                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


 VITALY PILKIN, et al.,

                Plaintiffs,

         v.                                           Civil Action No. 17-2501 (RDM)

 SONY INTERACTIVE ENTERTAINMENT,
 LLC, et al.,

                Defendants.


                          MEMORANDUM OPINION AND ORDER

       Plaintiffs Vitaly Pilkin and Vladimir Miroshnichenko are citizens of the Russian

Federation, and, appearing pro se, bring this suit against Sony Entertainment LLC and Sony

Corporation (collectively “Sony”), the law firm Hogan Lovells LLP, and the United States

Department of Justice and Attorney General Jefferson Sessions “in his official capacity”

(collectively “Federal Defendants”), seeking damages for an alleged criminal conspiracy to

deprive them of profits from their Russian patent. Dkt. 1 at 1, 3. Although Plaintiffs’ 152-page

complaint is not the picture of clarity, it appears that their principal argument is that Sony and

Hogan Lovells conspired to undermine Plaintiffs’ patent in legal proceedings in Russia, actions

which Plaintiffs allege violated a number of United States statutes. Plaintiffs seek monetary

damages of $340,000,000 “based on the doctrine of unjust enrichment[.]” Id. at 4. Plaintiffs

further argue that the Federal Defendants are liable for their losses because the Department of

Justice failed to investigate and to prosecute Sony and Hogan Lovells for criminal activity,

thereby “aid[ing] Sony Group companies and Hogan Lovells” and “defraud[ing] the United

States.” Id.
       Under 28 U.S.C. § 1915(e)(2), the Court must dismiss a case “at any time” it determines

that the complaint “fails to state a claim upon which relief can be granted” or “seeks monetary

relief against a defendant who is immune from such relief.” Even more fundamentally, federal

courts have an obligation to ensure that they have subject matter jurisdiction over any and all

claims pending before them. See Fed. R. Civ. P. 12(h)(3) (requiring the Court to dismiss an

action “at any time” it determines that subject matter jurisdiction is wanting). For the reasons

explained below, the Court will dismiss the complaint against the Federal Defendants for want of

subject matter jurisdiction.

       A suit against the Department of Justice and the Attorney General in his official capacity

must be treated as a suit against the United States. See Kentucky v. Graham, 473 U.S. 159, 166

(1985). Claims against the United States for money damages, however, are barred by sovereign

immunity unless a waiver of that immunity is “unequivocally expressed in statutory text.” Lane

v. Pena, 518 U.S. 187, 192 (1996). Here, Plaintiffs allege that the United States is liable for

money damages because they provided the Federal Defendants with “arguments and proofs

which evidence[d] that for several years Sony Group Companies, [and] Hogan Lovells . . . with

high probability committed an FCPA violation and [a] RICO offense,” Dkt. 1 at 103, and the

Federal Defendants did not investigate or prosecute Sony and Hogan Lovells based on that

information, id. at 106 (alleging that the Federal Defendants “committed acts that obstructed a

lawful governmental function by means that were dishonest,” in violation of “the U.S. Attorneys’

Manual (Title 9, 9-42.001[)]” and “18 U.S.C. § 371”).

       Plaintiffs have not identified—and cannot identify—any statute that waives the sovereign

immunity of the United States for claims premised on the failure of the Department of Justice to

investigate allegations of criminal misconduct or to bring criminal charges against a third party.



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Certainly, nothing in the United States Attorneys’ Manual purports to authorize suits against the

United States, see United States v. North, No. 88-cr-80, 1988 WL 148491, at *1 n.2 (D.D.C.

Nov. 10, 1988) (“The United States Attorney’s Manual . . . . does not have the force of law.”),

nor is it possible to construe anything contained in 18 U.S.C. § 371 or RICO to do so. And,

although the Federal Tort Claims Act authorizes certain suits for money damages against the

United States, that waiver of sovereign immunity does not apply to “[a]ny claim based upon . . .

the exercise or performance or the failure to perform a discretionary function or duty on the part

of a federal agency or an employee of the Government.” 28 U.S.C. § 2680(a). Here, no statute,

regulation, or policy mandates that the Department of Justice initiate a criminal investigation or

bring criminal charges, and judicial “second-guessing” of whether the Department should do so

is not only at odds with the purposes of the discretionary function exception, see United States v.

Gaubert, 499 U.S. 315, 323 (1991), but would raise significant separation of powers concerns,

see Heckler v. Chaney, 470 U.S. 821, 832 (1985).

       Because the United States has not waived its sovereign immunity, the Court lacks subject

matter jurisdiction over Plaintiffs’ claims against the Federal Defendants, and those claims must

be dismissed.

       Accordingly, on the Court’s own motion, it is hereby

       ORDERED that this action should be, and is hereby, DISMISSED against the United

States Department of Justice and United States Attorney General Jefferson Sessions.

       SO ORDERED.


                                                     /s/ Randolph D. Moss
                                                     RANDOLPH D. MOSS
                                                     United States District Judge



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Date: April 4, 2018




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