Citizens for Responsibility and Ethics in Washington v. Office of Management and Budget

BLD-186 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 25-1387 ___________ JAMES JONES, Appellant v. DR. HARRY, COMMISSIONER, SECRETARY, PA DOC; J. TERRA, SUPERINTENDENT; KERI MOORE, CHIEF GRIEVANCE OFFICER; C.E.R.T., CORRECTIONAL OFFICERS ____________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2:24-cv-05692) District Judge: Honorable Mia R. Perez ____________________________________ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 July 24, 2025 Before: SHWARTZ, MATEY, and CHUNG, Circuit Judges (Opinion filed: August 7, 2025) _________ OPINION* _________ PER CURIAM * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.  Inmate James Jones appeals pro se the District Court’s order dismissing his complaint. We will summarily affirm. I. On the morning of August 14, 2024, at the State Correctional Institution in Phoenix, Pennsylvania, Correctional Emergency Response Team (“CERT”) officers visited Jones in his housing cell, subjected him to a strip search, and ordered him to carry his mattress to the lower level for screening. While he transported his mattress, the officers searched his living quarters. Shortly after returning to his cell, Jones discovered that the CERT officers had removed two cases of his legal documents and discarded them in the housing unit’s trash bin, which he could see from his cell door. Jones called out to officers on the unit floor and asked them to retrieve his legal materials from the garbage, but they refused. Jones requested assistance from his Unit Manager, numerous corrections officers, and members of the cleaning crew—all refused to retrieve his documents from the bin. Jones initiated this action against Department of Corrections’ Commissioner Dr. Harry, Superintendent Terra, CERT officers, Chief Grievance Officer Kerri Moore, and anyone else that may have been involved, referring to them as “Defendants et al.” Jones sued the defendants in their official and individual capacities, alleged violations of his First, Fourth, Sixth, Eighth, and Fourteenth Amendment rights, and brought a claim of negligence against Terra. The District Court screened Jones’ complaint pursuant to 28 U.S.C. § 1915(e)(2), dismissed it with prejudice in part and without prejudice in part, and granted Jones leave 2 to amend his complaint within thirty days. In its subsequent order denying Jones’ motion for reconsideration, the District Court reiterated that he could file an amended complaint within thirty days or proceed with his original filing, but that if Jones opted to stand on his original complaint, it would “issue a final order dismissing the case.” Jones filed a notice of intent to stand on his original complaint. The District Court therefore dismissed all of Jones’ federal claims with prejudice and dismissed his state law claim without prejudice, for lack of subject matter jurisdiction. Jones appealed.1 II. We agree with the District Court’s analysis. As an initial matter, the District Court properly concluded that the Eleventh Amendment barred Jones’ official capacity claims against all defendants, who are all state officials, for monetary damages. See Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 309–10 (3d Cir. 2020). The District Court’s dismissal of Jones’ individual capacity claims against Moore was also proper, as a prisoner does not have a free-standing right to an effective grievance process, and an officer’s 1 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and exercise plenary review over the District Court’s order dismissing Jones’ complaint under 28 U.S.C. § 1915(e)(2)(B). See Dooley v. Wetzel, 957 F.3d 366, 373 (3d Cir. 2020). Dismissals for failure to state a claim under § 1915(e)(2)(B) are governed by the same standard applicable to moti

NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ V.O.S. SELECTIONS, INC., PLASTIC SERVICES AND PRODUCTS, LLC, dba Genova Pipe, MICROKITS, LLC, FISHUSA INC., TERRY PRECISION CYCLING LLC, Plaintiffs-Appellees v. DONALD J. TRUMP, in his official capacity as Pres- ident of the United States, EXECUTIVE OFFICE OF THE PRESIDENT, UNITED STATES, PETE R. FLORES, Acting Commissioner for United States Customs and Border Protection, in his official ca- pacity as Acting Commissioner of the United States Customs and Border Protection, JAMIESON GREER, in his official capacity as United States Trade Representative, OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE, HOWARD LUTNICK, in his official capacity as Secretary of Commerce, UNITED STATES CUSTOMS AND BORDER PROTECTION, Defendants-Appellants ______________________ 2025-1812 ______________________ Appeal from the United States Court of International Trade in No. 1:25-cv-00066-GSK-TMR-JAR, Judge Gary S. 2 V.O.S. SELECTIONS, INC. v. TRUMP Katzmann, Judge Timothy M. Reif, and Senior Judge Jane A. Restani. ------------------------------------------------- STATE OF OREGON, STATE OF ARIZONA, STATE OF COLORADO, STATE OF CONNECTICUT, STATE OF DELAWARE, STATE OF ILLINOIS, STATE OF MAINE, STATE OF MINNESOTA, STATE OF NEVADA, STATE OF NEW MEXICO, STATE OF NEW YORK, STATE OF VERMONT, Plaintiffs-Appellees v. PRESIDENT DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, KRISTI NOEM, Secretary of Homeland Security, in her official capacity as Secretary of the Department of Homeland Security, UNITED STATES CUSTOMS AND BORDER PROTECTION, PETE R. FLORES, Acting Commissioner for United States Customs and Border Protection, in his official capacity as Acting Commissioner for U.S. Customs and Border Protection, UNITED STATES, Defendants-Appellants ______________________ 2025-1813 ______________________ Appeal from the United States Court of International Trade in No. 1:25-cv-00077-GSK-TMR-JAR, Judge Gary S. Katzmann, Judge Timothy M. Reif, and Senior Judge Jane A. Restani. ______________________ ON MOTION ______________________ V.O.S. SELECTIONS, INC. v. TRUMP 3 Before MOORE, Chief Judge, LOURIE, DYK, PROST, REYNA, TARANTO, CHEN, HUGHES, STOLL, CUNNINGHAM, and STARK, Circuit Judges. 1 PER CURIAM. ORDER The United States’s motions for a stay of the United States Court of International Trade’s rulings enjoining cer- tain Executive Orders imposing tariffs, the Plaintiffs-Ap- pellees’ oppositions, and the United States’s reply were presented to all circuit judges of this court in regular active service who are not recused or disqualified. Both sides have made substantial arguments on the merits. Having considered the traditional stay factors, see Fed. R. App. P. 8; Nken v. Holder, 556 U.S. 418, 426 (2009), the court con- cludes a stay is warranted under the circumstances. See also Trump v. Wilcox, 605 U.S. ___, 145 S. Ct. 1415, 1415 (2025) (per curiam) (“The purpose of . . . interim equitable relief is not to conclusively determine the rights of the par- ties, but to balance the equities as the litigation moves for- ward.” (quoting Trump v. Int’l Refugee Assistance Project, 582 U.S. 571, 580 (2017)). The court also concludes that these cases present issues of exceptional importance war- ranting expedited en banc consideration of the merits in the first instance. Accordingly, IT IS ORDERED THAT: (1) The motions for a stay pending appeal are granted. (2) All motions for leave to file briefs amicus curiae re- garding the stay motions are granted. (3) These consolidated cases will be heard en banc un- der 28 U.S.C. § 46 and Federal Rule of Appellate Procedure 1 Circuit Judge Newman did not participate. 4 V.O.S. SELECTIONS, INC. v. TRUMP 40(g). The court en banc shall consist of all circuit judges in regular active service who are not recused or disqualified in accordance with the provisions of 28 U.S.C. § 46(c). (4) Within two business days from the issuance of this order, the parties are directed to jointly file a proposed ex- pedited briefing schedule. The proposed briefing schedule should allow for this court to hold oral argument on July 31, 2025 at 10:00 A.M. in Courtroom 201. If the parties cannot agree upon a schedule, the joint submission should include the parties’ alternative proposals.

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MICHAEL DEUSCHEL, No. 24-3129 D.C. No. Plaintiff - Appellant, 3:23-cv-03458-MMC v. MEMORANDUM* CALIFORNIA HEALTH AND HUMAN SERVICES AGENCY; Doctor MARK GHALY, Defendants - Appellees. Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding Submitted May 23, 2025 ** Pasadena, California Before: WARDLAW and OWENS, Circuit Judges, and HINDERAKER, District Judge.*** * 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). *** The Honorable John Charles Hinderaker, United States District Judge for the District of Arizona, sitting by designation.  Michael Deuschel appeals from the district court’s dismissal of his First Amended Complaint (FAC). The district court dismissed the FAC, with prejudice, for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) because the FAC did not comply with Federal Rule of Civil Procedure 8. We have jurisdiction under 28 U.S.C. § 1291. We reverse and remand. We review de novo the district court’s dismissal of the FAC pursuant to 28 U.S.C. § 1915(e) and dismissal under Rule 8. Hebrard v. Nofziger, 90 F.4th 1000, 1006 (9th Cir. 2024) (dismissal under 28 U.S.C. § 1915(e)(2)); In re Dominguez, 51 F.3d 1502, 1508 n.5 (9th Cir. 1995) (dismissal under Rule 8). We review for an abuse of discretion the district court’s dismissal of a complaint without leave to amend. United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1172 (9th Cir. 2016). The district court did not err in dismissing the FAC pursuant to 28 U.S.C. § 1915(e)(2)(B) because the FAC did not comply with Rule 8. See Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058–59 (9th Cir. 2011) (collecting cases affirming dismissal without leave to amend under Rule 8(a) where the complaint is unnecessarily long, repetitive, or confusing). The FAC fails to specify what actions taken by each defendant caused injury in violation of which laws. With respect to dismissal without leave to amend, “court[s] consider[] five 2 24-3129 factors in assessing the propriety of leave to amend—bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint.” United States v. Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011) (citation omitted). As to the fourth factor, futility of amendment, we have explained that “[l]eave to amend is warranted if the deficiencies can be cured with additional allegations that are ‘consistent with the challenged pleading’ and that do not contradict the allegations in the original complaint.” Id. (quoting Reddy v. Litton Indus., Inc., 912 F.2d 291, 296–97 (9th Cir. 1990)). In dismissing the FAC without leave to amend, the district court failed to explicitly consider all the factors for dismissal without leave to amend. With respect to futility, the district court cited the standard set forth in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000)—that leave to amend should be granted unless a pleading “could not possibly be cured by the allegation of other facts”— but failed to identify any reasons for concluding that the FAC could not be cured with additional allegations. See DCD Programs v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (“If a district court believes the plaintiff is not able to state a claim, it should provide written findings explaining this. . . . [I]n the absence of written findings or a record which clearly indicates reasons for the district court’s denial, this court will reverse a denial of leave to amend.”). The district court’s 3 24-3129 observation that it was “unable to discern any attempt in the FAC to revise the complaint in such a way as to cure or even address the deficiencies identified in the Court’s prior screening order” does not suffice as consideration of futility becau

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT HELICOPTER ASSOCIATION No. 24-1008 INTERNATIONAL; SAFARI AVIATION, Agency No. Federal Aviation INC. DBA SAFARI HELICOPTERS Administration HAWAI‘I, MEMORANDUM* Petitioners, v. FEDERAL AVIATION ADMINISTRATION, Respondent. On Petition for Review of an Order of the Federal Aviation Administration Submitted June 5, 2025** Honolulu, Hawaii Before: W. FLETCHER, CHRISTEN, and DESAI, Circuit Judges. Helicopter Association International and Safari Aviation dba Safari Helicopters Hawai‘i (Petitioners) petition for review of the final decision * 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). implementing an Air Tour Management Plan for Hawai‘i Volcanoes National Park (the Volcanoes ATMP) pursuant to 49 U.S.C. § 40128 (the Act). The Federal Aviation Administration (FAA) and the National Park Service (NPS) (collectively, the Agencies) issued the Volcanoes ATMP. The ATMP reduces the number of air tours authorized over the Park to 1,548 tours annually and restricts the routes, days, and hours that air tour operators may fly. The decision issuing the ATMP is a final order of the FAA, and Safari Aviation has its principal place of business in Hawai‘i, so we have jurisdiction pursuant to 49 U.S.C. § 46110(a). See also 49 U.S.C. § 40128(b)(5) (“An [ATMP] developed under this subsection shall be subject to judicial review.”). We review the final order pursuant to the Administrative Procedure Act’s (APA) arbitrary and capricious standard, 5 U.S.C. § 706(2)(A), Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). We deny the petition. The Act obligates the Agencies to satisfy the APA’s notice and comment provisions, 5 U.S.C. § 553. See 49 U.S.C. § 40128(b)(4)(B). And the APA requires the Agencies to “consider and respond to significant comments received during the period for public comment.” Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015). Petitioners argue that the Agencies violated the APA by failing to respond to certain public comments. Specifically, Petitioners contend that the Agencies did 2 24-1008 not address two significant issues raised in public comments: (1) safety concerns regarding the route, time, and altitude restrictions; and (2) concerns that the reduction in the number of annual air tours will limit Park access for the elderly, persons with disabilities, and persons with mobility impairments. Petitioners cite several public comments located in Appendix J of the final Environmental Assessment (EA)1 and submitted during the public scoping process. Petitioners overlook a key portion of the administrative record: the Comment Summary Report located at Appendix L of the final EA and incorporated into the final decision. The Comment Summary Report responds to the specific categories of comments on which Petitioners base their petition. See Bldg. Indus. Ass’n of the Bay Area v. U.S. Dep’t of Com., 792 F.3d 1027, 1034 (9th Cir. 2015) (rejecting argument that agency did not consider economic impacts as “belied by the administrative record”). The Agencies’ FONSI/ROD also explains that the FAA reviewed all safety-related comments and details how the Agencies modified the draft ATMP to address safety concerns. The Agencies’ decision 1 The Act requires the Agencies to conduct an environmental review pursuant to the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332, when developing an ATMP. 49 U.S.C. § 40128(b)(2). As a result, the record of the Agencies’ final action resembles the type of record in most NEPA cases: an EA, a Finding of No Significant Impact (FONSI), and several EA appendices incorporated into the Record of Decision (ROD). This case, however, does not involve NEPA claims. Petitioners challenge only the Agencies’ compliance with the APA’s notice and comment procedures. 3 24-1008 “both acknowledged the comments identified by [Petitioners] and provided a reasoned response which de

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ALEJANDRO ROSAS MORLET, No. 24-1735 Agency No. Petitioner, A215-881-567 v. MEMORANDUM* PAMELA BONDI, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 5, 2025** San Francisco, California Before: CALLAHAN, BADE, and KOH, Circuit Judges. Alejandro Rosas Morlet, a citizen of Mexico, petitions for review of a decision by the Board of Immigration Appeals (“BIA”) dismissing an appeal from an order by an immigration judge (“IJ”) denying his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. Where, as here, the BIA * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel previously granted the parties’ joint motion to submit this matter without oral argument. See Fed. R. App. P. 34(a)(2)(f). adopts and affirms the decision of the IJ and provides additional reasoning, we review both decisions. See Husyev v. Mukasey, 528 F.3d 1172, 1177 (9th Cir. 2008). We deny the petition. The agency determined that Rosas Morlet was not eligible for cancellation of removal because he did not establish that his removal “would result in exceptional and extremely unusual hardship” to his U.S. citizen children under 8 U.S.C. § 1229b(b)(1)(D). We have jurisdiction to review this determination as a mixed question of fact and law, but because “this mixed question is primarily factual,” our “review is deferential.” Wilkinson v. Garland, 601 U.S. 209, 225 (2024).1 The agency’s findings of fact underlying this determination—“[f]or instance, an IJ’s factfinding on credibility, the seriousness of a family member’s medical condition, or the level of financial support a noncitizen currently provides”—are unreviewable. Id. To establish an “exceptional and extremely unusual hardship,” a petitioner “must prove that his citizen relatives would suffer hardship substantially beyond that which would ordinarily be expected to result from” his removal. Chete Juarez v. Ashcroft, 376 F.3d 944, 949 n.3 (9th Cir. 2004) (internal quotation marks and 1 While Wilkinson did not define the “deferential” review required for review of “exceptional and extremely unusual hardship” determinations, 601 U.S. at 225, we recently held that “substantial evidence” review applies, see Gonzalez-Juarez v. Bondi, No. 21-927, slip op. at 11 (9th Cir.). No matter what “deferential” review applies, we would deny the petition. 2 24-1735 citation omitted). Rosas Morlet argues that the agency failed to consider the possible future progression of his daughter’s hypothyroidism and improperly weighed the evidence as to Rosas Morlet’s financial and emotional support for his children. We disagree. The agency acknowledged that Rosas Morlet’s daughter suffers from hypothyroidism, that Rosas Morlet’s children rely upon him financially, and that Rosas Morlet’s removal to Mexico would cause his children emotional hardship. See Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1006 (9th Cir. 2003) (explaining the agency must consider “the ages, health, and circumstances of qualifying relatives” (internal quotation marks and footnote omitted)). The agency also found that Rosas Morlet’s daughter would continue to receive medical treatment in Arizona if Rosas Morlet were removed to Mexico, so did indeed consider the possible future progression of the daughter’s medical condition. The agency ultimately determined that although Rosas Morlet’s removal would impact his children financially and emotionally, those impacts were not “beyond that which would ordinarily be expected to result from” his removal. Chete Juarez, 376 F.3d at 949 n.3 (citation omitted).2 Given the “deferential” standard of review, 2 In a single sentence, Rosas Morlet also argues that “exceptional and extremely unusual hardship . . . is unconstitutionally vague and is extremely subjective.” Because Rosas Morlet does not develop this argument further, we need not address this bare assertion. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We 3 24-1735 Wil