Leytman v. United States ( 2020 )

19-3929
Leytman v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 28th day of October, two thousand twenty.
PRESENT:
REENA RAGGI,
RICHARD J. SULLIVAN,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
Eduard Leytman,
Plaintiff-Appellant,
v. 19-3929
United States of America,
Defendant-Appellee. *
_____________________________________
FOR PLAINTIFF-APPELLANT: Eduard Leytman, pro se, Brooklyn, NY.
FOR DEFENDANT-APPELLEE: Varuni Nelson, Dara A. Olds, Assistant
United States Attorneys, for
Seth D. DuCharme, Acting
United States Attorney for
the Eastern District of New
York, Brooklyn, NY.
*
The Clerk of Court is respectfully directed to amend the caption as set forth above.
Appeal from a judgment of the United States District Court for the Eastern District of New
York (William F. Kuntz, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is VACATED and the case is REMANDED
for further proceedings consistent with this order.
Appellant Eduard Leytman, proceeding pro se, appeals the district court’s dismissal of his
amended complaint against the United States for harassment by employees of the Transportation
Security Administration (“TSA”). Specifically, Leytman alleged that on March 27, 2016, before
boarding a flight from Moscow’s Sheremetyevo Airport to John F. Kennedy International Airport
(“JFK”), he was unduly subjected to heightened screening by Russian security officials at TSA’s
request. He also alleged that, once aboard the plane, an unnamed air marshal sent a threatening
text message to his mobile phone “disguised as if it were from Facebook,” which described an
“explosion at the place where [Leytman] live[d] or was supposed to be.” Suppl. App’x at 16.
Although he filed Freedom of Information Act (“FOIA”) requests with TSA, those requests “came
up with nothing.” Id. Leytman further alleged that he was harassed in connection with three
unidentified flights between March 27, 2016 and February 1, 2017, and a flight on April 16, 2018.
Leytman commenced this action in the Eastern District of New York, claiming that the
government violated both the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671–
80, and FOIA, 5 U.S.C. § 552. After the district court sua sponte dismissed the initial complaint
with leave to amend, Leytman filed an amended complaint that renewed his FTCA and FOIA
claims.
The government moved to dismiss the amended complaint under Federal Rule of Civil
2
Procedure 12(b)(1), which Leytman opposed. After briefing was completed, the district court
granted the government’s motion. The court held that it lacked subject matter jurisdiction over
Leytman’s FTCA claims because most were unexhausted and those that were exhausted fell within
the FTCA’s foreign-country exception. Without addressing Leytman’s FOIA-related allegations,
the court dismissed with prejudice Leytman’s complaint for lack of subject matter jurisdiction.
We assume the parties’ familiarity with the underlying facts, the procedural history of the case,
and the issues on appeal.
On appeal from a dismissal of an action for lack of subject matter jurisdiction under Rule
12(b)(1), “we review factual findings for clear error and legal conclusions de novo.” Makarova
v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (internal quotation marks omitted). Dismissal
of a complaint under Rule 12(b)(1) is warranted “when the district court lacks the statutory or
constitutional power to adjudicate it.” Id. But because of that lack of adjudicatory power, such
dismissals must be without prejudice. Katz v. Donna Karan Co., 872 F.3d 114, 121 (2d Cir.
2017).
Upon review of the record, we conclude that the district court properly dismissed most of
Leytman’s FTCA claims as unexhausted and the remaining claims as falling within the FCTA’s
foreign-country exception. The United States possesses sovereign immunity and may not be sued
without its consent. Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1327 (2020).
Although the FTCA provides a limited waiver of the government’s sovereign immunity in federal
court for injuries arising from the tortious conduct of federal officers or agents acting within the
scope of their office or employment, 28 U.S.C. § 1346(b)(1), a plaintiff bringing an action under
the FTCA must first exhaust administrative remedies by filing a claim for monetary damages with
3
the appropriate federal entity within two years of the injury’s accrual, 28 U.S.C. § 2401(b); Phillips
v. Generations Fam. Health Ctr., 723 F.3d 144, 147 (2d Cir. 2013). Failure to comply with this
exhaustion requirement deprives Article III courts of subject matter jurisdiction over FTCA claims.
Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005).
Here, Leytman received final TSA determinations only with respect to the Sheremetyevo
Airport-screening and text-message claims and conceded that, at best, he presented his remaining
claims to the TSA only after he commenced the present suit. The district court therefore correctly
held that it lacked subject matter jurisdiction over these pending and unexhausted claims. See 28
U.S.C. § 2401(b); McNeil v. United States, 508 U.S. 106, 112 (1993).
The court also correctly dismissed Leytman’s two exhausted claims. Regardless of
exhaustion, the FTCA expressly excludes from its waiver of sovereign immunity “[a]ny claim
arising in a foreign country.” 28 U.S.C. § 2680(k). Leytman argues that the exception does not
apply because the TSA’s alleged order to subject him to heightened screening originated in the
United States. But his argument is mistaken because the foreign country exception “bars all
claims based on any injury suffered in a foreign country, regardless of where the tortious act or
omission occurred.” Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004).
Therefore, even accepting Leytman’s allegation that TSA ordered his enhanced screening
from inside the United States, the order’s execution at Sheremetyevo Airport brings his claim
within the FTCA’s foreign-country exception. The same holds true for the text message he
allegedly received midflight. As with Leytman’s unexhausted FTCA claims, the district court
correctly held that it lacked subject matter jurisdiction over these two exhausted claims as well.
We nevertheless vacate the district court’s dismissal and remand with instructions to
4
dismiss Leytman’s FTCA claims without prejudice. As we have made clear, “when a case is
dismissed for lack of federal subject matter jurisdiction, ‘Article III deprives federal courts of the
power to dismiss the case with prejudice.’” Katz, 872 F.3d at 121 (brackets omitted) (quoting
Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 1999)). Consequently, while the
district court was correct in dismissing Leytman’s FTCA claims under Rule 12(b)(1), it erred when
it did so with prejudice.
On remand, the district court also should address Leytman’s FOIA claim. Before the
district court, Leytman twice complained that TSA violated FOIA by failing to fully disclose
requested materials. Neither the district court’s order dismissing Leytman’s first complaint nor
its order dismissing Leytman’s amended complaint specifically mentioned these allegations.
Thus, we do not know whether the district court intended to dismiss Leytman’s FOIA claim or, if
it did, the grounds for that decision.
Accordingly, we VACATE the judgment of the district court and REMAND with
instructions to dismiss the FTCA claims without prejudice and to rule on Leytman’s remaining
FOIA claim.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk of Court
5