United States District Court, D. Montana, Great Falls Division
PETER P. MITRANO, Plaintiff,
UNITED STATES OF AMERICA, and KERI A. ADORISIO, Defendants.
Morris United States District Court Judge
Peter Mitrano (Mitrano), an attorney representing himself,
filed this action on February 22, 2016. Mitrano alleges that
the Defendants violated the Posse Comitatus Act of 1878, 18
U.S.C. § 1385, by denying him access to Malmstrom Air
Force Base because of his prior felony conviction. Mitrano
requests that the Court enjoin the Defendants from any
further violations of the Act. Mitrano also requests that the
Court declare a child custody order issued by the Lebanon
Family Court in Lebanon, New Hampshire on September 27, 2002,
void as a matter of law.
have moved to dismiss Mitrano's claims. Defendants argue
that the dismissal of this action is appropriate because: (1)
this Court lacks subject matter jurisdiction; and (2) Mitrano
has failed to state a claim upon which relief may be granted.
States Magistrate Judge John Johnston entered Findings and
Recommendations in this matter on October 31, 2016. (Doc.
24). Judge Johnston recommended that Mitrano's Complaint
be dismissed because this Court lacked subject matter
jurisdiction. Judge Johnston determined that the United
States' sovereign immunity precluded this court from
exercising jurisdiction over Mitrano's claim under the
Posse Comitatus Act, and Mitrano's claim for
declaratory relief was barred by the Rooker Feldman
doctrine. (Doc. 24 at 2-4). Mitrano did not file objections
to Judge Johnston's Findings and Recommendations.
Court has reviewed Judge Johnston's Findings and
Recommendations for clear error. McDonnell Douglas Corp.
v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th
Cir. 1981). The Court finds no error in Judge Johnston's
Findings and Recommendations, and adopts them in full.
Claim under the Posse Comitatus Act
has named the United States and Keri Adorisio (Adorisio) as
Defendants in this action. Adorisio is a federal employee.
Adorisio is Chief of the Civilian Personnel Office at
Malmstrom. (Doc. 1 at 3). Mitrano has sued Adorisio based
upon actions she allegedly took in her official capacity as a
government official. A suit against a federal employee for
actions taken by the employee in her official capacity, is
treated as a suit against the United States. Kentucky v.
Graham, 473 U.S. 159, 165 (1985).
United States, as a sovereign, is immune from suit unless it
waives its immunity and consents to be sued. Reed ex rel.
Allen v. U.S. Dep't of Interior, 231 F.3d 501, 504
(9th Cir. 2000). The sovereign immunity of the United States
extends to federal employees sued in their official
capacities. Gilbert v. DaGrossa, 756 F.2d 1455, 1458
(9th Cir. 1985). Any governmental waiver of sovereign
immunity must be unequivocal. See Franconia Assocs. v.
United States, 536 U.S. 129, 141 (2002). Federal courts
lack subject matter jurisdiction over a claim against the
United States absent a waiver of sovereign immunity by the
United States. United States v. Mitchell, 463 U.S.
206, 212 (1983). Neither 28 U.S.C. § 1331, nor the
Posse Comitatus Act waive the United States'
sovereign immunity. See Holloman v. Watt, 708 F.2d
1399, 1401 (9th Cir. 1983); 18 U.S.C. § 1385. This Court
therefore lacks subject matter jurisdiction over
Mitrano's claim under the Posse Comitatus Act.
Claim for Declaratory Relief
requests that this Court declare a child custody order issued
by a New Hampshire state court void as a matter of law. The
Rooker-Feldman doctrine“prohibits a federal
district court from exercising subject matter jurisdiction
over a suit that is a de facto appeal from a state court
judgment.” Kougasian v. TMSL, Inc., 359 F.3d
1136, 1139 (9th Cir. 2004). A de facto appeal exists when a
federal plaintiff seeks relief from a state court judgment
based on an alleged legal error by the state court. Noel
v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003). When
“a plaintiff brings a de facto appeal from a state
court judgment, Rooker-Feldman requires that the
district court dismiss the suit for lack of subject matter
jurisdiction.” Kougasian, 359 F.3d at 1139.
claim for declaratory relief constitutes a de facto appeal of
the final disposition of a New Hampshire state court.
Dismissal of Mitrano's claim for declaratory relief is
appropriate under the Rooker-Feldman doctrine.
IT IS ORDERED:
Defendants' Motion to Dismiss (Doc. 9) is GRANTED.
Plaintiff's Complaint (Doc. 1) is DISMISSED for lack of