Aguilar v. Noem et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Junior J. Aguilar,
Plaintiff,
v.
Kristi Noem, Secretary of Homeland
Security, et al.,
Defendants.
No. CV-25-00056-TUC-JCH (EJM)
REPORT AND RECOMMENDATION
Pending before the Court is Defendants’ Motion to Dismiss for Lack of Subject
Matter Jurisdiction and for Failure to State a Claim (Doc. 26) and Plaintiff’s Motion for
Leave to File Notice of Supplemental Facts (Doc. 33). Plaintiff responded in opposition
to the motion to dismiss. Pl.’s Opp. to Def.’s Partial Mot. to Dismiss (Doc. 27). Defendants
replied in support of their motion to dismiss, as well as responded to Plaintiff’s motion to
supplement. (Docs. 28, 37.) Plaintiff replied in support of his motion to supplement. (Doc.
38).
As such, the motions are fully briefed and ripe for adjudication. In its discretion,
the Court finds this case suitable for decision without oral argument. See LRCiv. 7.2(f).
The Parties have adequately presented the facts and legal arguments in their briefs and
supporting documents, and the decisional process would not be significantly aided by oral
argument. As discussed below, the Court will recommend denying Plaintiff’s motion to
file supplemental facts and granting in part and denying in part Defendants’ motion to
dismiss.
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I. FACTUAL BACKGROUND1
Plaintiff Junior J. Aguilar brings this cause of action, pro se, against Kristi Noem,
Secretary of Homeland Security; Director Christopher Holtzer, Executive Director of US
Customs and Border Protection; Kathleen E. Covert, Supervisory U.S. Customs and Border
Protection Officer; and Jason R. Warren, Veteran Support Field Coordinator/Supervisor.2
FAC (Doc. 5) at 1–2. Plaintiff alleges on June 19, 2020, he was wrongfully terminated
from United States Customs and Border Protection (“CBP”) “over an alleged punctuation
error in a WhatsApp message.” Id. at 5. CBP accused Plaintiff of “intending to cause
division among [his] peers[.]” Id. Plaintiff alleges that “no investigation, sworn
statements, or evidence supported this claim.” Id. Plaintiff “was terminated for a simple
punctuation error—failing to place a punctuation mark at the end of a question.” Id.
Plaintiff alleges “[t]he director made no attempt to review [his] personnel record, evaluate
[his] superior work performance, or examine the facts surrounding [his] case.” FAC (Doc.
5) at 5.
Plaintiff contrasts the events leading to his termination with those which occurred
while he was at the Federal Law Enforcement Training Center (FLETC) in Glynco,
Georgia. Id. Plaintiff alleges that “a white male trainee became enraged and stole
[Plaintiff’s] cell phone.” Id. Plaintiff alleges that “[t]his was a clear criminal act under
Georgia state law.” Id. Plaintiff further alleges that “[t]he director conducted an
investigation, requested statements, and had access to a police report documenting the
1 For purposes of this Report and Recommendation only, the Court will take as true the
factual allegations contained in Plaintiff’s First Amended Complaint (“FAC”) (Doc. 5). See
Association for Los Angeles Deputy Sheriffs v. County of Los Angeles, 648 F.3d 986, 991 (9th Cir.
2011).
2 The caption of Plaintiff’s FAC (Doc. 5) names Defendants as “Kristi Noem ET AL[.]”
Under the Federal Rules of Civil Procedure, “[t]he title of the Complaint must name all the
parties; the title of other pleadings, after naming the first party on each side, may refer generally
to other parties. Fed. R. Civ. P. 10(a) (emphasis added). This rule requires amended complaints
to name all of the parties, as well, because an amended complaint supersedes the original
complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard
Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the original complaint
is treated as nonexistent. Ferdik, 963 F.2d at 1262.
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crime[,] . . . [but] the trainee was neither disciplined nor terminated and was allowed to
continue his training and career.” Id.
“CBP’s termination letter falsely stated that [Plaintiff] ‘lack[s] integrity and loyalty
to the United States.’” FAC (Doc. 5) at 5. Plaintiff is “a disabled veteran of
Hispanic/Mexican descent.” Id. Plaintiff alleges that “[t]hese words go beyond
termination—they were intended to blacklist [him] from law enforcement and federal
employment indefinitely.” Id. “After [his] termination, CBP withdrew [its] Border Patrol
job offer, despite [Plaintiff] previously passing a federal background check.” Id. Plaintiff
has also been “blacklisted from all federal property.” Id.
Plaintiff brings this action for employment discrimination pursuant to Title VII of
the Civil Rights Act of 1964; the Americans with Disabilities Act of 1990; and the
Rehabilitation Act of 1973. FAC at 3. Plaintiff also asserts a denial of his due process
rights in the course of his termination. Id. at 4–5. Plaintiff’s employment discrimination
claim is based on race, color, national origin, and disability. Id. Plaintiff further asserts a
retaliation claim in conjunction with his employment discrimination action, as well as a
defamation claim. Id.
II. MOTION TO SUPPLEMENT FACTS
Plaintiff seeks leave to file a Notice of Supplemental Facts (Doc. 34) “to bring to
the Court’s attention recent, material developments that were not available when briefing
closed.” Pl.’s Mot. for Leave to File Not. of Suppl. Facts (Doc. 33) at 1. Plaintiff construes
this request as “narrow, caus[ing] no prejudice, and promot[ing] a complete and accurate
record.” Id. at 2. Defendants argue that “the information offered by Plaintiff is neither
relevant to the jurisdictional issues presented by Defendants’ motion [to dismiss] nor
should it be considered by the Court in evaluating the sufficiency of the factual allegations
contained in the Amended Complaint.” Def.’s Response to Pl.’s Mot. to Suppl. (Doc. 37)
at 2 (emphasis in original). Plaintiff clarifies that he “is not asking the Court to rely on [the
supplemental facts] to resolve Rule 12(b)(6) or any CSRA/FTCA issues[,]” rather he is
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“seek[ing] a narrow order permitting: (i) supplementation under Rule 15(d) to reflect post-
pleading events bearing on liberty interest (stigma-plus) publication and continuing harm;
or, alternatively, (ii) leave to amend under Rule 15(a)(2).” Pl.’s Reply (Doc. 38) at 1–2.
“The focus of any Rule 12(b)(6) dismissal—both in the trial court and on appeal—
is the complaint.” Schneider v. California Dept. of Corrections, 151 F.3d 1194, 1197 n.1
(9th Cir. 1998). Thus, “[i]n determining the propriety of a Rule 12(b)(6) dismissal, a court
may not look beyond the complaint to a plaintiff’s moving papers, such as a memorandum
in opposition to a defendant’s motion to dismiss” or a supplemental statement filed after
briefing. Id.
As such, the Court will not consider Plaintiff’s supplemental facts in its resolution
of Defendants’ motion to dismiss. Furthermore, it declines to convert Defendants’ motion
to dismiss into one for summary judgment. See Fed. R. Civ. P. 12(d) (allowing conversion
of a Rule 12(b)(6) motion to dismiss to a Rule 56 motion for summary judgment when
matters outside of the pleadings are presented and not excluded by the court). Accordingly,
Plaintiff’s Motion for Leave to File Notice of Supplemental Facts (Doc. 33) should be
denied.3
III. STANDARD OF REVIEW
A. Subject Matter Jurisdiction
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins.
Co. of America, 511 U.S. 375, 377 (1994). A district court has original jurisdiction “of all
civil actions arising under the Constitution, laws, or treaties of the United States.” 28
U.S.C. § 1331. This is known as federal question jurisdiction. District courts also have
3 Plaintiff did not request leave to amend his FAC until his reply. As such, the Court did
not consider it in resolving his motion to supplement. See Zamani v. Carnes, 491 F.3d 990, 997
(9th Cir. 2007) (A “court need not consider arguments raised for the first time in a reply brief.”).
In its analysis of Defendants’ motion to dismiss, the Court will consider the supplemental facts
when assessing whether leave to amend is proper. See Schmees v. HC1.COM, Inc., 77 F.4th 483,
488 (7th Cir. 2023) (recognizing a district court’s discretion to construe new factual allegations in
a plaintiff’s briefs as a constructive motion to amend).
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original jurisdiction “of all civil actions where the matter in controversy exceeds the sum
or value of $75,000, exclusive of interest and costs, and is between (1) citizens of different
States; (2) citizens of a State and citizens or subjects of a foreign state; (3) citizens of
different States and in which citizens or subjects of a foreign state are additional parties;
and (4) a foreign state, defined in section 1603(a) of this title as plaintiff and citizens of a
State or of different States.” 28 U.S.C. § 1332. This is referred to as diversity jurisdiction.
“A rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing White v. Lee, 227 F.3d
1214, 1242 (9th Cir. 2000)). A facial attack challenges “the allegations contained in a
complaint [as] insufficient on their face to invoke federal jurisdiction.” Id. Whereas a
factual attack challenges “the truth of the allegations that by themselves, would otherwise
invoke federal jurisdiction.” Id. “In resolving a factual attack on jurisdiction, the district
court may review evidence beyond the complaint without converting the motion to dismiss
into a motion for summary judgment.” Id. (citing Savage v. Gelndale Union High Sch.,
343 F.3d 1036, 1039 n.2 (9th Cir. 2003)); McCarthy v. United States, 850 F.2d 558, 560
(9th Cir. 1988) (citing Land v. Dollar, 330 U.S. 731, 735 n.4 (1947) (when considering a
Rule 12(b)(1) motion, “the district court is not restricted to the face of the pleadings, but
may review any evidence such as affidavits and testimony, to resolve factual disputes
concerning the existence of jurisdiction.”)).
Where issues of jurisdiction and the merits are intertwined, however, “[a] court may
not resolve genuinely disputed facts.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th
Cir. 1987) (citing Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)). “In
such a case, the district court assumes the truth of the allegations in a complaint[.]” Id.
Dismissal is then appropriate under the Rule 12(b)(6) standard, “where ‘it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle
him to relief.’” Id. (quoting Conley v. Gibson, 355 U.S. 41, 45–46 (1957)).
“[J]urisdictional dismissals in questions premised on federal-question jurisdiction are
exceptional, and must satsify the requirements specified in Bell v. Hood[.]” Safe Air for
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Everyone, 373 F.3d at 1039 (quoting Sun Valley Gas., Inc. v. Ernst Enters., 711 F.2d 138,
140 (9th Cir. 1983)). “In Bell, the Supreme Court determined that jurisdictional dismissals
are warranted ‘where the alleged claim under the constitution or federal statutes clearly
appears to be immaterial and made solely for the purpose of obtaining federal jurisdiction
or where such claim is wholly insubstantial and frivolous.’” Id. (quoting Bell, 327 U.S.
678, 682–83 (1946)).
“If a district court cannot determine jurisdiction on the basis of a threshold inquiry
analogous to a 12(b)(6) motion, the court may assume jurisdiction and go on to determine
the relevant jurisdictional facts ‘on either a motion going to the merits or at trial.’” Roberts,
812 F.2d at 1178 (quoting Augustine, 704 F.2d at 1077)). “The existence of subject matter
jurisdiction is a question of law.” Tesla Motors, Inc. v. Balan, 134 F.4th 558, 560 (9th Cir.
2025). Plaintiff, as “[t]he party asserting federal jurisdiction[,] bears the burden of proving
the case is properly in federal court.” In re Ford Motor Co./Citibank (S. Dakota), N.A.,
264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. General Motors Acceptance Corp.,
298 U.S. 178, 189 (1936)).
B. Failure to State a Claim
A complaint is to contain a “short and plain statement of the claim showing that the
pleader is entitled to relief[.]” Rule 8(a), Fed. R. Civ. P. While Rule 8 does not demand
detailed factual allegations, “it demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.; Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th
Cir. 1998) (“conclusory allegations of law and unwarranted inferences are not sufficient to
defeat a motion to dismiss.”).
Rule 12(b)(6) motions are meant to “test[] the legal sufficiency of a claim.” Navarro
v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is appropriate where a plaintiff has
failed to “state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
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as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft, 556 U.S. at 678
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Further, “[a] claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id. (citations omitted).
“When ruling on a motion to dismiss, [the Court must] accept all factual allegations
in the complaint as true and construe the pleadings in the light most favorable to the
nonmoving party.” Association for Los Angeles Deputy Sheriffs v. County of Los Angeles,
648 F.3d 986, 991 (9th Cir. 2011) (quoting Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.
2005)). “The court draws all reasonable inferences in favor of the plaintiff.” Id. (citing
Newcal Industries, Inc. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008)).
This Court is not required, however, to accept conclusory statements as a factual basis. See
Twombly, 550 U.S. at 555; Mann v. City of Tucson, 782 F.2d 790, 793 (9th Cir. 1986)
(“Although we must, in general, accept the facts alleged in the complaint as true, wholly
vague and conclusory allegations are not sufficient to withstand a motion to dismiss.”).
Accordingly, “[d]ismissal is proper under Rule 12(b)(6) if it appears beyond doubt that the
non-movant can prove no set of facts to support its claims.” Boquist v. Courtney, 32 F.4th
764, 773–74 (9th Cir. 2022) (alterations in original) (quoting Admas v. Johnson, 355 F.3d
1179, 1183 (9th Cir. 2004)); Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 965 (9th
Cir. 2018) (quoting Navarro, 250 F.3d at 732) (“[d]ismissal is proper only where there is
no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable
legal theory”). “[W]here, as here, a plaintiff proceeds pro se, we must ‘construe the
pleadings liberally’ and ‘afford the petitioner the benefit of any doubt.’” Boquist, 32 F.4th
at 774 (quoting Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)).
III. ANALYSIS
Defendant seek dismissal of Plaintiff’s First Amended Complaint (Doc. 5) pursuant
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to Rules 12(b)(1) and 12(b)(6), Federal Rules of Civil Procedure. See Defs.’ Mot. to
Dismiss (Doc. 26). The Court will address each argument in turn.
A. Defendants Holtzer, Covert, and Warren
Defendants assert that Defendants Holtzer, Covert, Warren, and CBP are not proper
defendants in an employment discrimination cause of action. Defs.’ Mot. to Dismiss (Doc.
26) at 4. In his pro se FAC, Plaintiff named Kristi Noem, Secretary of Homeland Security;
Director Christopher Holtzer, Executive Director of US Customs and Border Protection;
Kathleen E. Covert, Supervisory U.S. Customs and Border Protection Officer; and Jason
R. Warren, Veteran Support Field Coordinator/Supervisor.4 FAC (Doc. 5) at 1–2. Plaintiff
lists CBP as his place of employment, but does not include it in his list of defendants.5
Compare FAC (Doc. 5) at 3, with FAC at 2. Plaintiff states that he “does not oppose
removing Christopher Holtzer, Kathleen Covert, and Jason Warren as named defendants,
so long as their names remain in the record because they acted as conduits for the adverse
actions.” Pl.’s Response (Doc. 27) at 1.
Section 2000e-16, Title 42, United States Code governs discrimination claims,
alleging Title VII violations, against the federal government. See 42 U.S.C. § 2000e-16;
see also Mahoney v. United States Postal Service, 884 F.2d 1194, 1196 (9th Cir. 1989).
The statute mandates that in such a civil action “the head of the department, agency, or
unit, as appropriate, shall be defendant.” 42 U.S.C. § 2000e-16(c); see also Vinieratos v.
United States Dept. of Air Force Through Aldridge, 939 F.2d 762, 772 (9th Cir. 1991)
(recognizing Title VII requires naming the Secretary of the Air Force as the adverse party
in a discrimination suit); Morrison v. Nielsen, 325 F. Supp. 3d 62, 68 (D.D.C. 2018)
4 The caption of Plaintiff’s FAC (Doc. 5) names Defendants as “Kristi Noem ET AL[.]”
Under the Federal Rules of Civil Procedure, “[t]he title of the Complaint must name all the
parties; the title of other pleadings, after naming the first party on each side, may refer generally
to other parties. Fed. R. Civ. P. 10(a) (emphasis added). This rule requires amended complaints
to name all of the parties, as well, because an amended complaint supersedes the original
complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard
Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the original complaint
is treated as nonexistent. Ferdik, 963 F.2d at 1262.
5 CBP is improperly listed as a Defendant on the Court’s docket sheet.
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(recognizing the Secretary of Homeland Security as the only proper defendant for a
discrimination claim pursuant to Title VII or the Rehabilitation Act and dismissing all other
defendants).
The Court finds that the Secretary of Homeland Security is the only proper
Defendant in this case. It is recommended that Defendants Christopher Holtzer, Kathleen
Covert, and Jason Warren be dismissed. The Court further recommends Defendants’
motion to dismiss be denied as to CBP, because Plaintiff did not name it as a defendant.
Additionally, the Clerk of the Court should be directed to terminate CBP as a defendant on
the docket sheet.
B. Civil Service Reform Act Due Process Claim
Defendants assert that “Plaintiff makes the cursory allegation that he was
‘terminated without a fair chance to respond’ under the Civil Service Reform Act, 5 U.S.C.
§ 7513.” Defs.’ Mot. to Dismiss (Doc. 26) at 5. Defendants argue dismissal is proper
because 1) the Court lacks subject matter jurisdiction; and 2) Plaintiff “has not pled that he
was an ‘employee’ under the CSRA” thereby failing to state a claim upon which relief can
be granted. Id. Plaintiff characterizes his due process claim as arising under the Fifth
Amendment and within the jurisdiction of this Court. Pl.’s Response (Doc. 27) at 4–5.
Plaintiff further concedes that “[t]he CSRA review scheme does not apply where the
employee is not an ‘employee’ within 5 U.S.C. § 7511 . . . and lacks [Merit Systems
Protection Board] appeal rights.” Id. at 5 (citing 5 U.S.C. § 7511(a)(1)(A)). Plaintiff also
states “[m]ixed-case routing to district court is recognized.” Id. (citing Kloeckner v. Solis,
568 U.S. 41 56–57 (2012); then citing Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 432–34
(2017)).
1. Civil Service Reform Act
The Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. § 1101 et seq., “established
a comprehensive system for reviewing personnel action taken against federal employees.”
Elgin v. Department of Treasury, 567 U.S. 1, 5 (2012). “That statutory framework provides
graduated protections depending on an action’s severity.” Kloeckner v. Solis, 568 U.S. 41,
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44 (2012). Where a federal employee is removed from employment or his/her grade or
pay is reduced, that employee “has a right to appeal the agency’s decision to the [Merit
Systems Protection Board (MSPB).]” Id. (citing 5 U.S.C. §§ 1204, 7512, 7701). The
employee’s appeal may allege that the agency had insufficient cause for its actions pursuant
to the CSRA and/or “charge the agency with discrimination prohibited by another federal
statute, such as Title VII . . . or the Age Discrimination in Employment Act[.]” Id.
(citations omitted). The CSRA delineates the exclusive method for covered employees
seeking review of adverse employment actions. Elgin, 567 U.S. at 11–12.
“When an employee complains of a personnel action serious enough to appeal to
the MSPB and alleges that the action was based on discrimination, []he is said (by pertinent
regulation) to have brought a ‘mixed case.’”6 Kloeckner, 568 U.S. at 44 (emphasis in
original) (citing 29 C.F.R. § 1614.302 (2012)). “The CSRA and regulations of the MSPB
and Equal Employment Opportunity Commission (EEOC) set out special procedures to
govern such a case—different from those used when the employee either challenges a
serious personnel action under the CSRA alone or attacks a less serious action as
discriminatory.” Id. at 44–45 (citing 5 U.S. C. §§ 7702, 7703(b)(2) (2006 ed. and Supp.
V); then citing 5 C.F.R. pt. 1201, subpt. E (2012); then citing 29 C.F.R. pt. 1614, subpt.
C).
6 Section 1614.302, Title 29, Code of Federal Regulations, defines a mixed case as follows:
(1) . . . A mixed case complaint is a complaint of employment discrimination filed
with a federal agency based on race; color; religion; sex; national origin; age;
disability; genetic information; or pregnancy, childbirth, or related medical
conditions related to or stemming from an action that can be appealed to the
Merit Systems Protection Board (MSPB). The complaint may contain only an
allegation of employment discrimination or it may contain additional
allegations that the MSPB has jurisdiction to address.
(2) . . . A mixed case appeal is an appeal filed with the MSPB that alleges that an
appealable agency action was effected, in whole or in part, because of
discrimination on the basis of race; color; religion; sex; national origin;
disability; age; genetic information; or pregnancy, childbirth, or related medical
conditions.
29 C.F.R. § 1614.302(a).
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An “employee” under the CSRA is defined as follows:
(A) an individual in the competitive service--
(i) who is not serving a probationary or trial period under an initial
appointment; or
(ii) who has completed 1 year of current continuous service under
other than a temporary appointment limited to 1 year or less;
(B) a preference eligible in the excepted service who has completed 1 year
of current continuous service in the same or similar positions--
(i) in an Executive agency; or
(ii) in the United States Postal Service or Postal Regulatory
Commission; and
(C) an individual in the excepted service (other than a preference eligible)--
(i) who is not serving a probationary or trial period under an initial
appointment pending conversion to the competitive service; or
(ii) who has completed 2 years of current continuous service in the
same or similar positions in an Executive agency under other
than a temporary appointment limited to 2 years or less.
5 U.S.C.A. § 7511.
“Section 7703 of the CSRA governs judicial review of the MSPB’s decisions.”
Kloeckner, 568 U.S. at 45. The basic rule provides that “[a]n employee who is dissatisfied
with the MSPB’s decision is entitled to judicial review in the United States Court of
Appeals for the Federal Circuit.” Elgin, 567 U.S. at 7; 5 U.S.C. § 7703(b)(1). The
exception to this rule are cases of discrimination, which shall be filed as provided by the
enforcement provision of the relevant statute, such as Title VII. 5 U.S.C. § 7703(b)(2). As
such, judicial review of final MSPB mixed case decisions are brought in district court.
Kloeckner, 568 U.S. at 49, 56.
As Plaintiff concedes, “[t]he CSRA’s review scheme does not apply where the
employee is not an ‘employee’ within 5 U.S.C. § 7511 (e.g., probationary trainees) and
lacks MSPB appeal rights.” Pl.’s Response (Doc. 27) at 5 (citing 5 U.S.C. § 7511
(a)(1)(A)). Because Plaintiff was not an “employee” as defined in Section 7511, he is not
entitled to bring a claim under the CSRA structure, with the MSPB lacking jurisdiction.
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Because the MSPB lacks jurisdiction, Plaintiff has no right of judicial review in this Court
pursuant to the CSRA. It does not matter that Plaintiff construes his claims as a “mixed
case.” As discussed, supra, a mixed case is a MSPB appeal involving an adverse
employment action based upon, or in addition to, a discrimination claim. See Kloeckner,
568 U.S. at 49; 29 C.F.R. § 1614.302(a). The term is derived from the regulations
applicable to MSPB review as set forth by the CSRA. See Kloeckner, 568 U.S. at 49.
Therefore, the Court recommends that Plaintiff’s CSRA claim be dismissed for lack of
jurisdiction.7
2. Fifth Amendment—Due Process
a. Property interest in employment
In response to the motion to dismiss, Plaintiff asserts that he “plausibly alleges
deprivation of a property interest in public employment and a liberty interest in reputation
without due process.” Pl.’s Response (Doc. 27) at 5 (citing Cleveland Board of Education
v. Loudermill, 470 U.S. 532, 542–46 (1985); then citing Mathews v. Eldridge, 424 U.S.
319, 333–35 (1976)). Plaintiff’s FAC (Doc. 5), however, does not include any reference
to the Fifth Amendment; its only reference to a due process violation relies on the CSRA
and 5 U.S.C. § 7513.
Due Process “requires ‘some kind of hearing’ prior to the discharge of an employee
who has a constitutionally protected property interest in his employment.” Loudermill, 470
U.S. at 542 (citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569–70
(1972); then citing Perry v. Sindermann, 408 U.S. 593, 599 (1972)). “[T]he requirements
of due process do not apply[, however,] unless [Plaintiff] can first show that [he] has a
cognizable liberty or property interest[.]” Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th
7 “[D]ismissals for lack of Article III jurisdiction must be entered without prejudice because
a court that lacks jurisdiction ‘is powerless to reach the merits.’” Barke v. Banks, 25 F.4th 714,
721 (9th Cir. 2022) (quoting Fleck & Assocs., Inc. v. Phoenix, City of, an Ariz. Mun. Corp., 471
F.3d 1100, 1106–07 (9th Cir. 2006)).
Additionally, because the Court lacks jurisdiction over Plaintiff’s CSRA claims, it will not
address his alleged due process violation brought pursuant to 5 U.S.C. § 7513.
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Cir. 1990) (citing Roth, 408 U.S. at 571). “Property interests . . . are not created by the
Constitution[;] [r]ather[,] they are created and their dimensions are defined by existing
rules or understandings that stem from an independent source[.]” Roth, 408 U.S. at 577.
“Where there is no right, no process is due under the Constitution.” Dorfmont, 913 F.2d at
1403 (citations omitted). Here, “[a]s a probationary employee, [Plaintiff] can assert no
‘legitimate claim of entitlement’ to continued employment, and thus has no property
interest cognizable under the fifth amendment.” Duke v. Langdon, 701 F.2d 768, 769
(1983) (citing Roth, 408 U.S. at 574 n.13; then citing Davis v. Oregon State University,
591 F.2d 493, 498 (9th Cir. 1979)).
Because this claim does not exist in Plaintiff’s FAC (Doc. 5), it cannot be dismissed.
Neither should Plaintiff be allowed to amend his FAC to add a Fifth Amendment Due
Process claim, as he does not have a property interest in his employment, and there are no
facts that could support such a claim. See Hunter v. U.S. Dep't of Educ., 115 F.4th 955,
971 (9th Cir. 2024) (quoting Wheeler v. City of Santa Clara, 894 F.3d 1046, 1059 (9th Cir.
2018)) (“Leave to amend may be denied if the proposed amendment is futile or would be
subject to dismissal.”).
b. Stigma-plus
Also in response to Defendants’ motion, Plaintiff asserts that “[t]he Fifth
Amendment protects against stigma-plus: reputational harm coupled with termination.”
Pl.’s Response (Doc. 27) at 6 (citing Paul v. Davis, 424 U.S. 693, 701–10 (1976); then
citing Codd v. Velger, 429 U.S. 624, 627–28 (1977) (per curiam)). Plaintiff’s FAC (Doc.
5) did not allege a cause of action based on this theory.
“[A] plaintiff who had no property interest in continued employment may
nonetheless be entitled . . . to a hearing if a decision not to rehire him was accompanied by
‘any charge against him that might seriously damage his standing and associations in his
community’ or ‘imposed on him a stigma or other disability that foreclosed his freedom to
take advantage of other employment opportunities.’” Ulrich v. City and Cnty. of San
Francisco, 308 F.3d 968, 982 (9th Cir. 2002) (quoting Board of Regents of State Colleges
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v. Roth, 408 U.S. 564, 573 (1972)). Reputational harm alone is insufficient “to establish a
deprivation of a liberty interest protected by the Constitution[;] [however,] . . .
governmental action defaming an individual in the course of declining to rehire him could
entitle the person to notice and an opportunity to be heard as to the defamation.” Ulrich,
308 F.3d at 982 (emphasis in original) (internal quotations and citations omitted). “The
rule in Paul has come to be known as the ‘stigma plus’ test for establishing deprivation of
liberty based on governmental defamation.”8 Id. To establish a claim under this theory,
Plaintiff must show: (1) “the public disclosure of a stigmatizing statement by the
government, the accuracy of which is contested, plus” (2) “the denial of ‘some more
tangible interest[ ] such as employment,’ or the alteration of a right or status recognized by
state law.” Id. (emphasis in original) (alterations in original) (quoting Paul v. Davis, 424
U.S. 693, 701, 711 (1976)).
Plaintiff has failed to allege this cause of action in his FAC (Doc. 5). Therefore, it
cannot be dismissed. The Court finds it possible that Plaintiff may be able to plead
sufficient facts to establish a stigma-plus claim. Accordingly, it is recommended that leave
to amend be granted. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 701 (9th Cir. 1988)
(citations omitted) (finding leave to amend is proper “if it appears at all possible that the
plaintiff can correct the defect.”).
C. Americans with Disabilities Act
Defendants assert that “Plaintiff’s claim of disability discrimination under the
Americans with Disabilities Act (“ADA”) is not cognizable because the ADA does not
apply to federal employees.” Defs.’ Mot. to Dismiss (Doc. 26) at 6 (citations omitted).
Plaintiff does not oppose this statement.
Under the ADA, “[t]he term ‘employee’ means an individual employed by an
employer.” 42 U.S.C. § 12111(4). The statute goes on to define employer, recognizing
“[t]he term ‘employer’ does not include—(i) the United States, a corporation wholly
owned by the government of the United States, or an Indian tribe[.]” Id. (emphasis added).
8 Paul v. Davis, 424 U.S. 693 (1976).
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Accordingly, Plaintiff cannot state a claim upon which relief can be granted under
the ADA. The Court recommends dismissal of this claim without leave to amend, because
it finds there are no facts that could support it. See Hunter v. U.S. Dep't of Educ., 115 F.4th
955, 971 (9th Cir. 2024) (quoting Wheeler v. City of Santa Clara, 894 F.3d 1046, 1059 (9th
Cir. 2018)) (“Leave to amend may be denied if the proposed amendment is futile or would
be subject to dismissal.”).
D. Rehabilitation Act
Defendants assert that Plaintiff’s FAC (Doc. 5) fails to state a claim for disability
discrimination under the Rehabilitation Act. Defs.’ Mot. to Dismiss (Doc. 26) at 6.
“The Rehabilitation Act of 1973, 29 U.S.C. §§ 701–794 (1975 & Supp. 1983), was
initially intended primarily to help states develop and implement vocational rehabilitation
services for handicapped persons.” Boyd v. United States Postal Service, 752 F.2d 410,
412 (9th Cir. 1985). “It was later amended to provide more comprehensive protection for
[disabled] persons subjected to discriminatory treatment.” Id. (citing 29 U.S.C. § 701
(1975 & Supp. 1983)). In its current form, the Rehabilitation Act provides “the standards
applied under title I of the Americans with Disabilities Act of 1990 [(“ADA”)] (42 U.S.C.
1211 et seq.) and the provisions of sections 501 through 504, and 510, of the [ADA] (42
U.S.C. 12201–12204 and 12210), as such sections relate to employment[,]” are to be used
in resolving Rehabilitation Act employment discrimination claims. 29 U.S.C. § 791(f)
(2014).
In order to state a claim of disability discrimination, Plaintiff must state facts to
show that: (1) he is disabled within the meaning of the Rehabilitation Act; (2) he was
qualified to perform the essential functions of the job, with or without accommodation; and
(3) the employer terminated him because of his disability. Kennedy v. Applause, Inc. 90
F.3d 1477, 1481 (9th Cir. 1996) (delineating elements of an ADA discrimination claim);
see also Kendall v. Mukasey, 282 Fed. App’x 527, 528 (9th Cir. 2008) (relying on Kennedy
to outline a prima facie case of disability discrimination under the Rehabilitation Act);
Wong v. regents of Univ. of Cal., 410 F.3d 1052, 1058 (9th Cir. 2005) (outlining the prima
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facie case of disability discrimination under the ADA and Rehabilitation Act as it applies
to entities that receive federal funding).
As Defendants point out, Plaintiff’s FAC (Doc. 5) contains only the “cursory
allegation that, ‘[a]s a brown-skinned Hispanic and disabled veteran, I was treated
unfairly[.]’” Defs.’ Mot. to Dismiss (Doc. 26) at 6 (quoting FAC (Doc. 5) at 5).
Furthermore, in response to Defendants’ motion, Plaintiff describes himself as a “VA-rated
disabled federal employee”; who “was otherwise qualified to perform the essential
functions of the trainee position with or without reasonable accommodation”; and “the
adverse action occurred because of his disability and/or in retaliation for disability-related
activity.” Pl.’s Response (Doc. 27) at 7–8 (citations omitted).
It is well-established that “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009); Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998)
(“conclusory allegations of law and unwarranted inferences are not sufficient to defeat a
motion to dismiss.”). Plaintiff’s FAC (Doc. 5) contains only “labels and conclusions” and
“formulaic recitation[s] of the elements of a cause of action[.]” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This
is insufficient to state a claim upon which relief can be granted. As Defendants recognize,
Plaintiff “alleges no facts to support a plausible inference that he was terminated due to
any disability.” Defs.’ Reply re MTD (Doc. 28) at 4 (emphasis in original). Plaintiff’s
disability discrimination claim under the Rehabilitation Act should be dismissed with leave
to amend.
E. Title VII—Retaliation
Defendants assert that Plaintiff’s FAC (Doc. 5) “does not state a claim for retaliation
for having engaged in protected activity.” Defs.’ Mot. to Dismiss (Doc. 26) at 6. Plaintiff
counters that he “alleges protected activity, adverse action, and a causal link.” Pl.’s
Response (Doc. 27) at 6 (citations omitted).
Title VII makes it unlawful for employers “to discriminate against any of his
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employees . . . because he has opposed any practice made an unlawful employment practice
by this subchapter, or because he has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C.
§ 2000e-3(a). “To establish a prima facie case of discriminatory retaliation, [Plaintiff] must
show that: (1) he engaged in activity protected under Title VII, (2) his employer subjected
him to an adverse employment action, and (3) the employer’s action is causally linked to
the protected activity.” Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1411 (9th Cir. 1987)
(citing Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987); then citing Miller v.
Fairchild Indus., 797 F.2d 727, 731 (9th Cir. 1986)). “An employee engages in protected
activity when []he opposes an employment practice that either violates Title VII or that the
employee reasonably believes violates that law.” Westendorf v. West Coast Contractors
of Nev., Inc., 712 F.3d 417, 422 (9th Cir. 2013) (citing Freitag v. Ayers, 468 F.3d 528, 541
(9th Cir. 2006); then citing 42 U.S.C. § 2000e-3(a)).
Under the heading “Disparate Treatment & Retaliation,” Plaintiff’s FAC provides:
While I was terminated for a minor unverified allegation, another trainee who
stole my phone faced no discipline. This demonstrates disparate treatment.
After my termination, CBP withdrew my Border Patrol job offer, despite my
previously passing a federal background check. A FOIA request later
revealed that I was blacklisted from all federal property, showing clear
retaliation.
((Doc. 5) at 5.) Neither this section, nor any other portion of Plaintiff’s FAC describes the
protected activity he participated in which resulted in retaliation. In response to
Defendants’ motion, Plaintiff states that he “engaged in protected EEO activity and
reported misconduct including concerns regarding trainee behavior and fairness in
discipline.” Pl.’s Response (Doc. 27) at 2, 6. Plaintiff has yet to provide facts detailing
more than the bare mention of misconduct reports. Nor has he demonstrated that these
reports related to “employment practices that either violates Title VII or that [he]
reasonably believes violates that law.”
Furthermore, as Defendants recognized, Plaintiff’s “cat’s paw” theory of liability is
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not supported by the facts. Defs.’ Reply (Doc. 28) at 6–7. “Under this theory, a plaintiff
must establish that the person with a retaliatory motive somehow influenced the
decisionmaker to take the retaliatory action.” Acosta v. Brain, 910 F.3d 502, 514–15 (9th
Cir. 2018) (quoting Zamora v. City of Houston, 798 F.3d 326, 331 (5th Cir. 2015)); see
also Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007). “Put another way, a plaintiff
must show that the person with retaliatory animus used the decisionmaker to bring about
the intended retaliatory action.” Acosta, 910 F.3d at 515 (quoting Zamora, 798 F.3d at
331). Plaintiff has failed to offer any facts to support such a theory.
Finally, Plaintiff filed his EEOC complaint on August 20, 2020. FAC (Doc. 5) at
5. This was two (2) months after his June 19, 2020, termination. As such, Plaintiff’s EEOC
complaint cannot form the basis for a retaliation claim. Plaintiff’s FAC fails to state a Title
VII retaliation claim upon which relief can be granted. The Court recommends that this
claim be dismissed with leave to amend.
F. Defamation
Defendants observe “Plaintiff’s Complaint . . . makes a passing reference to
‘Defamation & Career Sabotage’ for ‘falsely labeling [him] disloyal and ensured [he]
would never work in law enforcement again.” Defs.’ Mot. to Dismiss (Doc. 26) at 7
(alterations in original) (quoting FAC (Doc. 5) at 5). Defendants assert that “[t]o the extent
this is read as an independent claim of defamation, it is barred by sovereign immunity.”
Id. Plaintiff urges that “[t]his Court has supplemental jurisdiction over state-law
defamation claims arising from the same nucleus of operative fact as the federal claims.”
Pl.’s Response (Doc. 27) at 8 (citing 28 U.S.C. § 1367(a); then citing United Mine Workers
v. Gibbs, 383 U.S. 715, 725 (1966)).
It is well settled that “the United States, as sovereign, ‘is immune from suit save as
it consents to be sued . . . and the terms of its consent to be sued in any court define that
court’s jurisdiction to entertain the suit.’” Lehman v. Nakshian, 453 U.S. 156, 160 (quoting
United States v. Testan, 424 U.S. 392, 399 (1976)). “A waiver of sovereign immunity
‘cannot be implied but must be unequivocally expressed.’” United States v. Mitchell, 445
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U.S. 535, 538 (1980) (quoting United States v. King, 395 U.S. 1, 4 (1969)).
“The Federal Tort Claims Act, enacted in 1946, provides generally that the United
States shall be liable, to the same extent as a private party, ‘for injury or loss of property,
or personal injury or death caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office or employment.’”
Kosak v. United States, 465 U.S. 848, 852 (1984) (quoting 28 U.S.C. § 1346(b)). “The
Act’s broad waiver of sovereign immunity is, however, subject to 13 enumerated
exceptions. Id. at 852 (citing 28 U.S.C. §2680(a)–(n)). “If one of the exceptions applies,
the bar of sovereign immunity remains.” Dolan v. U.S. Postal Service, 546 U.S. 481, 485
(2006). Section 2680, Title 28, United States Code, provides in relevant part that:
The provisions of this chapter and section 1346(b) of this title shall not apply
to . . . [a]ny claim arising out of assault, battery, false imprisonment, false
arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights[.]
28 U.S.C. § 2680(h). As such, Congress has declined to waive sovereign immunity for
defamation claims. See id. (excepting libel, slander, and misrepresentation from the
FTCA’s waiver).
Additionally, Plaintiff’s reliance on the supplemental jurisdiction statute is
misplaced. “Sovereign immunity and subject matter jurisdiction are distinct doctrines.”
Dunn & Black, P.S. v. U.S., 492 F.3d 1084, 1087 n.2 (9th Cir. 2007) (quoting Wilkerson v.
United States, 67 F.3d 112, 119 n.13 (5th Cir. 1995)). Section 1367 “cannot be construed
as authorizing suits of this character against the United States, else the exemption of
sovereign immunity would become meaningless.” Id. at 1088 n.3 (quoting Geurkink
Farms, Inc. v. United States, 452 F.2d 643, 644 (7th Cir. 1971)). This section “merely
grants federal courts supplemental jurisdiction over state claims related to certain federal
claims in any civil action of which the district court has original jurisdiction . . . [and]
cannot ‘operate as a waiver of the United States sovereign immunity.’” Id. (quoting
Wilkerson, 67 F.3d at 119 n.13); cf. Raygor v. Regents of Univ. of Minnesota, 534 U.S.
533, 541 (2002) (declining to read 28 U.S.C. § 1367(a) as a waiver of the Eleventh
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Amendment thereby authorizing suit against a nonconsenting State).
The United States has not waived its sovereign immunity for a defamation claim.
Accordingly, this Court lacks jurisdiction over such a claim. Plaintiff’s defamation claim
should be dismissed without leave to amend. See Hunter v. U.S. Dep't of Educ., 115 F.4th
955, 971 (9th Cir. 2024) (quoting Wheeler v. City of Santa Clara, 894 F.3d 1046, 1059 (9th
Cir. 2018)) (“Leave to amend may be denied if the proposed amendment is futile or would
be subject to dismissal.”).
G. First Amendment—Retaliation
Plaintiff raises a First Amendment retaliation claim for the first time in his response
to Defendants’ motion to dismiss. Pl.’s Response (Doc. 27) at 6. Plaintiff’s FAC (Doc. 5)
did not allege a cause of action based on this theory.
In Bush v. Lucas, 462 U.S. 367 (1983), the Supreme Court of the United States
considered whether federal employees could seek damages under the First Amendment for
retaliatory demotion. The Court concluded “[b]ecause such claims arise out of an
employment relationship that is governed by comprehensive procedural and substantive
provisions giving meaningful remedies against the United States, . . . it would be
inappropriate for [the Court] to supplement that regulatory scheme with a new judicial
remedy.” Bush, 462 U.S. at 368. The Court went on to characterize the issue as one of
“federal personnel policy” and reviewed the extensive civil service remedial scheme
available to federal employees. Id. at 380–88.
In Brown v. General Services Admin., the Supreme Court held that Title VII
“provides the exclusive judicial remedy for claims of discrimination in federal
employment.” 425 U.S. 820, 835 (1976). “The holding of Brown[, here,] is controlling on
this issue and . . . cannot be circumvented where the factual predicate for [Plaintiff’s First
Amendment retaliation] claim is the discrimination which is the basis of [his] Title VII
claim.” Nolan v. Cleland, 686 F.2d 806, 815 (9th Cir. 1982).
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the Supreme
Court “authorized a damages action against federal officials for alleged violations of the
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Fourth Amendment.” Egbert v. Boule, 596 U.S. 482, 486 (2022). In Egbert, the Supreme
Court unequivocally held “that there is no Bivens action for First Amendment retaliation.”
Id. at 499.
Plaintiff failed to allege this cause of action in his FAC (Doc. 5). Therefore, it
cannot be dismissed. Furthermore, there is no such cause of action available.
H. Conclusion
Based on the foregoing, the Court finds it appropriate to dismiss Plaintiff’s FAC
(Doc. 5).
“[I]n dismissals for failure to state a claim, a district court should grant leave to
amend even if no request to amend the pleading was made, unless it determines that the
pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss and
Liehe, Inc. v. Northern Calif. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990).
After a complete review of Plaintiff’s filings in this case, the Court cannot say with
certainty that there is no set of facts that could be alleged sufficient to support claims for
disability pursuant to the Rehabilitation Act and retaliation pursuant to Title VII.
Accordingly, the Court recommends Plaintiff be granted leave to amend his FAC. This is
not, however, an opportunity to reallege claims that have been fully dismissed herein—
Defendants Christopher Holtzer, Kathleen Covert, and Jasson Warren should be dismissed;
Plaintiff’s CSRA claim should be dismissed without prejudice for a lack of jurisdiction;
and Plaintiff’s ADA and defamation claims should be dismissed without leave to amend.
Furthermore, an amended complaint supersedes the original Complaint. Ferdik v.
Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner &
Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the original Complaint
is treated as nonexistent. Ferdik, 963 F.2d at 1262. Thus, grounds for relief alleged in the
original Petition that are not alleged in an amended petition are waived. King v. Atiyeh,
814 F.2d 565, 567 (9th Cir. 1987).
. . .
. . .
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IV. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the District
Court enter an order:
(1) DENYING Plaintiff’s Motion for Leave to File Notice of Supplemental Facts
(Doc. 33);
(2) GRANTING IN PART and DENYING IN PART Defendants’ Motion to
Dismiss for Lack of Subject Matter Jurisdiction and for Failure to State a Claim (Doc. 26);
(3) DISMISSING Plaintiff’s FAC (Doc. 5) with leave to amend as outlined
above; and
(4) DIRECTING the Clerk of Court to terminate United State Customs and
Border Protection as a defendant on the docket sheet.
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal Rules of Civil
Procedure, any party may serve and file written objections within fourteen (14) days after
being served with a copy of this Report and Recommendation. A party may respond to
another party’s objections within fourteen (14) days after being served with a copy. Fed.
R. Civ. P. 72(b)(2). No replies shall be filed unless leave is granted from the Hon. John C.
Hinderaker. If objections are filed, the parties should use the following case number: CV-
25-00056-TUC-JCH.
Failure to file timely objections to any factual or legal determination of the
Magistrate Judge may result in waiver of the right of review. The Clerk of the Court shall
terminate the magistrate reference as to only the motions listed in this section and send a
copy of this Report and Recommendation to all parties.
Dated this 27th day of January, 2026.
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