Christopher Newcomb v. U.S. Office of Special Counsel , 550 F. App'x 532 ( 2013 )

FILED
NOT FOR PUBLICATION DEC 26 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER NEWCOMB, No. 12-55461
Plaintiff - Appellant, D.C. No. 3:11-cv-02431-H-WMC
v.
MEMORANDUM*
U.S. OFFICE OF SPECIAL COUNSEL;
CAROLYN LERNER, United States
Special Counsel, in her official capacity,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted December 4, 2013
Pasadena, California
Before: D.W. NELSON, WARDLAW, and RAWLINSON, Circuit Judges.
Christopher Newcomb, a federal employee, appeals the district court’s Rule
12(b)(1) dismissal of his action against the U.S. Office of Special Counsel for lack
of subject matter jurisdiction on the grounds of constitutional and prudential
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
ripeness. He argues the district court erred by finding that Newcomb did not have
an actual or well-founded fear that the Hatch Act1 would be enforced against him
in the 2012 Alpine Union School Board Election.
Newcomb’s complaint, upon which the district court relied, alleged an injury
squarely based on his “inten[tion] to run for a seat on the Board in the November
2012 election.” The injury he alleged—the cloud of Hatch Act enforcement would
materially hinder his 2012 campaign just as it hindered his 2010
campaign—required that he actually run for office, as he did in 2010. Newcomb
ultimately decided not to run for election in 2012, which raised the question of
mootness. North Carolina v. Rice, 404 U.S. 244, 246 (1971).
Newcomb’s decision against running in 2012 rendered his claim moot
because the injury he alleged did not occur, nor will it occur. In short, it is no
longer live. See Wolfson v. Brammer, 616 F.3d 1045, 1053 (9th Cir. 2010). Nor
do Newcomb’s original claims fall into the “capable of repetition, yet evading
review” exception to the mootness doctrine. Id. (quoting S. Pac. Terminal Co., v.
Interstate Commerce Comm’n, 219 U.S. 498, 515 (1911)). At argument,
Newcomb’s attorney foreclosed the possibility that Newcomb’s original claims,
1
The Hatch Act prohibits covered employees from running “for the
nomination or as a candidate for election to a partisan political office.” 5 U.S.C. §
7323(a)(3).
2
which were predicated on his actually running for office, could be repeated.
Counsel averred that Newcomb does not intend to seek office again absent a
favorable ruling on the merits from a court. Logically, then, his original claim is
not capable of repetition. Likewise, this claim does not fall into the collateral
injury exception to the mootness doctrine because the self-censorship injury
Newcomb now alleges is entirely new, not some portion of the original injury and
relief sought. See, e.g., Bd. of Pardons v. Allen, 482 U.S. 369, 370 n.1 (1987).
We cannot review Newcomb’s new claim of “self-censorship,” which was
raised for the first time on appeal, because 28 U.S.C. § 1291 limits our review to
“final decisions” of the district courts. To rule on a new injury Newcomb alleges
with no underlying district court decision pertaining to that claim would be an
improper extension of our statutory jurisdiction. Of course, Newcomb is not
precluded—by res judicata, collateral estoppel, or related doctrines—from filing a
new lawsuit alleging an injury based upon “self-censorship.”
DISMISSED.
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