Haramalis v. Baldwin, et al.

Filing 62

ORDER signed by District Judge John A. Mendez on 12/6/2017 GRANTING 39 Motion to Dismiss with leave to amend. If Plaintiff decides to file an amended complaint he should do so within 20 days of the date of this Order. (Hunt, G)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN N. HARAMALIS, Colonel, United States Army, No. 2:17-cv-498-JAM-CKD 12 Plaintiff, 13 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS v. 14 15 16 17 DAVID S. BALDWIN, individually and in his official capacity as MAJOR GENERAL, CALIFORNIA NATIONAL GUARD; CALIFORNIA MILITARY DEPARTMENT; and DOES 1 through 10, inclusive, 18 Defendants. 19 This matter is back before the Court on David S. Baldwin 20 21 and California Military Department’s (collectively “Defendants”) 22 Motion to Dismiss John N. Haramalis’s (“Plaintiff”) First 23 Amended Complaint. 24 motion is GRANTED, with leave to amend as limited in this order. 1 25 /// For the reasons set forth below, Defendants’ 26 27 28 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for October 17, 2017. 1 1 2 3 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND The following facts are taken as true for the purposes of this motion: 4 Plaintiff John N. Haramalis is a Colonel in the United 5 States Army on Federal Active Duty and assigned as the Chief J2 6 LNO, Joint Intelligence Directorate, National Guard Bureau, in 7 Arlington, Virginia. 8 Plaintiff was affiliated with the California National Guard prior 9 to his tour of active duty at the Pentagon. First Amended Complaint (“FAC”) ¶ 1. Id. Defendant 10 Baldwin is the Adjutant General of the California National Guard, 11 of which the California Army National Guard is a component. 12 at ¶ 3. 13 Id. Back in 2016, Plaintiff sought out and accepted a position 14 in the Arizona National Guard that would follow his tour of 15 active duty. 16 human resources to arrange for the conditional release from 17 California to Arizona. 18 approved of the voluntary transfer request. 19 after much of the process had been completed, Defendant Baldwin 20 retracted his approval and conveyed that Plaintiff would have to 21 wait for a board to convene and approve the request. 22 ¶¶ 23–35. 23 Plaintiff losing the position and promotion with the Arizona 24 National Guard. 25 Id. at ¶¶ 19–22. Plaintiff began working with Id. at ¶ 24. At first, Defendant Baldwin Id. at 23–32. But, Id. at This decision created a delay that resulted in Id. at ¶ 39. After Plaintiff filed the Complaint in this action, 26 Defendants offered to negotiate the terms of Plaintiff’s release 27 from the California National Guard. 28 asserts that he became a citizen of Virginia, requiring his state 2 Id. at ¶ 41. Plaintiff 1 commission as an officer of the California National Guard to be 2 vacated. 3 Plaintiff petitioned this Court for a writ to compel Defendants 4 to vacate his state commission based on Plaintiff’s Virginia 5 citizenship. 6 memorandum directing the separation; Defendants issued a 7 separation order separating Plaintiff from the California 8 National Guard and directing his transfer to the USAR Individual 9 Ready Reserve. 10 Id. at ¶ 45. ECF No. 7. Defendants delayed action. Id. at ¶ 43. Defendant Baldwin then issued a Id. at ¶ 43. Contending that the order was illegal in that it transferred 11 Plaintiff to a USAR Control Group (in this case, the Individual 12 Ready Reserve) involuntarily, Plaintiff filed a Motion for 13 Mandamus/Injunctive relief asking the Court to compel Defendant 14 Baldwin to revoke and reissue the order without this directive. 15 ECF No. 20. 16 failed to establish the Court had authority to issue the writ 17 under California Code of Civil Procedure Section 1085. 18 36. 19 Plaintiff failed to address and support the elements required 20 under Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 21 (2008). 22 The Court denied mandamus relief because Plaintiff ECF No. The Court declined to issue injunctive relief because While Plaintiff’s motion was pending, Plaintiff filed his 23 First Amended Complaint (“FAC”). ECF No. 24. Defendants move to 24 dismiss the FAC and Plaintiff opposes dismissal. 25 39; Opp’n, ECF No. 58. 26 issues in dispute considerably. 27 his equal protection claim or his claim for a state law writ of 28 mandate, which this Court previously denied. Mot., ECF No. Plaintiff’s concessions have narrowed the Plaintiff is no longer pursuing 3 See Mot. at 15; 1 Opp’n. 2 argument to dismiss his substantive due process—stigma plus 3 claim. 4 remaining before the Court are Plaintiff’s substantive due 5 process claim based on occupational liberty and Plaintiff’s civil 6 rights claim under 42 U.S.C. § 1983. In addition, Plaintiff did not oppose Defendants’ See Opp’n; Rep. at 3. 7 II. Therefore, the only claims OPINION 8 A. 9 Defendants seek judicial notice of several filings in the 10 Sacramento Superior Court action, Haramalis v. Baldwin et al., 11 Case No. 34-2016-80002378. 12 Exhs. A–F. 13 that the Court should not take notice of the contents of those 14 filings for any purpose related to the truth of the matters 15 stated therein. 16 may take judicial notice of court filings and other matters of 17 public record. 18 F.3d 741, 746 n.6 (9th Cir. 2006). 19 filings to determine whether any of Plaintiff’s claims are barred 20 by res judicata. 21 02920, 2011 WL 6002599, at *5 (N.D. Cal. Nov. 30, 2011) (taking 22 judicial notice of prior judgment and other court records to 23 determine whether to grant a motion to dismiss on res judicata 24 grounds). 25 and the Court takes notice of them. 26 Judicial Notice Request for Judicial Notice (“RFJN”), Plaintiff filed objections to this request, arguing See Objections to RFJN, ECF No. 58-1. The Court Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 The Court may consider these See Quinto v. JP Morgan Chase Bank, No. 11-CV- The filings are properly subjects of judicial notice Defendants also seek judicial notice of Plaintiff’s military 27 orders. RFJN, Exh. G. 28 accuracy of the exhibit. Plaintiff does not oppose or dispute the Records reflecting official acts of the 4 1 Executive Branch may be subject to judicial notice. 2 Wells Fargo Bank, N.A., 953 F. Supp. 2d 1091, 1093 n.2 (N.D. Cal. 3 2013). 4 Court took judicial notice of military orders, the Court finds 5 notice appropriate because the orders are not subject to 6 reasonable dispute and because the contents of the orders are 7 alleged in the Complaint. 8 National Guard Bureau published orders . . . ”); Knievel v. ESPN, 9 393 F.3d 1068, 1076 (9th Cir. 2005) (a court may take into Graybill v. Although Defendants have not cited a case in which the See FAC ¶ 17 (“On April 27, 2015, the 10 account documents whose contents are alleged in a complaint and 11 whose authenticity no party questions). 12 judicial notice of Exhibit I, the National Guard Bureau’s orders 13 withdrawing Plaintiff’s federal recognition, as well. 14 reflects an official act of the Executive Branch, is unopposed, 15 and is not subject to reasonable dispute. 16 The Court will take The order Finally, Defendants seek notice of National Guard Regulation 17 635-100, dated September 8, 1978. RFJN, Exh. H. Plaintiff does 18 not oppose. 19 the Executive Branch and is not subject to reasonable dispute. 20 The Court takes judicial notice of the regulation. This regulation, too, reflects an official act of 21 B. Analysis 22 In addition to attacking the merits of Plaintiff’s claims, 23 Defendants argue that the Feres doctrine, sovereign immunity, 24 militia immunity, and qualified immunity prevent Plaintiff from 25 recovering damages from Defendants. 26 just damages; Plaintiff’s prayer for relief seeks an injunction. 27 Though the Court denied the earlier motion for 28 mandamus/injunctive relief, Plaintiff does not appear to have 5 Plaintiff seeks more than 1 abandoned that prayer. 2 first evaluate the merits of Plaintiff’s claims and then turn to 3 the damages question, if necessary. 2 4 1. Given the relief sought, the Court will Res Judicata 5 Plaintiff filed an action in Sacramento Superior Court 6 against Defendant Baldwin and the California Military Department 7 on June 27, 2016, seeking a writ of mandate, temporary 8 restraining order, preliminary and permanent injunction, and 9 consequential damages. RFJN, Exh. A at 13. The Complaint 10 alleged that Defendants approved Plaintiff’s interstate transfer 11 to the Arizona National Guard, but then Defendant Baldwin revoked 12 his approval and Plaintiff was informed his request would have to 13 go through a General Officer Executive Personnel Council. 14 4–8. 15 and the delay caused by this process would result in Plaintiff 16 losing the position and promotion opportunity with the Arizona 17 National Guard. 18 contract claim and sought both a writ of mandate and injunctive 19 relief compelling Defendants to strike Defendant Baldwin’s 20 disapproval of the transfer. 21 Superior Court denied Plaintiff’s application for a Temporary 22 Restraining Order on July 8, 2016. 23 then filed a demurrer, RFJN, Exh. C, which the Superior Court Id. at Plaintiff further alleged that the revocation was illegal Id. at 8–11. Plaintiff asserted a breach of Id. at 11–12. The Sacramento RFJN, Exh. B. Defendants 24 2 25 26 27 28 The parties do not address whether the Feres doctrine bars injunctive relief in this context. The Court’s merits analysis does not imply a holding that Feres would not bar such relief. See Wilkins v. United States, 279 F.3d 782 (9th Cir. 2002) (declaratory and injunctive relief not barred by the Feres doctrine where plaintiff challenged the constitutionality of a Navy policy that caused his early retirement). 6 1 granted, without leave to amend, on March 7, 2017, and on which 2 final judgment was entered on April 10, 2017, RFJN, Exh. F. 3 The Superior Court found that Plaintiff’s quest for review 4 of Defendant Baldwin’s actions was barred by the Feres doctrine 5 as interpreted by both the California Third Appellate District 6 and the Ninth Circuit. 7 the four-factor Mindes test—a test from the Fifth Circuit used to 8 determine whether a military action is justiciable—and held that 9 all four factors “counsel[ed] against review[.]” RFJN, Exh. F at 7–10. It also applied Id. at 14. 10 After concluding these precedents barred issuance of a writ, it 11 found the doctrine precluded Plaintiff’s breach of contract 12 claim, which it otherwise found “fatally uncertain.” 13 15. 14 Court denied leave to amend because Plaintiff failed “to convince 15 that amendment would cure the defects raised by the demurrer.” 16 Id. at 16. 17 Id. at 14– After sustaining the demurrer on each claim, the Superior “Res judicata, or claim preclusion, prevents relitigation of 18 the same cause of action in a second suit between the same 19 parties or parties in privity with them.” 20 Residents v. Dept. of Conservation, 11 Cal. App. 5th 1202, 1220 21 (2017) (citation omitted). 22 precludes Plaintiff’s claims about the interstate transfer 23 because those claims were adjudicated in the state court action, 24 outlined above. 25 court’s ruling that his claims were not justiciable under the 26 Feres doctrine is not a finding on the merits and thus does not 27 have res judicata effect. 28 was reached on “procedural or technical grounds that did not Ass’n of Irritated Defendants argue res judicata Mot. at 14. Plaintiff contends that the state Opp’n at 5–6. 7 He argues the decision 1 resolve or depend on the claim’s merits[,]” similar to dismissal 2 based on mootness, unripeness, or lack of jurisdiction, which do 3 not trigger res judicata. 4 Residents, 11 Cal. App. 5th at 1220). 5 Id. (citing Ass’n of Irritated The Court finds that the Superior Court’s dismissal of 6 Plaintiff’s claims without leave to amend constitutes a final 7 judgment on the merits and precludes this Court’s review of 8 claims based on those allegations. 9 described in Ass’n of Irritated Residents—judgments based on 10 laches, statute of limitations, and lack of jurisdiction are 11 examples of judgments that are not on the merits—the Superior 12 Court reached the substance of Plaintiff’s claims. 13 judgment is on the merits for purposes of res judicata if the 14 substance of the claim is tried and determined. 15 a judgment of dismissal following a general demurrer or a 16 dismissal motion if the disposition was plainly reached on a 17 ground of substance.”) (citations and quotation marks omitted). 18 The Superior Court evaluated Plaintiff’s allegations under Estes 19 (finding that the California writ statute does not evidence the 20 Legislature’s intent for it to apply to the military), Mier 21 (applying Ninth Circuit precedent to Plaintiff’s facts), and 22 Mindes (analyzing Plaintiff’s allegations under the Fifth 23 Circuit’s four-factor test). 24 Monroe, 120 Cal. App. 4th 1347 (2004); Mier v. Owens, 57 F.3d 747 25 (9th Cir. 1995); Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971)). 26 Although there does not appear to be binding authority holding 27 that a finding of non-justiciability under Feres constitutes a 28 decision on the merits, see Terrell v. United States, 7 Cl. Ct. Unlike the situations See id. (“A This may include See RFJN, Exh. H (citing Estes v. 8 1 171 (Cl. Ct. 1984) (finding plaintiff’s constitutional and 2 statutory claims were resolved on the merits and barred by res 3 judicata where first court had held that claims were barred under 4 Feres), the Court finds that the Superior Court reached the 5 substance of Plaintiff’s claims and made a final determination. 6 Therefore, insofar as Plaintiff’s claims rest on the cause of 7 action litigated in Sacramento Superior Court—revoked approval of 8 the interstate transfer—they are barred by res judicata and 9 cannot be further litigated in this Court. 10 11 2. Substantive Due Process—Occupational Liberty In the Ninth Circuit, a plaintiff can make out a substantive 12 due process claim if she is unable to pursue an occupation and 13 this inability is caused by government actions that were 14 arbitrary and lacking a rational basis. 15 of Agric., 478 F.3d 985, 997 (9th Cir. 2007). 16 all of the Ninth Circuit cases recognizing this right have dealt 17 with legislation or regulation and not review of government 18 employer decisions, which is more restrained. 19 to a public employer’s violation of occupational liberty, the 20 Circuit “limit[s] the claim to extreme cases, such as a 21 ‘government blacklist, which when circulated or otherwise 22 publicized to prospective employers effectively excludes the 23 blacklisted individual from his occupation, much as if the 24 government had yanked the license of an individual in an 25 occupation that requires licensure.’” 26 Olivieri v. Rodriguez, 122 F.3d 406, 408 (7th Cir. 1997)). 27 is because “[s]uch a governmental act would threaten the same 28 right as a legislative action that effectively banned a person 9 Engquist v. Oregon Dept. However, nearly Id. When it comes Id. at 997–998 (quoting This 1 from a profession, and thus calls for the same level of 2 constitutional protection.” 3 much interference constitutes a denial, the Ninth Circuit adopted 4 the Seventh Circuit’s standard: 5 6 7 8 9 Id. at 998. On the question of how [A] plaintiff must show that the “character and circumstances of a public employer’s stigmatizing conduct or statements are such as to have destroyed an employee’s freedom to take advantage of other employment opportunities.” “It is not enough that the employer’s stigmatizing conduct has some adverse effect on the employee’s job prospects; instead, the employee must show that the stigmatizing actions make it virtually impossible for the employee to find new employment in his chosen field.” 10 11 Id. at 998 (quoting Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 12 F.3d 524, 531 (7th Cir. 2000)). 13 protects the right to pursue an entire profession, not the right 14 to pursue a particular job.” 15 “[S]ubstantive due process Id. Plaintiff alleges that Defendant Baldwin’s separation order, 16 removing Plaintiff from the Army National Guard and causing his 17 involuntary separation from the Special Reserves, “blacklisted 18 plaintiff, jeopardizing his ability to obtain approval by the 19 National Guard Bureau and/or Secretary of the Army for extension 20 of his mandatory retirement date.” 21 that the order carries “the distinct appearance within 22 plaintiff’s chain of command that he committed some form of 23 misconduct warranting” the order. 24 FAC ¶ 66. Plaintiff alleges Id. Accepting as true Plaintiff’s contention that the separation 25 order created adverse opinions about Plaintiff (despite the fact 26 that the order lists Plaintiff’s separation as “Honorable,” see 27 FAC, Exh G), the alleged harm to Plaintiff’s employment 28 opportunities is limited to assignments with the National Guard 10 1 Bureau and the National Guards of the states. 2 facts that could show it is virtually impossible for him to find 3 new employment in his chosen field or pursue an entire 4 profession; the only restriction is further opportunity with a 5 particular employer. 6 branch of the military could conceivably constitute a 7 “profession,” the Court declines to construe the occupational 8 liberty analysis in this manner. 9 there is no constitutional right or property interest in 10 continued employment in the military or National Guard. 11 e.g., Navas v. Vales, 752 F.2d 765, 768 (1st Cir. 1985) (no 12 constitutionally protected property interest in continued 13 employment in the Guard). 14 than property, interest, it would run counter to this established 15 precedent to find that substantive due process protects a 16 plaintiff’s interest in pursuing military employment. 17 He has not alleged Although employment opportunities within a Clear authority instructs that See, Though framed as a liberty, rather Appearing to concede that he cannot rely on continuing 18 employment in the military in support of this claim, Plaintiff 19 argues he has a constitutionally protected right to obtain 20 civilian employment while he is otherwise qualified to do so as 21 an officer in the military. 22 Plaintiff’s inability to secure a job as a civilian technician 23 with the Arizona National Guard does not constitute exclusion 24 from a profession. 25 denied access to all civilian employment with the National Guard, 26 Plaintiff fails to explain how the separation order has deprived 27 him of these opportunities apart from limiting his continued 28 employment with the National Guard. Opp’n at 8. As Defendants argue, To the extent Plaintiff alleges he is being 11 His alleged difficulty in 1 pursuing post-active duty civilian employment stems from the 2 separation order’s interference with his extended military 3 career. 4 continued employment in the National Guard extends to his 5 civilian employment with the same employer. 6 Dunlap, 426 U.S. 312 (1976) (finding that the property interest 7 the National Guard Technicians Act created in continued civilian 8 employment is confined to the guardsman’s term of enlistment). 9 The Fifth Circuit’s opinion in NeSmith v. Fulton does not dictate The Court’s analysis with respect to Plaintiff’s Cf. Tennessee v. 10 or counsel otherwise. 11 plaintiff stated a due process claim where he was dismissed from 12 his civilian technician position before he was terminated from 13 the Georgia Air National Guard; holding the decision was 14 unreviewable). 15 on occupational liberty is dismissed. 16 17 3. 615 F.2d 196 (5th Cir. 1980) (finding the Plaintiff’s substantive due process claim based Civil Rights—section 1983 Plaintiff’s claim under 42 U.S.C. § 1983 is predicated, in 18 part, on his other constitutional claims. As Plaintiff has 19 abandoned his equal protection claim and stigma plus claim, and 20 the Court has dismissed Plaintiff’s occupational liberty claim, 21 the section 1983 claim is dismissed insofar as it relies on these 22 constitutional theories. 23 “To state a claim under § 1983, a plaintiff must allege the 24 violation of a right secured by the Constitution and laws of the 25 United States, and must show that the alleged deprivation was 26 committed by a person acting under color of state law.” 27 Atkins, 487 U.S. 42, 48 (1988). 28 claims, the only federal law Plaintiff cites as being violated is West v. Other than the constitutional 12 1 10 U.S.C. § 12683. 2 argues that his “claim that the illegal separation order violated 3 provisions of federal law, as implemented through Army 4 regulations, establishes a basis for recovery of damages under 5 section 1983.” 6 FAC ¶ 45. In his Opposition, Plaintiff Opp’n at 9. Section 12683 of Title 10 restricts involuntary separation 7 of reserve officers. 8 at least five years of service as a commissioned officer may not 9 be separated from that component without his consent except 10 (1) under an approved recommendation of a board of officers 11 convened by an authority designated by the Secretary concerned; 12 or (2) by the approved sentence of a court-martial.” 13 § 12683 (a). 14 transfers under section 12213. 15 12213(b) provides: 16 17 18 19 “An officer of a reserve component who has 10 U.S.C. However, the sub-section does not apply to 10 U.S.C. § 12683(b)(3). Section Unless discharged from his appointment as a Reserve, an officer of the Army National Guard of the United States whose Federal recognition as a member of the Army National Guard is withdrawn becomes a member of the Army Reserve. An officer who so becomes a member of the Army Reserve ceases to be a member of the Army National Guard of the United States. 20 Defendants argue that the transfer was executed in compliance 21 with this section and thus no federal law has been violated. 22 Plaintiff sought to have his state commission vacated under 23 California Military and Veterans Code section 232 because he had 24 become a citizen of the state of Virginia. 25 Plaintiff filed the Complaint in this matter, Defendant Baldwin 26 vacated Plaintiff’s commission in accordance with that section. 27 FAC, Exh. E. 28 termination of an officer’s appointment in the Army National See ECF No. 7. Under National Guard Regulation 635-100, the After 13 1 Guard is a function of the State and the withdrawal of Federal 2 recognition of an officer is a function of the Chief, National 3 Guard Bureau, acting for the Secretary of the Army. 4 Exh. H at ¶ 2. 5 terminated from his state appointment in accordance with State 6 laws or regulations (or for one of the other twenty-five 7 enumerated reasons), such as California Military and Veterans 8 Code section 232. 9 that Federal recognition of an officer in the Army National Guard See RFJN, An Army National Guard officer should be Id. at ¶ 5a. The regulation further provides 10 will be withdrawn by the Chief, National Guard Bureau for, inter 11 alia, separation or discharge from the State appointment as an 12 officer of the Army National Guard. 13 paragraph 7, an officer of the Army National Guard becomes a 14 member of the Army Reserve when Federal recognition is withdrawn. 15 Id. at ¶ 7a. 16 (ARNG), State orders will specify the USAR unit or the control 17 group in AR 140-10 to which the officer is to be assigned.” 18 at ¶ 7d. 19 Id. at ¶ 5b. Under “Upon separation from the Army National Guard Id. There is no basis for the Court to conclude Defendants 20 violated the law in issuing the separation order. First, the 21 declaration Plaintiff cites in support of his opposition is not 22 before the Court on this motion. 23 contends Defendant Baldwin lacked authority to execute the 24 separation order in the manner he did, Plaintiff’s Complaint 25 fails to controvert the propriety of the actions taken. 26 Defendant Baldwin’s actions comply with the steps required by the 27 regulation quoted above. 28 allege that he is a member of the “Selected Reserves,” a fact Second, although Plaintiff Most importantly, Plaintiff failed to 14 1 upon which his entire argument is based. 2 7. 3 facts Plaintiff failed to plead and are not subject to judicial 4 notice. 5 See Opp’n at 5 n.1; 6– Plaintiff cannot defeat a motion to dismiss by relying on Furthermore, National Guard Regulation 635-100 reflects that 6 withdrawal of Federal recognition is a function of the National 7 Guard Bureau, not the state. 8 sufficiently explained how Defendant Baldwin’s order directly 9 effectuated the loss. Thus, Plaintiff has not Based on the pleadings, the cited federal 10 statutes, and the judicially noticed regulation, the Court finds 11 Plaintiff has failed to state a claim. 12 13 4. Leave to Amend Plaintiff requests leave to amend his complaint should the 14 the Court grant the motion to dismiss in whole or in part. While 15 leave to amend should be freely given, it should be denied where 16 amendment would be futile. 17 Servs., 454 F.3d 1043, 1049–50 (9th Cir. 2006). Deveraturda v. Globe Aviation Sec. 18 Plaintiff appears to concede that he cannot seek damages 19 against Defendant Baldwin in his official capacity or against the 20 California Military Department due to sovereign immunity. 21 Opp’n at 12 (“Defendants argue that damage claims against 22 Defendant Baldwin are barred by principles of sovereign immunity 23 . . . . 24 to recover damages against Defendant Baldwin in his individual 25 capacity, acting under color of law.”). 26 claims against Defendant Baldwin in his official capacity and the 27 California Military Department is thus futile and leave to amend 28 is denied. See None of these immunities preclude the right of plaintiff 15 Amendment on the damages 1 As to the damages claim against Defendant Baldwin 2 individually and for injunctive relief more generally, Plaintiff 3 is granted leave to amend his 42 U.S.C. § 1983 claim insofar as 4 it relates to the March 2017 separation order, only. 5 is denied leave to amend his first, second, and fifth claims, 6 which he abandoned. 7 claim relating to occupational liberty because Plaintiff has not 8 pointed to any facts showing amendment could cure the 9 deficiencies. Plaintiff Plaintiff is denied leave to amend his third As to the § 1983 claim based on the illegal order, 10 it is not clear to the Court that amendment would be futile, 11 given Plaintiff’s citations to documents not before the Court and 12 repeated assertions—though insufficiently supported at this time— 13 that Defendant Baldwin lacked authority over him to issue the 14 order and that different procedures had to be followed because he 15 was a member of the Selected Reserve. 16 as to this claim. 17 whether the Feres doctrine and qualified immunity bar Plaintiff’s 18 damages claims against Defendant Baldwin in his individual 19 capacity, Plaintiff should consider the impact of these 20 doctrines, as well as mootness concerns, in deciding whether or 21 not to file a Second Amended Complaint. 22 While the Court need not, at this time, decide III. 23 Leave to amend is granted ORDER For the reasons set forth above, the Court GRANTS 24 Defendants’ Motion to Dismiss, with leave to amend as described 25 and limited above. If Plaintiff decides to file an amended 26 /// 27 /// 28 /// 16 1 complaint he should do so within twenty days of the date of this 2 Order. Defendants’ responsive pleading should be filed within 3 twenty days thereafter. 4 5 IT IS SO ORDERED. Dated: December 6, 2017 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17

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