Johnson v. Dept of the Army ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-20335
Summary Calendar
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LEON JOHNSON,
Plaintiff-Appellant,
versus
THE DEPARTMENT OF THE ARMY; ET AL.,
Defendants,
THE DEPARTMENT OF THE ARMY,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-98-CV-3800)
_________________________________________________________________
December 22, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Leon Johnson, pro se, appeals the dismissal, pursuant to FED.
R. CIV. P. 12(b)(6) and 56, of his civil action against the
Department of the Army. He contends the district court erred by
treating his action as an administrative appeal because, based on
his first amended complaint, his action was a civil rights action.
Johnson’s first amended complaint sought injunctive relief for the
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Army’s claimed failure to provide certain records in violation of
his equal protection and due process rights. Of course, it
superseded his original complaint. E.g., King v. Dogan, 31 F.3d
344, 346 (5th Cir. 1994).
“Federal courts, both trial and appellate, have a continuing
obligation to examine the basis for their jurisdiction.” MCG, Inc.
v. Great W. Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990). “The
issue may be raised by parties, or by the court sua sponte, at any
time.” Id.
“The United States is immune from suit except as it waives its
sovereign immunity.” Wilkerson v. United States, 67 F.3d 112, 118
(5th Cir. 1995). “Congress sets forth the terms of those waivers
and courts may not exercise subject matter jurisdiction over a
claim against the federal government except as Congress allows.”
Id. (emphasis added).
Johnson’s complaint fails to identify any statutory provision
waiving the United States’ sovereign immunity with respect to his
action. We will presume it was brought pursuant to the waiver of
immunity set forth in 5 U.S.C. § 702. See Rothe Dev. Corp. v.
United States Dep’t of Defense, 194 F.3d 622, 624 (5th Cir. 1999).
“[A] waiver [of immunity] as to injunctive relief ... can be found
in § 702 of the Administrative Procedure Act [APA], which permits
parties ‘suffering legal wrong because of agency action’ to file an
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‘action in a court of the United States seeking relief other than
money damages’”. Id. (quoting 5 U.S.C. § 702).
However, the APA does not make every action by an agency
subject to judicial review. See Taylor-Callahan-Coleman Counties
Dist. Adult Prob. Dep’t v. Dole, 948 F.2d 953, 956 (5th Cir. 1991).
“Section 704 of that Act limits judicial review to ‘[a]gency action
made reviewable by statute and [to] final agency action for which
there is no adequate remedy in a court...." Id. (quoting 5 U.S.C.
§ 704). Johnson’s complaint did not allege, and there is no
indication that, the Army’s alleged conduct was made reviewable by
statute or constituted a final agency action. See id. at 957-59.
In the light of the foregoing, Johnson has not established
that the Army waived its sovereign immunity from suit. See id. at
956. The judgment is AFFIRMED on the alternative ground of lack of
subject-matter jurisdiction. See Sojourner T v. Edwards, 974 F.2d
27, 30 (5th Cir. 1992) (court of appeals may affirm judgment on any
basis supported by the record), cert. denied, 507 U.S. 972 (1993).
Additionally, Johnson is warned that it is inappropriate to
include derogatory comments about a district judge in documents
filed with this court. Such comments invite the documents in which
they are contained being stricken, as well as other sanctions. See
Theriault v. Silber, 574 F.2d 197, 197 (5th Cir. 1978).
AFFIRMED; SANCTIONS WARNINGS ISSUED
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