Pesnell

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.

The petition for rehearing and the petition for rehearing en banc are DENIED. No further petitions shall be entertained.

OPINION

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…

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 1042), and how our decision follows consistently from our 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 *1045 those same misrepresentations as being among the alleged predicate acts required to establish a pattern of racketeering activity under the RICO…

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 1 That 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. 12764 PESNELL v. ARSENAULT 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…