Ted Off v. United States Government

FILED
NOT FOR PUBLICATION APR 26 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TED A. OFF, Ssg, USA Retired, No. 10-17389
Plaintiff - Appellant, D.C. No. 2:09-cv-01525-KJD-LRL
v.
MEMORANDUM *
UNITED STATES GOVERNMENT,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted April 17, 2012 **
Before: LEAVY, PAEZ, and BEA, Circuit Judges.
Ted A. Off appeals pro se from the district court’s judgment dismissing his
employment action. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo, and may affirm on any ground supported by the record. Thompson v. Paul,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.
Dismissal of Off’s wrongful termination claims was proper because these
claims are time-barred, as Off filed this action over thirteen years after his
terminations. See 28 U.S.C. § 2401(a) (providing that “every civil action
commenced against the United States shall be barred unless the complaint is filed
within six years after the right of action first accrues”).
The district court properly dismissed Off’s claims under the Fair Labor
Standards Act (“FLSA”) and Privacy Act as time-barred. See Dent v. Cox
Commc’ns Las Vegas, Inc., 502 F.3d 1141, 1144 (9th Cir. 2007) (FLSA claims are
subject to at most a three-year statute of limitations); Rose v. United States, 905
F.2d 1257, 1259 (9th Cir. 1990) (“The Privacy Act provides a two year statute of
limitation, 5 U.S.C. § 552a(g)(5), which commences when the person knows or has
reason to know of the alleged violation.”).
The district court properly dismissed Off’s due process claim because he
failed to specify any federal official acting in an individual capacity who allegedly
violated his constitutional rights. See Consejo de Desarrollo Economico de
Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007) (Bivens
claims for alleged constitutional violations may be brought against federal officials
in their individual capacities, not against the United States which is protected by
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sovereign immunity).
The district court properly dismissed Off’s habeas corpus claim because he
failed to allege that he is in custody. See, e.g., 28 U.S.C. § 2254(a) (habeas corpus
relief may be sought by “a person in custody pursuant to the judgment of a State
court”).
The district court did not abuse its discretion by granting the United States’
motion to extend the time to respond to Off’s complaint. See Ahanchian v. Xenon
Pictures, Inc., 624 F.3d 1253, 1258 (9th Cir. 2010) (discussing standard of review
for extension requests under Fed. R. Civ. P. 6(b)).
The district court did not abuse its discretion by denying Off’s motion for
recusal. See Taylor v. Regents of the Univ. of Cal., 993 F.2d 710, 712-13 (9th Cir.
1993) (per curiam) (discussing standard of review and noting that adverse rulings
alone are insufficient to demonstrate judicial bias).
Off’s remaining contentions are unpersuasive.
Off’s “Request for Extension and Special Consideration,” filed on July 21,
2011, is denied.
AFFIRMED.
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