Stanley Jerome Baker, Appellant, v. United States Department of the Army, 976 F.2d 45 (D.C. Cir. 1992)

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US Court of Appeals for the District of Columbia Circuit - 976 F.2d 45 (D.C. Cir. 1992) Aug. 27, 1992




Upon consideration of appellee's motion for summary affirmance, appellant's motion for appointment of counsel, the court's order to show cause and the lack of response thereto, it is

ORDERED that the court's order to show cause, filed November 22, 1991, be discharged. It is

FURTHER ORDERED that the motion for appointment of counsel be denied. Except in a criminal trial and on appeal therefrom, appointment of counsel is exceptional and wholly unwarranted when appellant has not demonstrated any likelihood of success on the merits. See D.C.Circuit Handbook of Practice and Internal Procedures 29 (1987). It is

FURTHER ORDERED that appellee's motion for summary affirmance be granted. The merits of the parties' positions are so clear as to justify summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam); Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir.) (per curiam), cert. denied, 449 U.S. 994 (1980). With respect to appellant's malicious prosecution tort claims, he has failed to meet the Federal Tort Claims Act requirement that he first present those claims to the appropriate federal agency before bringing suit in district court. See 28 U.S.C. § 2675(a); GAF Corp. v. United States, 818 F.2d 901, 904 (D.C. Cir. 1987). With respect to the remainder of appellant's claims, we affirm substantially for the reasons stated by the district court in its memorandum opinion and order filed May 13, 1991.

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 15.

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