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Jenson v. Huerta

United States District Court, D. Idaho

November 13, 2017

TRACY JENSON, Plaintiff,
v.
MICHAEL HUERTA, Defendant.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill Chief Judge

         INTRODUCTION

         On May 25, 2017, the Clerk of the Court conditionally filed Plaintiff Tracy Jenson's Petition for Writ of Mandamus subject to later review by the Court to determine whether he is entitled to proceed under 28 U.S.C. § 1915 (Dkt. 3). Plaintiff filed his Petition without the assistance of counsel. Because Plaintiff requests to proceed in forma pauperis, the Court conducted an initial review of his Petition under 28 U.S.C. § 1915(e)(2). Having reviewed the record, and otherwise being fully informed, the Court finds that Plaintiff's claims are subject to dismissal because the Court lacks jurisdiction to enter the relief proposed.

         BACKGROUND

         According to the Petition, Plaintiff complains that the Federal Aviation Administration (the “FAA”) mismanaged over $200 million in pay raises intended for Air Traffic Controllers. As a result, Plaintiff alleges that nearly 15, 000 Controllers received marginal overpayments over many years, while approximately 160 Controllers, himself included, were substantially underpaid during the same period. According to Plaintiff, this error was due to the FAA's failure to timely implement raises for some Controllers, which was exacerbated by an incorrect calculation of those Controllers' base pay under a new pay system. Plaintiff argues that the FAA administrator has a nondiscretionary duty to recover overpayments and correct underpayments to Federal employees. As such, Plaintiff petitions this Court for a Writ of Mandamus ordering the FAA Administrator to recover and redistribute wages among the affected Air Traffic Controllers.

         LEGAL STANDARD

         Once an action has been conditionally filed pursuant to 28 U.S.C. § 1915, the Court will conduct an initial review. See 28 U.S.C. § 1915(e)(2). The Court must dismiss an action or any portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i-iii). Further, “[i]f the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).

         Because Plaintiff is proceeding pro se, the Petition must be liberally construed, and Plaintiff must be given the benefit of any doubt. See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Additionally, if the Petition can be saved by amendment, Plaintiff should be notified of the deficiencies and provided an opportunity to amend. See Jackson. v. Carey, 353 F.3d 750, 758 (9th Cir. 2003). A dismissal without leave to amend is improper unless it is beyond doubt that the Petition “could not be saved by any amendment.” Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009).

         ANALYSIS

         In this case, Plaintiff seeks to recover lost wages from the FAA, and asks that the Court order the FAA Administrator to restore his lost wages by recovering and redistributing pay raises and base pay amounts erroneously paid out to other Controllers. Plaintiff has previously filed “at least thirty administrative and judicial claims against various parties and entities” on essentially the same facts as he raises here. Jenson v. Carr, No. C11-1222-RSL, 2012 WL 2190881 at *1 (W.D. Wash. June 14, 2012). This includes at least one case against the FAA. See, e.g., Jenson v. FAA, No. CV-10-0234-CI, 2011 WL 2491428 (E.D. Wash. June 22, 2011). Plaintiff previously filed an action in this District, seeking judgment against individuals involved with the National Air Traffic Controllers Association for failing to correct flaws in a collective bargaining agreement negotiated with the FAA. See Jenson v. Mellody, No. 2:10-cv-00493-LMB, 2011 WL 3679142 (D. Idaho August 23, 2011). Plaintiff alleged that this failure contributed to the FAA's failure to correctly calculate Plaintiff's base pay. Id. In two related actions, Plaintiff sought to bring claims against lawyers and judges involved in prior federal actions, brought by the Plaintiff, which resulted in adverse decisions on similar claims. See Jenson v. U.S. Dep't. of Justice, No. 2:11-cv-00218-LMB; Jenson v. Baskir, et al., No. 2:11-cv-00219-LMB. As part of that previous round of litigation, the magistrate judge found that

Jenson appears to be engaging in abusive litigation tactics through his multiple frivolous filings. Jenson's stated goal in all of his lawsuits is the same. However, because of the meritorious rulings against him, none of the cases he has filed or may file will accomplish his goal.

Jenson v. Mellody, No. 2:10-cv-00493-LMB at *5. In that case, the magistrate dismissed Plaintiff's claims as barred by the doctrine of claim preclusion, and ordered that he be subject to a pre-filing order. Id. As such, Plaintiff was “enjoined from filing any further action, pleading, documents, or letters against NATCA, or former and current NATCA employees or officers regarding lost wages, promotions, or pay schemes” without leave from this Court. Id.

         Here, Plaintiff has filed an action against the FAA and thus is not subject to the pre-filing order. However, he is still subject to initial review of his claim under 1915(e)(2(B). As such, the Court must dismiss his Petition if it “(1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief.” See 28 U.S.C. § 1915(e)(2)(B)(i-iii). Further, the Court must dismiss his Petition if it lacks subject matter jurisdiction over the action. Fed.R.Civ.P. 12(4)(3).

         1. Subject ...


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