Steve Cooper v. David Haase

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVE COOPER,
Plaintiff-Appellant,
v.
DAVID HAASE, in his official capacity as
Director, Real Property Utilization &
Disposal Division, Government Services
Administration; et al.,
Defendants-Appellees.
No. 17-16795
D.C. No. 2:16-cv-02649-ESW
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Eileen S. Willett, Magistrate Judge, Presiding
Submitted February 4, 2019**
Phoenix, Arizona
Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges.
This action seeks judicial review pursuant to the Administrative Procedure
Act (“APA”), 5 U.S.C. § 702, of the decision of the General Services Administration
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
FEB 6 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(“GSA”) to reject Steve Cooper’s bid in an auction for real property. The district
court dismissed Cooper’s complaint for lack of subject matter jurisdiction, citing
federal sovereign immunity. We have jurisdiction over Cooper’s appeal under 28
U.S.C. § 1291, and affirm.
The APA waives federal sovereign immunity when a plaintiff “suffering legal
wrong because of agency action” seeks “relief other than money damages.” 5 U.S.C.
§ 702. That waiver does not apply, however, if the relief sought is “expressly or
impliedly forbidden by another statute.” Tucson Airport Auth. v. Gen. Dynamics
Corp., 136 F.3d 641, 645 (9th Cir. 1998). The Tucker Act, 28 U.S.C. § 1491,
“impliedly forbids declaratory and injunctive relief and precludes [the APA § 702]
waiver of sovereign immunity” for any claim founded upon an express or implied
contract with the United States. N. Side Lumber Co. v. Block, 753 F.2d 1482, 1484–
85 (9th Cir. 1985) (internal quotation marks omitted) (citing 28 U.S.C.
§ 1491(a)(1)).
Cooper seeks a judicial declaration that he entered into a contract with the
GSA when he submitted his bid. His claim thus falls outside the APA’s limited
waiver of sovereign immunity. Contrary to Cooper’s argument, his claim does not
arise out of a statute. The Federal Property and Administrative Services Act
(“FPASA”) does not provide for a private cause of action. See 40 U.S.C. § 545.
Moreover, the FPASA confers no rights upon Cooper that exist independently of the

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purported contract. See Tucson Airport, 136 F.3d at 647.
AFFIRMED.

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