Naum Volovets v. William Clinton ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 22-5207 September Term, 2022
1:22-cv-00699-ABJ
Filed On: October 6, 2022
Naum I. Volovets,
Appellant
v.
William J. Clinton, Former U.S. President and
Kristina A. Kvien, Former Charge d' Affaires
e.i. of the U.S. Embassy in Ukraine,
Appellees
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BEFORE: Pillard and Rao, Circuit Judges, and Sentelle, Senior Circuit Judge
JUDGMENT
This appeal was considered on the record from the United States District Court
for the District of Columbia and on the brief and supplement thereto filed by appellant.
See Fed. R. App. P. 34(a)(2); D.C. Cir. Rule 34(j). Upon consideration of the foregoing
and the response to this court’s order filed on August 1, 2022, it is
ORDERED AND ADJUDGED that the district court order filed June 22, 2022, be
affirmed. The district court properly dismissed the case based on appellant’s failure to
identify a valid basis for the court’s jurisdiction. See Fed. R. Civ. P. 12(h)(3). “It is
axiomatic that the United States may not be sued without its consent and that the
existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463
U.S. 206, 212 (1983); see Clark v. Library of Congress, 750 F.2d 89, 103 (D.C. Cir.
1984) (sovereign immunity bars monetary claims against public officials sued in their
official capacity absent a specific waiver of immunity). Insofar as appellant seeks
monetary relief, he has identified no such waiver that would allow his claims to go
forward. And insofar as he seeks relief based on the purported “criminal” nature of his
allegations, his suit fails because, as a private party, he cannot bring claims under
criminal law or seek to compel the criminal investigation or prosecution of the
defendants. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“a private citizen
lacks a judicially cognizable interest in the prosecution or nonprosecution of another”);
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 22-5207 September Term, 2022
Cmty. for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986) (the
power to decide when to investigate and prosecute lies in the Executive Branch and
judicial authority is “non-existent” when the court is asked to intrude into the process of
prosecutorial decisionmaking by a party without standing to raise the claim). Further,
the district court did not abuse its discretion in denying leave to file a second amended
complaint because appellant has not shown the proffered amendment would have
cured the jurisdictional flaws in the suit. See Firestone v. Firestone, 76 F.3d 1205,
1208 (D.C. Cir. 1996).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk
is directed to withhold issuance of the mandate herein until seven days after resolution
of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App.
P. 41(b); D.C. Cir. Rule 41.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
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