FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID PESNELL, 

Plaintiff-Appellant,

v.

No. 04-56721

JEFFREY ARSENAULT, a natural

D.C. No. person acting under color of

CV-03-07533-ABC federal law; JANET R. LINTZ, a

natural person acting under color  ORDER

of federal law; THOMAS P. AMENDING

GALLAGHER, a natural person OPINION AND

acting under the color of federal AMENDED

law; DOUGLAS J. MORGAN, a OPINION

natural person acting under color

of federal law,

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

Audrey B. Collins, District Judge, Presiding

Submitted October 16, 2006*

Pasadena, California

Filed July 1, 2008

Amended September 15, 2008

Before: Procter Hug, Jr., Harry Pregerson, and

Richard R. Clifton, Circuit Judges.

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

12759
Opinion by Judge Hug;

Concurrence by Judge Clifton

12760 PESNELL v. ARSENAULT
COUNSEL

Ronald J. Tocchini and Jason M. Sherman, Tocchini & Associates PC, Roseville, California, for the plaintiff-appellant. 

Robert I. Lester and Sharla Cerra, Assistant United States

Attorneys, Los Angeles, California, for the defendantsappellees. 

ORDER

The Opinion filed on July 1, 2008, and appearing at 531

F.3d 993 (9th Cir. 2008), is amended as follows: At 531 F.3d

at 996, after the first sentence of the last paragraph, insert the

following as a footnote: “As noted below and in the concurring opinion, Pesnell’s claims, including his constitutional

claims, are barred to the extent that they rest upon the same

misrepresentations alleged in the dismissed Arizona action.”

With this amendment, the panel has voted to deny the petition for rehearing and the petition for rehearing en banc. 

The full court has been advised of the petition for rehearing

en banc and no judge has requested a vote on whether to

rehear the matter en banc. Fed. R. App. P. 35. 

12762 PESNELL v. ARSENAULT
The petition for rehearing and the petition for rehearing en

banc are DENIED. No further petitions shall be entertained.

OPINION

HUG, Circuit Judge: 

This case involves an action brought by Pesnell in California for claims of federal constitutional violations and for

claims of violations of the federal and state civil Racketeer

Influenced and Corrupt Organizations Act (“RICO”). The

principal issue in this case is whether these claims against

employees of the government are barred by a judgment in an

action brought by Pesnell in Arizona against the federal government under the Federal Tort Claims Act (“FTCA”). 

I.

Background

Pesnell long contended that he owned two million acres of

land in California. His claim to title depended upon records

dating back to the Mexican-American War. In 1998, the

United States brought a quiet title action against Pesnell and

others. In 1999, the district court entered judgment for the

United States. That ruling extinguished Pesnell’s claims to

title of the real property. United States v. Sierra Alpine, CV

98-585-ABC (C.D. Cal. 1999). 

In 2000, Pesnell brought an action against the United States

and several federal agencies in the federal district court in

Arizona. Pesnell v. United States, CV 00-0399-JCC (D. Ariz.

2000). In that action, Pesnell brought claims pursuant to the

FTCA, 28 U.S.C. § 1346(b)(1).1 Pesnell’s claims arose from

1That case also involved a claim under the Freedom of Information Act.

The district court dismissed that claim as moot, and it is not involved in

this appeal. 

PESNELL v. ARSENAULT 12763
two incidents. The first incident involved research allegedly

costing $150,000. Pesnell conducted considerable research to

establish his claim to title to the two million acres. Pesnell

loaned this research to federal agents in 1988. The agents

promised to return the research, but never did. Pesnell, therefore, had to reconstruct the research. The second incident

involved his reconstructed research, allegedly costing

$200,000. Federal agents took this research in 1995. The federal district court dismissed all the claims, and this court

affirmed in April 2003. Pesnell v. United States, 64 F. App’x

73 (9th Cir. 2003). 

Pesnell filed the current federal action in September 2003

in the Central District of California against four government

employees. Pesnell’s first amended complaint alleges four

causes of action. The first is a federal civil RICO claim, for

violation of 18 U.S.C. § 1962(c); the second is a state civil

RICO claim, for violation of Arizona Revised Statute section

13-2314.04(A); the third is a Bivens2 constitutional claim, for

violation of Pesnell’s Fourth Amendment right by the defendants based on an unlawful search and seizure of Pesnell’s

person and property; and the fourth is a Bivens claim under

the Fifth Amendment, for the defendants having taken and

kept his property without due process of law. 

The district court granted the government’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) based on

the FTCA’s judgment bar rule set forth in 28 U.S.C. § 2676.

Pesnell appeals, contending that the judgment bar rule does

not apply to this case. 

2

See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388

(1971). 

12764 PESNELL v. ARSENAULT
II.

Judgment Bar Rule

[1] The judgment bar rule of the FTCA provides: 

The judgment in an action under section 1346(b) of

this title shall constitute a complete bar to any action

by the claimant, by reason of the same subject matter, against the employee of the government whose

act or omission gave rise to the claim. 

28 U.S.C. § 2676. 

Pesnell, in his action in Arizona against the United States

Government, brought five FTCA counts alleging unjust

enrichment, constructive trust, conversion, negligence, and

misrepresentation. He also brought claims for wrongful search

and seizure and violation of his due process rights under the

Fourth, Fifth, and Fourteenth Amendments. The five FTCA

counts were dismissed for lack of jurisdiction, which we

affirmed on appeal. Pesnell v. United States, 64 F. App’x 73,

74 (9th Cir. 2003). In Pesnell I, we stated: 

The FTCA does not include a waiver of sovereign

immunity for constitutional tort claims. See Cato v.

United States, 70 F.3d 1103, 1111 (9th Cir. 1995).

While Pesnell could be permitted to amend his complaint to bring his constitutional claims against individual government agents pursuant to Bivens v. Six

Unknown Named Agents, 403 U.S. 388, 91 S. Ct.

1999, 29 L. Ed.2d 619 (1971), any such claims

would be barred by the two-year statute of limitations applicable to Bivens actions in Arizona. See

Jackson v. Chandler, 204 Ariz. 135, 61 P.3d 17, 19

(2003) (en banc). 

PESNELL v. ARSENAULT 12765
Id. at 74-75; see also 28 U.S.C. § 2679(b)(2) (which provides

that the exclusiveness of the FTCA remedy does not apply to

constitutional claims against an employee of the government).

[2] In Cato v. United States, we quoted the Supreme

Court’s decision in FDIC v. Meyer, 510 U.S. 471, 478 (1994),

stating “[T]he United States simply has not rendered itself liable under [the FTCA] for constitutional tort claims.” 70 F.3d

at 1111. The Supreme Court in Meyer also noted that Meyer’s

constitutional tort claim was not cognizable under § 1346(b)

and was properly brought under § 2679(a). Meyer, 510 U.S.

at 478. 

[3] Thus the constitutional claims are not foreclosed by the

statutory bar of § 2676 because those claims could not have

been brought under § 1346(b).3 As we point out in Section III,

these claims that were brought in California are also not

barred by the Arizona statute of limitations. 

[4] The RICO claims were not brought in the FTCA action,

nor could they have been. To bring an action under 28 U.S.C.

§ 1346, the wrongful act must be committed “while acting

within the scope of his office or employment.” Under the federal and state RICO statutes, the prohibited conduct involves

an employee engaged in a pattern of racketeering activity. See

18 U.S.C. § 1962 and Ariz. Rev. Stat. 13-2314.04. An

employee engaged in a pattern of racketeering activity, as

required by the RICO counts, could not be doing so within the

scope of his employment by the federal or state governments.

Thus, the claims could not have been brought as an action

under § 2646(b), as required by the judgment bar statute, 28

U.S.C. § 2676. 

[5] Although Pesnell did not bring a RICO claim in his

3As noted below and in the concurring opinion, Pesnell’s claims, including his constitutional claims, are barred to the extent that they rest upon

the same misrepresentations alleged in the dismissed Arizona action. 

12766 PESNELL v. ARSENAULT
FTCA action, he did bring a claim for misrepresentation,

which was dismissed as part of the judgment against Pesnell

in the FTCA action. The Bivens action in California against

the federal employees for state and federal RICO violations

was based in part upon alleged misrepresentations by the federal employees. The judgment bar of § 2676 applies to “any

action by the claimant, by reason of the same subject matter,

against the employee of the government whose act or omission gave rise to the claim” (emphasis added). In this case,

Pesnell did not bring a claim for misrepresentation in the California action, but his RICO claims were based in part on the

alleged misrepresentations of the federal employees, the same

subject matter involved in the FTCA judgment. Thus, the

aspect of the RICO claims based on the same alleged employees’ misrepresentations is foreclosed by the judgment bar

rule. Pesnell is free to pursue his RICO claims only to the

extent that he can do so without reliance on the same allegations of misrepresentation. 

The concurring opinion analyzes in greater detail the application of the judgment bar rule to this case, including the

application of our authority in Gasho v. United States, 39 F.3d

1420 (9th Cir. 1994). We agree with the concurring opinion.

Because the California district court dismissed all of Pesnell’s

claims on the basis of the judgment bar rule, it did not discuss

the adequacy of the pleadings for the constitutional claims or

the federal and state RICO claims. These matters should be

appropriately addressed on remand. This would include a recognition that the portion of the RICO claims predicated on the

same alleged misrepresentation that were the subject of Pesnell I would be barred. 

III.

Timeliness of the Bivens Claims

[6] Because the California district court dismissed Pesnell’s

claims on the basis of the judgment bar, it also did not deterPESNELL v. ARSENAULT 12767
mine when the California statute of limitations period accrued

nor did it determine the applicability of equitable tolling or

equitable estoppel. Either of those doctrines may extend the

time for filing under the statute of limitations and involve

determination of factual matters. For this reason, such determination is not ordinarily amenable to resolution under Rule

12(b)(6). “In fact, a complaint cannot be dismissed unless it

appears beyond doubt that the plaintiff can prove no set of

facts that would establish the timeliness of the claim.” Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1207 (9th

Cir. 1995). 

We conclude that this court’s opinion in the Arizona action

did not resolve the issue of timeliness. After concluding that

all of the FTCA claims were dismissed for lack of jurisdiction

the opinion in the Arizona action stated: 

While Pesnell could be permitted to amend his complaint to bring his constitutional claims against individual government agents pursuant to Bivens v. Six

Unknown Named Agents, . . . any such claims would

be barred by the two-year statute of limitations applicable to Bivens actions in Arizona. 

64 F. App’x at 75 (citations omitted). 

[7] The most significant aspect of this statement is that it

pertains to Bivens claims that would be barred by the statute

of limitations “in Arizona.” This Bivens action is brought in

the State of California. “Although federal law determines

when a Bivens claim accrues, the law of the forum state determines the statute of limitations for such a claim. In California,

the statute of limitations could be either one or two years.4

4On January 1, 2003, California’s statute of limitations applicable to

§ 1983 actions changed from one-year to two-years. Cal. Civ. Proc. Code

§ 335.1. The statute is not retroactive. See Maldonado v. Harris, 370 F.3d

945, 954-55 (9th Cir. 2004) (holding that under California law, the exten12768 PESNELL v. ARSENAULT
Tolling provisions for Bivens claims are also borrowed from

the forum state.” Papa v. United States, 281 F.3d 1004, 1009

(9th Cir. 2002). The issue for the California district court on

remand is whether the California statute of limitations bars

the claims. The issue of timeliness must be resolved on

remand applying California law. 

IV.

Motion for Recusal 

In this case, Pesnell filed a Motion for Recusal alleging that

Judge Collins displayed partiality because: (1) she would be

a key witness regarding misrepresentations allegedly made by

Assistant U.S. Attorney Donna Ford during the Sierra Alpine

case; (2) Judge Collins’s clerk, acting at Judge Collins’s

direction, instructed Pesnell to leave the courtroom “without

apparent cause”; (3) Judge Collins issued Pesnell an order to

show cause as to why his actions should not be dismissed for

lack of prosecution; and (4) Judge Collins allegedly knew

facts of Sierra Alpine from United States v. Emerald Financial, a case she presided over earlier. 

[8] The denial of a recusal motion is reviewed for abuse of

discretion. Jorgensen v. Cassiday, 320 F.3d 906, 911 (9th Cir.

2003). Under 28 U.S.C. § 144, if “the judge before whom the

matter is pending has a personal bias or prejudice either

against him or in favor of any adverse party, . . . [he] shall

proceed no further . . . .” Under 28 U.S.C. § 455(a), “[a]ny . . .

sion of the personal injury statute of limitations will not apply to claims

already time-barred). But see Cal. Civ. Proc. Code § 335.1, statutory notes

(c) & (d) (indicating that claims not already barred on September 10, 2002

would benefit from the extended statute of limitations). Which statute of

limitations applies in Pesnell’s case is left for the district court to determine on remand, as is the question of whether the statute of limitations for

Pesnell’s claim is extended by the application of equitable tolling or equitable estoppel. 

PESNELL v. ARSENAULT 12769
judge . . . shall disqualify himself in any proceeding in which

his impartiality might reasonably be questioned.” Under both

recusal statutes, the substantive standard is “ ‘[W]hether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be

questioned.’ ” United States v. Hernandez, 109 F.3d 1450,

1453 (9th Cir. 1997) (quoting United States v. Studley, 783

F.2d 934, 939 (9th Cir. 1986)). 

[9] In Liteky v. United States, 510 U.S. 540 (1994), the

Supreme Court held that the alleged bias must usually stem

from an extrajudicial source. Id. at 554-56. The Court held

that:

First, judicial rulings alone almost never constitute a

valid basis for a bias or partiality motion. In and of

themselves . . . they cannot possibly show reliance

upon an extrajudicial source . . . . Second, opinions

formed by the judge on the basis of facts introduced

or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute

a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that

would make fair judgment impossible. Thus, judicial

remarks during the course of a trial that are critical

or disapproving of, or even hostile to, counsel, the

parties, or their cases, ordinarily do not support a

bias or partiality challenge. They may do so if they

reveal an opinion that derives from an extrajudicial

source; and they will do so if they reveal such a high

degree of favoritism or antagonism as to make fair

judgment impossible. 

Id. at 555 (internal citations omitted). However, “expressions

of impatience, dissatisfaction, annoyance, and even anger” are

not grounds for establishing bias or impartiality, nor are a

judge’s efforts at courtroom administration. Id. at 555-56. 

12770 PESNELL v. ARSENAULT
[10] Judge Snyder, who presided over the recusal hearing,

denied Pesnell’s motion for recusal finding that “plaintiff does

not argue that the presiding judge should be disqualified

based upon any bias developed outside a judicial proceeding”

and thus did not meet the Liteky standard. Additionally, Judge

Snyder found that Pesnell failed to “demonstrate any such

‘deep-seated favoritism that would make fair judgment

impossible.’ ” Moreover, Judge Snyder found the contention

that Judge Collins is “likely to be a material witness in the

proceeding” under 28 U.S.C. § 455(b)(5)(iv) to be without

merit because there is no showing that she would be required

to be a witness as to any material fact in the action. The district court did not abuse its discretion in denying the recusal

motion.

V.

Conclusion

The district court’s dismissal under Federal Rule of Civil

Procedure 12(b)(6) is reversed and remanded for further proceedings. The denial of the motion for recusal of the district

judge is affirmed. Each party shall bear its own costs on

appeal. 

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED. 

CLIFTON, Circuit Judge, concurring: 

I concur in the majority opinion. I add these comments to

explain more fully why a portion of Plaintiff David Pesnell’s

current claim is foreclosed by the judgment bar under 28

U.S.C. § 2676, as my colleagues agree (see majority opinion,

at 12767), and how our decision follows consistently from our

PESNELL v. ARSENAULT 12771
decision in Gasho v. United States, 39 F.3d 1420 (9th Cir.

1994). 

Pesnell’s first action, brought in the District of Arizona

against the federal government, included a claim for misrepresentation. That claim, like the others, was dismissed for lack

of jurisdiction, the court concluding that the federal government had not waived sovereign immunity. Our court affirmed

that dismissal. Pesnell v. United States, 64 Fed. Appx. 73 (9th

Cir. 2003). 

Pesnell’s current lawsuit does not include a separate cause

of action for misrepresentation as such, but it repeats the misrepresentation allegations as part of claims under the federal

RICO statute and its Arizona state counterpart. The First

Amended Complaint explicitly identifies those same misrepresentations as being among the alleged predicate acts

required to establish a pattern of racketeering activity under

the RICO statute. 

To the extent that Pesnell’s current action states claims

against the federal agents based upon the same misrepresentations alleged in the first lawsuit, those claims are barred by 28

U.S.C. § 2676. That statute provides: “The judgment in an

action under section 1346(b) of this title shall constitute a

complete bar to any action by the claimant, by reason of the

same subject matter, against the employee of the government

whose act or omission gave rise to the claim.” The statute

does not limit the bar to identical legal theories or causes of

action. As a result, since judgment was entered against Pesnell on his misrepresentation claim in the first action, he is

permitted to pursue RICO claims in the current action only to

the extent he can do so based on factual allegations separate

from the misrepresentations complained about in the first lawsuit. 

This result is consistent with our decision in Gasho, a complicated case in which our court considered the appeals of two

12772 PESNELL v. ARSENAULT
separate actions filed by the same plaintiffs. 39 F.3d at 1425.

The first action was an FTCA action against the federal government for false arrest and false imprisonment, intentional

infliction of emotional distress, and abuse of process. Id. at

1427. The district court granted the government summary

judgment as to most of the claims and dismissed one for failure to state a claim. Id. The plaintiffs then filed a Bivens

action against individual federal employees, specifically Customs agents, claiming violation of Fourth and Fifth Amendment rights. Id. at 1425, 1427. The district court dismissed the

Bivens action based upon the first lawsuit and the § 2676

judgment bar. Gasho, 39 F.3d at 1427. Both dismissals were

appealed, and our court considered the two appeals together.

Id. at 1425. 

We affirmed the dismissals by the district court in part, but

also reversed them in part, remanding some claims for further

proceedings. Id. at 1439. Gasho affirmed the dismissal of

some of the Bivens claims asserted against the Customs

agents pursuant to the § 2676 judgment bar, based upon the

prior dismissals of similar claims against the government on

the same ground that Pesnell I dismissed some of Pesnell’s

claims against the government — that the court lacked jurisdiction over the particular claim because sovereign immunity

had not been waived. In Gasho we applied § 2676 to bar

related claims against the individual federal agents, in two

separate rulings. 

The first ruling related to the district court’s grant of summary judgment in favor of the government on the claim by the

Gasho plaintiffs for intentional infliction of emotional distress. 39 F.3d at 1432. The Gasho court reviewed each factual

basis for this claim separately. Id. at 1432-36. On the part of

the claim arising from the seizure of the plaintiffs’ aircraft,

Gasho held that “[t]he actions of the Customs agents, the seizure and detention of the aircraft, are precisely the kinds of

acts that Congress exempted from liability in § 2680(c).” Id.

at 1433. The Gasho court then held that this determination

PESNELL v. ARSENAULT 12773
precluded the effort of the plaintiffs to pursue a similar claim

against the individual federal employees, because of the

FTCA judgment bar. Id. at 1438. 

The second ruling involved Gasho’s resolution of the plaintiffs’ abuse of process claim. The district court had dismissed

this claim under Fed. R. Civ. P. Rule 12(b)(6), ruling that the

plaintiffs had failed to state a claim under Arizona tort law.

Gasho, 39 F.3d at 1436. Instead of analyzing the relevant Arizona tort law, Gasho upheld the district court on the grounds

that “[t]he tortious acts alleged by the Gashos involved detention of goods and merchandise by Customs and, therefore, the

claim is barred under the FTCA’s exemption for Customs

detentions contained in 28 U.S.C. § 2680(c).” Id. Gasho also

gave this ruling preclusive effect, explicitly stating that the

court “reject[s] the appellants’ argument that the dismissal of

the abuse of process claim for failure to state a claim is not

a ‘judgment’ on the merits under 28 U.S.C. § 2676. In any

case, the claim is barred by the Customs exception of 28

U.S.C. § 2680(c).” Id. at 1438 n.17 (citation omitted). 

In both of these instances, the government prevailed

because the court did not have subject matter jurisdiction

absent a waiver of sovereign immunity. Even though the decisions were not based upon adjudication of the factual merits

of the claims, we held in Gasho that they triggered the FTCA

judgment bar, such that the plaintiffs’ similar claims against

the individual employees were precluded. 

Pesnell I rejected the misrepresentation claim brought by

Pesnell against the government because 28 U.S.C. § 2680(h)

specifically carves out misrepresentation from the FTCA’s

waiver of sovereign immunity. See 64 Fed. Appx. at 74 (stating that “[t]he FTCA specifically exempts claims for misrepresentation from its waiver of sovereign immunity” and citing

FDIC v. Craft, 157 F.3d 697, 707 (9th Cir. 1998)). Just as

Gasho read § 2676 as barring any additional actions against

individual federal agents arising from the seizure of the

12774 PESNELL v. ARSENAULT
Gashos’ plane, because § 2680(c)’s exemption for Customs

detentions foreclosed any liability for this seizure, so Pesnell

I’s ruling on § 2680(h) triggers application of the judgment

bar against any further litigation targeting the individual

agents as defendants based on the agents’ alleged misrepresentations. 

The judgment bar does not prevent Pesnell from bringing

his current RICO claims based on different factual allegations. In particular, Gasho does not require that the judgment

bar be applied to Pesnell I’s dismissals of his conversion

claim, though it could be argued that the current lawsuit

duplicates that factual assertion from the first lawsuit. With

regard to Pesnell’s claim for conversion, the dismissal

stemmed from a failure to exhaust. 64 Fed. Appx. at 74. The

failure to exhaust was not a permanent problem, such as the

absolute non-existence of a waiver of sovereign immunity,

but rather was a defect that could be cured. It reflected only

a failure to conform to the conditions placed on an existent

waiver of sovereign immunity. Although these dismissals and

the one relating to misrepresentation all fall under the broad

heading of “dismissals for lack of jurisdiction,” there is a difference between them that is material. When Congress explicitly carves out an exception to its waiver of sovereign

immunity, it is flatly rejecting liability. When Congress

waives sovereign immunity but imposes exhaustion requirements, it is accepting possible liability and channeling the

claims in a specific way. Rulings falling into the first category

constitute judgments for § 2676, while rulings in the second

category do not. That permits the judgment bar to serve the

two purposes our case law has enunciated, preventing dual

recoveries and duplicate lawsuits, Gasho, 39 F.3d at 1437;

Kreines v. United States, 959 F.2d 834, 838 (9th Cir. 1992).

At the same time it keeps § 2676 from being unduly harsh to

plaintiffs bringing claims for harms that Congress has agreed,

in principle, are cognizable. 

Also exempt from the operation of the § 2676 judgment bar

are claims denied in Pesnell I because the FTCA was silent

PESNELL v. ARSENAULT 12775
on the claim and no other waiver of sovereign immunity was

adduced, not because the FTCA contained a specific waiver

exception. The judgment bar relates only to a “judgment in an

action under section 1346(b) of this title,” 28 U.S.C. § 2676,

and these claims did not constitute actions under 28 U.S.C.

§ 1346(b). Indeed, the claims did not fall under any statute.

See Pesnell I, 64 Fed. Appx. at 74-75 (holding that Pesnell’s

equitable claims cannot fit under the Administrative Procedure Act’s waiver and he had “not established an independent

basis of federal jurisdiction,” as well as noting that the FTCA

did not contain a waiver for constitutional claims). That is

why the claims to that effect filed against the government

failed. But the text of § 2676 does not cover these other legal

theories, outside § 1346(b), and thus the § 2676 judgment bar

should not apply to similar claims filed against the individual

agents. 

With this elaboration, I join the majority opinion. 

12776 PESNELL v. ARSENAULT