           3Jn tbc Wnitcb ~tatcs <!Court of jfcbcral <!Claitns
                                            No. 19-766C
                                    (Filed: September 20, 2019)

***************************************
JOSHUA BERNSTEIN,                               *
                                                *    Pro Se Plaintiff; RCFC 12(b)(l);
                       Plaintiff,               *    Subject-Matter Jurisdiction;
                                                *    Judicial Review; Collateral Attack of
V.                                              *    District Court Decisions; Declaratory
                                                *    Judgment; Statute of Limitations; Attorney
THE UNITED ST ATES,                             *    Disbarment
                                                *
                       Defendant.               *
***************************************

Joshua Bernstein, New York, NY, prose.

Geoffrey M. Long, United States Department of Justice, Washington, DC, for defendant.

                                    OPINION AND ORDER

SWEENEY, Chief Judge

       In the above-captioned case, pro se plaintiff Joshua Bernstein seeks a declaratory
judgment that his disbarment from the practice of law in the United States District Court for the
Eastern District of New York ("district com1") is void. As explained below, this court lacks
subject-matter jurisdiction to entertain plaintiffs complaint.

                                       I. BACKGROUND

       Plaintiff was licensed to practice law in the State of New York on November 4, 1998. 1
Compl. Ex. D at 2. He was alleged to have converted client funds on or about July I, 1999,
which gave rise to a charge of professional misconduct. Id. at 4-5. On May I, 2000, the
Appellate Division of the Supreme Com1 of the State of New York's Second Judicial
Department ("Second Judicial Department") referred this charge and two additional, unspecified
charges of misconduct to a three-person disciplinary panel. Id. at 4. The panel unanimously

       1
          The facts in this section are derived from the allegations in plaintiffs complaint,
exhibits attached to the complaint, and facts of which the court may take judicial notice pursuant
to Rule 201 of the Federal Rules of Evidence.




                                                                  7018 1830 0001 4963 6564
found that plaintiff engaged in misconduct by converting client funds, but did not sustain the
other two, unspecified charges. Id. at 4-5. Accordingly, on August 20, 2001, the Second
Judicial Department issued an order disbarring plaintiff from the practice oflaw. Id. at 6. On
April 17, 2002, in response to the Second Judicial Department's disbarment order and pursuant
to its own local rules, the district court issued an order disbarring plaintiff"from the practice of
law before this Court," and directing that "[plaintiffs] name be stricken from the Roll of
Attorneys of this Court." Id. at 1. The order was "effective 24 days after the date of service
upon [plaintiff! unless otherwise modified or stayed." Id.

        Sometime thereafter, plaintiff appeared as an attorney in a proceeding before the United
States Bankruptcy Court for the Eastern District of New York ("bankruptcy court"). Comp!. Ex.
F at 1. The bankruptcy court at some point became aware that plaintiff had been disbarred and
issued an order directing plaintiff to show cause why he should not be sanctioned. Id. In
response, plaintiff filed a motion to vacate his disbarment before the district court on May 30,
2017. Comp!. Ex. G at 3. Plaintiff argued that the district court's original disbarment order was
void for lack of jurisdiction because the court did not first issue an order to show cause, which
plaintiff asserted was mandated by Theard v. United States, 354 U.S. 278, 282 (1957). Comp!.
Ex.Fatl-2.

        In a March 14, 2018 decision denying plaintiffs motion to vacate the disbarment order,
the district court noted that plaintiff did not take any action in response to that order. Comp!. Ex.
E. The district court also observed that plaintiff remained disbarred. Id. Plaintiff filed a motion
for reconsideration, see generally Comp!. Ex. G, which was denied on April 18, 2018, Comp!.
Ex.H.

        Plaintiff filed the instant complaint on May 20, 2019, seeking a declaratory judgment
vacating the district court's disbarment order. On July 22, 2019, defendant filed a motion to
dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(l) of the Rules of the
United States Court of Federal Claims ("RCFC"). Briefing on defendant's motion to dismiss is
complete. The parties have not requested oral argument, and the court deems it unnecessary.
Thus, the motion is ripe for adjudication.

                                    II. LEGAL STANDARDS

                                      A. Standard of Review

        When considering whether to dismiss a complaint for lack of subject-matter jurisdiction
pursuant to RCFC 12(b)(l), a court assumes that the allegations in the complaint are true and
construes those allegations in the plaintiffs favor. Trusted Integration, Inc. v. United States, 659
F.3d 1159, 1163 (Fed. Cir. 2011). However, plaintiffs proceeding prose are not excused from
meeting basic jurisdictional requirements, see Henke v. United States, 60 F.3d 795, 799 (Fed.
Cir. 1995), even though the court holds their complaints to "less stringent standards than formal
pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519,520 (1972). In other words, a
plaintiff (even one proceeding prose) must establish, by a preponderance of the evidence, that
the court possesses subject-matter jurisdiction. See McNutt v. Gen. Motors Acceptance Corp ..
298 U.S. 178, 189 (1936); Trusted Integration, 659 F.3d at 1163. If jurisdictional facts are


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challenged, the comt is not limited to the pleadings in determining whether it possesses subject-
matter jurisdiction. See, e.g., Banks v. United States, 741 F.3d 1268, 1277 (Fed. Cir. 2014);
Pucciariello v. United States, 116 Fed. CL 390,400 (2014). If the comt finds that it lacks
subject-matter jurisdiction over a claim, RCFC 12(h)(3) requires the court to dismiss that claim.

                                 B. Subject-Matter Jurisdiction

        Whether the court has jurisdiction to decide the merits ofa case is a threshold matter.
See 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) 506,514 (1868). Either party, or
the comt sua sponte, may challenge the existence of subject-matter jurisdiction at any time.
Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006).

        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). Further, "[w]hen waiver legislation contains a statute of
limitations, the limitations provision constitutes a condition on the waiver of sovereign
immunity." Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273,287 (1983).

        The Tucker Act, the principal statute governing the jurisdiction of this court, waives
sovereign immunity for claims against the United States, not sounding in to1t, 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)(l) (2012). 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 oflaw, 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, Inc. v. United States, 27 F.3d 1545, 1554
(Fed. Cir. 1994) (en bane).

        In addition, to fall within the jurisdiction of the Court of Federal Claims, any claim
against the United States filed in this court must be "filed within six years after such claim first
accrues." 28 U.S.C. § 2501; see also John R. Sand & Gravel Co. v. United States, 552 U.S. 130,
133-34 (2008) (holding that the limitations period set forth in 28 U.S.C. § 2501 is an "absolute"
limit on the ability of the Comt of Federal Claims to reach the merits ofa claim). "A cause of
action cognizable in a Tucker Act suit accrues as soon as all events have occurred that are
necessary to enable the plaintiff to bring suit, i.e., when 'all events have occurred to fix the
Government's alleged liability, entitling the claimant to demand payment and sue here for his
money."' Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en bane) (quoting
Nager Elec. Co. v. United States, 368 F.2d 847,851 (Ct. Cl. 1966)).




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                                          III. ANALYSIS

         Plaintiffs sole claim for relief is a request for a declaratory judgment to overturn his
district court disbarment. As defendant argues, the Court of Federal Claims lacks subject-matter
jurisdiction to entertain plaintiffs claim for three independent reasons. First, plaintiffs claim is
time-barred. Second, this court does not have the general power to issue declaratory judgments.
Third, the Court of Federal Claims lacks the power to review the decisions of other courts.

                              A. Plaintiff's Claim Is Time-Barred

         Defendant first argues that plaintiffs complaint should be dismissed as untimely because
plaintiffs claim accrued in 2002, when the district court issued its disbarment order. Def. 's Mot.
4-5. Because that action occurred seventeen years ago, defendant explains, it is well beyond the
comi's six-year statute of limitations, which serves as "a jurisdictional prerequisite to proceeding
in this Comi." Id. at 4 (citing John R. Sand & Gravel Co., 552 U.S. at 134). In his response,
plaintiff stresses that his claim is not time-barred because his motion to vacate the disbarment
order was adjudicated in 2018. Pl.'s Resp. ,r 2. Plaintiff acknowledges that while "the subject of
the event in 2018 ... occurred in 2001 ... , a remedy remained available, without any time
limitation." Id. ,r 3. In other words, plaintiff contends that although the subject matter of the
litigation is the district court's April 17, 2002 disbarment order, because he had no time limit to
file a motion to vacate that order, and did so in 2018, the statute of limitations does not bar his
claim.

        At bottom, plaintiff challenges the district comi's April 17, 2002 disbarment order.
Regardless of its merits, plaintiffs claim is time-barred because any claim that could accrue
from plaintiffs district comi disbarment did so in 2002. While it is true that plaintiff
commenced a proceeding before the district court in 2018 to attempt to have that order voided,
plaintiffs claim in this court nevertheless arises from the April 17, 2002 order. Without the
disbarment order, plaintiff would have no articulable basis for the instant complaint. Plaintiffs
assertion that the 2018 proceeding to vacate the order brings his claim within the six-year statute
of limitations is unavailing because that proceeding was merely undertaken to advance plaintiffs
true goal~removal of the 2002 disbarment order. See Pines Residential Treatment Ctr., Inc. v.
United States, 444 F.3d 1379, 1380 (Fed. Cir. 2006) ("Regardless of a party's characterization of
its claim, we look to the true nature of the action in determining the existence or not of
jurisdiction." (internal quotation marks omitted)). Were the comi to adopt plaintiffs argument
that such a late motion restmis the statute of limitations, it would render the statute of limitations
meaningless. In short, the court's statute of limitations bars plaintiffs claim.

                      B. Declaratory Relief is Not Available for Plaintiff

       Defendant next observes that plaintiff does not seek money damages, but instead seeks a
declaratory judgment, and argues that while the Comi of Federal Claims may issue declaratory
judgments "where such rulings are necessary to the resolution of a claim for money presently
due and owing, it lacks power to issue such declarations where the plaintiff is not even seeking


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monetary damages." Def. 's Mot. 3 (citing Nat'l Air Traffic Controllers Ass'n v. United States,
 160 F.3d 714, 716 (Fed. Cir. 1998)). Plaintiff insists that this court possesses subject-matter
jurisdiction even though he does not request monetary relief because 28 U.S.C. § 149l(a)
provides "that this Court has jurisdiction to issue a 'judgment' adjudicating 'any claim'-again,
'any claim'-'against the United States', inter alia, 'arising from the Constitution' and 'any
claim', by definition, includes a claim which does not-again, does not-seek monetary
damages .... " Pl.'s Resp. ii 4. Plaintiff remarks that the Declaratory Judgment Act, 28 U.S.C.
§ 2201, permits "any court" to issue declaratory relief, including this court. Id. In reply,
defendant notes that the Declaratory Judgment Act does not provide for declaratory relief in this
court "because Congress decided 'not to make the Declaratory Judgment Act applicable to the
Court of Federal Claims."' Def.'s Reply 2 (quoting Nat'! Air Traffic Controllers Ass'n, 160
F.3d at 716-17).

         Plaintiff's claim for declaratory relief fails because there is no underlying claim for
monetary damages. With a few exceptions not relevant in this case,2 the Court of Federal Claims
does not possess the power to enter general declaratory relief absent a connection to a claim for
monetary damages. See Bowen v. Massachusetts, 487 U.S. 879,905 & n.40 (1988); Gonzales &
Gonzales Bonds & Ins. Agency, Inc. v. Dep't of Homeland Sec., 490 F.3d 940, 943 (Fed. Cir.
2007); Kanemoto v. Reno, 41 F.3d 641, 644-45 (Fed. Cir. 1994). Further, "[t]he Court of
Federal Claims has never been granted general authority to issue declaratory judgments" since
Congress specifically chose "not to make the Declaratory Judgment Act applicable to the Court
of Federal Claims." Nat'l Afr Traffic Controllers Ass'n, 160 F.3d at 716-17. Here, plaintiff asks
the court to vacate a district court order, and only seeks declaratory, not monetary, relief. The
fact that plaintiff also prays for whatever relief the "court deems just and proper" does not alter
the fact that plaintiff sought no monetary damages in his complaint. Thus, the court concludes
that it lacks jurisdiction to issue the declaratory judgment requested by plaintiff.

           C. The Court of Federal Claims Cannot Review Decisions of Other Courts

         Finally, defendant contends that this court does not have jurisdiction to review the district
court's disbarment proceeding because the Court of Federal Claims "does not have jurisdiction
to review the decisions of district courts ... relating to proceedings before those courts." Def. 's
Mot. 4 (quoting Joshua v. United States, 17 F.3d 378,380 (Fed. Cir. 1994)). Plaintiff maintains,
however, that "this Court has jurisdiction to issue an Order to 'any' official of the United States,
'any' official of the United States including, by definition, a Clerk ofa United States District
Court, as sought herein." Pl. 's Resp. 4. Specifically, plaintiff asserts that the district court's
failure to issue a show-cause order prior to disbarring him contravened the United States
Supreme Court's ("Supreme Couti") holding in Theard, and failing to obey the mandate of the

       2   See 28 U.S.C. § 149l(a)(2) (providing the couti withjurisdiction to issue, "as incident
of and collateral to" an award of money damages, "orders directing restoration to office or
position, placement in appropriate duty or retirement status, and con-ection of applicable
records"); id. (providing the court with jurisdiction to render judgment in nonrnonetary disputes
arising under the Contract Disputes Act of 1978); id. § 1491 (b )(2) (providing the court with
jurisdiction to award declaratory and injunctive relief in bid protests); id. § 1507 (providing the
court with jurisdiction to issue declaratory judgments under 26 U.S.C. § 7428).

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Supreme Court consequently operates to deprive a court of jurisdiction, rendering the disbarment
void. Compl. ~ii 3-4. Plaintiff argues that because the district court failed to follow Supreme
Court precedent, it violated "Aliicle III, Section I, of the Constitution of the United States" and
because this violation caused plaintiff injury, the Court of Federal Claims has subject-matter
jurisdiction under the Tucker Act to ente1iain his claim. Id.~~ 4-5.

        Plaintiff's argument fails because this court does not sit in review of the United States
District Court for the Eastern District of New York or any other federal district comt. Binding
precedent is crystal clear on this proposition: "[T]he Court of Federal Claims does not have
jurisdiction to review the decisions of district courts or the clerks of district comis relating to
proceedings before those courts." Joshua, 17 F.3d at 380. Contrary to plaintiffs asse1tion, the
Court of Federal Claims does not possess untrammeled power to issue orders to any official of
the United States. Plaintiffs recourse, if any, concerning prior adverse decisions is via "the
statutorily defined appellate process," Shinnecock Indian Nation v. United States, 782 F.3d 1345,
1353 (Fed. Cir. 2015). In other words, judicial decisions can only be reviewed by the
appropriate appellate court. Plant v. Spendthrift Farm, Inc., 514 U.S. 211, 218-19 (1995).

                                      IV. CONCLUSION

        For the reasons explained above, the Court of Federal Claims lacks subject-matter
jurisdiction to entertain plaintiff's claim. Therefore, the comt GRANTS defendant' s motion and
DISMISSES plaintiff's complaint WITHOUT PREJUDICE. No costs. The clerk is directed
to enter judgment accordingly.

       IT IS SO ORDERED.




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