Zaldivar v. United States Department of Veterans Affairs , 695 F. App'x 319 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ADALBERTO ZALDIVAR, Sr., No. 16-16580
Plaintiff-Appellant, D.C. No. 2:14-cv-01493-DGC-
DMF
v.
UNITED STATES DEPARTMENT OF MEMORANDUM*
VETERANS AFFAIRS, Veterans Affairs
Regional Office - Phoenix,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
Jose Adalberto Zaldivar, Sr., appeals pro se from the district court’s
summary judgment and dismissal orders in his Freedom of Information Act
(“FOIA”) and Privacy Act (“PA”) action arising out of his request for documents
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
related to his veterans benefits. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo. Lane v. Dep’t of Interior, 523 F.3d 1128, 1135, 1138 (9th Cir.
2008) (FOIA and PA summary judgment); Serra v. Lappin, 600 F.3d 1191, 1195
(9th Cir. 2010) (dismissals for failure to state a claim and lack of subject matter
jurisdiction); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under
28 U.S.C. § 1915A). We affirm.
The district court properly granted summary judgment on Zaldivar’s claims
related to his April 26, 2012 and May 20, 2013 FOIA and PA requests because
Zaldivar failed to raise a genuine dispute of material fact as to whether appellee
had not conducted a reasonable search for responsive documents or whether
appellee did not establish the redactions on the documents were exempt from
disclosure under FOIA or PA. See 5 U.S.C. 552a(b) (conditions of disclosure
under PA); 5 U.S.C. § 552(b)(6) (FOIA exemption 6); Cameranesi v. U.S. Dep’t of
Def., 856 F.3d 626, 637-39 (9th Cir. 2017) (in determining whether FOIA
exemption 6 applies, courts first evaluate the personal privacy interest at stake and
then balance any such privacy interest with the public interest in disclosure);
Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759, 770-71 (9th Cir. 2015) (setting
forth requirements for demonstrating adequacy of search for documents under
FOIA); Lane, 523 F.3d at 1139 (search for documents under PA). We reject as
without merit Zaldivar’s contention that the district court should have granted
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summary judgment without prejudice.
The district court properly dismissed as time-barred Zaldivar’s claims
related to his October 20, 2002, April 13, 2005, and July 10, 2007 FOIA and PA
requests. See 5 U.S.C. § 552a(g)(5) (two-year statute of limitations under the PA);
Nesovic v. United States, 71 F.3d 776, 778 (9th Cir. 1995) (where a statute is silent
on the statute of limitations, the six-year catchall statute of limitations provision
under 28 U.S.C. § 2401(a) for actions against the United States applies). Contrary
to Zaldivar’s contention, the continuing violation doctrine does not save his claims
from being time-barred.
The district court properly dismissed Zaldivar’s claim under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1994) on
the basis of sovereign immunity. See FDIC v. Meyer, 510 U.S. 471, 486 (1994)
(no Bivens cause of action for damages against agencies of the federal
government); Arnsberg v. United States, 757 F.2d 971, 980 (9th Cir. 1985)
(rejecting Bivens claim against the federal government and its agencies because
there was no waiver of sovereign immunity).
The district court properly dismissed for lack of subject matter jurisdiction
Zaldivar’s claims against the Department of Veterans Affairs Office of the
Inspector General because Zaldivar failed to allege facts sufficient to show a
waiver of sovereign immunity. See Hercules, Inc. v. United States, 516 U.S. 417,
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422 (1996) (“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.”); Heckler v. Chaney, 470 U.S. 821, 831
(1985) (an agency’s decision not to prosecute or enforce is a decision generally
committed to an agency’s absolute discretion and unsuitable for judicial review).
The district court did not abuse its discretion by denying Zaldivar’s motion
for appointment of pro bono counsel because Zaldivar failed to demonstrate
exceptional circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.
2009) (setting forth standard of review and requirement of “exceptional
circumstances” for appointment of counsel).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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