Walter Lichtenberg v. Secretary of the Navy

Filing

Opinion issued by court as to Appellant Walter Lichtenberg. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-11819

Date Filed: 12/29/2015

Page: 1 of 4

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-11819
Non-Argument Calendar
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D.C. Docket No. 8:14-cv-01696-EAK-MAP
WALTER LICHTENBERG,
Plaintiff-Appellant,
versus
SECRETARY OF THE NAVY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 29, 2015)
Before MARCUS, WILLIAM PRYOR and JULIE CARNES, Circuit Judges.
PER CURIAM:
Walter Lichtenberg, proceeding pro se, appeals the district court’s order
dismissing his complaint, alleging violations of 18 U.S.C. § 1001 and the
Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961

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Date Filed: 12/29/2015

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et. seq., based on his claim that he had been denied “retirement points” that should
have entitled him to a certain cash award at the time of his retirement. The district
court dismissed his complaint for lack of subject matter jurisdiction. On appeal,
Lichtenberg argues that the concept of sovereign immunity did not apply to his
case. After thorough review, we affirm.
We review de novo questions concerning the subject matter jurisdiction of
the district court. Bishop v. Reno, 210 F.3d 1295, 1298 (11th Cir. 2000). We also
construe pro se pleadings liberally. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir.
2003). Nevertheless, if a party does not brief a legal claim or argument, it is
deemed abandoned and its merits will not be addressed. Access Now, Inc. v. Sw.
Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).
Federal courts are limited in their jurisdiction to the power conferred by the
Constitution and federal statutes, and the party invoking the court’s jurisdiction
bears the burden of proving the existence of federal jurisdiction. Bishop, 210 F.3d
at 1298. Jurisdiction may be based on a civil action alleging a violation of the
United States Constitution, or a federal cause of action established by a
Congressionally-created expressed or implied private remedy for violations of a
federal statute. City of Huntsville v. City of Madison, 24 F.3d 169, 171-72 (11th
Cir. 1994). If the district court determines that it lacks subject matter jurisdiction,
it must dismiss the action. Fed. R. Civ. P. 12(h)(3). Further, the United States is
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immune from suit unless it consents to be sued. Zelaya v. United States, 781 F.3d
1315, 1321 (11th Cir. 2015). If there is no specific waiver of sovereign immunity
as to a particular claim, the district court lacks subject matter jurisdiction over the
suit. Id. at 1322.
Section 1001 of Title 18 of the U.S. Code is a criminal statute prohibiting
knowingly making false or fraudulent statements or concealing information in a
matter within federal jurisdiction. 18 U.S.C. § 1001. It does not provide a civil
cause of action. See id. However, RICO provides a civil cause of action and
grants jurisdiction to the district courts to hear those claims. 18 U.S.C. §1964.
Here, even construing Lichtenberg’s pleadings liberally, he has not fully
briefed the relevant issue on appeal, since he has cited no legal authority to support
his proposition that sovereign immunity did not apply. But even if we were to
examine the merits of the district court’s dismissal, we would conclude that the
district court correctly dismissed Lichtenberg’s complaint for lack of subject
matter jurisdiction. First, 18 U.S.C. § 1001 does not provide a civil cause of
action, and therefore, the district court could not have had jurisdiction over his
claim. Second, while RICO provides a civil cause of action, Lichtenberg has not
shown that the United States specifically waived its sovereign immunity for that
claim. Thus, none of the statutes he relied on provided the court with jurisdiction.

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Finally, Lichtenberg’s claim that the district court’s dismissal conflicted
with its order from January 5, 2015 -- which granted Lichtenberg additional time to
properly serve the Navy with his complaint -- lacks merit. The January order was
not relevant to the dismissal order, nor did it conflict with the order, since the court
had the authority to dismiss Lichtenberg’s complaint if it determined -- as it did -that it lacked subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
AFFIRMED.

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