Junior J. Aguilar v. Kristi Noem, et al.

Summary

The United States District Court for the District of Arizona adopted a magistrate judge’s Report and Recommendation in a pro se action arising from the termination of a probationary U.S. Customs and Border Protection employee. The court denied leave to supplement the facts, granted the motion to dismiss in part, dismissed several defendants and claims, and granted limited leave to amend certain Rehabilitation Act, Title VII retaliation, stigma-plus, and potential Administrative Procedure Act claims. The court ordered the plaintiff to file a second amended complaint within 20 days.

Holdings

1. Specific objections to a magistrate judge's report and recommendation receive de novo review, while recommendations without specific objections and arguments that merely rehash prior contentions may be reviewed for clear error. The court adopted the report and recommendation in full.
2. A court deciding a Rule 12(b)(6) motion may not consider factual allegations raised for the first time outside the complaint; plaintiff's motion to supplement facts was therefore properly denied.
3. A probationary federal employee without a property interest in continued employment cannot maintain a Fifth Amendment due process claim based solely on termination or alleged failure to provide a pretermination opportunity to respond.
4. Although the pleaded due process claim failed, plaintiff may attempt to assert an APA claim under the Accardi doctrine if he can identify an agency regulation or policy applicable to him that was violated in connection with his termination.
5. The first amended complaint did not plead a stigma-plus liberty-interest claim, but plaintiff was granted leave to amend to attempt to allege facts showing reputational stigma coupled with loss of employment opportunities.
6. The first amended complaint failed to state a Title VII retaliation claim because it did not allege that plaintiff engaged in protected activity that resulted in termination or that termination was related to such protected activity; plaintiff was granted leave to amend.
7. Leave to amend was denied for the CSRA, ADA, defamation, Fifth Amendment due process, and First Amendment retaliation claims because amendment would be futile, while leave was granted for the Rehabilitation Act, Title VII retaliation, and stigma-plus claims.
8. The second amended complaint must be complete in itself and supersedes the original complaint and first amended complaint; claims not realleged in the second amended complaint are waived.

Questions Presented

1. Whether the district court should adopt the magistrate judge's report and recommendation after reviewing plaintiff's objections.
2. Whether plaintiff could supplement his complaint with facts not alleged in the complaint when the court was deciding a Rule 12(b)(6) motion.
3. Whether plaintiff's probationary federal employment supported a Fifth Amendment due process claim or a Civil Service Reform Act claim relating to his termination.
4. Whether plaintiff's ADA, Rehabilitation Act, Title VII retaliation, defamation, First Amendment retaliation, and stigma-plus claims should be dismissed and whether amendment should be permitted.
5. Whether the complaint could be amended to assert an Administrative Procedure Act claim based on an alleged violation of agency policies or regulations.

Disposition

other