Portnov v. United States ( 2017 )

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(NOT FoR PUBLICATION) MAY 2 5 2017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
*
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
_2_
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.