Andre Bullard v. Pennsylvania Bureau of Unempl , 516 F. App'x 111 ( 2013 )

GLD-178 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-4169
___________
ANDRE BULLARD,
Appellant
v.
BUREAU OF UNEMPLOYMENT AND ALLOWANCES
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2:12-cv-03686)
District Judge: Honorable Legrome D. Davis
____________________________________
Submitted on the Motion to Proceed In Forma Pauperis and
for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
March 28, 2013
Before: FUENTES, FISHER and GREENBERG, Circuit Judges
(Opinion filed: April 3, 2013 )
_________
OPINION
_________
PER CURIAM
As we write primarily for the parties, who are familiar with the facts, it suffices to
say that Andre Bullard filed suit against the Pennsylvania Unemployment Compensation
Board of Review1 (“Board”) relating to a dispute about unemployment benefits. The
Board moved to dismiss the complaint, asserting, among other things, that the Eleventh
Amendment and the applicable statute of limitations barred the suit. The District Court
agreed, dismissing the suit for lack of subject-matter jurisdiction, and making alternative
rulings on statute of limitations and other grounds. The District Court also construed
Bullard’s request for a special prosecutor to investigate and prosecute state officials as a
request for mandamus relief, and denied it.
Bullard appeals, and seeks in forma pauperis status, which we grant. We have
jurisdiction pursuant to 28 U.S.C. § 1291.2 Our review of the order dismissing the
complaint is plenary. See Nichole Med. Equip. & Supply, Inc. v. TriCenturion, Inc., 694
F.3d 340, 347 (3d Cir. 2012); Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir.
2009). To the extent that the District Court denied mandamus relief, we review the
decision for abuse of discretion, although we exercise plenary review over determinations
about whether the requirements for mandamus were satisfied as a matter of law. Arnold
v. Blast Intermediate Unit 17, 843 F.2d 122, 125 (3d Cir. 1988). Upon review, we will
1
He identified it as the Bureau of Unemployment and Allowances in the caption
of his complaint.
2
Although the District Court’s order provided Bullard with leave to file an
amended complaint on or before November 2, 2012, the District Court’s order is a final,
appealable order because Bullard stands on his complaint. See Borelli v. City of
Reading, 532 F.2d 950, 951 -52 (3d Cir. 1976) (per curiam).
2
summarily affirm because no substantial issue is presented on appeal. See 3d Cir. L.A.R.
27.4; 3d Cir. I.O.P. 10.6.
As the District Court explained, the Board is a departmental administrative board
that does not exist apart from the Commonwealth of Pennsylvania. See 71 P.S. §§ 61
& 62. Accordingly, the Eleventh Amendment bars the suit against the Board unless
Congress has specifically abrogated the Commonwealth’s immunity or the
Commonwealth has consented to suit. See Laskaris v. Thornburgh, 661 F.2d 23, 25-26
(3d Cir. 1981); see also Idaho v. C’oeur D’Alene Tribe, 521 U.S. 261, 267 (1997)
(explaining how a state can waive immunity); Seminole Tribe of Fla. v. Florida, 517 U.S.
44, 59 (1996) (describing Congress’s power to abrogate the States’ Eleventh Amendment
immunity). However, the vehicle for bringing Bullard’s constitutional claims, 42 U.S.C.
§ 1983,3 does not abrogate Pennsylvania’s immunity from suit. See Quern v. Jordan, 440
U.S. 332, 340-41 (1979); see also Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64
(1989) (explaining that a state is not a person amenable to suit under § 1983).
Additionally, Pennsylvania has declined to waive its Eleventh Amendment immunity to
the type of claims Bullard filed. See 42 Pa. C.S. §§ 8521 & 8522. For these reasons, the
3
Bullard wished to proceed under 18 U.S.C. §§ 241 & 242, but those criminal
statutes are inapplicable to his civil suit. We further note that whether Bullard’s federal
claims are interpreted as brought under 42 U.S.C. § 1983, § 1985, and/or § 1986, it is
clear from the face of the complaint that they are time-barred. See 42 U.S.C. § 1986
(setting forth a one-year limitations period); Bougher v. Univ. of Pittsburgh, 882 F.2d 74,
80 (3d Cir. 1989) (explaining that a two-year statute of limitations governs claims arising
under §§ 1983 and 1985).
3
District Court properly dismissed Bullard’s complaint as barred by the Eleventh
Amendment.
Also, the District Court did not err in declining to grant mandamus relief. A
district court may issue a writ of mandamus under 28 U.S.C. § 1361 to compel “an
officer or employee of the United States . . . to perform a duty owed to the plaintiff.”
However, it may do so only if the duty owed is “a clear nondiscretionary duty.” Heckler
v. Ringer, 466 U.S. 602, 616 (1984). As the District Court explained, the Department of
Justice’s decision to prosecute is purely discretionary, so mandamus relief was not
available to compel the investigation or prosecution that Bullard requested. Cf. Inmates
of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 379 (2d Cir. 1973) (stating that
“federal courts have traditionally, and, to our knowledge, uniformly refrained from
overturning, at the instance of a private person, discretionary decisions of federal
prosecuting authorities not to prosecute persons regarding whom a complaint of criminal
conduct is made”).
For these reasons, we will affirm the District Court’s judgment.4
4
As we noted above, we grant Bullard’s motion to proceed in forma pauperis.
4