543 F.3d 1038 (9th Cir. 2008), 04-56721, Pesnell v. Arsenault

Docket Nº:04-56721.
Citation:543 F.3d 1038
Party Name:David PESNELL, Plaintiff-Appellant, v. Jeffrey ARSENAULT, a natural person acting under color of federal law; Janet R. Lintz, a natural person acting under color of federal law; Thomas P. Gallagher, a natural person acting under the color of federal law; Douglas J. Morgan, a natural person acting under color of federal law, Defendants-Appellees.
Case Date:July 01, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1038

543 F.3d 1038 (9th Cir. 2008)

David PESNELL, Plaintiff-Appellant,

v.

Jeffrey ARSENAULT, a natural person acting under color of federal law; Janet R. Lintz, a natural person acting under color of federal law; Thomas P. Gallagher, a natural person acting under the color of federal law; Douglas J. Morgan, a natural person acting under color of federal law, Defendants-Appellees.

No. 04-56721.

United States Court of Appeals, Ninth Circuit.

July 1, 2008

Submitted Oct. 16, 2006.[*]

Amended Sept. 15, 2008.

Page 1039

Ronald J. Tocchini and Jason M. Sherman, Tocchini & Associates PC, Roseville, CA, for the plaintiff-appellant.

Robert I. Lester and Sharla Cerra, Assistant United States Attorneys, Los Angeles, CA, for the defendants-appellees.

Page 1040

Appeal from the United States District Court for the Central District of California; Audrey B. Collins, District Judge, Presiding. D.C. No. CV-03-07533-ABC.

Before: PROCTER HUG, JR., HARRY PREGERSON, and RICHARD R. CLIFTON, Circuit Judges.

ORDER

The Opinion filed on July 1, 2008, and appearing at 531 F.3d 993 (9th Cir.2008), is amended as follows: At 531 F.3d at 996, after the first sentence of the last paragraph, insert the following as a footnote: “ As noted below and in the concurring opinion, Pesnell's claims, including his constitutional claims, are barred to the extent that they rest upon the same misrepresentations alleged in the dismissed Arizona action."

With this amendment, the panel has voted to deny the petition for rehearing and the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing and the petition for rehearing en banc are DENIED. No further petitions shall be entertained.

OPINION

HUG, Circuit Judge:

This case involves an action brought by Pesnell in California for claims of federal constitutional violations and for claims of violations of the federal and state civil Racketeer Influenced and Corrupt Organizations Act (“ RICO" ). The principal issue in this case is whether these claims against employees of the government are barred by a judgment in an action brought by Pesnell in Arizona against the federal government under the Federal Tort Claims Act (“ FTCA" ).

I.

Background

Pesnell long contended that he owned two million acres of land in California. His claim to title depended upon records dating back to the Mexican-American War. In 1998, the United States brought a quiet title action against Pesnell and others. In 1999, the district court entered judgment for the United States. That ruling extinguished Pesnell's claims to title of the real property. United States v. Sierra Alpine, CV 98-585-ABC (C.D.Cal.1999).

In 2000, Pesnell brought an action against the United States and several federal agencies in the federal district court in Arizona. Pesnell v. United States, CV 00-0399-JCC (D.Ariz.2000). In that action, Pesnell brought claims pursuant to the FTCA, 28 U.S.C. § 1346(b)(1).1 Pesnell's claims arose from two incidents. The first incident involved research allegedly costing $150,000. Pesnell conducted considerable research to establish his claim to title to the two million acres. Pesnell loaned this research to federal agents in 1988. The agents promised to return the research, but never did. Pesnell, therefore, had to reconstruct the research. The second incident involved his reconstructed research, allegedly costing $200,000. Federal agents took this research in 1995. The federal district court dismissed all the claims, and this court affirmed in April 2003. Pesnell v. United States, 64 Fed.Appx. 73 (9th Cir.2003).

Pesnell filed the current federal action in September 2003 in the Central District

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of California against four government employees. Pesnell's first amended complaint alleges four causes of action. The first is a federal civil RICO claim, for violation of 18 U.S.C. § 1962(c); the second is a state civil RICO claim, for violation of Arizona Revised Statute section 13-2314.04(A); the third is a Bivens 2 constitutional claim, for violation of Pesnell's Fourth Amendment right by the defendants based on an unlawful search and seizure of Pesnell's person and property; and the fourth is a Bivens claim under the Fifth Amendment, for the defendants having taken and kept his property without due process of law.

The district court granted the government's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) based on the FTCA's judgment bar rule set forth in 28 U.S.C. § 2676. Pesnell appeals, contending that the judgment bar rule does not apply to this case.

II.

Judgment Bar Rule

The judgment bar rule of the FTCA provides:

The judgment in an action under section 1346(b) of this title shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.

28 U.S.C. § 2676.

Pesnell, in his action in Arizona against the United States Government, brought five FTCA counts alleging unjust enrichment, constructive trust, conversion, negligence, and misrepresentation. He also brought claims for wrongful search and seizure and violation of his due process rights under the Fourth, Fifth, and Fourteenth Amendments. The five FTCA counts were dismissed for lack of jurisdiction, which we affirmed on appeal. Pesnell v. United States, 64 Fed.Appx. 73, 74 (9th Cir.2003). In Pesnell I, we stated:

The FTCA does not include a waiver of sovereign immunity for constitutional tort claims. See Cato v. United States, 70 F.3d 1103, 1111 (9th Cir.1995). While Pesnell could be permitted to amend his complaint to bring his constitutional claims against individual government agents pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), any such claims would be barred by the two-year statute of limitations applicable to Bivens actions in Arizona. See Jackson v. Chandler, 204 Ariz. 135, 61 P.3d 17, 19 (2003) (en banc).

Id. at 74-75; see also 28 U.S.C. § 2679(b)(2) (which provides that the exclusiveness of the FTCA remedy does not apply to constitutional claims against an employee of the government).

In Cato v. United States, we quoted the Supreme Court's decision in FDIC v. Meyer, 510 U.S. 471, 478, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994), stating “ [T]he United States simply has not rendered itself liable under [the FTCA] for constitutional tort claims." 70 F.3d at 1111. The Supreme Court in Meyer also noted that Meyer's constitutional tort claim was not cognizable under § 1346(b) and was properly brought under § 2679(a). Meyer, 510 U.S. at 478, 114 S.Ct. 996.

Thus the constitutional claims are not foreclosed by the statutory bar of § 2676 because...

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