Larson v. U.S.

• Decision Date: 12 December 1997
• Docket Number: No. Civ. 97-1210(RHK/RLE).,Civ. 97-1210(RHK/RLE).
• Citation: 995 F.Supp. 969
• Parties: Duane W. LARSON, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Minnesota

995 F.Supp. 969

Duane W. LARSON, Plaintiff, v. UNITED STATES of America, Defendant.

No. Civ. 97-1210(RHK/RLE).

United States District Court, D. Minnesota.

December 12, 1997.

Duane Wendall Larson, Murrieta, CA, pro se.

Lonnie F. Bryan, U.S. Atty. Office, Minneapolis, MN, for Defendant.

ORDER

KYLE, District Judge.

Based upon the Report and Recommendation of United States Magistrate Judge Raymond L. Erickson, and after an independent review of the files, records and proceedings in the above-titled matter, it is

ORDERED:

That the Government's Motion to Dismiss [Docket No. 4] shall be, and hereby is, granted.

REPORT AND RECOMMENDATION

ERICKSON, United States Magistrate Judge.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(B), upon the Government's Motion to Dismiss for want of subject matter jurisdiction. A telephonic Hearing on the Motion was conducted on November 20, 1997, at which time the Plaintiff appeared on his own behalf, and the Government appeared by Lonnie F. Bryan, Esq.

For reasons which follow, we recommend that the Motion to Dismiss be granted.

II. Discussion

In a Petition that was filed with the Court on May 16, 1997, the Plaintiff purports to invoke the Federal question jurisdiction of this Court, so as to address a dispute that he is waging with the California State Bar, and that concerns his admission to practice law in the State of California. According to the allegations of his Petition, the Plaintiff graduated from the Western State University College of Law in 1995 and, sometime prior to January of 1997, he applied for admission to the Committee of Bar Examiners of the State Bar of California. By letter dated January 16, 1997, the Committee declined to recommend his admission to the Supreme Court of California, and explained its decision as follows:

This decision was reached after consideration of the circumstances surrounding your 1969 driving under the influence conviction; your 1985 conviction for violation of Title 26, United States Code, Section 7201, tax evasion; and your 1984 conviction for violation of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2. Moreover the Committee does not believe you have demonstrated substantial rehabilitation.

Although the same letter specified a procedure, under California law, which would allow the Plaintiff to appeal the decision of the Committee to the California Supreme Court, there is no showing that the Plaintiff filed any appeal.

Reading the Committee's letter as intimating that his Federal convictions, which were secured in this District, precluded his admission to the California Bar, the Plaintiff commenced this action in order to obtain a "declaration of civil rights restoration," under Title 28 U.S.C. §§ 2201 and 2201. Although we do not subscribe to the Plaintiff's reading of the Committee's letter, we accept that factual premise for his current action. Notwithstanding that accession, we agree with the Government, and conclude that we are without subject matter jurisdiction to address the Plaintiff's Petition, because he has not presented a "case or controversy" for our resolution.¹

As noted, the Plaintiff relies on the Federal Declaratory Judgment provisions,² in seeking a declaration of his civil rights. However, "[i]t has long been understood that the federal Declaratory Judgment Act, now codified at 28 U.S.C. § 201 (1994), is a procedural statute, not a jurisdictional statute." State ex rel. Missouri Highway and Transportation Com'n, v. Cuffley, 112 F.3d 1332, 1334 (8th Cir.1997), citing Franchise Tax Bd. of Calif. v. Constr. Laborers Vacation Trust for S. Calif., et al., 463 U.S. 463 U.S. 1, 15-16, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983); Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72, 70 S.Ct. 876, 94 L.Ed. 1194 (1950). Since "the Declaratory Judgment Act is not meant to expand federal jurisdiction," International Ass'n of Entrepreneurs of America v. Angoff, 58 F.3d 1266, 1270 (8th Cir.1995), cert. denied, 516 U.S. 1072, 116 S.Ct. 774, 133 L.Ed.2d 726 (1996), the Plaintiff "must demonstrate the Court's independent basis for subject matter jurisdiction." Employer's Ass'n, Inc. v. United Steelworkers of America, 803 F.Supp. 1558, 1561-61 (D.Minn.1992), vacated on other grounds, 23 F.3d 214 (8th Cir.1994). Despite these jurisdictional prerequisites, the Plaintiff has failed to articulate any Federal question that is presented by his Petition. Nonetheless, applying the indulgence that is allowed, when the Court reviews a pro se pleading, see, Denton v. Hernandez, 504 U.S. 25, 32, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992); Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Munz v. Parr, 758 F.2d 1254, 1258 (8th Cir.1985), we may construe his Petition as an attempt to ameliorate the effect of his prior Federal Sentences and, arguably, this construction would present something of a Federal question.³

The arguable presence of a Federal question, however, does not end our analysis, for the Federal Declaratory Judgment Act requires the presence of an "actual controversy within [the Court's] jurisdiction." See, Title 28 U.S.C, § 2201(a). As our Court of Appeals has recently reiterated:

The case or controversy requirement of Article III applies in declaratory actions, just as it does in coercive actions. *** "The basic inquiry is whether the `conflicting contentions of the parties *** present a real, substantive controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.'"

State of Missouri ex rel. Missouri Highway and Transportation Comm'n, supra at 1337.

Applying this criterion, we find no actual controversy to be presented by the Plaintiff's Petition. Of course, we recognize the Plaintiff's interest in practicing law in California, and his concern that California's Committee of Bar Examiners is excluding him from that practice because of his Federal convictions, which arose out of criminal proceedings within this District. Nevertheless, the laws of the State of Minnesota will automatically restore his "civil rights" upon his discharge from his respective Federal sentences — an occurrence that the Plaintiff assures has already been accomplished.

As the Plaintiff correctly notes, Minnesota Statutes Section 609.165, provides a means for the restoration of civil rights, as follows:

Subdivision 1. When a person has been deprived of civil rights by reason of conviction of a crime and is thereafter discharged, such discharge shall restore the person to all civil rights and to full citizenship, with full right to vote and hold office, the same as if such conviction had not taken place, and the order of discharge shall so provide.

* * * * * *

Subdivision 2. The discharge may be:

(1) By order of the court following stay of sentence or stay of execution of sentence; or

(2) Upon expiration of sentence.

Our Court of Appeals has consistently recognized these provisions as being both "plenary and automatic." See, United States v. Lowe, 50 F.3d 604, 606 n. 3 (8th Cir.1995); United States v. Wind, 986 F.2d 1248, 1250-51 (8th Cir.1993) ("Minnesota's civil rights restoration statute, Minn.Stat. § 609.165 subd. 1, is a plenary restoration of civil rights provision and is effective automatically upon expiration of a sentence — its restores the person to `all civil rights and to full citizenship, with full rights to vote and hold office, the same as if such conviction had not taken place.'").

Although the Plaintiff expresses concern that Section 609.165 is, or may be, inoperative with respect to a Federal conviction that was secured in Minnesota, our Court of Appeals has expressly held to the contrary. In United States v. Edwards, 946 F.2d 1347, 1348 (8th Cir.1991), the District Court had "concluded that the Minnesota statute restored the civil rights of all discharged convicts who were citizens of Minnesota, including those who served federal sentences, whether or not the discharge order explicitly recited the fact of restoration." The Court of Appeals affirmed that determination, and went on to expressly recognize that the "statute's requirement that the fact of restoration must be recited in the discharge would not apply to the case of a federal felon, since the state does not control the language of a federal felon's discharge," citing, "Op.Minn. Att'y Gen. 68-h (Dec. 27, 1971) (section 609.165 applies to federal felons); language of discharge requirements nullified." Id. at 1349 n. 4.

Subsequently, the Edwards decision came into criticism by the Supreme Court's decision in Beecham v. United States, 511 U.S. 368, 114 S.Ct. 1669, 128 L.Ed.2d 383 (1994), in which the Court addressed the interplay between Title 18 U.S.C. § 921(a)(20), and Title 18 U.S.C. § 922(g). Section 922(g), makes it "unlawful for any person *** who has been convicted in any court of [] a crime punishable by imprisonment for a term exceeding one year *** to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." For these purposes, Section 921(a)(20) defines the term "crime punishable by imprisonment for a term exceeding one year," as being subject to the following proviso:

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement or restoration of civil rights expressly provides that the person may...