                                                                            FILED
                            NOT FOR PUBLICATION                             AUG 04 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


VERNON WENDELL RISBY,                            No. 13-57035

               Plaintiff - Appellant,            D.C. No. 8:13-cv-00346-CJC-JPR

 v.
                                                 MEMORANDUM*
UNITED STATES OF AMERICA; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                    Cormac J. Carney, District Judge, Presiding

                              Submitted July 26, 2016**

Before:        SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.

      Vernon Wendell Risby appeals pro se from the district court’s judgment

dismissing his action alleging federal claims in connection with the revocation of

his security clearance. We have jurisdiction under 28 U.S.C. § 1291. We review


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument, and denies Risby’s requests for oral argument set forth in
his opening and reply briefs. See Fed. R. App. P. 34(a)(2).
de novo. Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (dismissal under Fed.

R. Civ. P. 12(b)(6)); Dorfmont v. Brown, 913 F.2d 1399, 1400-01 (9th Cir. 1990)

(dismissal for lack of subject matter jurisdiction). We affirm.

      The district court properly dismissed Risby’s due process claim because

Risby failed to allege facts sufficient to show that he had a protected liberty or

property interest in his security clearance. See Dorfmont, 913 F.2d at 1403-04 (no

due process claim arising out of revocation of a security clearance because there is

no liberty or property interest in a security clearance).

      The district court properly dismissed Risby’s claim alleging a violation of

Executive Order No. 12968 because it does not create a private right of action. See

Exec. Order No. 12968, 60 Fed. Reg. 40245, § 7.2(e) (Aug. 2, 1995) (“This

Executive order is . . . not intended to, and does not, create any right to

administrative or judicial review, or any other right or benefit or trust

responsibility, substantive or procedural, enforceable by a party against the United

States, its agencies or instrumentalities, its officers or employees, or any other

person.”). Risby’s contention that Legal Aid Society of Alameda County v.

Brennan, 608 F.2d 1319 (9th Cir. 1979), warrants a different conclusion is

unpersuasive because Brennan concerns a different executive order.

      The district court properly dismissed Risby’s claims under the Federal Tort


                                            2                                    13-57035
Claims Act (“FTCA”) because Risby failed to allege facts sufficient to show that

defendants violated a state tort law. See Millbrook v. United States, 133 S. Ct.

1441, 1443 (2013) (FTCA waives the government’s sovereign immunity from tort

suits, including those alleging abuse of process and deceit against federal law

enforcement officers); Hebbe, 627 F.3d at 341-42 (although pro se pleadings are to

be liberally construed, a plaintiff must still present factual allegations sufficient to

state a plausible claim for relief).

       The district court did not abuse its discretion by dismissing Risby’s

complaint without leave to amend because amendment would be futile. See

Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (dismissal of a pro se

complaint without leave to amend is proper “if it is absolutely clear that the

deficiencies of the complaint could not be cured by amendment” (citation and

internal quotation marks omitted)); Chappel v. Lab. Corp. of Am., 232 F.3d 719,

725 (9th Cir. 2000) (standard of review).

       Risby’s contention that the district court converted defendants’ motion to

dismiss into a motion for summary judgment is unpersuasive.

       AFFIRMED.




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