Yakov Drabovskiy v. United States Department of Ho

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: JORDAN, BARRY and VAN ANTWERPEN, Circuit Judges. Total Pages: 5. We deny Drabovskiy s pending motions.

Case: 15-1267

Document: 003112141806

Page: 1

Date Filed: 11/30/2015

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-1267
___________
YAKOV G. DRABOVSKIY,
Appellant
v.
USA, DEPARTMENT OF HOMELAND SECURITY
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3:14-cv-00451)
District Judge: Honorable Richard P. Conaboy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 23, 2015
Before: JORDAN, BARRY and VAN ANTWERPEN, Circuit Judges
(Opinion filed: November 30, 2015)
___________
OPINION*
___________
PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 15-1267

Document: 003112141806

Page: 2

Date Filed: 11/30/2015

While serving his sentence for violating 8 U.S.C. § 1253(a)(1)(B) (willful failure
to depart after having been ordered removed), see United States v. Drabovskiy, W.D. La.
Crim. No. 2:09-cr-00146, Yakov G. Drabovskiy filed an action titled “civil action for
deprivation of liberty due to indefinite detention.” He primarily complained about an
“indefinite detention” relating to his order of removal, immigration detention, and a
detainer lodged by the Department of Homeland Security. The District Court concluded
that the claims were not actionable because Drabovskiy was not in immigration custody
at that time and claims relating to his past immigration custody were moot. We affirmed
the ruling. Drabovskiy v. U.S. Dep’t of Homeland Sec., 573 F. App’x 93, 94 (3d Cir.
2014) (per curiam).
A few months after our mandate issued, Drabovskiy returned to the District Court
with a motion under Rule 60(b) of the Federal Rules of Civil Procedure. He asked the
District Court to consider his “civil action for deprivation of liberty due to indefinite
detention” on the merits, noting that he was approaching the end of his criminal sentence
and asserting that the “danger of indefinite (continuous) detention [was] imminent.” On
December 16, 2014, the District Court, noting the ruling affirming the dismissal of the
action, denied the Rule 60(b) motion.
On December 31, 2014, the District Court received Drabovskiy’s motion for
reconsideration of the December 16, 2014 order. Drabovskiy essentially argued that our
mandate did not preclude relief under Rule 60(b) because he had presented a basis for
2

Case: 15-1267

Document: 003112141806

Page: 3

Date Filed: 11/30/2015

relief to the District Court that had not been before us. He also emphasized the
importance of deciding cases on their merits. On January 8, 2015, the District Court
denied the motion, noting that it had properly denied the Rule 60(b) motion because
Drabovskiy had not raised any matters that were not included or includable in his appeal.
In ruling, the District Court also disallowed additional filings in the case without leave of
the court. Drabovskiy filed a notice of appeal on January 23, 2015, at the latest. 1
We have jurisdiction pursuant to 28 U.S.C. § 1291.2 Our review of an order
denying a motion for reconsideration is for abuse of discretion, but, to the extent the
denial is based on the interpretation and application of a legal precept, our review is
plenary. See Koshatka v. Phila. Newspapers, Inc., 762 F.2d 329, 333 (3d Cir. 1985).
Also, generally, our review of orders denying Rule 60(b) motions is for abuse of
discretion.3 See Budget Blinds, Inc. v. White, 536 F.3d 244, 251 & n.5 (3d Cir. 2008)

1

With his appeal he presents several motions, namely, two motions to expedite this
matter, two motions for bail pending appeal (and a similar request for release in his reply
brief), a motion to file a constitutional claim (he submits a “constitutional claim to
declare the immigration law unconstitutional in respect to permanent residents and lawful
immigrants”), a motion to supplement the record, and a motion to strike the Appellee’s
brief.
Drabovskiy’s appeal is timely as to both challenged orders. See Fed. R. App. P.
4(a)(1)(B).
2

3

Additionally, we ordinarily consider whether a district court followed the proper
procedures for imposing a filing injunction like the one the District Court entered, see In
re Oliver, 682 F.2d 443, 446 (3d Cir. 1982), and we review the imposition of such an
injunction for abuse of discretion, see Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d Cir.
1987). However, Drabovskiy does not challenge the filing injunction, so we consider the
3

Case: 15-1267

Document: 003112141806

Page: 4

Date Filed: 11/30/2015

(explaining also that this Court exercises plenary review over orders granting or denying
relief under Rule 60(b)(4)).
The District Court did not err in denying the motion for reconsideration. “The
purpose of a motion for reconsideration is to correct manifest errors of law or fact or to
present newly discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d
Cir. 1985). Although Drabovskiy argued that the District Court had made an error of
law, the District Court had not erred in rejecting his Rule 60(b) motion. “[A] district
court is without jurisdiction to alter the mandate of this court on the basis of matters
included or includable in [a] prior appeal.” Seese v. Volkswagenwerk, A.G., 679 F.2d
336, 337 (3d Cir. 1982). That Drabovskiy’s federal sentence would, at some point, end
was a matter understood in his earlier appeal. Although he changed his characterization
of the matter that was included (or to the extent it was not included, includable) in his
appeal, Drabovskiy did not seek relief based on something that this Court had not
considered.
Accordingly, the District Court properly concluded that reconsideration was not
warranted in the absence of a legal error. See also Seese, 679 F.2d at 337 n.1 (comparing
the circumstances in which a District Court should entertain a Rule 60(b) motion under
Standard Oil Co. v. United States, 429 U.S. 17 (1976) (per curiam), with those in which a

issues related to it waived. See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 192
(3d Cir. 2005).
4

Case: 15-1267

Document: 003112141806

Page: 5

Date Filed: 11/30/2015

District Court should not). For the reasons given, the District Court properly rejected the
Rule 60(b) motion.
In short, we will affirm the District Court’s orders. We deny Drabovskiy’s
pending motions.

5