(PS) Burrus v. USDA Forest Service ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOYCE M. BURRUS, No. 2:20-cv-00845-KJM-JDP (PS) 12 Plaintiff, 13 v. ORDER 14 U.S. DEPARTMENT OF AGRICULTURE (USDA) FOREST 15 SERVICE, et al., 16 Defendants. 17 18 19 On September 9, 2022, the magistrate judge filed findings and recommendations, which 20 were served on the parties and which contained notice that any objections to the findings and 21 recommendations were to be filed within fourteen days. Plaintiff filed objections on 22 September 23, 2022, which the court has considered. 23 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 24 court has conducted a de novo review of this case. Having reviewed the file, the court finds the 25 findings and recommendations to be supported by the record and by the proper analysis. The 26 court writes separately to explain why the court overrules plaintiff’s objections to the findings and 27 recommendations. 28 ///// 1 First, plaintiff objects to the Magistrate Judge’s recommendation to dismiss her first four 2 claims as preempted under the Civil Service Reform Act. See Objs. at 14, 16–17. She argues her 3 complaint, if read as a whole, meets the standard the Supreme Court set for motions to dismiss 4 under Rule 12(b)(6). Her claims are preempted even if they meet that standard. See Orsay v. 5 U.S. Dep’t of Just., 289 F.3d 1125, 1128 (9th Cir. 2002) (“If the conduct . . . falls within the scope 6 of the CSRA’s ‘prohibited personnel practices,’ then the CSRA’s administrative procedures are 7 [the] only remedy . . . .”), abrogated in part on other grounds by Millbrook v. United States, 8 569 U.S. 50 (2013). 9 Second, plaintiff objects to the Magistrate Judge’s findings that she did not exhaust her 10 claims under the Privacy Act and Freedom of Information Act. See Objs. at 14–16. Plaintiff’s 11 objections do not demonstrate an error in the Magistrate Judge’s finding that she did not comply 12 with the applicable Privacy Act regulations, which is a jurisdictional requirement. See F&Rs at 13 11 (citing Barouch v. U.S. Dep’t of Just., 962 F. Supp. 2d 30, 67 (D.D.C. 2013)). The court has 14 also reviewed the letter plaintiff characterizes as a Freedom of Information Act request. The 15 court agrees with the Magistrate Judge’s assessment that this letter “lacks indicators that it is a 16 FOIA request.” F&Rs at 12; see also In re Steele, 799 F.2d 461, 466 (9th Cir. 1986) (“The 17 government argues that due to the unusual way in which the FOIA was raised and the failure of 18 the district court to require exhaustion, the government was not afforded an adequate opportunity 19 to establish a FOIA exemption. Therefore, the purposes underlying the exhaustion doctrine were 20 not achieved. We agree.”). If other parts of the record demonstrate that plaintiff exhausted her 21 FOIA claims, she may include appropriate allegations in her amended complaint. 22 Third, plaintiff objects to the Magistrate Judge’s recommendation to dismiss her 23 declaratory judgment claim. See Objs. at 17–19. The court agrees with the Magistrate Judge’s 24 recommendation not to exercise jurisdiction over this claim. Doing so would subvert the 25 jurisdictional and exhaustion requirements imposed by the Civil Service Reform Act, Privacy 26 Act, and Freedom of Information Act. See Chamberlain v. Allstate Ins. Co., 931 F.2d 1361, 1367 27 (9th Cir. 1991) (“A district court, therefore, when deciding whether to exercise its jurisdiction 28 ///// 1 | under the Declaratory Judgments Act, must balance concerns of judicial administration, comity, 2 || and fairness to the litigants.”). 3 Fourth, plaintiff argues her claims are not moot. The Magistrate Judge did not find her 4 | claims moot. It permitted her leave to amend. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. The Findings and Recommendations filed September 9, 2022, are adopted; 7 2. Defendant’s motion to dismiss, ECF No. 28, is granted and the complaint, ECF No. 1, 8 || is dismissed with leave to amend; 9 3. Plaintiff is granted thirty days from the date of this order to file an amended complaint; 10 || and 11 4. This matter is referred back to the assigned magistrate judge for all further pretrial 12 || proceedings. 13 || DATED: October 11, 2022. 14 15 6 CHIEF ED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28