Ronald Nardizzi v. Betty Williams

FILED
NOT FOR PUBLICATION MAR 18 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD NARDIZZI, an individual, No. 14-55264
Plaintiff - Appellant, D.C. No. 2:13-cv-03210-MWF-SH
v.
MEMORANDUM*
BETTY D. WILLIAMS, an individual;
UNITED STATES OF AMERICA,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted February 12, 2016
Pasadena, California
Before: BERZON and OWENS, Circuit Judges, and MARBLEY,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Algenon L. Marbley, District Judge for the U.S.
District Court for the Southern District of Ohio, sitting by designation.
Ronald Nardizzi, a former employee of a non-appropriated fund
instrumentality (“NAFI”) 1 on a United States Naval Base, appeals from the district
court’s dismissal of his claims for violations of his Fifth Amendment due process
rights and intentional interference with contractual relations, as well as its denial of
his motion for leave to amend his complaint. The district court dismissed
Nardizzi’s Fifth Amendment claim for lack of subject-matter jurisdiction, holding
that Congress intended to preclude NAFI employees from bringing constitutional
claims for damages against a supervisor. The district court also dismissed
Nardizzi’s claim for intentional interference with contractual relations because the
United States has not waived its sovereign immunity with respect to tort claims for
interference with contract.
We have jurisdiction over this appeal under 28 U.S.C. § 1291 and review de
novo a district court’s dismissal of a complaint under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). Viewtech, Inc. v. United States, 653 F.3d 1102,
1103–04 (9th Cir. 2011); Harkonen v. U.S. Dep’t of Justice, 800 F.3d 1143, 1148
(9th Cir. 2015). We affirm the judgment of the district court.
In certain circumstances, a plaintiff may bring an action for constitutional
violations by a federal officer under Bivens v. Six Unknown Named Agents of Fed.
1
NAFIs are quasi-governmental entities whose funds come primarily from
their own activities rather than annual congressional appropriations. See Calder v.
Crall, 726 F.2d 598, 600 (9th Cir. 1984).
Bureau of Narcotics, 403 U.S. 388, 397 (1971). Such an action is unavailable,
however, when “the design of a Government program suggests that Congress has
provided what it considers adequate remedial mechanisms for constitutional
violations,” or where there are “indications that congressional inaction has not been
inadvertent.” Schweiker v. Chilicky, 487 U.S. 412, 423 (1988).
In Blankenship v. McDonald, we held that a federal court reporter, who
lacked access to the administrative remedies provided under the Civil Service
Reform Act (“CSRA”), was precluded from bringing a Bivens action. 176 F.3d
1192, 1195 (9th Cir. 1999). Blankenship compels the dismissal of Nardizzi’s
Bivens action. There, we found that Congress’s decision to deny certain remedies
to judicial employees and grant them others indicated that the lack of more
complete remedies to the plaintiff was not inadvertent. Id. Similarly, NAFI
employees have access to certain administrative remedies to challenge a
termination through the Navy Personnel Manual, and Congress explicitly excluded
NAFI employees from the remedial scheme of the CSRA, see 5 U.S.C. § 2105(c).
Therefore, Congress’s decision to deny a more complete remedy to these
employees was not inadvertent.
The district court also correctly dismissed Nardizzi’s tort claim for
intentional interference with contractual relations for lack of subject-matter
jurisdiction because Nardizzi did not challenge the district court’s substitution of
the United States as a defendant in this action, and the United States is immune
from suit for interference-with-contract claims under the Federal Tort Claims Act.
See 28 U.S.C. § 2680(h).
Finally, the district court properly denied Nardizzi leave to amend his Fifth
Amendment claim to include a request for equitable relief. An amendment would
be futile because the available procedures were constitutionally adequate. See Saul
v. United States, 928 F.2d 829, 843 (9th Cir. 1991).
AFFIRMED.