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Id., ¶ 27.

In addition, though Plaintiffs were provided with audio and

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video “proofs of life,” the United States refused to make contact

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with the kidnappers under the policy that “America does not

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negotiate with terrorists.”

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¶ 29.

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applied to other citizens during the same period of time.”

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¶ 29.

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actually considers the kidnappers in this case to be “terrorists”

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or simply considers them “common criminals.”

Original Complaint, p. 9, ¶ 12; FAC,

In the FAC, Plaintiffs contend “no similar policy was
FAC,

In any event, Plaintiffs dispute whether the United States

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After the families saw little progress in either the

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location or rescue efforts, the United States Drug Enforcement

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Administration (“DEA”) interceded in the matter on behalf of a

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DEA employee who was a family member of one of the missing men.

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The DEA determined that the kidnappers had given up trying to

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negotiate with the United States because the kidnappers believed

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they had no “negotiating partner.”

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As an apparent last resort, the kidnappers eventually cut off one

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of each Decedents’ fingers, later obtained by the DEA, and still

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the United States would not negotiate.

Decedents were thereafter

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brutally beaten, tortured and beheaded.

Only then, after their

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deaths, did the United States finally negotiate for the return of

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Decedents’ bodies.

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Plaintiffs contend that, throughout this ordeal, they were

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provided very little information by either the United States

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Government or Crescent.

Plaintiffs still have not been given

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employment contracts, life insurance information or other related

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employment documents.

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In addition, Plaintiffs allege Crescent has improperly

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withheld life insurance benefits that are due the families and

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has required the families to sign releases of liability in order

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to receive those funds.

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these life insurance proceeds and potentially to back pay due the

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kidnapped men, and it is their position that “Defendant Secretary

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of State is ultimately responsible for its contractor’s

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nonpayment and retention of private benefits.”

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the FAC, Plaintiffs clarify that they value these benefits and

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back pay at over $100,000 per Decedent.

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Plaintiffs believe they are entitled to

FAC, ¶ 43.

In

Id., ¶¶ 24, 36-37.

Also new to their FAC, though discussed by the parties in

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the context of Defendants’ First Motions, are Plaintiffs’

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allegations that “it is Defendants’ policy not to provide

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benefits for contracts such as those detailed in the U.S. Army

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Material Command..., Army Pamphlet 715-18.”

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Id., ¶ 46.

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More specifically, Plaintiffs contend Defendants “provide no

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payment under the Defense Base Act (“DBA”), [42 U.S.C. § 1651, et

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seq.],” which incorporates the Longshore and Harbor Workers’

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Compensation Act (“LHWCA”) and which “affords compensation

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benefits for the injury or death of any employee engaged in any

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DBA-covered employment under certain contracts.”

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Plaintiffs likewise aver that Defendants “provide no payment

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under the War Hazards Compensation Act (“WHCA”)[, 42 U.S.C.

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§ 1701, et seq.,]..., which provides compensation for employees

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in the event of war hazards.”

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Id., ¶ 47.

Id., ¶ 48.

Aside from benefits or payments to which Plaintiffs claim

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they are entitled, they also again allege that the Secretary of

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State has “refused to provide, or was incapable of providing,

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even the most basic information, such as copies of Crescent

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Security contracts, Lloyd’s of London life insurance information”

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or other documents.

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In light of the lack of information received from the Government,

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Plaintiffs have purportedly had to rely on third parties for

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information.

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Original Complaint, p. 11, ¶ 17; FAC, ¶ 35.4

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In the FAC, Plaintiffs contend these documents are private
property under Defendants’ control. FAC, ¶ 37. According to
Plaintiffs, the “value or costs of reproducing these
documents...[is] less than $20.00.” Id.
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For example, Plaintiffs allege they heard rumors that the

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kidnapping may have been motivated by revenge for incidents that

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occurred as a result of the passage of the Coalition Provisional

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Authority (“CPA”) Order 17, which is allegedly a State Department

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regulation creating absolute immunity for private contractors

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killing anyone in Iraq.5

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from the book “Big Boy Rules, America’s Mercenaries Fighting in

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Iraq,” by Steve Fainaru.

Plaintiffs also garnered information

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Ultimately, as a result of the above events, Plaintiffs

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initiated this suit alleging causes of action for: 1) declaratory

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relief; 2) Procedural Due Process Clause violations; and

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3) violations of the Takings Clause of the United States

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Constitution.

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Complaint to allege a claim for injunctive relief under the First

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Amendment.

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The Court also interpreted Plaintiffs’ Original

See Original Order, 2011 WL 4566004, *9 n.5.

More specifically, in their Original Complaint, Plaintiffs
asked the Court to make the following declarations:
Whether CPA (Coalition Provision Authority) Order 17,
was and is a proper application of government authority
under the United States Constitution when it provided
for a complete waiver of all laws, including those of
Iraq and those enacted by the United States Congress.
Complaint, p. 15, ¶ 26(a).

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For purposes of this instant Motion, and because it will
not change the Court’s analysis, the Court will accept
Plaintiffs’ interpretation of Order 17 as true. The Court notes
however, that a plain reading of the Order undermines Plaintiffs’
interpretation. According to the Government, and consistent with
this Court’s own reading of the directive, Order 17 appears to
exempt contractors only from Iraqi legal process not from all
laws of this country as well. See Motion, Attachment 2, CPA
Order Number 17, § 4.
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Whether as a consequence of CPA Order 17, Iraq became a
“free fire zone” where contractors were allowed to shot
[sic] at anything with complete impunity t [sic]
whenever they felt, in their sole discretion,
physically threatened. Id., p. 16, ¶ 26(b).
Whether CPA Order 17 gave rise to and helped foster the
contractor and subcontractor culture in Iraq, where
companies like Crescent literally sprang up overnight
and were nothing more than a folding table, some
stationary, and a couple beat-up trucks with AK-47
machine guns, but sanctioned to do business on behalf
of the United States and listed by the Secretary of
State and Department of Defense as legitimate business
entities. Id., p. 16, ¶ 26(c).
Whether the numbers and statistics have been so skewed
throughout the Iraq conflict that no one in the Office
of the Secretary State can really tell Plaintiffs how
much money we spent and how many contractors employed
by the United States have been lost; in essence, who is
doing the fighting for the United States. Id., p. 16,
¶ 26(d).
[W]hat the parameters are of the “War on Terror” and
who exactly the United Stats [sic] is fighting. Id.,
p. 17, ¶ 26(e).
[H]ow far federal immunity extends to a private
contractor like Crescent or an American Citizen who is
recruited and serves in this war under a private
contract that is let through the Secretary of State.
Further, what inalienable Constitutional rights are
lost or given up by a private citizen, such as the
Plaintiffs’ sons, when he or she executes such a
contract and whether it is a public document that
should be made available to the families of those
citizens and the public? Id., p. 17, ¶ 26(f).

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Within the “War on Terror” how far does a family’s
Constitutional and Due Process Rights extend? Id.,
p. 17, ¶ 26(g).

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Whether the families of contractors were legally
prohibited from negotiating with the kidnappers, who
were referred to by President as “common criminals” in other words, not “terrorists,” and what are the
origins of this “official policy,” and why did it not
apply to similarly situated Iraqis. Whether there is
an official policy in the United States government that
“we do not negotiate with terrorists.” Id., p. 17,
¶ 26(h).

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What recovery may be made by a family or surviving
spouse of a private contractor employed in the ‘War on
Terror?’ And how does one recover under the employment
contracts that no one has ever seen, or receive life
insurance benefits taken out by the companies in the
names of the contractors without anyone’s knowledge?”
Id., p. 18, ¶ 26(I).

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In their FAC, Plaintiffs have somewhat tempered their above

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requests, and now Plaintiff Bjorlin only seeks declarations

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regarding:

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Whether CPA...Order 17, was and is a proper application
of government authority under the United States
Constitution when it provided for a complete waiver of
all laws, including those of Iraq and those enacted by
the United States Congress and the rights found in the
United States Constitution.

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Whether the families of private contractors should be
prohibited from negotiating with the kidnappers who are
deemed “common criminals” - in other words, kidnappers
who are not defined as “terrorists” by the Defendants.

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FAC, ¶ 50.

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In asking the Court to consider the above issues, Plaintiff

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Bjorlin clarifies that he “does not challenge the conduct of the

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war in Iraq, or the various policies that apply to contractors

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generally.”

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citizen who supports the United States foreign policy decisions

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in the region.”

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challenge the Executive branch and the Congressional right to

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handle foreign policy as it relates to the ‘war on terror.’”

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Id., ¶ 52.

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Order 17 is an Unconstitutional exercise of Executive Branch

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authority because it authorizes a narrowly defined group of

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individuals, namely security contractors, to circumvent the

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authority of Congress, the Courts, and the Constitution.”

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Id.

To the contrary, Mr. Bjorlin avers he “is a

Id., ¶ 51.

Mr. Bjorlin therefore “does not

Instead, Plaintiff Bjorlin believes only “that CPA

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Id.

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While he “does not challenge the political decisions of the

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Executive Branch or Congress,” Mr. Bjorlin nonetheless believes

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he “has a right to know his future duties and responsibilities

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under CPA Order 17, or any related order with similar language in

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which he could be ordered to kill or injure another human being

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in the course of carrying out his contract.”

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Id., ¶ 51.

Plaintiffs have made additional modifications to their other

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causes of action as well.

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to their Original Complaint, Plaintiffs make clear that they are

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indeed pursuing First Amendment claims arising out of the State

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Department’s refusal to permit family members to meet with a

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fellow American citizen who reportedly had information regarding

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the missing men and out of the Government’s decision to block the

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distribution of Plaintiffs’ flyers.

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addition, while in the Original Complaint Plaintiffs sought

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relief under the Procedural Due Process Clause on the basis that

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“Defendants deprived Plaintiffs of their constitutionally

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protected interest in the lives of their children,” Original

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Complaint, p. 19, ¶ 31, Plaintiffs now also argue that Defendants

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are withholding Decedents’ private property (i.e., insurance

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benefits, back pay, and benefits owed under the DBA, LHWCA and

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WHCA), FAC, ¶ 61.

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For example, in their FAC, as opposed

See id., ¶¶ 1, 54-59.

In

Similarly, in their Original Complaint, Plaintiffs based

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their Takings cause of action on the theory that the Government

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is prohibited from taking “the lives of the Plaintiffs’ children

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and the work they performed for public use without just

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compensation.”

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Original Complaint, p. 20, ¶ 35.

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Plaintiffs also alleged there, “[t]o the extent that said

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Plaintiffs’ sons’ labor was converted to public use, Plaintiffs

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[were] entitled to just compensation for their property.”

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In their FAC, however, Plaintiffs have limited their Takings

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claim to the latter theory and now argue solely that Decedents’

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labor and private benefits (including insurance proceeds) were

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taken in violation of the Constitution.

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Plaintiffs thus seek “just compensation for the value of the

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private property seized for public use” or, alternatively,

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damages.

Id.

FAC, ¶ 66.

Id., ¶ 67.

Finally, Plaintiffs have added two defendants, Lloyds of

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London (“Lloyds”) and CNA Financial Corporation (“CNA”)

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(collectively “Insurance Defendants”), as well.

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purportedly issued life insurance policies to Crescent insuring

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the lives of Decedents and listing Family Plaintiffs as

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beneficiaries.

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policies, which, contrary to the Lloyds policies, were issued

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directly to Decedents, but were also payable to the Family

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Plaintiffs.

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causes of action against these new defendants, who have not yet

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appeared in this Court.

Id., ¶ 12.

Id., ¶ 13.

Lloyds

CNA similarly issued life insurance

Plaintiffs allege contract-related

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B.

Procedural Background

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Plaintiffs initiated this action on March 22, 2010.

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Defendants subsequently moved to dismiss Plaintiffs’ Original

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Complaint on March 7, 2011, arguing as to Plaintiffs’ claims

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against Defendants in their official capacities that:
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1) Plaintiffs’ claims raised nonjusticiable political questions;

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2) Plaintiffs lacked standing to seek a declaration or an

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injunction because they failed to allege an imminent future

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injury; 3) Plaintiffs likewise failed to satisfy the

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preconditions for injunctive and declaratory relief because they

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did not allege a likelihood of future injury; 4) the Court should

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have declined to exercise its discretion to issue injunctive or

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declaratory relief; 5) sovereign immunity barred Plaintiffs’

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claims for compensation; 6) Plaintiffs failed to state a claim

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under the Takings Clause; and 7) Plaintiffs failed to properly

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serve Defendants.

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against them in their individual capacities on a variety of

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related and unrelated grounds.

Defendants also challenged Plaintiffs’ claims

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The Court granted Defendants’ First Motions with leave to

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amend holding, among other things, that: 1) Plaintiffs’ claims

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for injunctive and declaratory relief (essentially their

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declaratory relief, Procedural Due Process and First Amendment

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causes of action) were nonjusticiable; 2) Plaintiffs lacked

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standing to pursue those same claims; 3) Plaintiffs failed to

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plead the necessary imminent harm to properly state their

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injunctive and declaratory relief causes of action;

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4) Plaintiffs’ monetary claims (essentially their Takings cause

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of action) were barred by the Government’s sovereign immunity;

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and 5) Plaintiffs failed to state a claim under the Takings

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Clause as a matter of law.

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properly serve all Defendants within ten (10) days of filing the

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FAC.

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The Court also ordered Plaintiffs to

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Plaintiffs thereafter amended their Complaint as just

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discussed and filed the FAC with the Court.6

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Court is Defendants’ Motion seeking dismissal of Plaintiffs’

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claims alleged against them in their official capacities on

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essentially the same grounds as they raised in their First

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Motions.

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respective counsel on Friday, February 24, 2012.

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following reasons, Defendants’ Motion is GRANTED without leave to

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amend.

Now before the

All parties appeared before this Court through their
For the

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STANDARD

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A.

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Motion to Dismiss for Lack of Subject Matter
Jurisdiction Under Federal Rule of Civil Procedure
12(b)(1).7

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15

Federal Courts are presumptively without jurisdiction over

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civil actions, and the burden of establishing the contrary rests

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upon the party asserting jurisdiction.

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Ins. Co. of America, 511 U.S. 375, 377 (1994).

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matter jurisdiction is never waived and may be raised by either

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party or the Court at any time. Attorneys Trust v. Videotape

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Computer Prod., Inc., 93 F.3d 593, 594–95 (9th Cir. 1996).

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///

Kokkonen v. Guardian Life
Lack of subject

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In granting Defendants’ First Motions to Dismiss, the
Court permitted Plaintiffs forty-five (45) days in which to
amend. Plaintiffs’ amendment on the forty-sixth (46) day was
thus untimely. The Court nonetheless declines any invitation to
dismiss Plaintiffs’ FAC on this ground and will address the
parties’ substantive arguments instead.
7

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All further references to “Rule” or “Rules” are to the
Federal Rules of Civil Procedure unless otherwise noted.
14

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In moving to dismiss for lack of subject matter jurisdiction

2

pursuant to Rule 12(b)(1), the challenging party may either make

3

a facial attack on the allegations of jurisdiction contained in

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the complaint or can instead take issue with subject matter

5

jurisdiction on a factual basis.

6

Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979);

7

Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3rd

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Cir. 1977).

9

must consider the factual allegations of the complaint to be

Thornhill Publ'g Co. v. Gen.

If the motion constitutes a facial attack, the Court

10

true.

Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981);

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Mortensen, 549 F.2d at 891.

12

attack, however, “no presumptive truthfulness attaches to

13

plaintiff's allegations, and the existence of disputed material

14

facts will not preclude the trial court from evaluating for

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itself the merits of jurisdictional claims.”

Thornhill, 594 F.2d

16

at 733 (quoting Mortensen, 549 F.2d at 891).

The Court may

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properly consider extrinsic evidence in making that

18

determination.

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(4th Cir. 2004).

If the motion constitutes a factual

Velasco v. Gov't of Indon., 370 F.3d 392, 398

20
B.

21

Motion to Dismiss for Failure to State a Claim Under
Rule 12(b)(6).

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23

On a motion to dismiss for failure to state a claim under

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Rule 12(b)(6), all allegations of material fact must be accepted

25

as true and construed in the light most favorable to the

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nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336,

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337–38 (9th Cir. 1996).

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///
15

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Rule 8(a)(2) “requires only ‘a short and plain statement of the

2

claim showing that the pleader is entitled to relief,’ in order

3

to ‘give the defendant fair notice of what the [...] claim is and

4

the grounds upon which it rests.’”

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550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,

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47 (1957)).

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dismiss does not require detailed factual allegations.

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“a plaintiff's obligation to provide the grounds of his

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entitlement to relief requires more than labels and conclusions,

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and a formulaic recitation of the elements of a cause of action

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will not do.”

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A court is not required to accept as true a “legal conclusion

13

couched as a factual allegation.”

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662, 129 S. Ct. 1937, 1950-51 (2009) (quoting Twombly, 550 U.S.

15

at 555).

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relief above the speculative level.”

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(citing 5 Charles Alan Wright & Arthur R. Miller, Federal

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Practice and Procedure § 1216 (3d ed.2004) (stating that the

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pleading must contain something more than “a statement of facts

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that merely creates a suspicion [of] a legally cognizable right

21

of action.”)).

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Bell Atl. Corp. v. Twombly,

A complaint attacked by a Rule 12(b)(6) motion to
However,

Id. (internal citations and quotations omitted).

Ashcroft v. Iqbal, 556 U.S.

“Factual allegations must be enough to raise a right to
Twombly, 550 U.S. at 555

Furthermore, “Rule 8(a)(2) ... requires a ‘showing,’ rather

23

than a blanket assertion, of entitlement to relief.”

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550 U.S. at 556 n. 3 (internal citations and quotations omitted).

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Thus, “[w]ithout some factual allegation in the complaint, it is

26

hard to see how a claimant could satisfy the requirements of

27

providing not only ‘fair notice’ of the nature of the claim, but

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also ‘grounds' on which the claim rests.”
16

Id.,

1

Id. (citing 5 Charles Alan Wright & Arthur R. Miller, supra, at

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§ 1202).

3

claim to relief that is plausible on its face.”

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the “plaintiffs ... have not nudged their claims across the line

5

from conceivable to plausible, their complaint must be dismissed.”

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Id.

7

strikes a savvy judge that actual proof of those facts is

8

improbable, and ‘that a recovery is very remote and unlikely.’”

9

Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

A pleading must contain “only enough facts to state a
Id. at 570.

If

However, “[a] well-pleaded complaint may proceed even if it

10
11

C.

Leave to Amend

12
13

A court granting a motion to dismiss a complaint must decide

14

whether to grant leave to amend.

Leave to amend should be

15

“freely given” where there is no “undue delay, bad faith or

16

dilatory motive on the part of the movant, ... undue prejudice to

17

the opposing party by virtue of allowance of the amendment, [or]

18

futility of the amendment....”

19

(1962); Eminence Capital, LLC v. Aspen, Inc., 316 F.3d 1048, 1052

20

(9th Cir. 2003) (listing the Foman factors as those to be

21

considered when deciding whether to grant leave to amend).

22

all of these factors merit equal weight.

23

consideration of prejudice to the opposing party ... carries the

24

greatest weight.”

25

Dismissal without leave to amend is proper only if it is clear

26

that “the complaint could not be saved by any amendment.”

27

Intri–Plex Techs. v. Crest Group, Inc., 499 F.3d 1048, 1056 (9th

28

Cir. 2007) (internal citations and quotations omitted).

Foman v. Davis, 371 U.S. 178, 182

Not

Rather, “the

Eminence Capital, 316 F.3d at 1052.

17

ANALYSIS8

1
2

A.

Individual Capacity Defendants

3
4

Before turning to the merits of the official-capacity

5

Defendants’ current Motion, the Court notes that it is undisputed

6

Defendants have not been served in their individual capacities.

7

Opposition, 3:12-15; see also Stipulation to Extend Time (ECF

8

No. 45), 2:5-6.

9

Plaintiffs were directed to serve the individual capacity

Pursuant to this Court’s Original Order,

10

Defendants not later than ten (10) days following the date their

11

FAC was electronically filed.

12

in both their current Motion and at oral argument, Plaintiffs had

13

no choice but to concede that the individual capacity Defendants

14

should be dismissed.

15

claims against both Defendants Clinton and Foo in their individual

16

capacities are thus DISMISSED without leave to amend for failure

17

to serve those Defendants in conformity with this Court’s Order.9

2011 WL 4566004, *28.

Accordingly,

See, e.g., Opposition, 3:12-15. Plaintiffs’

18
19
20
21
22
23

8
As previously stated, Plaintiffs’ Original Complaint and
FAC are substantially the same. Accordingly, to the extent
applicable here, the Court incorporates by reference its entire
Original Order, 2011 WL 4566004, into its current Order. The
Court will nonetheless cite to specific sections of its Original
Order at various points below, thereby making clear which
portions of that decision are relevant to each of the parties’
current arguments.
9

24
25
26
27

Moreover, while Plaintiffs stood by the merits of their
claims against Secretary of State Clinton at the hearing before
this Court, Plaintiffs were unable to rebut the fact that
Secretary Clinton had not taken office at the time the events
alleged in the Complaint purportedly occurred. Even in the FAC,
Plaintiffs allege only that Secretary Clinton is the “acting”
Secretary of State, not that she was in office during the
underlying tragedy. FAC, ¶ 10.

28
18

1

See Fed. R. Civ. Proc. 4, 41(b); E.D. Cal. Local Rule 110.

2
B.

3

Official Capacity Defendants10
1.

4

Plaintiff Bjorlin’s Declaratory Relief Cause of
Action.11

5
6

Plaintiff Bjorlin alone asks this Court to issue two

7

declarations regarding the validity of CPA Order 17 and the

8

manner in which the United States handles the kidnapping of its

9

citizens by terrorists in a foreign country and/or the manner in

10

which the United States handles any subsequent negotiations with

11

those terrorists.12

12

Plaintiffs’ request that it issue essentially identical

13

declarations.

14

26(h); Original Order, 2011 WL 4566004, *5-19.

15

///

This Court already rejected the Family

See Original Complaint, p. 15-17, ¶¶ 26(a) and

16
17
18
19
20
21
22
23

As difficult as it is for this Court to see how Secretary Clinton
can be implicated in her individual capacity by events that
occurred prior to her appointment, given the alternative grounds
justifying dismissal, this Court need not speculate as to whether
Plaintiffs can actually state a claim against the Secretary of
State on these facts.
10

The claims against Defendants in their official
capacities are essentially claims against the United States.
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); Consejo de
Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d
1157, 1173 (2007); Del Raine v. Carlson, 826 F.2d 698, 703 (7th
Cir. 1987).

24
25
26
27

11
Contrary to the Original Complaint, in which all
Plaintiffs sought declaratory relief, the only Plaintiff pursuing
the Declaratory Relief cause of action via this FAC is the newly
added Plaintiff Bjorlin. The Family Plaintiffs chose not to
renew their original claim in this amended pleading.
12

28

It is irrelevant to this Court’s decision whether the
kidnappers are deemed “terrorists” or “common criminals.”
19

1

Accordingly, the United States now seeks dismissal of this cause

2

of action again because, as before: 1) it presents nonjusticiable

3

political questions; 2) Plaintiff Bjorlin lacks standing to seek

4

this relief; and 3) Plaintiff Bjorlin has not alleged the

5

imminent harm that is a necessary prerequisite to finding a case

6

or controversy underlying the instant claim.

7

arguments are well-taken.

8

Defendants’

First, Plaintiff Bjorlin has failed to allege he has

9

standing to pursue his current declaratory relief cause of action

10

for the same legal reasons the Family Plaintiffs lacked standing

11

to pursue their original claims.

12

Original Order:

13
14

As the Court stated in its

A plaintiff bears the burden of establishing “that he
has standing for each type of relief sought.”
Summers v. Earth Island Inst., 555 U.S. 488, 129 S.Ct.
1142, 1149, 173 L.Ed.2d 1 (2009).

15

23

To show Article III standing for injunctive relief, a
plaintiff must demonstrate the existence of an
“imminent and actual” threat of injury that is “not
conjectural and hypothetical.” Id. “Past exposure to
harmful or illegal conduct does not necessarily confer
standing to seek injunctive relief if the plaintiff
does not continue to suffer adverse effects.”
Mayfield v. U.S., 599 F.3d 964, 970 (9th Cir.2010)
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555,
560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). “Once a
plaintiff has been wronged, he is entitled to
injunctive relief only if he can show that he faces a
‘real or immediate threat ... that he will again be
wronged in a similar way.’” Id. at 970 (quoting City
of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct.
1660, 75 L.Ed.2d 675 (1983)).

24

...

25

Under the same logic, Plaintiffs' declaratory relief
claims fail as well. The lack of a controversy of any
sufficient immediacy essentially renders Plaintiffs'
claims impermissible requests for advisory opinions:

16
17
18
19
20
21
22

26
27
28

20

1

The federal courts established pursuant to
Article III of the Constitution do not render
advisory opinions. For adjudication of
constitutional issues, concrete legal issues,
presented in actual cases, not abstractions
are requisite. This is as true of
declaratory judgments as any other field.
The difference between an abstract question
and a controversy contemplated by the
Declaratory Judgment Act is necessarily one
of degree, and it would be difficult, if it
would be possible, to fashion a precise test
for determining in every case whether there
is such a controversy. Basically, the
question in each case is whether the facts
alleged, under all the circumstances, show
that there is a substantial controversy,
between parties having adverse legal
interests, of sufficient immediacy an[d]
reality to warrant the issuance of a
declaratory judgment.

2
3
4
5
6
7
8
9
10
11
12

Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956,
22 L.Ed.2d 113 (1969) (internal citations and
quotations omitted). As with Plaintiffs’ claims for
injunctive relief, their declaratory relief claims are
entirely premised on past harms and there are no
allegations within the Complaint that Plaintiffs might
at some point be subject to Defendants’ same policies
and actions such that any live controversy warranting
future declaratory relief exists.

13
14
15
16
17

Original Order, 2011 WL 4566004, *20.

18

A review of the Complaint makes clear that Plaintiff Bjorlin

19

seeks relief for a threat that is “conjectural and hypothetical,”

20

not “imminent and actual,” and that there is no “substantial

21

controversy, between parties having adverse legal interests, of

22

sufficient immediacy.”

23

in some respects, even more attenuated than was the standing of

24

the Family Plaintiffs because, unlike those parties, Mr. Bjorlin

25

has not even alleged he suffered a past harm.

26

///

27

///

28

///

First, Plaintiff Bjorlin’s standing is,

21

1

To the contrary, Plaintiff Bjorlin alleges only that he

2

previously served as a contractor in Iraq, is currently

3

classified as a contractor, and that “Defendant Secretary of

4

State will foreseeably apply CPA Order 17 and/or related language

5

to Plaintiff Gary Bjorlin in the future, which negatively impacts

6

his position as a contractor.” FAC, ¶¶ 29, 51.

7

alone, Plaintiff Bjorlin would have this Court believe:

8

On that basis

[I]t is foreseeable that [he] may be kidnapped or
injured as a security contractor. Plaintiff Gary
Bjorlin therefore wishes to know what, if any steps,
the United States will take to protect him as a
security contractor. Specifically, whether members of
his family are allowed to negotiate with criminals, as
opposed to individuals who the United States deems to
be “terrorists.”

9
10
11
12
13

Id., ¶ 52.

14

What Mr. Bjorlin really seeks, then, is a declaration of his

15

rights, if he elects to serve again, if he is hired by a

16

contractor, if he is shipped overseas, if CPA Order 17 is still

17

in effect or if another similar order instead governs,13 and,

18

with respect to the kidnapping declaration, if he is kidnapped,

19

and if he is then held hostage.

20

American even contemplating serving overseas could make roughly

21

the same argument.

22

///

23

///

24

///

25

///

26

///

Based on this logic, almost any

27
13

28

The Government has made clear that CPA Order 17 is no
longer in effect in Iraq. See Motion, p. 12 n.6.
22

1

Mr. Bjorlin has thus failed to allege he has

2

standing to bring this claim.

3

4566004, *20-21.14

4

See Original Order, 2011 WL

Plaintiff Bjorlin (and all of the Family Plaintiffs for that

5

matter) is likewise unable to assert any form of taxpayer

6

standing to justify pursuit of his instant cause of action as

7

well.

8

themselves as individuals and as taxpayers,” FAC, p. 1, and later

9

refer to their pleading as a “Taxpayer Complaint,” id., p. 2,

Though Plaintiffs purport to bring the FAC “on behalf of

10

this Court has already rejected reliance on taxpayer standing in

11

this context.

12

Valley Forge Christian College v. Americans United for Separation

13

of Church and State, Inc., 454 U.S. 464, 477 (1982);

14

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 347 (2006)).

See Original Order, 2011 WL 4566004, *21 (citing

15

Regardless, even if Mr. Bjorlin had standing to seek the

16

above declarations, this Court has already nonetheless determined

17

his requested declarations raise nonjusticiable political

18

questions.

19

Plaintiff Bjorlin has attempted to rectify the massive over-

20

breadth of the requests in the Original Complaint by narrowing

21

the relief sought here, and while he disclaims any intent to

22

challenge United States foreign policy or to embarrass the

23

Government, Mr. Bjorlin still ultimately seeks relief that this

24

Court lacks the power to grant.

Original Order, 2011 WL 4566004, *5-12.

While

25
26
27
28

14

For this same reason, Mr. Bjorlin’s claim is also not yet
ripe. Original Order, 2011 WL 4566004, *21 (citing HodgersDurgin v. De La Vina, 199 F.3d 1037, 1044 (9th Cir. 1999)
(“[F]ailure to establish a likelihood of future
injury...renders...[claims] for declaratory relief unripe.”).
23

1

Moreover, Plaintiffs’ intent in bringing this suit is

2

unfortunately irrelevant to whether the questions raised in the

3

Complaint are justiciable.

4

Bjorlin still seeks the judgment of this Court regarding how the

5

Government employs contractors overseas and how it handles

6

kidnappings, or permits families to intervene in kidnappings,

7

taking place amidst an international conflict in a war zone.

8

Accordingly, for the same reasons already stated in its Original

9

Order, Plaintiff’s current Declaratory Relief cause of action is

10

nonjusticiable as well.

Indeed, intentions aside, Plaintiff

Id.

11

Moreover, it has become clear to this Court, both upon its

12

review of all papers filed in this action and its consideration

13

of the parties’ oral arguments, that Plaintiff Bjorlin will be

14

unable to amend the current pleading to properly state a claim

15

for the type of declaratory relief sought.

16

Plaintiff Bjorlin’s claim for declaratory relief is DISMISSED

17

without leave to amend.

Accordingly,

18
2.

19

Plaintiffs’ First Amendment Cause of Action.

20
21

By way of their First Amendment cause of action, Plaintiffs

22

“seek an injunction against Defendants’ future violations of

23

rights to Freedom of Expression and Assembly guaranteed by the

24

United States Constitution.”

25

to seek damages as compensation for losses sustained as a result

26

of the Government’s actions.

27

///

28

///

FAC, ¶ 59.

24

Plaintiffs also appear

1

Id. (“Defendants’ deliberate roadblock of Plaintiffs’ protected

2

right under the First Amendment of the United States

3

Constitution...has resulted in substantial losses to

4

Plaintiffs.”) (emphasis added).

5

Though Plaintiffs did not expressly identify a First

6

Amendment cause of action in their Original Complaint, this Court

7

interpreted that pleading to state such a claim for injunctive

8

relief.

9

therefore previously addressed this cause of action in its prior

Original Order, 2011 WL 4566004, *9 n.5.

The Court

10

Order regarding Defendants’ First Motions.

11

materially amended the allegations supporting this cause of

12

action in the FAC.

13

its Original Order, Plaintiffs’ equitable First Amendment claim

14

once again fails.

15

Plaintiffs have not

Accordingly, for those reasons articulated in

See id., 2011 WL 4566004, *5-19, 20-21.

More specifically, none of the Plaintiffs have standing to

16

pursue any injunction under the First Amendment.

17

prior Complaint, the Family Plaintiffs allege only past harms

18

incapable of conferring standing in support of this type of

19

equitable claim.

20

discussed above with respect to Plaintiffs’ declaratory relief

21

cause of action, Plaintiff Bjorlin lacks standing to pursue the

22

instant claim for the same reasons he lacked standing in that

23

context.

24

again, let alone being kidnapped and then made to personally

25

suffer similar deprivations of his First Amendment rights at the

26

hands of the Government, is entirely speculative.

27

///

28

///

Id., 2011 WL 4566004, *20-21.

As in their

In addition, as

As stated, the likelihood of him serving overseas

25

1

Similarly, the likelihood that any of Plaintiff Bjorlin’s family

2

members, none of whom are plaintiffs here in any event, would

3

suffer any such injury is nothing more than hypothetical as well.

4

Even if Plaintiffs had standing to pursue this cause of

5

action, however, their claim would nonetheless be barred under

6

the political question doctrine for those reasons already stated

7

by the Court in its Original Order.

8

in their Original Complaint, Plaintiffs in their FAC once again

9

claim their First Amendment rights were violated because the

2011 WL 4566005, *5-19.

As

10

Government blocked Plaintiffs’ distribution of flyers Plaintiffs

11

hoped would lead to information regarding Decedents’ whereabouts

12

and because the Government advised Decedents’ families they could

13

not meet with a fellow citizen claiming to have such information.

14

FAC, ¶ 56.

15

as to, among other things, “the Government’s handling of

16

kidnappings overseas,” decisions which are not reviewable in this

17

Court.

18

Plaintiffs here once again “seek to dictate the manner in which

19

the Government responds to the kidnapping of American citizens in

20

a foreign war zone, as well as the type and breadth of

21

information disseminated by the Government to both the families

22

of the victims and the kidnappers themselves.”

23

4566005, *10.

24

Court “evaluate the scope of Government policies concerning

25

negotiations with ‘terrorists, by official nomenclature or by any

26

other name.”

27

nothing in Plaintiffs’ FAC has convinced the Court it should now

28

hold otherwise.

Plaintiffs thus challenge Executive Branch decisions

Original Order, 2011 WL 4566005, *9-10.

Indeed,

Id., 2011 WL

Ultimately, Plaintiffs still seek to have this

Id.

This Court has already refused to do so, and

26

1

Accordingly, the Court now finds once again that Plaintiffs’

2

First Amendment cause of action presents a nonjusticiable

3

political question and thus should be dismissed.

4

Couching Plaintiffs’ current claim as a request for damages

5

rather than a request for injunctive relief does nothing to

6

change this Court’s conclusion.

7

rendering a decision on this cause of action would require the

8

Court to invade the province of the Executive Branch in no less

9

of an intrusive manner than do Plaintiffs’ requests for

Regardless of the relief sought,

10

injunctive relief.

Moreover, as stated in greater detail below,

11

Plaintiff Bjorlin lacks standing to pursue any claim for monetary

12

relief. Finally, even if Plaintiffs’ First Amendment cause of

13

action was not barred for all of the reasons just stated, this

14

claim would nonetheless fail because, again as discussed below,

15

Plaintiffs have not alleged the Government waived its sovereign

16

immunity.

17

amend the FAC would be futile, Plaintiffs’ First Amendment cause

18

of action is thus DISMISSED without leave to amend.

Because this Court believes any attempt to further

19
20

3.

Plaintiffs’ Procedural Due Process and Takings
Causes of Action.

21
22

In their Original Complaint, Plaintiffs alleged by way of

23

their Procedural Due Process cause of action that the Government

24

had “deprived [them] of their constitutionally protected interest

25

in the lives of their children without due process through the

26

use of ‘underground regulations,’ ‘unwritten policies,’ and while

27

illegally retaining vendors who were improperly compensated.”

28

Original Complaint, p. 19, ¶ 31.
27

1

The Court determined that claim was nonjusticiable.

2

Order, 2011 WL 4566004, *5-12.

3

while Plaintiffs again appear to allege Defendants

4

unconstitutionally deprived them of Decedents’ lives without due

5

process of law, Plaintiffs now make clear that they also believe

6

Defendants are withholding the following private property to

7

which the Family Plaintiffs are entitled:

8

in excess of $100,000 per Decedent; 2) back pay in excess of

9

$100,000 per Decedent; and 3) benefits in excess of $100,000 per

10
11

Original

In the FAC, to the contrary,

1) insurance benefits

Decedent under the DBA, the LHWCA and the WHCA.

FAC, ¶ 61.

Plaintiffs’ Takings cause of action is similar to their

12

newly stated Procedural Due Process claim.

13

Plaintiffs allege that “[t]o the extent that...Plaintiffs’ sons’

14

labor and private benefits including insurance proceeds, were

15

converted to public use, Plaintiffs are entitled to just

16

compensation for this property.”

17

Plaintiffs, the United States has improperly retained insurance

18

benefits, back payments and benefits owed under the DBA, LHWCA

19

and the WHCA.

20

Id., ¶ 66.

For example,

Again according to

Id.

Plaintiffs’ Procedural Due Process claim, which the Court

21

previously found entirely barred as nonjusticiable, now therefore

22

shares some characteristics with Plaintiffs’ Takings cause of

23

action, a claim this Court determined in its Original Order

24

survived political question review.

25

reasons stated in the Court’s Original Order, to the extent

26

Plaintiffs again seek to recover for the loss of Decedents’

27

lives, Plaintiffs’ Procedural Due Process cause of action is

28

barred as nonjusticiable.

Accordingly, for those

Order 2011, WL 456604, *5-12.
28

1

However, to the extent Plaintiffs’ current claim arises out of

2

the Government’s purportedly wrongful retention of benefits and

3

back pay, this claim, like both Plaintiffs’ original and newly-

4

stated Takings claim, is justiciable for the reasons stated there

5

as well.

6

cause of action justiciable to the extent based on Defendants’

7

failure to compensate Decedents for work performed or to

8

compensate Decedents pursuant to the DBA, LHWCA and WHCA).

9

Plaintiffs’ Procedural Due Process and Takings causes of action

10

are nonetheless still barred in their entirety for the reasons

11

that follow.

2011 WL 4566004, *13-16 (finding Plaintiffs’ Takings

Both

12

First, as already discussed in great detail both in the

13

Court’s Original Order and above here, the Family Plaintiffs lack

14

standing to seek injunctive relief given the lack of any

15

allegations in the FAC indicating they might suffer the harms

16

alleged at any point in the future.

17

Plaintiff Bjorlin likewise lacks standing to pursue an injunction

18

here for those reasons stated above.

19

Plaintiff Bjorlin seeks monetary relief, his claim fails because

20

he has not alleged he has suffered any compensable harm.

21

Friends of the Earth, Inc. v. Laidlaw Environmental Services

22

(TOC), Inc., 528 U.S. 167, 185 (recognizing “a plaintiff must

23

demonstrate standing separately for each form of relief sought”);

24

see also City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983)

25

(comparing plaintiff’s standing to pursue injunctive relief with

26

his standing to pursue damages).

27

///

28

///
29

2011 WL 4566004, *20-21.

Conversely, to the extent

See

1

Plaintiffs’ claims for monetary relief likewise fail in

2

their entirety for the additional reason that Plaintiffs have not

3

alleged that the Government waived its sovereign immunity.

4

basic rule of federal sovereign immunity is that the United

5

States cannot be sued at all without the consent of Congress.”

6

Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S.

7

273, 287 (1983).

8

agencies and to federal employees acting within their official

9

capacities.”

“The

This sovereign immunity “applies to all federal

Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir. 1997).

10

Absent a waiver of sovereign immunity, a claim against the United

11

States or a federal agency must be dismissed for lack of subject

12

matter jurisdiction.

13

347 F.3d 1107, 1117 (9th Cir. 2003).

14

immunity must be both “unequivocally expressed,” Hodge, 107 F.3d

15

at 707, and “strictly construed in favor of the United States,”

16

Jerves v. United States, 966 F.2d 517, 521 (9th Cir. 1992).

17

Kaiser v. Blue Cross of California,
Any waiver of sovereign

The Court discussed Plaintiffs’ failure to allege a proper

18

waiver of sovereign immunity in great detail in its Original

19

Order and that analysis remains just as applicable here.

20

4566004, *22-23.

21

to bring the instant causes of action pursuant to 42 U.S.C.

22

§ 1983, as this Court has already found, “Section 1983 does not

23

contain a statutory waiver of the federal government's immunity

24

and thus does not provide an avenue through which Plaintiffs can

25

pursue their monetary claims.”

26

Plaintiffs are likewise unable to pursue their claims against the

27

Government directly under the Constitution.

28

States, 924 F.2d 948, 951 (9th Cir. 1991).

2011 WL

More specifically, though Plaintiffs purported

Order, 2011 WL 4566004, *22.

30

See Rivera v. United

1

In addition, Plaintiffs now admit they value their monetary

2

claims to be worth in excess of $100,000 per Decedent.

3

e.g., FAC, ¶¶ 36, 48, 61 and 66.

4

this Court’s Original Order, Plaintiffs have thus pled themselves

5

out of an ability to proceed here under the Tucker Act.

6

Original Order, 2011 WL 4566004, *22 (claims seeking in excess of

7

$10,000 must be brought in the Court of Federal Claims).

8

Finally, any attempt Plaintiffs may be making to bring claims

9

under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346,

See,

For the reasons articulated in

10

2671 et seq., similarly fails for those reasons already stated by

11

this Court in its Original Order.

12

(Plaintiffs’ attempt to invoke waiver under the FTCA was flawed

13

because Plaintiffs failed to allege they exhausted administrative

14

remedies and, even if a waiver could potentially be found,

15

numerous statutory exceptions to the FTCA would apply.).

16

Plaintiffs’ Procedural Due Process and Takings causes of action

17

are thus subject to dismissal on this basis alone.

18

2011 WL 4566004, *23

Plaintiffs’ attempt to save these claims by couching them as

19

requests for equitable relief is rejected as well.

20

Plaintiffs, their claims are not barred by the Government’s

21

sovereign immunity because Plaintiffs do not seek damages and

22

instead merely seek the return of property and monies that belong

23

to them and that are being wrongfully held by the United States.

24

Opposition, 20:3-15 (citing Taylor v. Westly, 401 F.3d 924, 934

25

(9th Cir. 2005)); id., 21:20-21.

26

///

27

///

28

///
31

According to

1

However, Plaintiffs have not alleged that the Government, as

2

opposed to a third party, itself deprived Plaintiffs of any

3

benefits, back payments or insurance proceeds without due process

4

of law, nor have Plaintiffs alleged that the Government, as

5

opposed to a third party, itself took any property from

6

Plaintiffs without paying just compensation.

7

Plaintiffs allege that Crescent and the Insurance Defendants

8

deprived Decedents and their families of their property and that

9

the Government is somehow responsible for those deprivations.

To the contrary,

10

Plaintiffs thus seek to recover not their own property but monies

11

from the federal coffers.

12

which the United States is immune.15

13

This is precisely the type of claim to

Finally, Plaintiffs’ instant claims are subject to dismissal

14

under Rule 12(b)(6) as well.

More specifically, even if

15

Plaintiffs’ claims for insurance benefits or back pay were not

16

barred for the reasons just stated, those claims again fail

17

because Plaintiffs have not alleged the Government, as opposed to

18

Crescent or the Insurance Defendants, deprived them of insurance

19

benefits or back pay.

20

Indeed, while Plaintiffs allege they contracted with Crescent and

21

that Crescent in turn contracted with the Insurance Defendants,

22

nowhere do Plaintiffs allege the Government was a party to any of

23

those agreements.

See Order, 2011 WL 4566004, *23-24.

24
15

25
26
27
28

For this same reason, Plaintiffs’ attempt to cast their
request for payment of money owed as an equitable claim seeking
the return of Decedents’ or Plaintiffs’ property also fails
because they really seek monetary damages, which do not generally
constitute irreparable harm. See Original Order, 2011 WL
4566004, *21 and n.13 (citing Goldie’s Bookstore, Inc. v.
Superior Court of State of Cal., 739 F.2d 466, 471 (9th Cir.
1984)).
32

1

Plaintiffs’ conclusory assertions that the Government “oversaw”

2

those agreements or created an “authorized” list of Contractors

3

are insufficient to properly link the Government to the

4

underlying contracts, even through the generous lens prescribed

5

by Rule 12(b)(6).

6

Plaintiffs’ attempt to assert an entitlement to benefits

7

under the LHWCA, the DBA and the WHCA likewise fails.

First,

8

Plaintiffs have not exhausted their administrative remedies under

9

the LHWCA and the DBA in the Department of Labor.

See Bish v.

10

Brady-Hamilton Stevedoring, 880 F.2d 1135, 1137 (9th Cir. 1989).

11

Moreover, even if Plaintiffs had alleged they exhausted their

12

claims, review of any final agency decision would be not in this

13

Court but in the Ninth Circuit.

14

Workers’ Comp. Programs, 603 F.2d 763, 771 & n.2 (9th Cir. 1979).

15

Likewise, any decision as to compensation under the WHCA is

16

rendered by the Secretary of the Department of Labor, whose

17

decision is “final and conclusive.”

18

1715; 20 C.F.R. §§ 61.1 et seq.

19

Plaintiffs apparently now concede that their workers’

20

compensation claims are insufficient.

21

21:20-26 (“Plaintiffs seek contract payments and insurance

22

proceeds that clearly not subject to workers compensation

23

laws....[T]hese are not the Plaintiffs’ claims in the amended

24

complaint.”).

25

and Takings causes of action, like their Declaratory Relief and

26

First Amendment causes of action, are dismissed without leave to

27

amend.

28

///

Pearce v. Dir., Office of

See 42 U.S.C. §§ 1701(a),

Given the above authorities,

See, e.g., Opposition,

Accordingly, Plaintiffs’ Procedural Due Process

33

CONCLUSION

1
2
3

For all of the reasons stated herein, Defendants’ Motion to

4

Dismiss (ECF No. 46) is GRANTED without leave to amend.

5

action will, however, proceed on Plaintiffs’ remaining claims

6

against the Insurance Defendants.

7
8

This

IT IS SO ORDERED.
Dated: March 27, 2012

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10
11

_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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