Conway v. Geithner et al

Filing 15

ORDER GRANTING DEFENDANTS' 6 MOTION TO DISMISS. Signed by Judge Claudia Wilken on 5/10/2010. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 5/10/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ANDREW CONWAY,

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Plaintiff,

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United States District Court
For the Northern District of California

ORDER GRANTING
DEFENDANTS' MOTION
TO DISMISS

v.
TIMOTHY GEITHNER and JAMES R.
BROWNING,
Defendants.

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No. C 12-0264 CW

________________________________/

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Defendants Timothy Geithner, United States Secretary of the
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Treasury, and James R. Browning,1 a judge on the United States
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Court of Appeals for the Ninth Circuit, move, under Federal Rules
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of Civil Procedure 12(b)(1) and 12(b)(6), to dismiss pro se
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Plaintiff Andrew Conway's complaint, for lack of jurisdiction and
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for failure to state a claim upon which relief may be granted.
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Plaintiff has filed an opposition.2

The matter was taken under

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submission and decided on the papers.

Having considered all the

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papers filed by the parties, the Court grants Defendants' motion
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to dismiss.
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Regrettably, Chief Judge Emeritus Browning recently passed

away.
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Plaintiff did not file his opposition with the Court, but
sent it to opposing counsel who filed it as Exhibit A to his
declaration. Docket No. 7-1. The Court considers Exhibit A to be
Plaintiff's opposition.

BACKGROUND

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The gravamen of Plaintiff's complaint is that the Treasury

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Department is improperly deducting $167.10 from his monthly social

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security payment of $1,114.00.

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of the Palo Alto Veteran Affairs (VA) Medical Center.

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The $167.10 is deducted on behalf
Plaintiff

alleges that his rights "under the Bill of Rights and the United

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States Constitution" were denied "by the outlandish practice of
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selective justice."

He also alleges that "all Americans in their

United States District Court
For the Northern District of California

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70's and 80's have the right to bring action in their local

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judicial district."

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the San Mateo County small claims court and it was removed by

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Defendants.

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small claims court against other federal officials alleging the

Plaintiff originally filed this complaint in

Previously, Plaintiff filed three other cases in

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same claim and each case was removed to federal court.

Plaintiff

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voluntarily dismissed his first two cases without prejudice and he
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voluntarily dismissed his third case, Conway v. Bressler and

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Devine, C 11-2144 EDL, with prejudice.
LEGAL STANDARD

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A complaint must contain a "short and plain statement of the
claim showing that the pleader is entitled to relief."
Civ. P. 8(a).

Fed. R.

When considering a motion to dismiss under Rule

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12(b)(6) for failure to state a claim, dismissal is appropriate
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only when the complaint does not give the defendant fair notice of

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a legally cognizable claim and the grounds on which it rests.

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
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In

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considering whether the complaint is sufficient to state a claim,

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the court will take all material allegations as true and construe

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them in the light most favorable to the plaintiff.

NL Indus.,

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Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

However, this

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principle is inapplicable to legal conclusions; "threadbare

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recitals of the elements of a cause of action, supported by mere

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conclusory statements," are not taken as true.

Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).

United States District Court
For the Northern District of California

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When granting a motion to dismiss, the court is generally

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required to grant the plaintiff leave to amend, even if no request

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to amend the pleading was made, unless amendment would be futile.

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Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911

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F.2d 242, 246-47 (9th Cir. 1990).

In determining whether

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amendment would be futile, the court examines whether the
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complaint could be amended to cure the defect requiring dismissal
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"without contradicting any of the allegations of [the] original

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complaint."

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Cir. 1990).

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Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th

DISCUSSION
I. Absolute Judicial Immunity
The only allegations in Plaintiff's complaint concerning

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Judge Browning are as follows:
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My records were sent to the Ninth Circuit Court of Appeals.
I received a 'certificate of service,' which I filled out and
returned it to James R. Browning on Sept. 21/11. When I did
not hear from him, I sent a letter to Brad Vandley two weeks
later and asked, 'why I did not hear from James R. Browning.'
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I never heard from Brad Vandley. I got so frustrated, I went
up to the Court House, 95 Seventh St. SF. The Clerk looked
at my records and made a phone call. She hung up and told me
'your case is too frivolous to be heard.' After 3 years of
being in the sup. court of Ca. and the Fed. Ct. of N. Ca. 8
times, a stack of records a foot high, my cases were too
frivolous!
Comp., page 10.
Judges and those performing judge-like functions are

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absolutely free from liability for damages for acts performed in
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their official capacities.

Ashelman v. Pope, 793 F.2d 1072, 1075

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(9th Cir. 1986) (en banc).

Judicial immunity from claims for

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damages generally can be overcome only in two sets of

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circumstances.

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non-judicial actions, i.e., actions not taken in the judge's

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judicial capacity.

United States District Court
For the Northern District of California

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First, a judge is not immune from liability for

Hyland v. Wonder, 117 F.3d 405, 413 n.1 (9th

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Cir. 1997) (holding that judge may lose protection of judicial
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immunity when performing administrative act).

Second, a judge is

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not immune for actions, though judicial in nature, taken in the

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complete absence of all jurisdiction.

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9, 11 (1991).

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the "general act" in question, he or she is immune, however

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erroneous the act may have been, however injurious the

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Mireles v. Waco, 502 U.S.

As long as the judge has jurisdiction to perform

consequences of the act may have been, and irrespective of the

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judge's claimed motivation.

Harvey v. Waldron, 210 F.3d 1008,

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1012 (9th Cir. 2000) (citing Cleavinger v. Saxner, 474 U.S. 193,
199-200 (2009)).

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From Plaintiff's complaint, it is clear that he is suing

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Judge Browning for an act that he allegedly took in his judicial

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capacity and that Judge Browning had jurisdiction to perform the

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act in question.

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dismissed.

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Therefore, the claims against Judge Browning are

Dismissal is without leave to amend because amendment

would be futile.

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II. Res Judicata
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United States District Court
For the Northern District of California

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Defendants argue that the complaint should be dismissed under
the doctrine of res judicata.
Rule 8(c) of the Federal Rules of Civil Procedure denotes res

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judicata as an affirmative defense.

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affirmative defenses may not be raised in a motion to dismiss, res

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judicata may be asserted in a motion to dismiss when doing so does

Although ordinarily

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not raise any disputed issues of fact.

Scott v. Kuhlmann, 746

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F.2d 1377, 1378 (9th Cir. 1984); Day v. Moscow, 955 F.2d 807, 811
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(2d Cir. 1992).

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Plaintiff’s complaint in the present case, the complaint in case

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number C 11-2144 EDL, and the Court’s Order of Dismissal with

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Prejudice in that case.

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does not raise any disputed issues of fact, and consideration of

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Defendants base their res judicata argument on

Thus, Defendants' res judicata argument

it on a motion to dismiss is appropriate.

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The doctrine of res judicata, or claim preclusion, provides
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that a final judgment on the merits bars further claims by the

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parties or their privies based on the same cause of action.

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Tahoe-Sierra Pres. Council v. Tahoe Reg'l Planning Agency, 322
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F.3d 1064, 1077 (9th Cir. 2003).

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of any claims that were raised or could have been raised in a

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prior action.

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F.3d 1189, 1192 (9th Cir. 1997).

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claims asserted subsequent to the judgment were actually pursued

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It prohibits the re-litigation

Western Radio Servs. Co., Inc. v. Glickman, 123
It is immaterial whether the

in the action that led to the judgment; rather, the relevant

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inquiry is whether they could have been brought.

Tahoe-Sierra

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Pres. Council, 322 F.3d at 1078.

The purpose of the doctrine is

United States District Court
For the Northern District of California

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to "relieve parties of the cost and vexation of multiple law

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suits, conserve judicial resources, and, by preventing

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inconsistent decisions, encourage reliance on adjudication."

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Marin v. HEW, Health Care Fin. Agency, 769 F.2d 590, 594 (9th Cir.

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1985) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)).

Three

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elements must be present in order for res judicata to be
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applicable: (1) an identity of claims; (2) a final judgment on the
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merits; and (3) the same parties or privity between the parties.

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Id.

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An identity of claims exists when two suits arise from the

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same transactional nucleus of facts.

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322 F.3d at 1078.

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Tahoe-Sierra Pres. Council,

Two events are part of the same transaction or

series of transactions where the claims share a factual foundation

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such that they could have been tried together.

Western Systems,

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Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir. 1992).

"Different

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theories supporting the same claim for relief must be brought in

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the initial action."

Id.
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The complaints in this case and in case number C 11-2144 EDL

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are virtually identical.

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is wrongfully being deducted from his monthly social security

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check.

Therefore, there is an identity of claims in the two

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cases.

The previous case was voluntarily dismissed with

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In both, Plaintiff asserts that $167.10

prejudice, which acts as a final judgment on the merits.

See

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Headwaters, Inc. v. United States Forest Serv., 399 F.3d 1047,
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1052 (9th Cir. 2005) ("a stipulated dismissal of an action with

United States District Court
For the Northern District of California

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prejudice in a federal district court generally constitutes a

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final judgment on the merits and precludes a party from

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reasserting the same claims in a subsequent action in the same

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court").

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Finally, for res judicata to apply, the parties in the first

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lawsuit must be identical to, or in privity with, the parties in
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the second lawsuit.

Privity exists if there is sufficient

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commonality of interests between the parties.

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Council, 322 F.3d at 1081.

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Tahoe-Sierra Pres.

In Plaintiff's previous lawsuit, the defendants were Janice

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Bressler, an attorney with the Department of Veteran Affairs, and

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Wendy Devine, an agent of the Internal Revenue Service (IRS).

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IRS is an agency of the Department of Treasury.

The

Because Secretary

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Geithner and Wendy Divine are government employees of the same
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federal agency, they share a sufficient commonality of interests

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to make them privies.

Because there is privity between Secretary

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Geithner and Ms. Devine, all the elements of res judicata are met
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and Plaintiff's claim is barred by the doctrine of res judicata.

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Therefore, Defendants' motion to dismiss is granted.

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Dismissal is without leave to amend.

The proper Defendant in

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this lawsuit would be the Department of Department of Veterans

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Affairs (VA).

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See Thomas v. Bennett, 856 F.2d 1165, 1167 (8th

Cir. 1988) (appropriate defendant for claim of setoff is not

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Department of Treasury, but agency requesting that IRS make a
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reduction).

The agency that is requesting that the Department of

United States District Court
For the Northern District of California

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Treasury make a deduction from Plaintiff's social security check

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is the VA.

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named as a defendant Janice Bressler, an attorney with the VA.

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Ms. Bressler is in privity with the VA if Plaintiff could name it

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in an amended complaint because there is sufficient commonality of

Plaintiff sued the VA in his last lawsuit because he

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interests between them.

Thus, any amended complaint that

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Plaintiff could bring would be barred by the application of res
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judicata, rendering amendment futile.

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is without leave to amend.

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application of res judicata, the Court does not address

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Defendants' other arguments for dismissal.

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For this reason, dismissal

Because this complaint is dismissed by

CONCLUSION
Based on the foregoing, Defendants' motion to dismiss is

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granted.

Dismissal is without leave to amend.

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The clerk of the

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court shall enter a separate judgment.

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their own costs of suit.

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All parties shall bear

IT IS SO ORDERED.

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Dated: 5/10/2012
CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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