Armstrong v. Wyoming Department of Environmental Quality

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 5, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
R. MARK ARMSTRONG,

Plaintiff - Appellant,

v. No. 16-8104
(D.C. No. 2:16-CV-00195-NDF)
WYOMING DEPARTMENT OF (D. Wyo.)
ENVIRONMENTAL QUALITY;
CASPER, WY; WYOMING
DEPARTMENT OF ENVIRONMENTAL
QUALITY HUMAN RESOURCES
ADMINISTRATOR, a/k/a James Uzzell,
in his official capacity; JAMES UZZELL,
individually; WYOMING DEPARTMENT
OF ENVIRONMENTAL QUALITY
SCIENTIST/LANDFILL PERMITS
EMPLOYEE, a/k/a Dale Anderson, in his
official capacity; DALE ANDERSON,
individually; CASPER WY LANDFILL
MANAGER, a/k/a C. Langston, in his
official capacity; C. LANGSTON,
individually,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before KELLY, HOLMES, and MORITZ, Circuit Judges.

*
After examining Armstrong’s brief and the appellate record, this panel has
determined unanimously that oral argument wouldn’t materially assist in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument. This order and judgment
isn’t binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. But it may be cited for its persuasive value. See
Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
 _________________________________

Proceeding pro se,1 R. Mark Armstrong appeals the district court’s order

denying his motion to proceed in forma pauperis (IFP) and its sua sponte dismissal of

his complaint with prejudice for failure to state a claim.2 See 28 U.S.C.

§ 1915(e)(2)(B)(ii) (“[T]he court shall dismiss the case at any time if the court

determines that . . . the action . . . fails to state a claim on which relief may be

granted . . . .”). Because Armstrong fails to identify any reversible error, we affirm.

On July 8, 2016, Armstrong filed a complaint in federal district court, alleging

that various defendants—including the Wyoming Department of Environmental

Quality (WDEQ)—violated his constitutional rights under the First, Fifth, and

Fourteenth Amendments. The complaint also alleges, inter alia, defamation and

violation of (1) the implied covenant of good faith and fair dealing; (2) Wyo. Stat.

Ann. § 16-4-205; (3) the False Claims Act (FCA), 31 U.S.C. § 3729; (4) the

Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-

1968; and (5) the Freedom of Information Act (FOIA), 5 U.S.C § 552.

The district court dismissed all of Armstrong’s claims. First, it dismissed

Armstrong’s claims alleging that defendants violated his First, Fifth, and Fourteenth

Amendment rights, concluding that the claims (1) are time-barred; (2) are barred by

1
Because Armstrong proceeds pro se, we liberally construe his filings. But we
won’t act as his advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 840 (10th Cir. 2005).
2
Although Armstrong’s notice of appeal designates the district court’s denial
of his motion to proceed IFP, he doesn’t challenge that decision in his opening brief.
Accordingly, we confine our analysis to the district court’s order dismissing his
complaint.
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the doctrine of res judicata; and (3) fail to state a claim upon which relief may be

granted. Second, it dismissed Armstrong’s claim that defendants violated the implied

covenant of good faith and fair dealing, concluding that (1) the claim is barred by the

doctrine of res judicata and (2) it fails to state a claim upon which relief may be

granted. Third, it dismissed Armstrong’s defamation claim, ruling that (1) the claim

is time barred and (2) defendants are entitled to sovereign immunity. Fourth, it

dismissed Armstrong’s FCA claim, determining that (1) the claim is time-barred;

(2) the claim fails to allege that defendants defrauded the federal government; and

(3) at least one of the defendants enjoys immunity. Fifth, it dismissed Armstrong’s

RICO claim, concluding that (1) Armstrong fails to allege a pattern of racketeering

activity and (2) the claim is time-barred. Finally, the district court dismissed

Armstrong’s FOIA and § 16-4-202 claims, concluding that (1) neither FOIA nor

§ 16-4-202 applies to the requested records and (2) Armstrong isn’t the correct party

to bring a civil § 16-4-202 claim.3

Armstrong first challenges the district court’s ruling that his claims alleging

violations of the First, Fifth, and Fourteenth Amendments and the implied covenant

of good faith and fair dealing are barred by res judicata. In support, he advances three

3
A district court proceeding under § 1915 may only sua sponte dismiss a
complaint based on an affirmative defense if that defense “is ‘obvious from the face
of the complaint’ and ‘[n]o further factual record [is] required to be developed.’”
Fratus v. DeLand, 49 F.3d 673, 674-75 (10th Cir. 1995) (quoting Yellen v. Cooper,
828 F.2d 1471, 1476 (10th Cir. 1987)). Although the district court relied on
affirmative defenses to dismiss all of Armstrong’s claims, Armstrong doesn’t suggest
on appeal that these requirements aren’t satisfied here. Instead, he points only to what
he perceives as various legal flaws in the district court’s reasoning.
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arguments. First, he asserts that he didn’t receive a full and fair hearing before the

district court dismissed his earlier complaint. See Plotner v. AT & T Corp., 224 F.3d

1161, 1168 (10th Cir. 2000); Yapp v. Excel Corp., 186 F.3d 1222, 1226 n.4 (10th Cir.

1999). Second, he argues that res judicata doesn’t apply because the doctrine doesn’t

“shield a blameworthy defendant from the consequences of his own misconduct.”

McCarty v. First of Ga. Ins. Co., 713 F.2d 609, 612 (10th Cir. 1983). Third, he

argues that res judicata doesn’t apply because his 2016 complaint contains additional

factual allegations that don’t appear in his earlier complaint.

But Armstrong fails to provide the requisite reasoning and legal authorities to

support these three arguments. Accordingly, we decline to address them. See Fed. R.

App. P. 28(a)(8)(A) (requiring appellant’s brief to include “appellant’s contentions

and the reasons for them, with citations to the authorities . . . on which the appellant

relies”); Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (noting we

routinely refuse to consider arguments that fail to meet Rule 28’s requirements); see

also Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (“This court has

repeatedly insisted that pro se parties ‘follow the same rules of procedure that govern

other litigants.’” (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992))).

And because Armstrong hasn’t adequately briefed any basis on which to disturb the

district court’s ruling that res judicata bars his claims asserting violations of (1) his

constitutional rights and (2) the implied duty of good faith and fair dealing, we affirm

that ruling without addressing Armstrong’s challenges to the district court’s

alternative bases for dismissing those claims.

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 Next, Armstrong argues the district court erred in concluding that defendants

are entitled to sovereign immunity from his defamation claim. Armstrong explains

that “[t]he heart of” his entire action against defendants is the allegedly “unethical

and illegal permitting of a landfill.” Aplt. Br. 20, 69. And he points out that “[a]

governmental entity is liable for damages resulting from . . . property damage caused

by the negligence of public employees while acting within the scope of their duties in

the operation of public utilities and services including . . . solid . . . waste . . .

disposal.” Wyo. Stat. Ann. § 1-39-108(a).

But Armstrong’s defamation claim arises from allegations that defendants

(1) wrongfully terminated his employment; (2) refused to let him return to work;

(3) made defamatory remarks about him to the media; and (4) sent out an email

threatening to terminate the employment of any WDEQ employees who speak to him.

Even assuming that defendants undertook these actions in response to Armstrong’s

decision to report what he viewed as the illegal permitting of the landfill, Armstrong

makes no effort to explain whether or how defendants were “acting within the scope

of their duties in the operation” of the landfill when they allegedly defamed him. § 1-

39-108(a) (emphasis added). See City of Torrington v. Cottier, 145 P.3d 1274, 1278,

1280 (Wyo. 2006) (defining term “operation” and concluding that § 1-39-108

“waives immunity for negligence in keeping the public utility operable or

functional”); see also Sinclair v. City of Gillette, 270 P.3d 644, 645, 648 (Wyo. 2012)

(holding that city’s “negligence in determining the legal status of [plaintiffs’]

property” wasn’t “negligence in the operation of the storm drain” that city installed

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on that property because city’s negligence was “unrelated to” actual operation of

storm drain). Because Armstrong’s defamation claim doesn’t rest on any actions that

defendants either performed or failed to perform in keeping the landfill “operable or

functional,” Cottier, 145 P.3d at 1280, his defamation claim “simply does not fit in

the niche provided” by § 1-39-108, Sinclair, 270 P.3d at 648 (quoting Sawyer v. City

of Sheridan, 793 P.2d 476, 478 (Wyo. 1990)). Accordingly, Armstrong fails to

demonstrate that the district court erred in concluding that defendants enjoy

sovereign immunity for purposes of his defamation claim, and we need not address

whether—as the district court concluded—that claim is also time-barred.

Next, Armstrong argues that the district court erred in concluding that his

FCA4 claim is time-barred. In support, he points to his allegation that defendants

accepted federal funds as late as 2015. But Armstrong doesn’t explicitly argue—let

alone provide authority establishing—that the FCA’s statute of limitations begins to

run only when a party accepts payment from the government on a false claim, as

opposed to when a party “knowingly presents” such a claim to the government.

§ 3729(a)(1)(A). See United States v. Rivera, 55 F.3d 703, 709 (1st Cir. 1995)

4
The district court construed Armstrong’s whistleblower claim as part of his
FCA claim and therefore dismissed it on the same basis. Armstrong argues this was
error, asserting that his whistleblower claim instead arises under the retaliation
provision of the Clean Water Act (CWA), 33 U.S.C. § 1251-1388. But to the extent
that Armstrong intended or attempted to plead a violation of 33 U.S.C. § 1367, the
district court lacked jurisdiction to hear that claim and properly dismissed it. See
Vander Boegh v. EnergySolutions, Inc., 772 F.3d 1056, 1064 & n.2, 1065 (6th Cir.
2014) (explaining that CWA doesn’t “grant jurisdiction to the federal district courts
to hear claims filed by claimants under the retaliation provision[]” and that “a
claimant may not bring a claim under [CWA’s] retaliation provision[] directly in
federal district court”).
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(explaining that FCA “attaches liability, not to . . . the government’s wrongful

payment, but to the ‘claim for payment’” (quoting § 3729(a)(1)(A))). Accordingly,

we find this argument inadequately briefed and affirm the district court’s order to the

extent it dismisses Armstrong’s FCA claim as time-barred. Thus, we need not address

Armstrong’s challenges to the district court’s alternative bases for dismissing this

claim.

Armstrong challenges the district court’s ruling that his RICO claim is time-

barred on similar grounds, arguing that (1) the underlying conduct is still ongoing

and (2) the statute of limitations doesn’t start to run unless and until that conduct

ceases. But the last predicate act rule doesn’t determine when a civil RICO claim

accrues. Rotella v. Wood, 528 U.S. 549, 554 (2000) (“Since a pattern of predicate

acts can continue indefinitely, with each separated by as many as 10 years, that rule

might have extended the limitations period to many decades, and so beyond any limit

that Congress could have contemplated.”). Accordingly, we reject this argument and

affirm the district court’s dismissal of Armstrong’s RICO claim.

That leaves only Armstrong’s claims under FOIA and § 16-4-205. The district

court dismissed both, concluding that the requested documents weren’t subject to

FOIA or § 16-4-205, and that in any event, a civil § 16-4-205 claim may only be

“initiated by the attorney general or the appropriate county attorney.” On appeal,

Armstrong makes no attempt to challenge either of these rationales; instead he argues

only that such laws are useless if the government can ignore them. In the absence of

any assertion that the district court’s reasoning was flawed, we find this argument

7
inadequately briefed and decline to address it. See Fed. R. App. P. 28(a)(8)(A);

Bronson, 500 F.3d at 1104.

Because Armstrong fails to identify any basis for reversal, we affirm the

district court’s order dismissing Armstrong’s complaint with prejudice for failure to

state a claim.

Entered for the Court

Nancy L. Moritz
Circuit Judge

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