NAOMI REICE BUCHWALD UNITED STATES DISTRICT JUDGE

MEMORANDUM AND ORDER

Pro se plaintiff Lev Tsitrin brings this action against the United States of America (the "United States"), alleging that a panel of three judges of the United States Court of Appeals for the Second Circuit (the "Circuit Panel") acted fraudulently, negligently, or recklessly in affirming a decision of a lower court. Defendant has moved for dismissal of plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6).

For the reasons discussed herein, defendant's motion is granted.

BACKGROUND

The facts underlying this action have been extensively recounted elsewhere, see Tsitrin v. Jacobs, No. 12 Civ. 1411, 2012 U.S Dist. LEXIS 53211, at *1-3 (S.D.N.Y. Apr. 10, 2012); Overview Books, LLC v. United States ("Overview Books II"), 755 F. Supp. 2d 409, 412-14 (E.D.N.Y. 2010); Overview Books, LLC v. United States ("Overview Books I"), 72 Fed. Cl. 37, 38-40 (Ct. Cl. 2006), and we assume familiarity with them.

Briefly, plaintiff first brought suit against the United States in 2005, seeking redress for a policy of the Library of Congress. Plaintiff was denied relief in that suit and in subsequent appellate proceedings. See Overview Books I, 72 Fed. Cl. 37, aff'd Overview Books, LLC v. United States, 232 F. App'x 989 (Fed. Cir. 2007), rehearing denied No. 2006-5138, 2007 U.S. App. LEXIS 25713 (Fed. Cir. Oct. 22, 2007), cert. denied 552 U.S. 1259 (2008). A second suit, filed in 2008 and seeking the same relief as the prior suit, was dismissed on res judicata and collateral estoppel grounds by Judge Eric Vitaliano of the Eastern District of New York. See Overview Books II, 755 F. Supp. 2d 409. That decision was affirmed by the Circuit Panel in 2011. See Overview Books, LLC v. United States ("Overview Books III"), 438 F. App'x 31 (2d Cir. 2011).

Plaintiff, having been stymied in his previous encounters with the federal judicial system, brought suit against the Circuit Panel in New York state court on October 17, 2011, arguing that Judge Vitaliano had "fraudulently (or negligently, or recklessly)" supplied his own arguments and selectively ignored evidence, all to plaintiff's detriment. (Compl. ¶¶ 27-30.) This injustice was compounded, plaintiff alleged, by the Circuit Panel's subsequent adoption of the lower court's reasoning and decision.

The state suit was subsequently removed to this Court, and we declined to remand the action back to state court as plaintiff had asserted certain claims under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (the "FTCA"). See Tsitrin, 2012 U.S Dist. LEXIS 53211. After we substituted the United States as defendant and it subsequently amended the notice of removal (docket no. 9), defendant moved to dismiss plaintiff's complaint under various doctrines of immunity and for failure to exhaust administrative remedies as required by the FTCA.

DISCUSSION

I. Legal Standards

We "must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff." Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (internal quotation marks omitted); see also Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 237 (2d Cir. 2007). As plaintiff is proceeding pro se, we are also bound to construe his pleadings liberally and interpret them to raise the strongest arguments that they suggest. See Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996).

A motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) should be granted when a district court lacks the statutory or constitutional authority to adjudicate a claim, see Morrison, 547 F.3d at 170, even if the parties have not raised the issue, see Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). When subject matter jurisdiction is challenged, the plaintiff bears the burden of establishing a factual basis for jurisdiction. See Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). The requisite "jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Morrison, 547 F.3d at 170 (internal quotation marks omitted).

On a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), a plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). If the plaintiff has not "nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed." Id. This pleading standard applies in "all civil actions," Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (internal quotation marks omitted), including pro se cases. See Schwamborn v. Cnty. of Nassau, 348 F. App'x 634, 635 (2d Cir. 2009).

II. Plaintiff's Suit Is Barred by the Immunity of the United States

As a general rule, the United States is immune from suit by virtue of its sovereignty. See United States v. Dalm, 494 U.S. 596, 608 (1990). If the immunity has not been waived, no court may hear a suit against the United States; immunity is a jurisdictional bar. See FDIC v. Meyer, 510 U.S. 471, 475 (1994) ("Sovereign immunity is jurisdictional in nature. Indeed, the terms of the United States' consent to be sued in any court define that court's jurisdiction to entertain the suit." (internal quotation marks and alteration omitted)); United States v. Mitchell, 463 U.S. 206, 212 (1983) ("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."). Any claims plaintiff has raised for which the United States has not consented to be sued must therefore be dismissed.

Thus, plaintiff can maintain his suit only if he can avail himself of one of the limited waivers to the United States' immunity. As we have previously held, plaintiff's claims fall, at least in part, under the umbra of the FTCA, see Tsitrin, 2012 U.S Dist. LEXIS 53211, at *13-14 & n.9, and no other waiver is potentially applicable to plaintiff's claims. The FTCA provides an avenue to pursue claims against the United States that seek money damages "for injury or loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1). It is the exclusive means to pursue claims falling within its purview, see 28 U.S.C. § 2679(b)(1); see also Loeffler v. Frank, 486 U.S. 549, 561-62 (1988), and, as a prerequisite to utilizing the waiver, a plaintiff must "have first presented [its] claim to the appropriate Federal agency," which claim must have been denied. 28 U.S.C. § 2675(a). This exhaustion requirement "is jurisdictional and cannot be waived." Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005).

Plaintiff has not alleged that he pursued any administrative remedies before bringing this suit. Accordingly, because the burden to establish subject matter jurisdiction rests with plaintiff, see Aurecchione, 426 F.3d at 638; Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999) (noting that, in the context of the FTCA, "[t]he burden is on the plaintiff to plead and prove" that he has presented a claim to a federal agency), and he has failed to do so, he is not permitted the benefit of utilizing the FTCA's sovereign immunity waiver and all of his claims must be dismissed. See Allamby v. United States, 207 F. App'x 7, 8 (2d Cir. 2006); Kingsley v. BMW of N. Am. LLC, Nos. 12 Civ. 234, 12 Civ. 350, 2012 U.S. Dist. LEXIS 64652, at *8 (S.D.N.Y. May 8, 2012) (dismissing tort claims for failure to allege that the plaintiff had fulfilled the FTCA's administrative claim requirement); see also, e.g., McAfee v. 5th Circuit Judges, 884 F.2d 221, 222-23 (5th Cir. 1989) (affirming dismissal of claims against judicial officers for failure to exhaust administrative remedies); Neuman v. United States, No. 07-CV-0362-MJR, 2008 U.S. Dist. LEXIS 59437, at *14-15 (S.D. Ill. July 31, 2008) (similar).

Even had plaintiff pursued his claims through the Administrative Office of the United States Courts before bringing suit, they would still be subject to dismissal. The United States is "entitled to assert any defense based upon judicial . . . immunity which otherwise would have been available to the employee of the United States whose act or omission gave rise to the claim," 28 U.S.C. § 2674, and judges are entitled to absolute immunity from suit when acting in their judicial capacity, see Mireles v. Waco, 502 U.S. 9, 11 (1991). This immunity applies regardless of "[how] erroneous the act may have been, and [how] injurious in its consequences it may have proved to the plaintiff," Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994) (internal quotation marks omitted), and it "is not overcome by allegations of bad faith or malice," Mireles, 502 U.S. at 11; see also Fields v. Soloff, 920 F.2d 1114, 1119 (2d Cir. 1990) ("[A] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority . . . ." (internal quotation marks omitted)). In short, a plaintiff simply is not permitted to bring suit against a judge because he disagrees with a judicial decision; appeals, not independent tort suits, are the appropriate method by which to seek redress.

III. Plaintiff's Arguments Cannot Save His Suit

Plaintiff contests this result on what amount to three separate grounds. None of them alters our analysis.

First, plaintiff suggests that there is something amiss if, after having permitted the United States to remove the action to this Court, we then dismiss plaintiff's claims because we do not have jurisdiction to hear them. Plaintiff misapprehends the nature of the two questions. The first question -- whether we have removal jurisdiction to properly take this case from the state court -- required us to determine no more than whether "the defendant employee[s] [were] acting within the scope of [their] office or employment at the time of the incident out of which the claim arose," in which case the FTCA requires removal. 28 U.S.C. § 2679(d)(2). Because plaintiff's complaint raised claims pertaining to the Circuit Panel's decision in Overview Books III, as discussed more fully below, we answered that question in the affirmative. In contrast, the second question -- whether we have subject matter jurisdiction to adjudicate the claims in this case -- required a wholly independent analysis regarding whether the United States had waived its sovereign immunity. The substantive question of whether plaintiff has asserted claims against federal employees acting in their official capacities is separate from, and antecedent to, the determination that we do not have jurisdiction to adjudicate his claims. See generally 16 Moore's Federal Practice § 107 (3d ed. 2012) (Removal).

Second, plaintiff argues that the judges of the Circuit Panel are not entitled to judicial immunity because they did not act in their judicial capacities in the course of deciding Overview Books III. In particular, he contends that Judge Vitaliano, in arriving at his decision in Overview Books II, supplied his own arguments and therefore acted outside of his official role because deciding a motion other than exclusively on the basis of arguments advanced by the parties is not a judicial function. Further, plaintiff asserts, the Circuit Panel, by affirming and therefore approving Judge Vitaliano's process, "essentially re-created his action in [its] proceedings." (Pl.'s Resp. to Defs.' Mem. of Law in Supp. of the Gov't's Mot. to Dismiss the Compl. 24.)

As an initial matter, we have dismissed plaintiff's claims under the doctrine of sovereign immunity, not judicial immunity, and this argument therefore cannot affect our decision. Moreover, even if plaintiff had exhausted his administrative remedies and could use the FTCA's waiver of sovereign immunity, he is not correct that the Circuit Panel's judges were not acting in their official capacities with respect to the decision in Overview Books III and therefore not entitled to judicial immunity. Plaintiff proceeds on the premise that judges are totally constrained by the arguments proffered by counsel and the parties. Judges, however, are not so tightly cabined as plaintiff suggests: it simply is not the case that they are required to rely solely on arguments propounded by the parties. See, e.g., Ruhrgas AG, 526 U.S. at 583. Indeed, Judge Vitaliano's and the Circuit Panel's decisions and the processes giving rise thereto are paradigmatic examples of actions taken in the official capacities of judicial officers. Cf. Bliven v. Hunt, 579 F.3d 204, 209-10 (2d Cir. 2009) (describing how to determine whether an action is judicial in nature and noting that, generally, "acts arising out of, or related to, individual cases before [a] judge are considered judicial in nature").

Finally, plaintiff has contested the service of the instant motion, claiming a discrepancy between the date listed on the affidavit of service and the date the motion was actually mailed to him. Accepting as true plaintiff's allegation in this regard and all reasonable deductions he derives therefrom, the discrepancy is not sufficient to invalidate the motion. The United States filed its motion by the deadline established by the Court (docket nos. 11, 12), and plaintiff has not demonstrated that he was prejudiced in any way by the alleged one-day delay in sending him the motion. Regardless, we are dismissing the complaint on subject matter jurisdiction grounds, which the Court is bound to examine on its own initiative if the parties do not raise it. See Ruhrgas AG, 526 U.S. at 583. We therefore would have dismissed the action even in the absence of the instant motion.

Accordingly, plaintiff's arguments are insufficient to overcome the jurisdictional defects of the complaint.

CONCLUSION

For the foregoing reasons, the motion (docket no. 12) is granted. Dated: New York, New York

August 23, 2012

/s/_________

NAOMI REICE BUCHWALD

UNITED STATES DISTRICT JUDGE Copies of the foregoing Order have been mailed on this date to the following: Plaintiff
Lev Tsitrin
1680 East 22nd Street, Apt. 307
Brooklyn, NY 11229 Attorney for Defendant
Ellen Blain, Esq.
Civil Division
United States Attorney's Office
86 Chambers Street, 3rd Floor
New York, NY 10007