Unreported / Non-Citable
Background
Kuang-Bao Paul Ou-Young, proceeding pro se, filed a federal complaint against U.S. Attorney officials Patrick D. Robbins, Pamela T. Johann, and Kelsey Helland, and against U.S. District Court Clerk of Court Mark B. Busby. Defendants moved for the entry of a third pre-filing order against Ou-Young under the All Writs Act, 28 U.S.C. § 1651(a).
The record showed that Ou-Young is already subject to two prior federal pre-filing orders (the first in Ou-Young v. Roberts in 2013 regarding certain criminal statutes and named parties, the second in Ou-Young v. Stone in 2019 regarding federal judges) and at least two California state vexatious-litigant orders. The court was aware of fifty-one cases brought by Ou-Young in the Northern District, all dismissed after judicial review. Despite the prior pre-filing orders, Ou-Young had attempted to file complaints naming federal officials in another 30 cases since the second pre-filing order, sometimes attempting to end-run the existing orders by amending complaints after filing to add new federal defendants. His pattern is to bring a suit, have it dismissed, then file new suits alleging the actors in the prior suit conspired to deprive him of his rights — and to file motions to disqualify or sue the judges in subsequent cases.
The Court’s Holding
Judge Charles R. Breyer granted the motion in part and entered a third pre-filing order, narrowed in scope. Following the four-part test from De Long v. Hennessey and Molski v. Evergreen Dynasty Corp.:
Notice and opportunity to be heard: Ou-Young filed an opposition to the motion. The first De Long factor does not require an in-person hearing in the Ninth Circuit.
Adequate record: The record showed Ou-Young is a serial vexatious litigant with two prior federal pre-filing orders, two state vexatious-litigant orders, and 51 dismissed federal cases — plus 30 additional attempted filings since the second pre-filing order. Both the volume and the harassing content of his lawsuits supported the order.
Substantive findings of frivolousness: The court found the underlying complaint frivolous. Both claims violated the substantiality doctrine (bizarre conspiracy theories deprive the court of jurisdiction), failed to establish a waiver of sovereign immunity, and contained no facts plausibly alleging conspiracy or injury under N.D. Cal. Local Rule 5-1(b). The case continued his pattern of frivolous and harassing cases.
Narrow tailoring: Defendants asked for a sweeping order requiring leave of court before filing any in propria persona civil action against any federal employee. The court narrowed the order to suits against Clerk of Court Mark Busby or any employee of the U.S. Attorney’s Office. Ou-Young must attach a copy of the new order and the two previous pre-filing orders to any federal complaint (original or amended) he files in propria persona, and must do the same within two weeks of any state-court complaint of his being removed to the Northern District. Failure to comply will be grounds for dismissal.
Key Takeaways
- Federal pre-filing orders under the All Writs Act and the four-part De Long/Molski framework remain available for serial pro se litigants who file dozens of harassing cases against federal officials, even where they have already been subject to prior pre-filing orders.
- The substantive-findings-of-frivolousness prong can be satisfied by reference to a documented pattern of dismissed cases combined with a finding that the current complaint is itself frivolous.
- Pre-filing orders must be narrowly tailored. Even where defendants seek broad relief, courts will limit the order to the specific defendants involved in the immediate case and similarly situated officials.
- Litigants who try to end-run pre-filing orders by amending complaints after filing to add new defendants will face additional pre-filing orders capturing that conduct.
- Pre-filing orders typically require the litigant to attach copies of the prior pre-filing orders to any future complaint, and to file them within a short period after any removal — with non-compliance grounds for dismissal.
Why It Matters
Pre-filing orders are an important but rarely-used judicial tool to manage abusive serial litigation. The Ninth Circuit’s De Long framework imposes meaningful procedural protections — notice, an adequate record, substantive findings of frivolousness, and narrow tailoring — that prevent overuse, but in cases like Ou-Young’s where the documented pattern of dismissed and harassing cases is overwhelming, the orders can and do issue.
The opinion is a clean modern application of the De Long framework and is also notable for its treatment of evasion. By requiring the litigant to attach the prior pre-filing orders to all future complaints, including amended complaints, and to file them after any state-court removal, the court anticipates and forecloses the most common evasion tactics. For other district judges facing repeat litigants, the opinion supplies a useful template.