                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 28 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

BRYAN JAMES STROTHER, Sgt.,                      No. 18-15244
California Army National Guard,
                                                 D.C. No. 2:16-cv-00255-TLN-CKD
              Plaintiff-Appellant,

 v.                                              MEMORANDUM*

DAVID S. BALDWIN, Adjutant General,
State of California National Guard; MIKE
MCCORD, Pentagon Comptroller;
DEFENSE FINANCE AND
ACCOUNTING SERVICES; UNITED
STATES DEPARTMENT OF DEFENSE,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Eastern District of California
                     Troy L. Nunley, District Judge, Presiding

                        Argued and Submitted May 13, 2019
                               Seattle, Washington

Before: HAWKINS, W. FLETCHER, and BENNETT, Circuit Judges.

      In 2007, a recruiter promised Sergeant Bryan Strother a bonus and student

loan repayment if he reenlisted in the California Army National Guard (“CA


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
ARNG”). Strother reenlisted, received the bonus and part of the loan repayment,

and was deployed to Iraq. Years later, the military determined that Strother was

not entitled to his reenlistment incentives and began “recouping” them from his

pay. Roughly 1,400 other CA ARNG members were subject to similar recoupment

efforts. An additional 16,000 members were potentially subject to such efforts.

      In February 2016, Strother filed a class action complaint against the

Adjutant1 General of CA ARNG (David Baldwin) and the Pentagon Comptroller

(Michael McCord) (collectively “Defendants”), in their official and individual

capacities. The complaint sought injunctive, declaratory, and monetary relief

based on five claims: (I) “failure to train” pursuant to 42 U.S.C. § 1983;

(II) “breach/impairment of contracts”; (III) “intentional misrepresentation”;

(IV) “deceit or intentional fraud”; and (V) “concealment fraud.”

      After Strother filed his complaint, Congress passed legislation that resulted

in the military ceasing its recoupment efforts and returning all previously recouped

funds to Strother and most other CA ARNG members.

      Defendants moved to dismiss the action. The district court found that none

of Strother’s claims were moot but dismissed each claim on other grounds, as



      1
        Some filings incorrectly state that Baldwin’s title is “Adjunct General.” His
proper title is “Adjutant General.”
                                          2
described below. The district court dismissed Strother’s complaint with leave to

amend all but the contract claim (Claim II). Strother chose not to amend the

complaint and the district court entered final judgment for Defendants. This appeal

followed. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

                                        A. Mootness

             The district court found that none of Strother’s causes of action is

moot because there are possible nominal damages under Counts I and II and

possible damages beyond the return of the recouped money under Counts III-V.

We agree. Even nominal damages suffice to prevent dismissal for mootness. See

Jacobs v. Clark Cty. Sch. Dist., 526 F.3d 419, 425-26 (9th Cir. 2008).

                                         B. Claim I

             “The first step in any [§ 1983] claim is to identify the specific

constitutional right allegedly infringed.” Albright v. Oliver, 510 U.S. 266, 271

(1994) (plurality opinion). On appeal, Strother argues that his § 1983 claim (Claim

I) alleges a due process violation of CA ARNG members’ contractual right to the

bonuses described in their reenlistment agreements. The district court found that

Claim I does not clearly allege such a due process violation, and that even if it did,

Strother’s § 1983 claim would fail as a matter of law. We agree. Strother has

failed to identify a constitutional right to which his § 1983 claim could attach


                                           3
because, as we discuss further in relation to Claim II, soldiers do not have a

contractual right to their reenlistment bonuses.

                                         C. Claim II

             Claim II alleges that Defendants breached their contractual obligations

to CA ARNG members “by illegally recouping monies.” The district court

properly dismissed this claim under Rule 12(b)(6).

             In Bell v. United States, 366 U.S. 393 (1961), the Supreme Court held

that “common-law rules governing private contracts have no place in the area of

military pay.” Id. at 401. The Supreme Court applied this principle to military

bonuses in United States v. Larionoff, 431 U.S. 864 (1977). Larionoff represented

a class of U.S. Navy members seeking payment of reenlistment bonuses under the

Variable Re-Enlistment Bonus (“VRB”) program as it existed at the time they

reenlisted. Id. at 865. The Court held that Larionoff and the class were entitled to

the bonuses. The Court based its holding solely on the statutes and regulations

governing the VRB program. The Court did not hold that class members had a

contractual right to their bonuses. In fact, the Court reaffirmed that “a soldier’s

entitlement to pay is dependent upon statutory right.” Id. at 869 (quoting Bell, 366

U.S. at 401). As Strother confirmed at oral argument, he does not claim that his

bonus was authorized by statute. Oral Argument at 10:59, Strother v. Baldwin, No.


                                           4
18-15244 (9th Cir. May 13, 2019). His contract claim (Claim II) was thus properly

dismissed with prejudice under Bell and Larionoff.

                                      D. Claims III-V

             Strother’s remaining three claims sound in fraud. To the extent that

Strother brings Claims III-V against Defendants in their official capacities, he must

identify an applicable waiver of sovereign immunity. The Federal Torts Claim Act

(“FTCA”) is the only relevant waiver and it does not apply because Strother has

not satisfied the FTCA’s administrative exhaustion requirement. See McNeil v.

United States, 508 U.S. 106, 113 (1993) (“The FTCA bars claimants from bringing

suit in federal court until they have exhausted their administrative remedies.”).

             To the extent Strother brings Claims III-V against Defendants in their

personal capacities, he must plead those claims with particularity under Federal

Rule of Civil Procedure 9(b). Strother conceded at oral argument that he did not

plead his claims with particularity with regard to Defendants Baldwin and McCord.

Oral Argument at 11:54.

             AFFIRMED.




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