Lawrence Morris v. Dennis Burke ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 24 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LAWRENCE MONROE MORRIS, No. 11-16307
Plaintiff - Appellant, D.C. No. 2:10-cv-02124-NVW
v.
MEMORANDUM*
DENNIS K. BURKE, United States
Attorney for Arizona, et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted May 15, 2013
San Francisco, California
Before: McKEOWN and WATFORD, Circuit Judges, and DUFFY, District
Judge.**
Lawrence Morris appeals from the district court’s dismissal of his complaint
challenging the Department of Labor’s termination of disability income and health
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
insurance benefits he had been receiving under the Federal Employees’
Compensation Act (“FECA”). The Department terminated Morris’s benefits
pursuant to 5 U.S.C. § 8148, a statute that renders individuals convicted under 18
U.S.C. § 1920 ineligible for future FECA benefits. Morris pleaded guilty to a
misdemeanor under § 1920 after failing to report income he received from a part-
time job.
The district court construed portions of Morris’s pro se complaint as
challenging the validity of his § 1920 conviction. As Morris is not in custody and
has now made clear through appointed counsel that he does not challenge his guilty
plea, we do not construe any part of Morris’s complaint as a petition for habeas
corpus. We grant Morris’s motion to withdraw his earlier request for a certificate
of appealability.
Turning to the allegations in his complaint, Morris first alleges that the
Department of Labor’s termination of benefits pursuant to § 8148 imposed
punishment for past conduct in violation of the Ex Post Facto Clause. U.S. Const.,
art. I, § 9, cl. 3. Although Morris pleaded guilty to his § 1920 offense after § 8148
was enacted, the conduct for which Morris was convicted (his failure to report)
occurred several years before § 8148’s effective date.
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We affirm the district court’s dismissal of this claim. The termination of
Morris’s FECA benefits did not violate the Ex Post Facto Clause because § 8148
does not impose “punishment” within the meaning of the Clause. The denial of
non-contractual government benefits is not a traditional form of punishment, see
Flemming v. Nestor, 363 U.S. 603, 616–17 (1960), and therefore cannot
contravene the Ex Post Facto Clause absent the “clearest proof” of punitive intent,
id. at 617. The legislative record of the appropriations bill enacting § 8148 does
not contain clear proof that the purpose of § 8148 was to punish, id. at 617–19; see
Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118–19
(1980), and § 8148’s placement in Title 5 cuts against a finding of punitive intent,
see Smith v. Doe, 538 U.S. 84, 94–95 (2003). As for its effects, § 8148 can
reasonably be said to further the non-punitive purpose of protecting the integrity of
funds disbursed through FECA. See Selective Serv. Sys. v. Minn. Pub. Interest
Research Grp., 468 U.S. 841, 851–52 (1984).
Morris also alleges that the United States Postal Service discriminated
against him in violation of the Rehabilitation Act, 29 U.S.C. § 794. We affirm the
dismissal of this claim. Morris’s factual allegations do not state a claim under the
Rehabilitation Act because they do not show that Morris applied for and was
denied a job for which he was otherwise qualified. See Douglas v. Cal. Dep’t of
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Youth Auth., 271 F.3d 812, 817 n.1 (9th Cir. 2001). Moreover, the record shows
that a Rehabilitation Act claim based on job applications Morris alleges he
submitted between 1995 and 2001 would be barred by the statute of limitations.
See id. at 823 n.11; Madden-Tyler v. Maricopa Cnty., 943 P.2d 822, 829 (Ariz. Ct.
App. 1997); Ariz. Rev. Stat. § 12-542. However generously we interpret the
complaint’s allegations, they do not provide any basis for believing that the
limitations period could be tolled. Cf. Supermail Cargo, Inc. v. United States, 68
F.3d 1204, 1206–07 (9th Cir. 1995). Dismissal without leave to amend was
therefore proper. Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per
curiam).
AFFIRMED.
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