David Johnson v. Michael Dunleavy
CourtCourt of Appeals for the Ninth Circuit
Date FiledOctober 27, 2026
Docket23-35598
StatusUnpublished
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Full Opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 27 2026
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID H. JOHNSON, ET AL, No. 23-35598
Plaintiffs-Appellants, D.C. No. 3:23-CV-00006-SLG
v.
MEMORANDUM*
MICHAEL J. DUNLEAVY, ET AL,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Submitted October 21, 2026**
San Francisco, California
Before: CALLAHAN and LEE, Circuit Judges, and EZRA, District Judge.***
Appellants, David H. Johnson, Pamela L. Bickford, and Loy A. Thurman, all
citizens of Alaska proceeding pro se, appeal the district court’s order granting
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
Appellees’ motions to dismiss as to their claims arising from denial of their
administrative complaint filed with the State’s Division of Elections. The district
court dismissed all Appellants’ claims without leave to amend, including their
claims under the Help America Vote Act of 2002 (“HAVA”), the Elections Clause
of the United States Constitution, the federal Administrative Procedure Act
(“APA”), and a freestanding claim for judicial review of an opinion of Alaska’s
Attorney General. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo, and may affirm on any ground supported by the record. Miranda v. City of
Cornelius, 429 F.3d 858, 860 n.1 (9th Cir. 2005). We affirm.
1. The district court properly granted Appellees’ motions to dismiss for the
reasons outlined below. Appellants’ HAVA claims cannot meet the requirements
of Rule 12(b)(6) because HAVA does not create a private right of action. See, e.g.,
Crowley v. Nev. ex rel. Nev. Sec’y of State, 678 F.3d 730, 736 n.4 (9th Cir. 2012)
(doubting that Congress intended to create a private right of action under HAVA
(first citing Brunner v. Ohio Republican Party, 555 U.S. 5, 6 (2008) (per curiam);
and then citing Sandusky Cnty. Democratic Party v. Blackwell, 387 F.3d 565, 572
(6th Cir. 2004))); see also 52 U.S.C. § 21111, 21112. Additionally, Appellants
lack standing to bring their Elections Clause claims because Appellants are not
candidates. See Lance v. Coffman, 549 U.S. 437, 442 (2007); cf. Cook v. Gralike,
531 U.S. 510, 523 (2001) (addressing merits of Elections Clause claim brought by
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prospective congressional candidate challenging term limits disclosure
requirement).
2. Appellants’ request that the district court set aside the Alaska Attorney
General’s opinion on the Alaska’s Better Elections Initiative application is not a
cognizable claim because the district court lacked authority to grant relief. The
opinion itself was only a recommendation to the Lieutenant Governor, and a
request to set aside that opinion would be moot based on subsequent action by the
Alaska Supreme Court. Meyer v. Alaskans for Better Elections, 465 P.3d 477, 498
(Alaska 2020).
3. Lastly, Appellants’ administrative appeal of the Division of Elections’s
rejection of their administrative complaint is not cognizable. It cannot survive
Rule 12(b)(6) because the federal APA does not apply to state agencies’ or state
actors’ decisions. See Shell Gulf of Mex. Inc. v. Ctr. for Biological Diversity, Inc.,
771 F.3d 632, 636 (9th Cir. 2014) (“Actions under the APA may be brought only
against federal agencies.” (citation omitted)).
AFFIRMED.
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