Aguilar v. Noem et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Junior J Aguilar,
Plaintiff,
v.
Kristi Noem, et al.,
Defendants.
No. CV-25-00056-TUC-JCH (EJM)
ORDER
In this case, pro se Plaintiff Junior J. Aguilar brings several counts against
Defendants related to his termination from his probationary employment with U.S.
Customs and Border Protection (CBP). Doc. 5. Defendants filed a Motion to Dismiss
(Doc. 26), and Plaintiff filed a Motion for Leave to File Notice of Supplemental Facts
(“Motion to Supplement Facts”) (Doc. 33). Before the Court is Magistrate Judge Eric J.
Markovich’s Report and Recommendation (“R&R”) in which he recommends denying the
Motion to Supplement Facts and granting in part the Motion to Dismiss (Doc. 40). Plaintiff
objects to the R&R (Doc. 41). For the following reasons, the Court will overrule Plaintiff’s
Objection and adopt Judge Markovich’s R&R in full.
I. Standard of Review
This Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). If an objection is
made, the Court “must review the magistrate judge’s findings and recommendations de
novo.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). The
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Court is obligated to review only the specific portions of the report, proposed findings, or
recommendations to which the parties object. See § 636(b)(1). Objections that merely
repeat or rehash arguments already addressed in the R&R are insufficient to trigger de novo
review and are instead reviewed for clear error. See Curtis v. Shinn, No. CV-19-04374-
PHX-DGC-JZB, 2021 WL 4596465, at *5 (D. Ariz. Oct. 6, 2021). If, following review,
“the district court is satisfied with the magistrate judge’s findings and recommendations it
may in its discretion treat those findings and recommendations as its own.” Morris v. Shin,
No. CV 20-322, 2023 WL 6248830, at *7 n. 5 (D. Ariz. Sept. 26, 2023) (quoting Goffman
v. Gross, 59 F.3d 668, 671 (7th Cir. 1995)).
II. Motion to Supplement Facts
Plaintiff does not object to the R&R’s recommendation that the Court deny the
Motion to Supplement Facts. See generally Doc. 41. Accordingly, the Court reviews this
recommendation for clear error. See Fed. R. Civ. P. 72(b), advisory committee’s note to
1983 amendment. The Court agrees with the R&R that it may not consider facts not raised
in Plaintiff’s Complaint when determining whether to grant a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6). Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194,
1197 n.1 (9th Cir. 1998); see also Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003)
(“Facts raised for the first time in plaintiff’s opposition papers should be considered by the
court in determining whether to grant leave to amend or to dismiss the complaint with or
without prejudice.”). Because the R&R recommends—and the Court will grant—leave to
amend, Plaintiff will not be prejudiced by the denial of this Motion. Accordingly, the Court
will deny the Motion to Supplement Facts.
III. Motion to Dismiss
Plaintiff’s First Amended Complaint (FAC) alleges Secretary of Homeland Security
Kristi Noem and various U.S. CBP employees1 discriminated against him on account of
his race and national origin by terminating his employment, retaliating against him, and
1 These Defendants include Executive Director of U.S. CBP Christopher Holtzer,
Supervisory U.S. CBP Officer Kathleen Covert, and Veteran Support Field
Coordinator/Supervisor Jason Warren. Doc. 5 at 2.
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failing to follow CBP’s own policies and procedures in terminating him “for unverified
statements without any due process.” Doc. 5 at 4. Plaintiff alleges Defendants violated four
specific rights:
1. Due Process Violation – I was terminated without a fair chance to respond
(5 U.S.C. § 7513).
2. Discrimination – As a brown-skinned Hispanic and disabled veteran, I
was treated unfairly.
3. Retaliation – CBP blacklisted me, preventing future employment.
4. Defamation & Career Sabotage – Falsely labeling me disloyal ensured I
would never work in law enforcement again.
Id. at 5.
Defendants move to dismiss the following Defendants and claims: (1) Defendants
Holtzer, Kathleen Covert, Jason Warren, and U.S. CBP2 as improper defendants; (2)
Plaintiff’s due process claim under the Civil Service Reform Act (CSRA) for lack of
subject matter jurisdiction; (3) Plaintiff’s Americans with Disabilities Act (ADA) claim for
failure to state a claim; (4) Plaintiff’s Rehabilitation Act claim for failure to state a claim;
(5) Plaintiff’s Title VII retaliation claim for failure to state a claim; and (6) Plaintiff’s
defamation claim for lack of subject matter jurisdiction.3 See Doc 26.
The R&R recommends the Court dismiss Defendants Holtzer, Covert, and Warren
as improper defendants. Doc. 40 at 8–9. The R&R also recommends the Court dismiss
Plaintiff’s CSRA, ADA, and defamation claims without leave to amend and Rehabilitation
Act and Title VII retaliation claims with leave to amend. Id. at 9–12, 14–20. Finally, the
R&R addresses several claims Plaintiff raises for the first time in response to Defendants’
Motion to Dismiss. The R&R recommends Plaintiff not be permitted to include a Fifth
Amendment due process or First Amendment retaliation claim in his second amended
complaint (SAC) because including such claims would be futile, but because Plaintiff may
2 U.S. CBP is not actually listed as a Defendant in this case but is instead included as
Plaintiff’s place of employment. See Doc. 5 at 3. The Court will direct the Clerk of Court
to remove U.S. CBP as a defendant on the docket sheet.
3 Plaintiff did not explicitly include many of these claims in the “Violations of My Rights”
section of the FAC, but he marked Title VII, the ADA, and the Retaliation Act of 1973 as
bases for jurisdiction in this case. See Doc. 5 at 3.
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be able to allege sufficient facts to establish a “stigma-plus claim,” he should be granted
leave to amend to include this claim. Id. at 12–14, 20–21. The Court will address each of
Plaintiff’s objections to the R&R in turn.
A. “Procedural Fairness Violations”
Plaintiff argues that although he may have been a probationary employee—and thus
had no statutory property interest in his employment with CBP—the Court should allow
him to raise a due process claim in his SAC because “administrative fairness principles still
apply when agencies rely upon undisclosed information and fail to follow their own
procedures.” Doc. 41 at 3. Plaintiff cites Stone v. FDIC, 179 F.3d 1368 (Fed. Cir. 1999),
Vitarelli v. Seaton, 359 U.S. 535 (1959), and Service v. Dulles, 354 U.S. 363 (1957) to
support this argument. Id. at 3–4.
None of the above-cited cases support a valid due process claim here. In Stone, the
Federal Circuit stated that the plaintiff’s due process claim regarding removal from his
public employment “depend[ed] on his having a property right in continued employment.”
179 at 1374. The Court explicitly noted that “if [a] public employee is hired for a limited
appointment or is at will, then the employee does not have a property interest in continued
employment.” Id. at 1375. Both Vitarelli, 359 U.S. at 539 and Dulles, 354 U.S. at 388–89
held that the Plaintiffs had a valid cause of action for the violation of department policies
in their employment termination, but neither Court reached its decision on due process
grounds. See Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 92 n. 8 (1978)
(“[B]oth [Service v. Dulles] and Accardi v. Shaughnessy, 347 U.S. 260 (1954), upon which
Service relied, enunciate principles of federal administrative law rather than of
constitutional law binding upon the States.”). These cases do not support a Fifth
Amendment due process claim for the alleged violation of agency procedures.
Accordingly, based on Plaintiff’s own admissions, the R&R did not err in finding
that Plaintiff, as a probationary employee, had no property interest in his employment with
CBP and thus no due process claim relating to his termination. Plaintiff cannot remedy this
deficiency by attempting to assert a due process claim under Accardi. Though Plaintiff may
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be able to state an Administrative Procedures Act (APA) claim under the Accardi doctrine,
Plaintiff’s FAC does not identify any CBP or DHS policies or regulations applicable to
him that were violated by his termination. If Plaintiff can identify such a regulation, under
Accardi, he may attempt to assert an APA claim in his SAC.
B. “Stigma-Plus Liberty Interest”
Plaintiff argues that “[t]he R&R improperly rejected Plaintiff’s stigma-plus liberty
interest claim” and cites case law recognizing reputational harm combined with loss of
employment opportunities as a protected liberty interest. Doc. 41 at 7. Plaintiff’s objection
seems to misunderstand the R&R’s finding: the R&R found that Plaintiff had not alleged
a stigma-plus claim in his FAC but recommended the Court grant leave to amend to allow
Plaintiff to try to assert such a claim in his SAC. See Doc. 40 at 13–14. The R&R did not
err in holding that Plaintiff did not (and seemingly did not attempt to) state a stigma-plus
claim in his FAC. Plaintiff’s arguments in his Response to Defendant’s Motion to Dismiss
and Objection to the Report and Recommendation do not change the substance of the
Complaint and cannot cure this deficiency. The Court will overrule the objection but grant
Plaintiff leave to amend to attempt to assert facts supporting a stigma-plus claim in his
SAC.
C. “Retaliation and Cat’s Paw Liability”
Plaintiff argues “[t]he R&R erred in dismissing Plaintiff’s retaliation claim
[because] Plaintiff alleged that biased subordinate officials influenced the ultimate
termination decision.” Doc. 41 at 8. In support of this argument, Plaintiff cites case law
finding that “an employer is liable where a subordinate’s retaliatory animus is a proximate
cause of an adverse employment action.” Id. (citing Staub v. Proctor Hospital, 562 U.S.
411, 421 (2011)). Again, Plaintiff’s objection misunderstands the R&R’s findings. As with
the stigma-plus claim, the R&R recommends granting leave to amend to allow Plaintiff to
try again to assert a Title VII retaliation claim. The R&R found that Plaintiff’s FAC failed
to allege that he engaged in a protected activity that resulted in termination or that his
termination was related to such a protected activity. The R&R did not err in this finding.
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Plaintiff may attempt to plead the facts necessary to support a Title VII retaliation claim in
his SAC.
D. “Disparate Treatment and Comparator Evidence”
Plaintiff’s fourth objection “objects to dismissal because the record reflects
disparate treatment in disciplinary outcomes involving similarly situated probationary
trainees.” Id. at 9. This is not an objection to any specific finding in the R&R, nor does it
provide the Court with a reason to disagree with any of the R&R’s explicit findings.
Defendants did not move to dismiss claims related to disparate treatment on the basis of
race under the Title VII of the Civil Rights Act, and the R&R did not address these
allegations. In his SAC, Plaintiff may again attempt to raise claims related to his alleged
disparate treatment and should be careful to state on what basis he believes he was
discriminated against.
E. “Leave to Amend Should Be Granted”
“Plaintiff accepts the R&R’s recommendation granting leave to amend and requests
amendment pursuant to Forman v. Davis, 371 U.S. 178 (1962).” Doc. 41 at 10. The R&R
recommends granting leave to amend Plaintiff’s Rehabilitation Act, Title VII retaliation,
and stigma-plus claims. See generally Doc. 40. The R&R recommends denying leave to
amend Plaintiff’s CSRA, ADA, defamation, and First Amendment retaliation claims. See
id. This portion of Plaintiff’s objection contains no specific arguments as to which claims
he seeks leave to amend. See Doc. 41 at 10. The Court has explained above why it will not
grant leave to amend the Fifth Amendment due process claim. Plaintiff has not specifically
objected to any of the other claims the R&R recommends dismissing without leave to
amend. The Court finds the R&R’s reasoning for denying leave to amend Plaintiff’s CSRA,
ADA, defamation, and First Amendment retaliation claims is sound because amendment
would be futile. Accordingly, this objection is overruled as to those claims.
In their Response to Plaintiff’s Objection to the R&R, Defendants argue the Court
should “dismiss Plaintiff’s FAC in its entirety and deny Plaintiff’s motion for leave to
amend.” Doc. 42 at 15. Defendants did not file their own objection to the R&R, which
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recommended granting leave to amend on several counts. See generally Docket.
Accordingly, to the extent Defendants are objecting to the R&R’s recommendations, their
objections are untimely. See Doc. 40 at 22 (“[A]ny party may serve and file written
objections within fourteen (14) days after being served with a copy of this Report and
Recommendation. . . . Failure to file timely objections to any factual or legal determination
of the Magistrate Judge may result in waiver of the right of review.”). The Court reviews
the R&R’s recommendation of granting leave to amend certain claims for clear error.
See Fed. R. Civ. P. 72(b), advisory committee’s note to 1983 amendment.
Defendants attempt to construe the portion of Plaintiff’s Objection addressing leave
to amend as a Motion for Leave to Amend and argue the Court should deny it as such for
failure to comply with Local Rule of Civil Procedure 15.1(a). The Court declines to
construe Plaintiff’s objection as anything more than an objection. At the end of each section
of analysis, the R&R explicitly states whether it recommends the Court grant leave to
amend. The R&R does not direct Plaintiff to file a separate Motion for Leave to Amend,
and he did not file one. Accordingly, Plaintiff did not violate L.R. Civ. 15.1(a). The Court
construes pro se filings liberally, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), and if
the Court determines that a pleading could be cured by the allegation of other facts, a pro
se litigant is entitled to an opportunity to amend a complaint before dismissal of the action,
see Lopez v. Smith, 203 F.3d 1122, 1127–29 (9th Cir. 2000) (en banc). The R&R did not
clearly err in granting leave to amend, and the Court will follow its recommendation.4
IV. Conclusion
The Court will adopt the objected-to portions of the R&R as outlined above. After
independent review, the Court is satisfied that the remainder of Judge Markovich’s
recommendation is sound. The Court will adopt the R&R in full.
4 In arguing the Court should not grant leave to amend, Defendants assert the Court should
dismiss the FAC in its entirety. Doc. 41 at 15. In so doing, they argue Plaintiff will not be
able to amend his FAC to state a disparate treatment claim. Id. at 14–15. Defendants’
original Motion to Dismiss sought “partial dismissal” and did not address the FAC’s
references to disparate treatment on the basis of race. Defendants may not retroactively
change the nature of their Motion. Defendant Noem may re-raise any arguments related to
a potential disparate treatment claim after the SAC is filed.
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A. Scope of Leave to Amend
Accordingly, the Court will dismiss Plaintiff’s FAC and grant leave to amend.
Plaintiff’s leave to amend is restricted by the guidelines laid out above and in the R&R.
Defendants Holtzer, Covert, and Warren are dismissed. Plaintiff may amend his
Rehabilitation Act, Title VII retaliation, and stigma-plus claims. If Plaintiff wishes to
attempt to bring a claim for CBP’s alleged failure to follow its own policies, he may do so
under the APA. Plaintiff may not attempt to reallege claims under the CSRA, ADA, or Due
Process Clause of the Fifth Amendment or for defamation or First Amendment Retaliation.
B. Warnings
The SAC must be retyped or rewritten in its entirety on a court-approved form and
may not incorporate any part of the original Complaint or FAC by reference. A second
amended complaint supersedes the original Complaint and FAC. Ferdik v. Bonzelet,
963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d
1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint
and FAC as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in
the original Complaint or FAC is waived if it is not alleged in the SAC. Lacey v. Maricopa
County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
The SAC should contain all the relevant factual allegations and legal theories on
which Plaintiff wishes to proceed. If Defendant files a motion to dismiss the SAC, Plaintiff
will not be able to cure any deficiencies with assertions or theories raised for the first time
in response to the motion to dismiss. Bare recitations of the elements of a cause of action
and conclusory statements will not be sufficient to state a claim. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). If Plaintiff again fails to state a claim, the Court may not grant further
leave to amend. See Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir.
1989) (“Leave to amend need not be given if a complaint, as amended, is subject to
dismissal.”).
///
///
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V. Order
Accordingly,
IT IS ORDERED adopting in full the R&R (Doc. 40).
IT IS FURTHER ORDERED:
1. Denying Plaintiff’s Motion for Leave to File Notice of Supplemental
Facts (Doc. 33);
2. Granting in part Defendants’ Motion to Dismiss (Doc. 26) as outlined
above;
3. Dismissing Defendants Christopher Holtzer, Kathleen Covert, and Jason
Warren;
4. Dismissing Plaintiff’s First Amended Complaint (Doc. 5) as outlined
above. Plaintiff may file a second amended complaint within 20 days of
the date of this Order; and
5. Directing the Clerk of Court to terminate United States Customs and
Border Protection as a defendant on the docket sheet.
Dated this 24th day of March, 2026.
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