Portnov v. United States

In the United States Court of Federal Claims

No. 17-672€ FlLED

(Filed: l\/Iay 25, 2017)

(NOT FoR PUBLICATION) MAY 2 5 2017

US.COURTOF

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ABRAHAM PORTNOV, *

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Plaintiff, * §ua_i Sponte Dismissal for Lack of

* lurisdiction; Claims Against a Private

v. * Party', Claims Against Federal Judicial

* Officers; Collateral Attack of Prior

THE UNITED STATES, "‘ Judgments

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Defendant. *

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OPINION AND ORDER

Plaintiff Abraham Portnov, proceeding p_rg _s_e, alleges that he and his wife suffered

personal injuries resulting from actions taken by employees of Carnival Corporation

(“Camival”), and then, as they sought legal redress for those injuries, were injured by actions of

the federal judiciary. The court lacks jurisdiction to consider plaintiff’s claims. Thus, Without

awaiting a response from defendant, the court grants plaintiffs application to proceed i_n forma

pauperis and dismisses plaintiffs complaint

I. BACKGROUND

Plaintiff and his wife, both of Whom hold Canadian and lsraeli passports, purchased

tickets from Carnival for a cruise that was scheduled to depart from Buenos Aires, Argentina on

March 5, 2013.l At the cruise terminal, Carnival employees prevented plaintiff and his wife from

boarding the ship because their Israeli passports did not contain visas for travel to the United

States, where the cruise terminated In addition, Carnival could not locate some of plaintiffs

belongings that had already been placed on the ship. Although plaintiff and his wife ultimately

were allowed to board the ship and were reunited with all of their belongings, they suffered from

severe stress that negatively impacted the remainder of their trip.

1 The court derives the facts in this section from the allegations in plaintiff’s complaint,

the contents of the exhibits attached to plaintiffs complaint, and information gleaned from

PACER, the “electronic public access service that allows users to obtain case and docket

information online from federal appellate, district, and bankruptcy courts . . . .” §

Administrative Offlce of the United States Courts, Public Access to Court Electronic Records,

https:/‘/www.pacer.gov (last visited May 23, 2017).

On June 23, 2014, plaintiff filed suit against Carnival in the United States District Court

for the Northern District of California (“San Jose Court”) seeking to recover damages for the

stress they endured due to the purportedly discriminatory actions of Carnival’s employees

United States Magistrate Judge Paul S. Grewal dismissed the suit for improper venue because the

ticket contract included an arbitration clause requiring disputes to be arbitrated in Florida.

Plaintiff appealed the dismissal of his suit to the United States Court of Appeals for the Ninth

Circnit (“Ninth Circuit”), which summarily affirmed Judge Grewal’s decision

Plaintiff then filed suit against the United States in the United States District Court for the

Western District of Washington (“Seattle Court”) under the Federal Tort Claims Act, 28 U.S.C.

§§ 1346(b)(l), 2671-2680 (2012), alleging “illegal actions” by Judge Grewal. The Seattle Court

dismissed plaintiffs complaint upon concluding that Judge Grewal was immune from suit.

When plaintiff discovered that Judge Grewal had left the bench, plaintiff filed a second suit in

the Seattle Court against the United States restating his allegations against Judge Grewal. The

Seattle Court dismissed this suit as frivolous, and the Ninth Circuit dismissed plaintiff s appeal

as frivolous Undeterred, plaintiff filed another suit in the San Jose Court on October 3, 2016,

this time against Judge Grewal. Two magistrate judges recused themselves from hearing

plaintiffs complaint, but a third magistrate judge heard the complaint and dismissed it as

frivolous

Plaintiff initiated suit in this court on May 22, 2017. As set forth in his complaint, he

seeks damages for the personal injuries that he and his wife suffered due to the purportedly

discriminatory actions of Carnival’s employees and damages for the injuries he suffered due to

the actions of the federal judiciary While pursuing legal redress

II. DISCUSSION

A. Jurisdiction in the United States Court of Federal Claims

Whether a court has jurisdiction to decide the merits of a case is a threshold matter. §§

Steel Co. v. Citizens for a Better Env’t. 523 U.S. 83, 94-95 (1998)` “Without jurisdiction the

court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and When it

ceases to exist, the only function remaining to the court is that of announcing the fact and

dismissing the cause.” Ex parte McCardle, 74 U.S. (7 Wall.) 506J 514 (1868). “The objection

that a federal court lacks subject»matter jurisdiction may be raised by a party, or by a court on its

own initiative, at any stage in the litigation, even after trial and the entry of judgment.” Arbaugh

v. Y & H COLQ., 546 U.S. 500, 506 (2006) (citation omitted); accord Hertz Cort). v. Friend, 559

U.S. 77, 94 (2010) (“Courts have an independent obligation to determine Whether subject~matter

jurisdiction exists, even When no party challenges it.”); PfN/NIP, Inc. v. Platte Chem, Co.. 304

F.3d l235, 1241 (Fed. Cir. 2002) (“Jurisdiction is a threshold issue, and a court must satisfy itself

that it has jurisdiction to hear and decide a case before proceeding to the merits.” (citations

omitted)). If the court finds that it lacks subject matter jurisdiction over a claim, Rule l2(h)(3) of

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the Rules of the United States Court of Federal Claims (“RCFC”) requires the court to dismiss

that claim.

When considering whether to dismiss a complaint for lack of jurisdiction, a court

assumes that the allegations in the complaint are true and construes those allegations in the

plaintiffs favor. Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). A w § plaintiffs

complaint, “‘however inartfully pleaded,’ must be held to ‘less stringent standards than formal

pleadings drafted by lawyers’ . . . .” Hughes v. Rowe, 449 U.S. 5, 10 n.7 (1980) (quoting Haines

v. Kerner, 404 U.S. 519, 520-21 (1972)). However, a IB se plaintiff is not excused from

meeting basic jurisdictional requirements § Henke, 60 F.3d at 799 (“The fact that [the

plaintiff] acted pr_o se in the drafting of his complaint may explain its ambiguities but it does not

excuse its failures, if such there be.”). In other words, a p_r_g _s_e plaintiff is not excused from his

burden of proving, by a preponderance of the evidence, that the court possesses jurisdiction §

McNutt v. Gen. Motors Acceptance Corp._, 298 U.S. 178, 189 (1936); Reynolds v. Army & Air

Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).

The ability of the United States Court of Federal Claims (“Court of Federal Claims”) to

entertain suits against the United States is limited “The United States, as sovereign, is immune

from suit save as it consents to be sued.” United States v. Sherwood, 312 U.S. 584_, 586 (1941).

The waiver of immunity “cannot be implied but must be unequivocally expressed.” United

States v. King, 395 U.S. 1, 4 (1969).

The Tucker Act, the principal statute governing the jurisdiction of this court, Waives

sovereign immunity for claims against the United States, not sounding in tort, that are founded

upon the United States Constitution, a federal statute or regulation, or an express or implied

contract with the United States 28 U.S.C. § 1491(a)(1). However, the Tucker Act is merely a

jurisdictional statute and “does not create any substantive right enforceable against the United

States for money damages.” United States v. Testan, 424 U.S. 392, 398 (1976). Instead, the

substantive right must appear in another source of lawJ such as a “money~mandating

constitutional provision, statute or regulation that has been violated, or an express or implied

contract with the United States.” Loveladies Harbor. lnc. v. United States, 27 F.3d 1545, 1554

(Fed. Cir. 1994) (en banc).

B. The United States Is the Only Proper Defendant in the Court of Federal Claims

AS an initial matter, it is Well Settied that the United States is the only proper defendant in

the Court of Federal Claims. w 28 U.S.C. § 1491(a)(1) (providing that the Court of Federal

Claims has jurisdiction over claims against the United States); RCFC 10(a) (requiring that the

United States be designated as the defendant in the Court of F ederal Claims); Nat’i City Bank of

Evansville v. United States 163 F. Supp. 846, 852 (Ct. Cl. 195 8) (“It is well established that the

jurisdiction of this court extends only to claims against the United States, and obviously a

controversy between private parties could not be entertained.” (footnotes omitted)); Stephenson

v. United States, 58 Fed. Cl. 186, 190 (2003) (“[T]he o_nly proper defendant for any matter before

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this court is the United States, not its officers, nor any other individual,”). Accordingly, the court

lacks jurisdiction to entertain plaintiff s claims against Carnival, including plaintiff s claim that

Carnival’s employees discriminated against him and his wife on the basis of religion.

C. The Court of Federal Claims Lacks Jurisdiction to Entertain Plaintiff s Claims Against

the United States

Plaintiff also asserts claims against the United States, alleging that the federal judiciary

caused him injury during his pursuit of legal redress from Carnival. First, to the extent that

plaintiff is alleging that individual federal judicial officers caused him injury, the Court of

Federal Claims lacks jurisdiction to entertain such allegations S_e__e Brown v. United States, 105

F.3d 621, 624 (Fed. Cir. 1997) (“The Tucker Act grants the Court of` Federal Claims jurisdiction

over suits against the United States, not against individual federal officials.”); Frank’s Livestock

& Poultry Farm, Inc. v. United States, 17 Cl. Ct. 601, 607 (1989) (recognizing that the Court of

Federal Claims does not have jurisdiction over claims against federal officials); see also Wood v.

United States, 961 F.2d 195, 197 (Fed. Cir. 1992) (noting that federal “district courts have . . .

exclusive jurisdiction over tort claims for any amount if they fall within the Federal Tort Claims

Act”z); C_f. Stump v. Sparkman, 435 U.S. 349, 355-56 (1978) (recognizing that federal judges are

immune from suit when, “at the time [the judge] took the challenged action,” the judge had the

authority to act).

Second, to the extent that plaintiff is attacking the prior judgments of the San Jose Court,

the Seattle Court, and the Ninth Circuit, the Court of Federal Claims lacks the authority to review

such judgments As explained by the United States Suprerne Court:

Congress has prescribed a primary route, by appeal as of right and certiorari,

through which parties may seek relief from the legal consequences of judicial

judgments To allow a party who steps off the statutory path to employ . . . [a]

collateral attack on the judgment would-quite apart from any considerations of

fairness to the parties_disturb the orderly operation of the federal judicial system.

U.S. Banco;p l\/Iortg. Co. v. Bonner l\/lall P’ship, 513 U.S. 18, 27 (1994); accord Vereda Ltda. v.

United States, 217 F.3d 1367, 1375 (Fed. Cir. 2001) (“[T]he Court of Federal Claims cannot

entertain a taking claim that requires the court to ‘scrutinize the actions of another tribunal.”

(quoting Allustiarte v. United States, 256 F.3d 1349, 1352 (Fed. Cir. 2001))); Joshua v. United

States, 17 F.3d 378, 380 (Fed. Cir. 1994) (“[T]he Court of Federal Claims does not have

jurisdiction to review the decisions of district courts . . . relating to proceedings before those

courts.”). Thus, the court must dismiss plaintiff s claims against the United States

2 The Court of Federal Claims is not a federal district court. _S§Q Ledford v. United

States, 297 F.3d 1378, 1382 (Fed. Cir. 2002).

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III. APPLICATION TO PROCEED E~lm FORMA PAUPERIS

As previously noted, plaintiff filed, concurrent with his complaint, an application to

proceed i_n forma pauperis Pursuant to 28 U.S.C. § 1915, the Court of Federal Claims may

waive filing fees and security under certain circumstances g 28 U.S.C. § l9l5(a)(l); see also

Hayes v. United States, 71 Fed. Cl. 366, 366-67 (2006) (concluding that 28 U.S.C. § 1915(a)(l)

applies to both prisoners and nonprisoners alike). Plaintiffs wishing to proceed i_n forma pauperis

must submit an affidavit that lists all of their assets, declares that they are unable to pay the fees

or give the security, and states the nature of the action and their belief that they are entitled to

redress 28 U.S.C. § l915(a)(l). Here, plaintiff has satisfied all three requirements

Accordingly, the court grants plaintiffs application and waives his filing fee.

IV. CONCL`USION

As explained above, the court lacks jurisdiction to consider any of plaintiffs claims

Thus, although the court GRANTS plaintiffs application to proceed i_n forma pauperis, it

DISMISSES plaintiffs complaint WITHOUT PREJUDICE. No costs The clerk is directed

to enter judgment accordingly

IT IS SO ORDERED.