Michael Lynn Gabriel v. General Services Administration;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL LYNN GABRIEL,
Plaintiff - Appellant,
v.
GENERAL SERVICES
ADMINISTRATION; et al.,
Defendants - Appellees.
No. 12-15730
D.C. No. 3:08-cv-00497-LRH-
VPC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted November 8, 2013
San Francisco, California
Before: FARRIS, BLACK ** , and IKUTA, Circuit Judges.
FILED
NOV 22 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9 th Cir. R. 36-3.
** The Honorable Susan H. Black, Senior Circuit Judge for the U.S.
Court of Appeals for the Eleventh Circuit, sitting by designation.

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Michael Gabriel appeals from the district court’s dismissal of Gabriel’s
action against the General Services Administration for lack of subject matter
jurisdiction and improper venue. We have jurisdiction under 28 U.S.C. § 1291.
The district court lacks subject matter jurisdiction. The United States is
immune from suit unless it has expressly waived its sovereign immunity by
consenting to be sued; “the existence of such consent is a prerequisite for
jurisdiction.” McGuire v. United States, 550 F.3d 903, 910 (9th Cir. 2008) (internal
quotations omitted). Gabriel argues that the Administrative Procedures Act
contains the necessary waiver of sovereign immunity. The Administrative
Procedures Act only waives the sovereign immunity of the United States if the
“claims do not seek relief expressly or impliedly forbidden by another statute.”
Tucson Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 645 (9th Cir. 1998).
Gabriel seeks declaratory and injunctive relief from the General Services
Administration that is impliedly forbidden by the Tucker Act, 28 U.S.C. §
1491(a)(1), and there is consequently no waiver of sovereign immunity. This Act
only allows money damages for claims against the United States founded upon
express or implied contracts. North Side Lumber Co. v. Block, 753 F.2d 1482, 1484
(9th Cir.1985) (quoting 28 U.S.C. § 1491(a)(1)). This limitation (that only money
damages are allowed for contract claims against the government) “‘impliedly
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forbids declaratory and injunctive relief and precludes a § 702 waiver of sovereign
immunity.” Tucson Airport Auth., 136 F.3d at 645 (internal quotation marks
omitted). We look at two factors to determine whether Gabriel's action is founded
upon a contract for the purposes of the Tucker Act: “‘the source of the rights upon
which the plaintiff bases its claims, and . . . the type of relief sought (or
appropriate).’” Doe v. Tenet, 329 F.3d 1135, 1141 (9th Cir. 2003) overruled on
other grounds Tenet v. Doe, 544 U.S. 1 (2005) (quoting Megapulse v. Lewis, 672
F.2d 959, 968 (D.C. Cir. 1982)).
Gabriel’s source of rights stems from a potential contract with the GSA. The
accompanying documents to the government's notice of bidding for the lighthouses
state that acceptance of the bid will create a contractual agreement between the
successful bidder and the GSA. Gabriel attempts to enforce contractual rights that
would follow from an accepted bid. His complaint seeks injunctive and declaratory
relief that will require the GSA to sell him the lighthouses. This is just another
name for specific performance; the natural inference follows that a contractual
remedy indicates a contractually-based set of claims. Tucson Airport, 136 F.3d at
647. The action is contractually based and falls within the scope of the Tucker Act.
Under the Little Tucker Act, 28 U.S.C. § 1346(a)(2) district courts have
concurrent jurisdiction with the Court of Federal Claims for actions claiming less
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than $10,000. North Side Lumber Co. v. Block, 753 F.2d 1482, 1484 (9th Cir.
1985). Gabriel argues that the district court has concurrent jurisdiction since he has
not sought any money damages. We have held that “parties may waive their right
to receive more than $10,000” and thus allow a district court to retain jurisdiction
under the Little Tucker Act. Marceau v. Blackfeet Hous. Auth., 455 F.3d 974, 986
(9th Cir. 2006). The district court would retain concurrent jurisdiction as Gabriel
has waived his right to receive money damages over $10,000, but because we
conclude that the district court lacked subject matter jurisdiction, this conclusion is
of no help to Gabriel.
Gabriel argues five additional grounds for subject matter jurisdiction: the
Fair Housing Act, (42 U.S.C. § 3613), the National Historic Lighthouse
Preservation Act (16 U.S.C § 470w-7), the federal question statute, (28 U.S.C. §
1331), the Civil Rights Act (42 U.S.C. § 1981 and 42 U.S.C. § 1985) and the
Declaratory Judgment Act (28 U.S.C. § 2201). None has merit. Neither the Fair
Housing Act nor the National Historic Lighthouse Preservation Act contain the
required “unequivocal expression” that is necessary for an intentional
congressional waiver of sovereign immunity. United States v. King, 395 U.S. 1, 4
(1969). Further, we have consistently held that § 1331 “does not waive the
government's sovereign immunity from suit.” Holloman v. Watt, 708 F.2d 1399,
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1401 (9th Cir.1983). Civil Rights statutes, such as 42 U.S.C. §-§ 1981, 1985, do
not waive the federal government's own sovereign immunity. Jachetta v. United
States, 653 F.3d 898, 908 (9th Cir. 2011). The Declaratory Judgment Act “does not
constitute an independent basis for jurisdiction.” Morongo Band of Mission
Indians v. Calif. State Bd. Of Equalization, 858 F.2d 1376, 1382-83 (9th Cir.
1988). The record satisfies us that the district court lacks subject matter jurisdiction
over Gabriel's claims.
Because we affirm the district court on the ground that it lacked subject
matter jurisdiction, we need not address its venue holding. If we did address it,
however, venue was improper in Nevada. A civil action may be brought against an
agency of the United States “in any judicial district in which (A) a defendant in the
action resides, (B) a substantial part of the events or omissions giving rise to the
claim occurred, or a substantial part of property that is the subject of the action is
situated, or (C) the plaintiff resides if no real property is involved in the action.” 28
U.S.C.A. § 1391 (e)(1). Gabriel argues that his residence in Nevada at the time of
filing made venue appropriate in that location under § 1391(e)(1)(C). This
provision only applies if real property is not involved in the action.
Real property includes “land and anything grown on, attached to, or erected
on it, excluding anything that may be severed without injury to the land.” Black’s
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Law Dictionary 1255 (8 th ed. 2004). Lighthouses qualify as permanent structures
under this definition; the proposed terms of sale by the GSA include historic
preservation covenants that require the buyer to carefully maintain the lighthouse’s
permanent structure. Lighthouses constitute “real property” for the purposes of the
venue statute. Neither of the lighthouses in this action were located in Nevada.
None of the three available grounds for venue under § 1391(e)(1) apply.
AFFIRMED.
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