Unpublished Disposition, 935 F.2d 274 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 274 (9th Cir. 1991)

George MASSIE, Plaintiff-Appellant,v.John STUHLDREHER, et al., Defendants-Appellees.

No. 90-55377.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 10, 1991.Decided June 5, 1991.

Before TANG, REINHARDT and WIGGINS, Circuit Judges.


George Massie brought suit against agents of the National Transportation Safety Board for declaratory relief and for damages resulting from alleged constitutional torts committed while acting within their official capacities. A suit against government agents acting in their official capacities "is essentially a suit against the United States," and "as such, absent express statutory consent to sue, dismissal is required." Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). In his complaint, Massie based jurisdiction on 28 U.S.C. §§ 1332,1  1343(a) (1), and 1356. As noted in Gilbert, for the purpose of invoking subject matter jurisdiction, such a statutory waiver "cannot be implied, but must be unequivocally expressed." Id. None of these sections expressly waives sovereign immunity.

For his declaratory relief claim, Massie cited 28 U.S.C. §§ 2201, 2202, also known as the Declaratory Judgment Act, as the basis for jurisdiction. Reliance on this act is improper because it neither waives sovereign immunity nor creates an independent basis for jurisdiction. As noted by our decision in Morongo Band of Mission Indians v. California State Board of Equalization, 849 F.2d 1197 (9th Cir. 1988), " [t]he Declaratory Judgment Act merely creates a remedy in cases otherwise within the court's jurisdiction; it does not constitute an independent basis for jurisdiction." Id. at 1201.

Because Massie cited no statutory waiver of sovereign immunity by the United States that would permit his claims for either damages or declaratory relief, the district court was correct in dismissing his action for lack of subject matter jurisdiction. While, ordinarily, a dismissal of the complaint without prejudice in order to afford the plaintiff an opportunity to amend by asserting a Bivens action would have been appropriate, here the plaintiff made it clear that he did not wish to amend his complaint and that he had made a deliberate decision to allege a cause of action against defendants only in their official capacities. Accordingly, the dismissal of the action was proper.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


Massie explained in his brief that due to a typographical error, the complaint cited Sec. 1332 instead of Sec. 1331. However, even if Sec. 1331 is properly substituted for Sec. 1332, the outcome is the same because Sec. 1331 does not expressly waive sovereign immunity