Vernon Risby v. United States , 667 F. App'x 908 ( 2016 )

FILED
NOT FOR PUBLICATION AUG 04 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VERNON WENDELL RISBY, No. 13-57035
Plaintiff - Appellant, D.C. No. 8:13-cv-00346-CJC-JPR
v.
MEMORANDUM*
UNITED STATES OF AMERICA; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
Vernon Wendell Risby appeals pro se from the district court’s judgment
dismissing his action alleging federal claims in connection with the revocation of
his security clearance. We have jurisdiction under 28 U.S.C. § 1291. We review
*
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, and denies Risby’s requests for oral argument set forth in
his opening and reply briefs. See Fed. R. App. P. 34(a)(2).
de novo. Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (dismissal under Fed.
R. Civ. P. 12(b)(6)); Dorfmont v. Brown, 913 F.2d 1399, 1400-01 (9th Cir. 1990)
(dismissal for lack of subject matter jurisdiction). We affirm.
The district court properly dismissed Risby’s due process claim because
Risby failed to allege facts sufficient to show that he had a protected liberty or
property interest in his security clearance. See Dorfmont, 913 F.2d at 1403-04 (no
due process claim arising out of revocation of a security clearance because there is
no liberty or property interest in a security clearance).
The district court properly dismissed Risby’s claim alleging a violation of
Executive Order No. 12968 because it does not create a private right of action. See
Exec. Order No. 12968, 60 Fed. Reg. 40245, § 7.2(e) (Aug. 2, 1995) (“This
Executive order is . . . not intended to, and does not, create any right to
administrative or judicial review, or any other right or benefit or trust
responsibility, substantive or procedural, enforceable by a party against the United
States, its agencies or instrumentalities, its officers or employees, or any other
person.”). Risby’s contention that Legal Aid Society of Alameda County v.
Brennan, 608 F.2d 1319 (9th Cir. 1979), warrants a different conclusion is
unpersuasive because Brennan concerns a different executive order.
The district court properly dismissed Risby’s claims under the Federal Tort
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Claims Act (“FTCA”) because Risby failed to allege facts sufficient to show that
defendants violated a state tort law. See Millbrook v. United States, 133 S. Ct.
1441, 1443 (2013) (FTCA waives the government’s sovereign immunity from tort
suits, including those alleging abuse of process and deceit against federal law
enforcement officers); Hebbe, 627 F.3d at 341-42 (although pro se pleadings are to
be liberally construed, a plaintiff must still present factual allegations sufficient to
state a plausible claim for relief).
The district court did not abuse its discretion by dismissing Risby’s
complaint without leave to amend because amendment would be futile. See
Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (dismissal of a pro se
complaint without leave to amend is proper “if it is absolutely clear that the
deficiencies of the complaint could not be cured by amendment” (citation and
internal quotation marks omitted)); Chappel v. Lab. Corp. of Am., 232 F.3d 719,
725 (9th Cir. 2000) (standard of review).
Risby’s contention that the district court converted defendants’ motion to
dismiss into a motion for summary judgment is unpersuasive.
AFFIRMED.
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