Pollack v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
RUTH M. POLLACK
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2012-5042
__________________________
Appeal from the United States Court of Federal
Claims in case no. 11-CV-019, Judge George W. Miller.
___________________________
Decided: September 6, 2012
___________________________
RUTH M. POLLACK, of Riverhead, New York, pro se.
AMANDA L. TANTUM, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for defendant-appellee.
With her on the brief were STUART F. DELERY, Acting
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and BRYANT G. SNEE, Deputy Director.
__________________________
POLLACK v. US 2
PER CURIAM.
Petitioner Ruth Pollack appeals the Court of Federal
Claims’ dismissal of her complaint for lack of subject
matter jurisdiction. Because a review of Ms. Pollack’s
complaint reveals no basis for jurisdiction, we affirm.
I
Ms. Pollack, an attorney, filed suit in the Supreme
Court of New York on behalf of Kevin Chesney and his
wife, asserting theories related to Chesney’s employment
with Valley Stream Union Free School District No. 24.
The case was removed to the United States District Court
for the Eastern District of New York. The district court
dismissed all of the claims but one and granted summary
judgment against the Chesneys on the remaining claim.
The Chesneys appealed to the Second Circuit, seeking
review of the dismissal, the summary judgment, the
denial of their motion to file a second amended complaint,
the denial of motions to reconsider all of the preceding
orders, and the termination of Ms. Pollack as counsel
following her suspension from the practice of law. 1 The
Second Circuit dismissed her appeal, noting that despite
the fact that Ms. Pollack had been instructed to file an
appeal brief, none had been filed. Additionally, the court
“review[ed] the merits and [found] that there is no part of
the Appellants’ appeal, or their charges of docket tamper-
ing, that have an arguable basis in law or fact.” The court
noted that the district court record was “available in its
entirety on PACER and that it is in all respects regular.”
Ms. Pollack also petitioned for certiorari from the
United States Supreme Court. The record contains a
1
It appears that in December 2008, during the
original district court proceedings, Ms. Pollack was sus-
pended from the practice of law for two years.
3 POLLACK v. US
letter from Ms. Pollack to Marshall Pamela Talkin at the
police office of the Supreme Court. In the letter, Ms.
Pollack describes personally travelling to the Supreme
Court to file documents related to the Chesney’s case.
She explains that she did this by handing the application
to a police officer “at the rear of the United States Su-
preme Court Building.” The record also contains letters
to the Chief Clerk of the Supreme Court and to Justice
Ginsburg regarding her efforts to file unspecified papers
at the Supreme Court and her beliefs that entries had
been falsely or incorrectly made in her file at the Supreme
Court. However, the record does not contain the applica-
tions themselves or any indication that Ms. Pollack suc-
cessfully filed documents at that Court. Ms. Pollack was
able to successfully apply for certiorari. See Docket,
Chesney v. Valley Stream Union Free Sch. Dist. No. 24,
No. 10-457, available at
http://www.supremecourt.gov/Search.aspx?FileName=/doc
ketfiles/10-457.htm. The Supreme Court denied certio-
rari. Chesney v. Valley Stream Union Free Sch. Dist. No.
24, 131 S. Ct. 908 (2011).
Subsequently, Ms. Pollack initiated the instant suit
against the United States in the Court of Federal Claims,
requesting either $52,000,000 or $56,000,000. She al-
leged that during the proceedings described above, court
personnel tampered with the docket available on PACER,
engaged in ex parte proceedings with defendants, and
issued “fake orders.” The suit was originally brought by
Ms. Pollack as a pro se plaintiff and on behalf of the
Chesneys. The Chesneys dismissed their claims, and Ms.
Pollack is the only remaining plaintiff.
The Court of Federal Claims dismissed the case for
lack of subject matter jurisdiction. Opinion and Order,
Pollack v. United States, No. 11-19C (Fed. Cl. Nov. 7,
2011), ECF No. 12 (“Opinion”). The court engaged in a
POLLACK v. US 4
comprehensive analysis of Ms. Pollack’s lengthy com-
plaint, identifying the numerous legal theories asserted
and concluding that none provided a basis for jurisdiction.
Op. at 3-6. Noting its obligation under 28 U.S.C. § 1631
to transfer the case to a court in which the action could
have been brought, the court nevertheless declined to do
so, observing that transfer “would be futile and hence not
in the interest of justice.” Op. at 6. Ms. Pollack appeals
the dismissal. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(3).
II
Ms. Pollack identifies only two areas in which she be-
lieves the court misapplied the law. First, she contends
that “[t]he Paperwork Reduction Act of 1980 and Tucker
Act should be applied here.” We understand this argu-
ment to mean that the Court of Federal Claims erred in
concluding that the Paperwork Reduction Act did not
provide a substantive basis for jurisdiction under the
Tucker Act. Second, Ms. Pollack contends that it was
error for the Court of Federal Claims to decline to transfer
her case on the grounds of futility without explaining why
transfer would be futile. We address each argument in
turn.
A. Standard of Review
“We ... review de novo the Court of Federal Claims’s
dismissal of a claim for lack of jurisdiction.” Doe v. United
States, 463 F.3d 1314, 1320 (Fed. Cir. 2006). The Tucker
Act confers upon the Court of Federal Claims “jurisdiction
to render judgment upon any claim against the United
States founded either upon the Constitution, or any Act of
Congress . . . , or upon any express or implied contract
with the United States, or for liquidated or unliquidated
damages in cases not sounding in tort.” 28 U.S.C. § 1491.
A claim under the Tucker Act “must be one for money
5 POLLACK v. US
damages against the United States . . . and the claimant
must demonstrate that the source of substantive law he
relies upon can fairly be interpreted as mandating com-
pensation by the Federal Government for the damages
sustained.” United States v. Mitchell, 463 U.S. 206, 216-
17 (1983) (internal quotation marks and citations omit-
ted). With respect to Ms. Pollack’s § 1631 argument, “[a]
decision by the Court of Federal Claims concerning
whether to dismiss a claim or transfer it to another court
is . . . reviewed for abuse of discretion.” Rick’s Mushroom
Serv., Inc. v. United States, 521 F.3d 1338, 1342 (Fed. Cir.
2008).
B. The Paperwork Reduction Act
We begin with Ms. Pollack’s argument that the Pa-
perwork Reduction Act provided a substantive basis for
jurisdiction under the Tucker Act. The burden to show
that jurisdiction exists falls upon the plaintiff. Taylor v.
United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002). To
pursue a claim based on the Paperwork Reduction Act,
Ms. Pollack was required to show that the act is money
mandating. She has made no such showing in her brief.
Looking to the complaint she filed in the Court of Federal
Claims, it appears that the violations of the Paperwork
Reduction Act that Ms. Pollack complains of relate to
destruction of court documents. But as the complaint
indicates, the remedies for these violations involve restor-
ing such documents to the record. Neither the complaint
nor the appellant’s brief identify a portion of the act
authorizing a money judgment against the United States.
Although we have not previously examined whether
the Paperwork Reduction Act is money mandating, the
Court of Federal Claims has. See Pacific Nat’l Cellular v.
United States, 41 Fed. Cl. 20, 26-30 (1998). The court
noted that “[t]he Paperwork Reduction Act does not
POLLACK v. US 6
incorporate a money-mandating provision, either manda-
tory or permissive, into the statutory language of the
Act[.]” Id. at 30. The court rejected the plaintiff’s argu-
ment that 28 U.S.C. § 3512, which provides that “no
person shall be subject to any penalty” for failing to
respond to a request that did not comply with the Paper-
work Reduction Act, could be read to create a right to
recover money spent responding to non-compliant infor-
mation requests. Id. at 28-29. We discern no error in the
court’s analysis of the Paperwork Reduction Act or in its
conclusion that it is not money mandating. Accordingly,
Ms. Pollack has not met her burden to show that jurisdic-
tion is proper in the Court of Federal Claims under the
Tucker Act.
C. Futility
Ms. Pollack’s second argument is that the Court of
Federal Claims abused its discretion by concluding that a
transfer would be futile without “stat[ing] how [the] 53
page detailed complaint was ‘conclusory.’” Section 1631
states that when a court “finds that there is a want of
jurisdiction, the court shall, if it is in the interest of
justice, transfer such action or appeal to any other such
court in which the action or appeal could have been
brought.” 28 U.S.C. § 1631. We have stated that the
transfer of a frivolous case is not in the interest of justice.
Galloway Farms, Inc. v. United States, 834 F.2d 998, 1000
(Fed. Cir. 1987). “Frivolous claims include spurious and
specious arguments and distortion and disregard of the
record and opposing authorities.” Id. (internal quotation
marks omitted).
The basis of this case is Ms. Pollack’s allegations of
“massive destruction and spoliation” by court employees
in the district court, the Second Circuit, and the Supreme
Court. Although the complaint repeatedly alleges that
7 POLLACK v. US
tampering occurred, it never identifies a specific act of
tampering. The record does, however, reveal that Ms.
Pollack has already made this argument before the Sec-
ond Circuit. The Second Circuit characterized the tam-
pering claims as “meritless,” noting that it had reviewed
the record and found that everything was in order. The
Supreme Court denied certiorari. On this record, the
Court of Federal Claims could reasonably have concluded
that Ms. Pollack’s complaint distorts and disregards the
record, and we cannot say that it abused its discretion in
determining that the instant case was frivolous.
AFFIRMED