                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 20 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JAMES W. FORSYTHE, M.D.;                         No. 11-16511
EARLENE FORSYTHE,
                                                 D.C. No. 3:10-cv-00508-ECR-
              Plaintiffs - Appellants,           VPC

  v.
                                                 MEMORANDUM *
UNITED STATES OF AMERICA; JOHN
ZELINSKY,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                  Edward C. Reed, Senior District Judge, Presiding

                      Argued and Submitted December 7, 2012
                             San Francisco, California

Before: SILVERMAN, GOULD, and CHRISTEN, Circuit Judges.

       Dr. James Forsythe and his wife, Earlene Forsythe, appeal the district court’s

dismissal with prejudice of their civil claims against the United States and Food

and Drug Administration (“FDA”) Agent John Zelinsky arising from the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
investigation and unsuccessful criminal prosecution of Dr. Forsythe for introducing

an unapproved new drug into interstate commerce in violation of 21 U.S.C. §§

331(d) and 333(a)(2) and for knowingly distributing human growth hormone in

violation of 21 U.S.C. § 333(e). The first count was dismissed by the United States

District Judge in the criminal case after evidence was produced that Bio-Tropin

prescribed by Dr. Forsythe was not an unapproved new drug. The trial of the

second count resulted in a verdict for Dr. Forsythe.

      After Dr. Forsythe defeated the criminal charges, he sought a civil remedy.

Dr. Forsythe and his wife first brought an action in the Northern District of

California asserting a large number of claims. That action was dismissed, with

claims rejected mostly for procedural reasons, such as the applicable statute of

limitations and a failure to exhaust administrative remedies. Dr. Forsythe and his

wife, Earlene, later sued in the District of Nevada, raising many of the same claims

that had been addressed without success in their first lawsuit. The district court

dismissed all claims brought in this suit on the pleadings, for largely procedural

reasons, such as statute of limitations and res judicata. Dr. Forsythe and his wife

timely appealed, and we must decide if their action was properly dismissed.

Because we conclude that the district court lacked jurisdiction to hear any of

Plaintiffs’ claims, we affirm the district court’s dismissal of Plaintiffs’ action.


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      We discuss first each claim against the United States that was dismissed but

brought to us on this appeal. These include claims of negligence, negligent

entrustment, malicious prosecution, abuse of process, and a claim for declaratory

and injunctive relief. We thereafter discuss the claims asserted against Agent

Zelinsky that were dismissed by the district court and brought to us on appeal.

These are Bivens claims asserting violations of constitutional rights.

      Plaintiffs challenge the district court’s dismissal of their negligence and

negligent entrustment claims against the United States, which the district court

concluded were barred by the two-year statute of limitations. See 28 U.S.C. §§

2401(b), 2675(a); see also Jerves v. United States, 966 F.2d 517, 518–19 (9th Cir.

1992) (stating that under the Federal Tort Claims Act, which waives the sovereign

immunity of the United States for some tort actions, a claim is barred unless the

plaintiff presents it to the appropriate federal agency within two years of accrual).

Plaintiffs contend that the district court miscalculated the accrual date of their

negligence-related injuries because they did not discover the extent of the

government’s negligence until trial. But we conclude that Plaintiffs had reason “to

know of the[ir] injur[ies]” when Dr. Forsythe was indicted on September 27, 2006.

See Hensley v. United States, 531 F.3d 1052, 1056 (9th Cir. 2008) (quoting Gibson

v. United States, 781 F.2d 1334, 1344 (9th Cir. 1986)) (stating the general rule for


                                           3
when a claim accrues and noting that accrual does not await a plaintiff’s awareness

of the government’s involvement). And the district court did not abuse its

discretion in deciding that equitable tolling did not apply. See Hensley, 531 F.3d at

1056–58 (stating the standards for equitable tolling). Because Plaintiffs did not

first attempt to present their claims to the administrative agency until April 2009,

we hold that the statute of limitations bars their claims.

      Dr. Forsythe next challenges the dismissal of his malicious prosecution and

abuse of process claims against the United States, which the district court also

rejected as barred by the two-year statute of limitations. On de novo review we

conclude that the correct accrual date for these claims was November 6, 2007,

when the remaining criminal charge against Dr. Forsythe was dismissed. See id.

(stating that the court reviews de novo a district court’s decision as to whether the

statute of limitations bars a claim). Dr. Forsythe contends that he satisfies the

statute of limitations with this accrual date because he first presented his claims to

the Department of Health and Human Services on April 27, 2009. But because the

form given to the agency did not include a “sum certain,” it was labeled “invalid”

in a letter to Plaintiffs’ counsel. For this reason, we conclude that the claims were

not presented to the agency until the second, corrected form, including a specified

damage amount, was filed on November 13, 2009. See Blair v. Internal Revenue


                                           4
Serv., 304 F.3d 861, 864 (9th Cir. 2002) (stating that “[a] claim is deemed

presented for purposes of [the FTCA statute of limitations] when a party files (1) a

written statement sufficiently describing the injury . . . , and (2) a sum certain

damages claim” (internal quotation marks and citations omitted)). Because these

claims were presented more that two years after the date of accrual, they are

likewise barred by the statute of limitations and were properly dismissed by the

district court.

       Plaintiffs next challenge the dismissal of their claim for declaratory and

injunctive relief against the United States, which the district court dismissed for

failure to state a claim upon which relief can be granted. Plaintiffs try to refashion

their claim as seeking statutory interpretation instead of a restraint on prosecution.

But this contention is unsupported by the complaint, and we affirm on the same

grounds as the district court: We do not have jurisdiction to enjoin enforcement

proceedings under the Federal Food, Drug, and Cosmetic Act. See Ewing v.

Mytinger & Casselberry, Inc., 339 U.S. 594, 601–02 (1950); see also Steiner v.

Hocke, 272 F.2d 384, 385 (9th Cir. 1959) (per curiam) (“[C]ourts of equity [do]

not ordinarily restrain criminal protections.”).

       Plaintiffs finally challenge the dismissal of their Bivens claims against FDA

Agent Zelinsky, which the district court held were barred by res judicata. Plaintiffs


                                            5
contend that these claims are not barred because the Northern District of

California, where these claims were first filed, dismissed them for failure to satisfy

the statute of limitations “without leave to amend” but did not specify that the

dismissal was with prejudice. See Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th

Cir. 2002) (noting that the phrase “final judgment on the merits” is synonymous

with “dismissal with prejudice”). Plaintiffs allege such a dismissal did not

constitute a final judgment on the merits. See Owens v. Kaiser Found. Health

Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (stating that there must be a final

judgment on the merits before res judicata applies). But, in this circuit, res judicata

applies to a previous dismissal based on statute-of-limitations grounds unless the

effect of the bar would be unfair. See In re Marino, 181 F.3d 1142, 1144–45 (9th

Cir. 1999). Unfairness results where the statute of limitations that would apply in

the subsequent action is both different from and more generous than the one that

applied in the prior action. See, e.g., id.; see also Semtek Int’l, Inc. v. Lockheed

Martin Corp., 531 U.S. 497, 504 (2001); Zhang v. Dep’t of Labor & Immigration,

331 F.3d 1117, 1119 (9th Cir. 2003). We conclude that there is no unfairness here

because the statute of limitations that applies in Bivens actions is equivalent to the

period applicable to personal injury actions within the forum state, Van Strum v.

Lawn, 940 F.2d 406, 410 (9th Cir. 1991), and both states where this action was


                                           6
filed have two-year statutes of limitations, see Cal. Civ. Proc. Code § 335.1 (West

2012); Nev. Rev. Stat. § 11.190(4) (2012). The three Bivens claims against Agent

Zelinsky were barred by res judicata and properly dismissed.

      The pending motion for judicial notice is granted.

      AFFIRMED.




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