Hughes v. Oklahoma Department of Transportation , 501 F. App'x 744 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
November 1, 2012
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
PHIL A. HUGHES,
Plaintiff–Appellant, No. 12-6124
v. (D.C. No. 5:12-CV-00126-HE)
OKLAHOMA DEPARTMENT OF (W.D. Okla.)
TRANSPORTATION; ASSOCIATION
OF CENTRAL OKLAHOMA
GOVERNMENTS; CITY OF
OKLAHOMA CITY; JOHN DOE,
Defendants–Appellees.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, McKAY and ANDERSON, Circuit Judges.
After examining the briefs and the appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered
submitted without oral argument.
Plaintiff Phil Hughes appeals from the district court’s dismissal with prejudice of
his pro se complaint against the Oklahoma Department of Transportation, the Association
of Central Oklahoma Governments, the City of Oklahoma City, and “John Doe, a
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
fictitious name intended to denote all individuals and associations, even those within the
entities of the first three Defendants which are found sufficiently culpable in the
conspiracies, fraud, deception and acts of concealment brought about by the first three
Defendants such as to justify inclusion as Defendants in this Action.” (R. at 44-45.) The
allegations in Plaintiff’s complaint all arise from the decision by state and local officials
not to adopt the light rail system Plaintiff proposed for Oklahoma City: Plaintiff alleges
that Defendants violated the First Amendment and federal criminal and transportation
statutes by implementing a less desirable transportation system and by disseminating
fraudulent information about this system to other government agencies and the public.
The district court warned Plaintiff that his complaint failed to allege a violation of a
federal right and that his claims needed to be based on injuries to his own rights or
interests. Plaintiff amended his complaint in response, but the district court concluded
that the amended complaint still failed to allege a cognizable claim for relief. After
explaining how Plaintiff’s complaint was deficient, the court provided him with one
further opportunity to amend his complaint. However, Plaintiff chose not to amend his
complaint. The district court therefore dismissed the action with prejudice.
On appeal, we agree with the district court’s conclusion that the complaint was
subject to dismissal because Plaintiff only asserted a general public injury, not a
particularized injury to his own rights or interests. However, because his failure to assert
a particularized injury affected Plaintiff’s Article III standing, we conclude that the
complaint should have been dismissed without prejudice for lack of jurisdiction.
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In his complaint, Plaintiff asserts a generalized injury to Oklahoma City residents
based on Defendants’ selection of an allegedly inferior mass transit system and their
alleged misrepresentations about this decision. This is not the type of concrete,
particularized injury required to establish Article III standing. See Comm. to Save the Rio
Hondo v. Lucero, 102 F.3d 445, 449 (10th Cir. 1996); see also Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 n.1 (1992) (“By particularized, we mean that the injury must
affect the plaintiff in a personal and individual way.”). Plaintiff also asserts injury to the
United States based on Defendants’ alleged misuse of federal transportation funds.
However, we conclude Plaintiff may not assert claims based on the alleged injury to the
United States: Plaintiff has not brought this claim as a qui tam action; his allegations of
fraud against the United States appear to be based on publicly disclosed information
rather than on his own direct and independent knowledge, see United States ex rel.
Precision Co. v. Koch Indus., 971 F.2d 548, 553 (10th Cir. 1992); and the circuits that
have considered the question have all concluded that a pro se litigant may not maintain a
qui tam suit on behalf of the United States, see Timson v. Sampson, 518 F.3d 870, 873-74
(11th Cir. 2008) (per curiam) (citing cases from the Seventh, Eighth, and Ninth Circuits).
Because Plaintiff has not alleged that he sustained any specific, particularized injury as a
result of Defendants’ actions, he has not established Article III standing, and the district
court therefore lacked jurisdiction to make any determination on the merits of the case.
The case should therefore have been dismissed without prejudice. See Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1217 (10th Cir. 2006).
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Thus, although we agree with the substance of the district court’s decision, we
REVERSE and REMAND with instructions for the district court to enter an order
dismissing Plaintiff’s complaint without prejudice. Plaintiff’s pending motions for
injunctive relief, suspension of the rules, and authorization to file a reply brief out of time
are all DENIED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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