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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARK MUNNS, et al., 12 13 14 No. 2:10-cv-00681-MCE-EFB Plaintiffs, v. MEMORANDUM AND ORDER HILLARY DIANE RODHAM CLINTON, et al., 15 Defendants. 16 ----oo0oo---17 18 Presently before the Court is a Motion to Dismiss (“Motion”) 19 Plaintiffs’ First Amended Complaint (“FAC”) filed by Defendants 20 Hillary Diane Rodham Clinton and Jennifer Foo (collectively 21 “Defendants”) in their official capacities as Secretary of State 22 of the United States and as an employee of the Office of the 23 Secretary of State, respectively. 24 successfully moved to dismiss (hereafter “First Motions”) 25 Plaintiffs’ original Complaint (“Original Complaint”), see 26 Munns v. Clinton, ___ F. Supp. 2d ____, 2011 WL 4566004 (E.D. 27 Cal.) (“Original Order”), and now, Plaintiffs’ FAC is DISMISSED 28 without leave to amend for essentially the same reasons. 1 Defendants already BACKGROUND 1 2 A. Factual Background 3 4 Given the substantial similarity between the Original 5 Complaint and the FAC, the Court’s iteration of the facts here is 6 taken primarily from its Original Order granting Defendants’ 7 First Motions, motions they filed in both their individual and 8 official capacities. 9 Unless material differences between the pleadings are Original Order, 2011 WL 4566004, *1-4. 10 specifically identified, all of the below facts were alleged in 11 both the Original Complaint and the FAC. 12 detail the facts in this manner because, as will become clear 13 below, Plaintiffs have not materially amended their Complaint and 14 the Court’s resolution of Defendants’ First Motions in its 15 Original Order is thus still directly on point here. The Court has chosen to 16 The original Plaintiffs were the families (“Family 17 Plaintiffs”) of three men, Joshua Munns, John Young and John 18 Cote, who were killed in Iraq in 2008 (“Decedents”). 19 were employed by a private contractor, Crescent Security 20 (“Crescent”), that performed security functions under contract 21 with the United States Government.1 Decedents 22 23 24 25 26 27 28 1 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. 2 1 In addition, Gary D. Bjorlin, a former Marine who is 2 presently classified as a contractor, has now also been joined as 3 a Plaintiff. 4 previously served in Iraq. 5 FAC, ¶ 9. According to the FAC, Mr. Bjorlin Id. The events underlying the Complaint were triggered in 2006 6 when Crescent assigned Decedents and four other men to guard a 7 one and one-half mile long military convoy traveling from Kuwait 8 to Southern Iraq.2 9 men substandard equipment, ordered another security team that was According to Plaintiffs, Crescent issued the 10 supposed to assist in the duty to stand down, and failed to 11 provide the men proper instructions or job guidelines. 12 addition, Iraqi security team members, who were also Crescent 13 employees, failed to appear for the assignment, leaving only the 14 seven men to guard the convoy. 15 In While under Decedents’ guard, the convoy stopped at an Iraqi 16 checkpoint. After three to five minutes of waiting, a white 17 pickup truck approached and shot at the rear vehicle, which was 18 not occupied by any of the Decedents. 19 however, were also stopped by Iraqi men in police uniforms. 20 were stripped of their communications gear and weapons, bound and 21 forced into the backs of different vehicles. 22 one of the Iraqi officers was a former Crescent employee and that 23 Crescent’s Iraqi interpreter was also working with the group 24 orchestrating the hijacking. 25 /// Decedents themselves, They Plaintiffs allege 26 27 28 2 Plaintiffs note in the FAC that “[t]he war in Iraq was declared officially ended” several years earlier, in May of 2003. Id., ¶ 16. 3 1 When the Iraqi men eventually received a phone call 2 notifying them that the United States military was en route, the 3 men packed up and left with Decedents as captives. 4 individuals were left behind and were able to relay the 5 aforementioned facts. 6 other things, that the kidnapping took place in full view of the 7 United States military, but that the Government did nothing to 8 intercede. 9 Other Plaintiffs have since been told, among According to Plaintiffs, from this point forward, “federal 10 officials who were assigned to assist the families while they 11 sought the return of their adult children, such as Defendant 12 Jennifer Foo, actually worked to impede the families’ work and 13 created ‘government policies’ to block their efforts to save 14 their sons.” 15 Members of the State Department, including Defendant Foo, also 16 allegedly: 1) failed or refused to relay information to 17 Plaintiffs; 2) advised members of the families they should not 18 meet with an individual3 who had reportedly obtained information 19 on the location and condition of the missing men; 3) refused to 20 distribute or blocked the distribution of leaflets asking for 21 information about the hostages; 4) told families the FBI was 22 pursuing leads that would not be described; and 5) claimed to 23 have relevant information that could not be relayed to Plaintiffs 24 because it was “classified.” 25 /// 26 /// Original Complaint, p. 7, ¶ 7; see also FAC, ¶ 24. 27 3 28 In the FAC, Plaintiffs clarify that this individual was a fellow United States citizen. FAC, ¶ 25. 4 1 More specifically, Plaintiffs allege, among other things, 2 that they had collected funds and prepared 90,000 flyers (printed 3 in English and Iraqi) for distribution in the Middle East. 4 flyers offered a reward for information pertaining to the missing 5 men, but the State Department blocked their distribution. 6 Plaintiffs contend in their FAC that “[o]ther families, whose 7 children were not under contract with the State Department or the 8 DOD, were allowed to freely negotiate for the return of their 9 children” and that “there is no provision in the contracts signed These 10 by the decedents that provided a waiver of any of the private 11 citizen’s rights.” 12 Id., ¶ 27. In addition, though Plaintiffs were provided with audio and 13 video “proofs of life,” the United States refused to make contact 14 with the kidnappers under the policy that “America does not 15 negotiate with terrorists.” 16 ¶ 29. 17 applied to other citizens during the same period of time.” 18 ¶ 29. 19 actually considers the kidnappers in this case to be “terrorists” 20 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 21 After the families saw little progress in either the 22 location or rescue efforts, the United States Drug Enforcement 23 Administration (“DEA”) interceded in the matter on behalf of a 24 DEA employee who was a family member of one of the missing men. 25 The DEA determined that the kidnappers had given up trying to 26 negotiate with the United States because the kidnappers believed 27 they had no “negotiating partner.” 28 /// 5 1 As an apparent last resort, the kidnappers eventually cut off one 2 of each Decedents’ fingers, later obtained by the DEA, and still 3 the United States would not negotiate. Decedents were thereafter 4 brutally beaten, tortured and beheaded. Only then, after their 5 deaths, did the United States finally negotiate for the return of 6 Decedents’ bodies. 7 Plaintiffs contend that, throughout this ordeal, they were 8 provided very little information by either the United States 9 Government or Crescent. Plaintiffs still have not been given 10 employment contracts, life insurance information or other related 11 employment documents. 12 In addition, Plaintiffs allege Crescent has improperly 13 withheld life insurance benefits that are due the families and 14 has required the families to sign releases of liability in order 15 to receive those funds. 16 these life insurance proceeds and potentially to back pay due the 17 kidnapped men, and it is their position that “Defendant Secretary 18 of State is ultimately responsible for its contractor’s 19 nonpayment and retention of private benefits.” 20 the FAC, Plaintiffs clarify that they value these benefits and 21 back pay at over $100,000 per Decedent. 22 Plaintiffs believe they are entitled to FAC, ¶ 43. In Id., ¶¶ 24, 36-37. Also new to their FAC, though discussed by the parties in 23 the context of Defendants’ First Motions, are Plaintiffs’ 24 allegations that “it is Defendants’ policy not to provide 25 benefits for contracts such as those detailed in the U.S. Army 26 Material Command..., Army Pamphlet 715-18.” 27 /// 28 /// 6 Id., ¶ 46. 1 More specifically, Plaintiffs contend Defendants “provide no 2 payment under the Defense Base Act (“DBA”), [42 U.S.C. § 1651, et 3 seq.],” which incorporates the Longshore and Harbor Workers’ 4 Compensation Act (“LHWCA”) and which “affords compensation 5 benefits for the injury or death of any employee engaged in any 6 DBA-covered employment under certain contracts.” 7 Plaintiffs likewise aver that Defendants “provide no payment 8 under the War Hazards Compensation Act (“WHCA”)[, 42 U.S.C. 9 § 1701, et seq.,]..., which provides compensation for employees 10 in the event of war hazards.” 11 Id., ¶ 47. Id., ¶ 48. Aside from benefits or payments to which Plaintiffs claim 12 they are entitled, they also again allege that the Secretary of 13 State has “refused to provide, or was incapable of providing, 14 even the most basic information, such as copies of Crescent 15 Security contracts, Lloyd’s of London life insurance information” 16 or other documents. 17 In light of the lack of information received from the Government, 18 Plaintiffs have purportedly had to rely on third parties for 19 information. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// Original Complaint, p. 11, ¶ 17; FAC, ¶ 35.4 26 4 27 28 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. 7 1 For example, Plaintiffs allege they heard rumors that the 2 kidnapping may have been motivated by revenge for incidents that 3 occurred as a result of the passage of the Coalition Provisional 4 Authority (“CPA”) Order 17, which is allegedly a State Department 5 regulation creating absolute immunity for private contractors 6 killing anyone in Iraq.5 7 from the book “Big Boy Rules, America’s Mercenaries Fighting in 8 Iraq,” by Steve Fainaru. Plaintiffs also garnered information 9 Ultimately, as a result of the above events, Plaintiffs 10 initiated this suit alleging causes of action for: 1) declaratory 11 relief; 2) Procedural Due Process Clause violations; and 12 3) violations of the Takings Clause of the United States 13 Constitution. 14 Complaint to allege a claim for injunctive relief under the First 15 Amendment. 16 17 18 19 20 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). 21 22 23 24 25 26 27 28 5 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. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 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). 20 21 Within the “War on Terror” how far does a family’s Constitutional and Due Process Rights extend? Id., p. 17, ¶ 26(g). 22 23 24 25 26 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). 27 28 9 1 4 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). 5 In their FAC, Plaintiffs have somewhat tempered their above 2 3 6 requests, and now Plaintiff Bjorlin only seeks declarations 7 regarding: 8 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. 9 10 11 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. 12 13 14 FAC, ¶ 50. 15 In asking the Court to consider the above issues, Plaintiff 16 Bjorlin clarifies that he “does not challenge the conduct of the 17 war in Iraq, or the various policies that apply to contractors 18 generally.” 19 citizen who supports the United States foreign policy decisions 20 in the region.” 21 challenge the Executive branch and the Congressional right to 22 handle foreign policy as it relates to the ‘war on terror.’” 23 Id., ¶ 52. 24 Order 17 is an Unconstitutional exercise of Executive Branch 25 authority because it authorizes a narrowly defined group of 26 individuals, namely security contractors, to circumvent the 27 authority of Congress, the Courts, and the Constitution.” 28 /// Id. To the contrary, Mr. Bjorlin avers he “is a Id., ¶ 51. Mr. Bjorlin therefore “does not Instead, Plaintiff Bjorlin believes only “that CPA 10 Id. 1 While he “does not challenge the political decisions of the 2 Executive Branch or Congress,” Mr. Bjorlin nonetheless believes 3 he “has a right to know his future duties and responsibilities 4 under CPA Order 17, or any related order with similar language in 5 which he could be ordered to kill or injure another human being 6 in the course of carrying out his contract.” 7 Id., ¶ 51. Plaintiffs have made additional modifications to their other 8 causes of action as well. 9 to their Original Complaint, Plaintiffs make clear that they are 10 indeed pursuing First Amendment claims arising out of the State 11 Department’s refusal to permit family members to meet with a 12 fellow American citizen who reportedly had information regarding 13 the missing men and out of the Government’s decision to block the 14 distribution of Plaintiffs’ flyers. 15 addition, while in the Original Complaint Plaintiffs sought 16 relief under the Procedural Due Process Clause on the basis that 17 “Defendants deprived Plaintiffs of their constitutionally 18 protected interest in the lives of their children,” Original 19 Complaint, p. 19, ¶ 31, Plaintiffs now also argue that Defendants 20 are withholding Decedents’ private property (i.e., insurance 21 benefits, back pay, and benefits owed under the DBA, LHWCA and 22 WHCA), FAC, ¶ 61. 23 For example, in their FAC, as opposed See id., ¶¶ 1, 54-59. In Similarly, in their Original Complaint, Plaintiffs based 24 their Takings cause of action on the theory that the Government 25 is prohibited from taking “the lives of the Plaintiffs’ children 26 and the work they performed for public use without just 27 compensation.” 28 /// Original Complaint, p. 20, ¶ 35. 11 1 Plaintiffs also alleged there, “[t]o the extent that said 2 Plaintiffs’ sons’ labor was converted to public use, Plaintiffs 3 [were] entitled to just compensation for their property.” 4 In their FAC, however, Plaintiffs have limited their Takings 5 claim to the latter theory and now argue solely that Decedents’ 6 labor and private benefits (including insurance proceeds) were 7 taken in violation of the Constitution. 8 Plaintiffs thus seek “just compensation for the value of the 9 private property seized for public use” or, alternatively, 10 11 damages. Id. FAC, ¶ 66. Id., ¶ 67. Finally, Plaintiffs have added two defendants, Lloyds of 12 London (“Lloyds”) and CNA Financial Corporation (“CNA”) 13 (collectively “Insurance Defendants”), as well. 14 purportedly issued life insurance policies to Crescent insuring 15 the lives of Decedents and listing Family Plaintiffs as 16 beneficiaries. 17 policies, which, contrary to the Lloyds policies, were issued 18 directly to Decedents, but were also payable to the Family 19 Plaintiffs. 20 causes of action against these new defendants, who have not yet 21 appeared in this Court. Id., ¶ 12. Id., ¶ 13. Lloyds CNA similarly issued life insurance Plaintiffs allege contract-related 22 23 B. Procedural Background 24 25 Plaintiffs initiated this action on March 22, 2010. 26 Defendants subsequently moved to dismiss Plaintiffs’ Original 27 Complaint on March 7, 2011, arguing as to Plaintiffs’ claims 28 against Defendants in their official capacities that: 12 1 1) Plaintiffs’ claims raised nonjusticiable political questions; 2 2) Plaintiffs lacked standing to seek a declaration or an 3 injunction because they failed to allege an imminent future 4 injury; 3) Plaintiffs likewise failed to satisfy the 5 preconditions for injunctive and declaratory relief because they 6 did not allege a likelihood of future injury; 4) the Court should 7 have declined to exercise its discretion to issue injunctive or 8 declaratory relief; 5) sovereign immunity barred Plaintiffs’ 9 claims for compensation; 6) Plaintiffs failed to state a claim 10 under the Takings Clause; and 7) Plaintiffs failed to properly 11 serve Defendants. 12 against them in their individual capacities on a variety of 13 related and unrelated grounds. Defendants also challenged Plaintiffs’ claims 14 The Court granted Defendants’ First Motions with leave to 15 amend holding, among other things, that: 1) Plaintiffs’ claims 16 for injunctive and declaratory relief (essentially their 17 declaratory relief, Procedural Due Process and First Amendment 18 causes of action) were nonjusticiable; 2) Plaintiffs lacked 19 standing to pursue those same claims; 3) Plaintiffs failed to 20 plead the necessary imminent harm to properly state their 21 injunctive and declaratory relief causes of action; 22 4) Plaintiffs’ monetary claims (essentially their Takings cause 23 of action) were barred by the Government’s sovereign immunity; 24 and 5) Plaintiffs failed to state a claim under the Takings 25 Clause as a matter of law. 26 properly serve all Defendants within ten (10) days of filing the 27 FAC. 28 /// The Court also ordered Plaintiffs to 13 1 Plaintiffs thereafter amended their Complaint as just 2 discussed and filed the FAC with the Court.6 3 Court is Defendants’ Motion seeking dismissal of Plaintiffs’ 4 claims alleged against them in their official capacities on 5 essentially the same grounds as they raised in their First 6 Motions. 7 respective counsel on Friday, February 24, 2012. 8 following reasons, Defendants’ Motion is GRANTED without leave to 9 amend. Now before the All parties appeared before this Court through their For the 10 STANDARD 11 A. 12 13 Motion to Dismiss for Lack of Subject Matter Jurisdiction Under Federal Rule of Civil Procedure 12(b)(1).7 14 15 Federal Courts are presumptively without jurisdiction over 16 civil actions, and the burden of establishing the contrary rests 17 upon the party asserting jurisdiction. 18 Ins. Co. of America, 511 U.S. 375, 377 (1994). 19 matter jurisdiction is never waived and may be raised by either 20 party or the Court at any time. Attorneys Trust v. Videotape 21 Computer Prod., Inc., 93 F.3d 593, 594–95 (9th Cir. 1996). 22 /// Kokkonen v. Guardian Life Lack of subject 23 24 25 26 27 6 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 28 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless otherwise noted. 14 1 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 4 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 8 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); 11 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 15 itself the merits of jurisdictional claims.” Thornhill, 594 F.2d 16 at 733 (quoting Mortensen, 549 F.2d at 891). The Court may 17 properly consider extrinsic evidence in making that 18 determination. 19 (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). 22 23 On a motion to dismiss for failure to state a claim under 24 Rule 12(b)(6), all allegations of material fact must be accepted 25 as true and construed in the light most favorable to the 26 nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 27 337–38 (9th Cir. 1996). 28 /// 15 1 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.’” 5 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 6 47 (1957)). 7 dismiss does not require detailed factual allegations. 8 “a plaintiff's obligation to provide the grounds of his 9 entitlement to relief requires more than labels and conclusions, 10 and a formulaic recitation of the elements of a cause of action 11 will not do.” 12 A court is not required to accept as true a “legal conclusion 13 couched as a factual allegation.” 14 662, 129 S. Ct. 1937, 1950-51 (2009) (quoting Twombly, 550 U.S. 15 at 555). 16 relief above the speculative level.” 17 (citing 5 Charles Alan Wright & Arthur R. Miller, Federal 18 Practice and Procedure § 1216 (3d ed.2004) (stating that the 19 pleading must contain something more than “a statement of facts 20 that merely creates a suspicion [of] a legally cognizable right 21 of action.”)). 22 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.” 24 550 U.S. at 556 n. 3 (internal citations and quotations omitted). 25 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 28 also ‘grounds' on which the claim rests.” 16 Id., 1 Id. (citing 5 Charles Alan Wright & Arthur R. Miller, supra, at 2 § 1202). 3 claim to relief that is plausible on its face.” 4 the “plaintiffs ... have not nudged their claims across the line 5 from conceivable to plausible, their complaint must be dismissed.” 6 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 9 10 11 _____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 34

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