NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH J. FANUCCHI, M.D.,

 Plaintiff - Appellant,

 v.

PATRICK R. DONAHOE, U.S.

Postmaster General,

 Defendant - Appellee.

No. 12-17390

D.C. No. 4:11-cv-00737-SBA

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Saundra B. Armstrong, District Judge, Presiding

Submitted April 17, 2015** 

San Francisco, California

Before: TROTT and GRABER, Circuit Judges, and RESTANI,*** Judge.

 

Plaintiff Joseph J. Fanucchi, M.D., claims that Defendant Patrick R.

Donahoe, U.S. Postmaster General, violated his rights under the Jury System

FILED

APR 21 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

 * This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

 ** The panel unanimously concludes that this case is suitable for decision

without oral argument. Fed. R. App. P. 34(a)(2).

 *** The Honorable Jane A. Restani, Judge for the United States Court of

International Trade, sitting by designation.
Improvement Act (JSIA) of 1978, 28 U.S.C. § 1875, when the United States Postal

Service ("USPS") terminated Plaintiff’s employment contract because he was

selected to serve on a federal grand jury. The district court granted USPS’s motion

to dismiss, holding that sovereign immunity barred Plaintiff’s claims. The district

court did not reach USPS’s alternative arguments that this action is barred by the

statute of limitations and that issue preclusion requires dismissal. We may affirm a

district court’s dismissal of an action on any ground fairly supported by the record. 

Beezley v. Fremont Indem. Co., 804 F.2d 530, 530 n.1 (9th Cir. 1986) (per

curiam). Reviewing de novo, we affirm. Edwards v. Marin Park, Inc., 356 F.3d

1058, 1061 (9th Cir. 2004) (stating the standard of review for dismissal under Fed.

R. Civ. P. 12(b)(6)). 

1. Plaintiff’s claims are barred by the statute of limitations. The JSIA

contains no statute of limitations. 28 U.S.C. § 1875. Federal law provides a fouryear default statute of limitations for civil actions, but that default may not apply

because the governing statute post-dates the JSIA’s enactment. 28 U.S.C.

§ 1658(a). In the absence of a clear statement from Congress regarding the statute

of limitations, federal courts must "borrow" a limitations period from the most

closely analogous state law. N. Star Steel Co. v. Thomas, 515 U.S. 29, 33–35

(1995). The most closely analogous state law is California Labor Code section

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230(a). Because that statute contains no statute of limitations, the applicable

"borrowed" statute of limitations is the three-year default period under California

law. Cal. Civ. Proc. Code § 338(a). Plaintiff’s discrimination claim accrued, at the

latest, on December 27, 2005, when his then-attorney raised it in a letter to USPS. 

Plaintiff did not file this action until February 17, 2011, more than five years later. 

Accordingly, whether we apply the three-year state or the four-year federal statute

of limitations, this action is time-barred.

2. Plaintiff’s claims also must be dismissed because the Postal Service

Board of Contract Appeals ("the Board") found that his "jury service played no

role in the decision to terminate his Contract."1 Plaintiff actually litigated before

the Board whether his jury service motivated USPS to terminate his contract, and

the Board’s determination of that issue was a "critical and necessary" part of its

decision. Town of N. Bonneville v. Callaway, 10 F.3d 1505, 1508 (9th Cir. 1993)

(internal quotation marks omitted). Moreover, the Board acted in a judicial

capacity and resolved disputed issues of fact properly before it, and the parties had

an adequate opportunity to litigate. United States v. Utah Constr. & Mining Co.,

384 U.S. 394, 422 (1966). Although the Board could not award relief directly

1

 We take judicial notice of the Board’s final decision because its content

"can be accurately and readily determined from sources whose accuracy cannot

reasonably be questioned." Fed. R. Evid. 201(b)(2). 

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under the JSIA, it had jurisdiction to decide whether Plaintiff’s jury service

motivated USPS to terminate his contract because that factual issue was at the heart

of his contract claims, which the Board had authority to adjudicate. Therefore,

issue preclusion applies. Because Plaintiff’s "jury service played no role" in

USPS’s decision, Plaintiff cannot state a claim under the JSIA. 

AFFIRMED.

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