Cato v. U.S.

Citation70 F.3d 1103
Decision Date04 December 1995
Docket Number94-17104,Nos. 94-17102,s. 94-17102
Parties95 Cal. Daily Op. Serv. 9155, 95 Daily Journal D.A.R. 16,005 Jewel CATO; Joyce Cato; Howard Cato; Edward Cato, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. Leerma PATTERSON; Charles Patterson; Bobbie Trice Johnson, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Eva Jefferson Paterson and William McNeill, Lawyers' Committee for Civil Rights of the San Francisco Bay Area, San Francisco, California, for plaintiffs-appellants.

Mary Beth Uitti, Assistant United States Attorney, San Francisco, California, for defendant-appellee.

Appeals from the United States District Court for the Northern District of California.

Before: SCHROEDER, FLETCHER, and RYMER, Circuit Judges.

RYMER, Circuit Judge:

Two groups of plaintiffs, Jewel Cato, Joyce Cato, Howard Cato and Edward Cato; and Leerma Patterson, Charles Patterson, and Bobbie Trice Johnson (collectively "Cato"), filed nearly identical complaints in forma pauperis against the United States for damages due to the enslavement of African Americans and subsequent discrimination against them, for an acknowledgment of discrimination, and for an apology. 1 The district court in both cases dismissed the complaints prior to service pursuant to 28 U.S.C. Sec. 1915(d). 2

We have carefully considered Cato's pleading and the arguments of appellate counsel. On our own, we have tried to conceive of possibilities for stating a cognizable claim. As Judge Armstrong stated so well:

Discrimination and bigotry of any type is intolerable, and the enslavement of Africans by this Country is inexcusable. This Court, however, is unable to identify any legally cognizable basis upon which plaintiff's claims may proceed against the United States. While plaintiff may be justified in seeking redress for past and present injustices, it is not within the jurisdiction of this Court to grant the requested relief. The legislature, rather than the judiciary, is the appropriate forum for plaintiff's grievances.

To us, as to the district court, it is clear that this complaint cannot be cured by amendment. Cato's theories of liability either fall outside the limited waiver of sovereign immunity by the United States, or otherwise are not within the jurisdiction of the federal courts. Because the district court did not abuse its discretion, we affirm.


Cato's complaint seeks compensation of $100,000,000 for forced, ancestral indoctrination into a foreign society; kidnapping of ancestors from Africa; forced labor; breakup of families; removal of traditional values; deprivations of freedom; and imposition of oppression, intimidation, miseducation and lack of information about various aspects of their indigenous character. She also requests that the court order an acknowledgment of the injustice of slavery in the United States and in the 13 American colonies between 1619 and 1865, as well as of the existence of discrimination against freed slaves and their descendants from the end of the Civil War to the present. In addition, she seeks an apology from the United States.

The complaint itself does not refer to any basis upon which the United States might have consented to suit. However, because Cato was proceeding pro se, the district court construed her papers liberally and surveyed the most likely authorities for waiver, but found them unavailing. Specifically, the court noted that the waiver of sovereign immunity in tort actions against the government in the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346, 2674, is limited to claims accruing on and after January 1, 1945, id. at Sec. 1346(b); and that the Civil Rights Act, 42 U.S.C. Sec. 1981(a), applies to individual federal officials but not to the United States. The court also observed that while Cato's action appears to be patterned after the reparations authorized by Congress for individuals of Japanese ancestry who were forced into internment camps during World War II, those reparations were not awarded as damages in court but rather were enacted into law in the Civil Liberties Act of 1988, codified at 50 App. U.S.C. Sec. 1989a(a). The court concluded that Cato's claims are barred by sovereign immunity, and that the appropriate forum for policy questions of the sort raised by her complaint is Congress, rather than the courts. Cato timely appealed.


First, Cato contends that dismissal of her action was premature in that she was given no opportunity to be heard on the adequacy of her complaint, or to amend. She also argues that the complaint should not have been dismissed merely because the court has doubts that the plaintiff will prevail.

A district court may, in its discretion, dismiss an in forma pauperis complaint "if satisfied that the action is frivolous or malicious." 28 U.S.C. Sec. 1915(d); Denton, 504 U.S. at 33, 112 S.Ct. at 1733-34. A complaint is frivolous within the meaning of Sec. 1915(d) if it lacks an arguable basis either in law or in fact. Id. at 31, 112 S.Ct. at 1733 (quoting Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989)). A pro se litigant must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987).

We do not read the district court's order as dismissing Cato's complaint on account of doubts about her ability to succeed. Rather, the court determined that Cato had not met her burden of showing a waiver of sovereign immunity, and that her claims were not legally cognizable because they raise "a 'policy question' which the judiciary 'has neither the authority nor wisdom to address.' " (Order Dismissing Complaint, quoting Fullilove v. Klutznick, 448 U.S. 448, 537, 100 S.Ct. 2758, 2805, 65 L.Ed.2d 902 (1980) (Stevens, J., dissenting)). For these reasons, the court concluded that while Cato may be justified in seeking redress for past and present injustices from the Congress, the court lacked jurisdiction to grant the requested relief.

As Cato's complaint neither identifies any constitutional or statutory right that was violated, nor asserts any basis for federal subject matter jurisdiction or waiver of sovereign immunity, it was properly dismissed. Section 1915(d) authorizes a court to review a complaint that has been filed in forma pauperis, without paying fees and costs, on its own initiative and to decide whether the action has an arguable basis in law before permitting it to proceed.

The critical question, however, for the district court as for us, is whether leave to amend should have been given. Cato was not represented by counsel in the district court, but is here; we therefore have the benefit of counsel's suggestions for curative amendments, as well as those hypothesized by the district court. Accordingly, we turn to Cato's disagreements with the court's ruling and to the possibilities for amendment that she suggests on appeal.


Cato first contends that we should not affirm the district court's dismissal on statute of limitations grounds. Strictly speaking, we don't. The dispositive question is whether her theories of liability are barred by sovereign immunity, or otherwise fall outside the district court's jurisdiction. 3


It is axiomatic that the United States can be sued only to the extent that it has waived its sovereign immunity. Baker v. United States, 817 F.2d 560, 562 (9th Cir.1987). The terms of the United States' consent to be sued in any court define that court's jurisdiction to entertain the suit. F.D.I.C. v. Meyer, --- U.S. ----, ----, 114 S.Ct. 996, 1000, 127 L.Ed.2d 308 (1994). It is likewise well settled that a waiver of the government's sovereign immunity " 'cannot be implied but must be unequivocally expressed.' " United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1983) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969)). The burden is on the plaintiff to make such a showing. Baker, 817 F.2d at 562.

The district court looked to the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346, 2674, to resolve this threshold question because it is the most likely candidate for waiver. 4 As the district court properly concluded, however, Cato did not meet this burden. 5

Section 1346(b) of the FTCA gives federal courts jurisdiction only over "civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945." 28 U.S.C. Sec. 1346(b). Moreover, a tort claim against the United States "shall be forever barred" unless it is presented within two years after the claim accrues. 28 U.S.C. Sec. 2401(b). By its own terms, therefore, claims arising out of the fact of slavery, kidnapping, and other offenses to Cato's ancestors that occurred prior to 1945 or were not pursued within two years of their accrual, fall outside the FTCA's limited waiver of sovereign immunity.


We take Cato's argument that her action is not barred by the statute of limitations in this context to mean that no time constraint (whether as a condition of the government's waiver of sovereign immunity or otherwise 6) should apply to her claims. She offers two reasons: First, that courts should not sustain dismissal of actions on statute of limitations grounds where the wrong sued upon is based on a constitutional or statutory prohibition. For this proposition she analogizes the wrongs about which she complains to recent cases arising under the Indian Trade and Intercourse Act, 25 U.S.C. Sec. 177, which prohibited the sale of land by Indians unless it was by treaty made under the authority of the United States, where the federal courts have addressed Indian land claims that are hundreds of...

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