*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-20335

Summary Calendar

_____________________

LEON JOHNSON,

Plaintiff-Appellant,

versus

THE DEPARTMENT OF THE ARMY; ET AL.,

Defendants,

THE DEPARTMENT OF THE ARMY,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-98-CV-3800)

_________________________________________________________________

December 22, 2000

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Leon Johnson, pro se, appeals the dismissal, pursuant to FED.

R. CIV. P. 12(b)(6) and 56, of his civil action against the

Department of the Army. He contends the district court erred by

treating his action as an administrative appeal because, based on

his first amended complaint, his action was a civil rights action.

Johnson’s first amended complaint sought injunctive relief for the
2

Army’s claimed failure to provide certain records in violation of

his equal protection and due process rights. Of course, it

superseded his original complaint. E.g., King v. Dogan, 31 F.3d

344, 346 (5th Cir. 1994).

“Federal courts, both trial and appellate, have a continuing

obligation to examine the basis for their jurisdiction.” MCG, Inc.

v. Great W. Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990). “The

issue may be raised by parties, or by the court sua sponte, at any

time.” Id. 

“The United States is immune from suit except as it waives its

sovereign immunity.” Wilkerson v. United States, 67 F.3d 112, 118

(5th Cir. 1995). “Congress sets forth the terms of those waivers

and courts may not exercise subject matter jurisdiction over a

claim against the federal government except as Congress allows.”

Id. (emphasis added). 

Johnson’s complaint fails to identify any statutory provision

waiving the United States’ sovereign immunity with respect to his

action. We will presume it was brought pursuant to the waiver of

immunity set forth in 5 U.S.C. § 702. See Rothe Dev. Corp. v.

United States Dep’t of Defense, 194 F.3d 622, 624 (5th Cir. 1999).

“[A] waiver [of immunity] as to injunctive relief ... can be found

in § 702 of the Administrative Procedure Act [APA], which permits

parties ‘suffering legal wrong because of agency action’ to file an
3

‘action in a court of the United States seeking relief other than

money damages’”. Id. (quoting 5 U.S.C. § 702).

However, the APA does not make every action by an agency

subject to judicial review. See Taylor-Callahan-Coleman Counties

Dist. Adult Prob. Dep’t v. Dole, 948 F.2d 953, 956 (5th Cir. 1991).

“Section 704 of that Act limits judicial review to ‘[a]gency action

made reviewable by statute and [to] final agency action for which

there is no adequate remedy in a court...." Id. (quoting 5 U.S.C.

§ 704). Johnson’s complaint did not allege, and there is no

indication that, the Army’s alleged conduct was made reviewable by

statute or constituted a final agency action. See id. at 957-59.

In the light of the foregoing, Johnson has not established

that the Army waived its sovereign immunity from suit. See id. at

956. The judgment is AFFIRMED on the alternative ground of lack of

subject-matter jurisdiction. See Sojourner T v. Edwards, 974 F.2d

27, 30 (5th Cir. 1992) (court of appeals may affirm judgment on any

basis supported by the record), cert. denied, 507 U.S. 972 (1993).

Additionally, Johnson is warned that it is inappropriate to

include derogatory comments about a district judge in documents

filed with this court. Such comments invite the documents in which

they are contained being stricken, as well as other sanctions. See

Theriault v. Silber, 574 F.2d 197, 197 (5th Cir. 1978).

AFFIRMED; SANCTIONS WARNINGS ISSUED