UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-6620

JEFFREY COHEN,

Petitioner - Appellant,

v.

ROD ROSENSTEIN, United States Attorney; HARRY GRUBER, Assistant United 

States Attorney; JOYCE MCDONALD, Assistant United States Attorney; 

KALLIOPI TSERKIS-MULLINS, Postal Inspector, USPIS; JASON BENDER, 

Special Agent, FBI,

Respondents - Appellees.

Appeal from the United States District Court for the District of Maryland, at Baltimore. 

Ellen L. Hollander, District Judge. (1:16-cv-01346-ELH)

Submitted: January 31, 2020 Decided: February 6, 2020

Before NIEMEYER, WYNN, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jeffrey Brian Cohen, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Jeffrey Cohen appeals the district court’s orders dismissing his civil action pursuant 

to 28 U.S.C. § 1915(e)(2)(B)(ii) (2018) and denying his postjudgment motion.1

 On appeal, 

Cohen argues that the district court procedurally erred in granting Appellees’ motion to 

dismiss without first considering his amended complaint. He also argues that the district 

court abused its discretion in denying his postjudgment motion, which sought to vacate the 

dismissal order and permit the action to proceed on the amended complaint. Finding no 

reversible error, we affirm.

We review the dismissal of an action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) de 

novo and the denial of a Rule 59(e) motion or a Fed. R. Civ. P. 60(b) motion for abuse of 

discretion. Thomas v. Salvation Army S. Territory, 841 F.3d 632, 637 (4th Cir. 2016)

(§ 1915(e)(2)(B)(ii) dismissal); Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir. 2011) (en 

banc) (Rule 60(b) motion); Robinson v. Wix Filtration Corp., 599 F.3d 403, 407 (4th Cir. 

2010) (Rule 59(e) motion). “A district court abuses its discretion if it relies on an error of 

law or a clearly erroneous factual finding.” United States ex rel. Oberg v. Pa. Higher Educ. 

Assistance Agency, 912 F.3d 731, 735 (4th Cir. 2019) (internal quotation marks omitted). 

 1 Although Cohen did not clearly identify both of these orders in his notice of appeal, 

see Fed. R. App. P. 3(c)(1)(B), we find the notice of appeal adequate to establish our 

jurisdiction over both orders, see Clark v. Cartledge, 829 F.3d 303, 305 (4th Cir. 2016); 

Bogart v. Chapell, 396 F.3d 548, 555 (4th Cir. 2005). Further, because—as explained

below—we conclude that Cohen’s postjudgment motion is properly construed as a timely 

Fed. R. Civ. P. 59(e) motion, the notice of appeal is timely as to both orders. See Fed. R. 

App. P. 4(a)(1)(B), (4)(A)(iv).
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Cohen principally asserts that he timely filed his amended complaint, pursuant to 

Houston v. Lack, 487 U.S. 266 (1988) (prison mailbox rule), on August 5, 2018, within the 

time to respond to Appellees’ motion to dismiss established by the court’s Roseboro2

notice. He also asserts that the court misconstrued his postjudgment motion as a Rule 60(b) 

motion, rather than a Rule 59(e) motion, and abused its discretion in denying his request to 

proceed on the amended complaint. 

The undisputed evidence of record—specifically, Cohen’s unsworn declaration 

under penalty of perjury, see 28 U.S.C. § 1746 (2018)—indicates that Cohen’s amended 

complaint should be deemed filed under Houston on August 5, 2018, and his postjudgment 

motion should be deemed filed under Houston on August 9, 2018. Thus, Cohen is correct 

in asserting that his amended complaint was filed before the Roseboro period expired on 

August 6, 2018, and before the district court entered its dismissal order and judgment on 

August 7, 2018. Cohen also is correct in asserting that his postjudgment motion was filed 

within 28 days of the entry of judgment and, thus, was properly construed as a Rule 59(e) 

motion. See Fed. R. Civ. P. 59(e) (providing 28-day filing period); MLC Auto., LLC v. 

Town of S. Pines, 532 F.3d 269, 277 (4th Cir. 2008) (“[I]f a post-judgment motion is filed 

within [the time period prescribed by Rule 59(e)] and calls into question the correctness of 

that judgment it should be treated as a motion under Rule 59(e), however it may be formally 

styled.” (internal quotation marks omitted)). Further, although the court concluded that 

Cohen’s proposed amended claims could be considered in a separate civil action newly 

 2 Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). 
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opened under a different case number, review of those actions reveals that the amended 

complaint at issue in this appeal and the complaint docketed in the new action are, in fact,

distinct documents raising separate claims for relief against separate groups of defendants 

based on separate sets of facts. 

Nevertheless, “we may affirm on any grounds supported by the record, 

notwithstanding the reasoning of the district court.” Kerr v. Marshall Univ. Bd. of 

Governors, 824 F.3d 62, 75 n.13 (4th Cir. 2016). Although Cohen’s complaint is deemed 

filed within the Roseboro period, his own account reveals that it was filed, under Houston, 

well outside the July 23, 2018, deadline to amend the complaint as of right. See Fed. R. 

Civ. P. 15(a)(1). Thus, Cohen would have been required to obtain the court’s leave to 

amend his pleading. See Fed. R. Civ. P. 15(a)(2). 

Although leave to amend should be “freely give[n] when justice so requires,” Fed. 

R. Civ. P. 15(a)(2), “[a] district court may deny a motion to amend when the amendment 

would be prejudicial to the opposing party, the moving party has acted in bad faith, or the 

amendment would be futile.” Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 

(4th Cir. 2010). “A proposed amendment is futile when it is clearly insufficient or frivolous 

on its face,” or “if the claim it presents would not survive a motion to dismiss.” Save Our 

Sound OBX, Inc. v. N.C. Dep’t of Transp., 914 F.3d 213, 228 (4th Cir. 2019) (internal 

quotation marks omitted).

We conclude that Cohen’s proposed amended complaint would be futile. The 

actions Cohen seeks to challenge under the Administrative Procedure Act, 5 U.S.C. §§ 701-

706 (2018) (APA), are not “final agency actions” giving rise to judicial review under 
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5 U.S.C. § 704. See 5 U.S.C. §§ 551(10)-(13), 701(b)(2) (2018); Bennett v. Spear, 520 

U.S. 154, 177-78 (1997); Vill. of Bald Head Island v. U.S. Army Corps of Eng’rs, 714 F.3d 

186, 193 (4th Cir. 2013). And, Cohen’s claim under the Declaratory Judgment Act, 

28 U.S.C. §§ 2201-2202 (2018) (DJA), provides no independent substantive basis for 

relief. See Medtronic, Inc. v. Mirowski Family Ventures, LLC, 571 U.S. 191, 199 (2014); 

CGM, LLC v. BellSouth Telecomms., Inc., 664 F.3d 46, 55-56 (4th Cir. 2011). Because 

Cohen’s amended complaint failed to state any cognizable claim for relief, we find no 

reversible error in the district court’s dismissal of the action or its rejection of Cohen’s 

postjudgment motion.

Accordingly, we affirm the district court’s judgment. We dispense with oral 

argument because the facts and legal contentions are adequately presented in the materials 

before this court and argument would not aid the decisional process.

AFFIRMED