Howard Brobst v. United States , 659 F. App'x 135 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-2403
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HOWARD P. BROBST,
individually and as officer of H.C. & S Enterprises,
Inc., and for the Estate of Carol L. Brobst,
Appellant
v.
UNITED STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3-15-cv-01468)
District Judge: Honorable Robert D. Mariani
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 1, 2016
Before: FISHER, SHWARTZ and COWEN, Circuit Judges
(Opinion filed: September 8, 2016)
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OPINION*
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PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Appellant Howard P. Brobst appeals the dismissal of his Complaint based on a
Federal Rule of Civil Procedure 12(b)(1) motion for lack of subject matter jurisdiction.
We will affirm.
I.
Brobst’s Complaint alleged at its core that the disposition of his bankruptcy
proceedings in the 1990s had been procured by fraud, and that the presiding Bankruptcy
Judge and other agents of the federal judiciary and executive departments perpetrated that
fraud. Through a business he owned, Brobst had personally guaranteed the mortgage on
a property that suffered severe storm damage, resulting in acrimonious relationships
between him, his insurance company, and his bank. Brobst and the business filed for
bankruptcies. In the midst of the bankruptcy proceedings, Brobst alleged that his own
counsel entered into fraudulent stipulations with his creditors as part of a conspiratorial
cabal arrayed against Brobst’s own interests. Brobst alleges that he informed the
presiding bankruptcy judge, Judge Twardowski, of the supposed fraud, but that Judge
Twardowski failed to act and that this, in turn, constituted a “fraud upon the court.” The
bankruptcies were discharged in 2000. On July 29, 2015, Brobst filed suit against the
United States of America seeking damages and “a ruling that the United States
perpetrated a fraud upon the Court.” Compl. at 25.
The United States filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1)
and 12(b)(6). The Magistrate Judge issued a Report and Recommendation concluding
that the District Court lacked subject matter jurisdiction over Brobst’s claim because it
was barred by sovereign immunity. Brobst objected and moved for the appointment of
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counsel. The District Court adopted the Report and Recommendation and denied the
motion for appointment of counsel on the ground that the court did not have jurisdiction
to hear the case. Brobst now appeals.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We engage in
plenary review of the District Court’s dismissal of the Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(1). Solis v. Local 234, Transp. Workers Union, 585 F.3d
172, 176 (3d Cir. 2009). We review a district court’s denial of counsel to an indigent
civil litigant for abuse of discretion. See, e.g., Montgomery v. Pinchak, 294 F.3d 492,
498 (3d Cir. 2002). We can affirm on any ground supported by the record. Hughes v.
Long, 242 F.3d 121, 122 n.1 (3d Cir. 2001).
Having carefully reviewed the record on appeal, we agree with the District Court’s
conclusion that appellant’s claims as presented are barred by the doctrine of sovereign
immunity. Here, the only named defendant is the United States of America. It is well-
settled that the United States has sovereign immunity except where it consents to be sued.
See United States v. Mitchell, 463 U.S. 206, 212 (1983). The District Court properly
concluded, therefore, that it did not have subject-matter jurisdiction to hear Brobst’s
claims against the United States.1
1
The Federal Tort Claims Act is of no assistance to Brobst because claims arising out of
“misrepresentation [or] deceit” are specifically exempted from the FTCA’s waiver of
sovereign immunity. 28 U.S.C. § 2680(h). Accordingly, Brobst’s “fraud on the court”
claims would fall squarely within this carveout to the FTCA.
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Because this lack of jurisdiction deprived the court of its “very power to hear the
case,” Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006), the District Court did
not abuse its discretion in declining to appoint counsel to represent Brobst, Montgomery,
294 F.3d at 499. Brobst now argues that the District Court should have granted his
motion for the appointment of counsel so that he could have amended his complaint to
name “executives or officials in the government as a proxy for the government itself,
thereby giving the court subject-matter jurisdiction.” Appellant’s Br. at 3-4. The United
States contends that Brobst has waived this argument by not raising it in the District
Court.
In the context of a Fed. R. Civ. P. 12(b)(6) motion, we have instructed that,
“[w]hen a plaintiff does not seek leave to amend a deficient complaint after a defendant
moves to dismiss it, the court must inform the plaintiff that he has leave to amend within
a set period of time, unless amendment would be inequitable or futile.” Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Here, the District Court was
silent on amendment. While we have not spoken to this issue directly in the context of a
Rule 12(b)(1) motion, the District Court’s silence is of no moment because amendment
would nonetheless have been futile, for two reasons. First, the only proper defendant in
an FTCA action is the United States and so Brobst could not seek to take advantage of
any of its provisions with individual defendants. Second, the Complaint contains no
allegations that would support claims of a constitutional tort against new individual
defendants. See generally Bivens v. Six Unknown Named Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). Accordingly, it was not an abuse of discretion for the
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District Court to decline to give Brobst leave to amend his complaint or to appoint
counsel for the purpose of filing a futile amended complaint.
III.
For the foregoing reasons, we will affirm the District Court’s judgment.
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