Taylor v. 144th Fighter Wing, et .al.

Filing 26

ORDER signed by Senior Judge William B. Shubb on 2/21/13 GRANTING 17 Motion to Dismiss with Prejudice. Defendants 144th Fighter Wing, California Air National Guard and California National Guard terminated. (Manzer, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GARY TAYLOR,

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NO. CIV. 2:12-2466 WBS DAD

Plaintiff,
MEMORANDUM AND ORDER RE:
MOTION TO DISMISS

v.

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144TH FIGHTER WING, CALIFORNIA
AIR NATIONAL GUARD, CALIFORNIA
NATIONAL GUARD, DEFENSE
FINANCE AND ACCOUNTING
SERVICES (DFAS), HARRY M.
WYATT III, DAVID S. BALDWIN,
SAMI D. SAID, MARK GROVES,
TERESA MCKAY, and DOES ONE
THROUGH TEN,

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Defendants.

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----oo0oo---Plaintiff Gary Taylor brought suit against defendants

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144th Fighter Wing (“FANG”), California Air National Guard

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(“CANG”), California National Guard (“CNG”), Defense Finance and

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Accounting Services (“DFAS”), Lieutenant General Harry M. Wyatt

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III, Director of the Air National Guard, Major General David S.

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Baldwin, Adjutant General of the California Military Department,
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Colonel Sami D. Said, Commander of FANG, Lieutenant Colonel Mark

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Groves, comptroller of FANG, and Teresa McKay, director of DFAS,

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asserting claims arising from a dispute over payments that

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plaintiff received while serving as a dual-status military

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technician employed by CANG.

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Complaint (“FAC”) on January 29, 2013.1

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Plaintiff filed a First Amended
(Docket No. 21.)

As to FANG, CANG, and CNG (collectively, the

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“California Military Department”), plaintiff brings claims for

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violation of privacy under the Information Practices Act of 1977,

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Cal. Civ. Code § 1798.45; violation of privacy for disclosure of

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improperly maintained records under the Information Practices Act

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of 1977, Cal. Civ. Code § 1798.18; violation of privacy under the

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California Public Records Act, Cal. Gov’t Code §§ 6250-6277;

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negligent disclosure of records; false light invasion of privacy;

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and intentional infliction of emotional distress (also against

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Wyatt).

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privacy under the Privacy Act of 1974, 5 U.S.C. § 552a, and for

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an injunction pursuant to § 552a(g)(3)(A) ordering DFAS to

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release records requested by plaintiff and to amend records

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related to plaintiff.2

Plaintiff brings a claim against DFAS for violation of

Finally, he brings claims against Wyatt,

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Because oral argument will not be of material
assistance, the court orders this matter submitted on the briefs.
E.D. Cal. L.R. 230(g).
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Plaintiff titles his ninth cause of action “Ninth Cause
of Action for Order Enjoining FANG, CANG, and CNG.” (FAC at
19:19.) However, under that heading, plaintiff then asserts that
he seeks “an order under 5 U.S.C. 552a(g)(3)(A) enjoining DFAS
from withholding the records requested by plaintiff, and for an[]
order under 5 U.S.C. 552a(g)(2)(A) ordering DFAS to amend its
records . . . .” (Id. ¶ 140.) Given the nature of plaintiff’s
request and because plaintiff does not oppose dismissing his
claims against the California Military Department, but seeks to
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Baldwin, Said, Groves, and McKay for violation of civil rights

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under 42 U.S.C. 1983 and against Wyatt and McKay for violation of

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civil rights under Bivens.

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moves to dismiss the claims against it pursuant to Federal Rules

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of Civil Procedure 12(b)(1) and 12(b)(6).

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The California Military Department

(Docket No. 17.)

Plaintiff does not oppose California Military Department’s

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motion to dismiss pursuant to Rule 12(b)(1) on the ground that

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the court lacks subject matter jurisdiction to adjudicate the

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claims against the California Military Department.3

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at 1:19-22 (Docket No. 24).)

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(Non-Opp’n

Accordingly, California Military

Department’s motion must be granted.

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IT IS THEREFORE ORDERED that the 144th Fighter Wing,

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California Air National Guard, and California National Guard’s

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motion to dismiss be, and the same hereby is, GRANTED with

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prejudice.

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DATED:

February 21, 2013

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continue to litigate this claim, the court will interpret this
claim to be one for injunctive relief against DFAS.
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Plaintiff requests leave to continue to litigate his
first, second, eighth, ninth, and tenth causes of action in
federal court. The court expresses no opinion as to whether
those claims may be maintained in federal court as that issue is
not currently before it.
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