DRISCOLL v. USA, No. 1:2016cv00659 - Document 8 (Fed. Cl. 2016)

Court Description: UNREPORTED OPINION and ORDER granting 6 Motion to Dismiss - Rule 12(b)(1); granting 3 Motion for Leave to Proceed in forma pauperis. The Clerk is directed to enter judgment. No costs. Signed by Judge Charles F. Lettow. (dls) Copy to parties. (USPS Tracking No. 9114 9999 4431 3548 1338 48)

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DRISCOLL v. USA Doc. 8 ORIGINAT lrn tltt @nitr! $ltstts @ourt of /t[eru[ @luims No. 16-659C (Filed: August 24, 2016) (NOT TO BE PUBLISHED) ***** t( *,8 + * rr **** :t :i ********* FILED AUG 2 4 20t6 + * f :i :r **+ U.S. COURT OF FEDERAL CLAIMS MICHAEL DRISCOLL, Plaintiff, UNITED STATES, Defendant' !t {. *,1. *,t :* :t *,t * * * :i( :* :* * *,1. *r * * * * *,t *,t :f * * * * :1. OPINION AND ORDER Michael Driscoll, Selden, New York, pro se. zachary J. Sullivan, Trial Attorney, commercial Litigation Branch, civil Division, United States Department of Justice, Washinglon, D.C. for defendant. With him on the brief were Benj amin C. Mizer, Principal Deputy Assistant Attomey General, Civil Division, and Robert E. Kirschman, Jr., Director, and Elizabeth M. Hosford, Assistant Director, civil Division, United States Department of Justice, Washington, D.C. LETTOW, Judge. Plaintiff Michael Driscoll seeks review of a decision by the New York State Court of claims (,New York claims court"), denying his motion for default judgment. compl. fl 2 ("I (l'/YS) am filing my Summons and Complaint with the United States Court of Claims, against the court of claims; for violating my constitutional rights, Judicial Law Proceedings, policies and procedures[] goveming proper response time (21) days, to a summons and complaint on file had filed suit tt TSSOS t W-7 ercq):;) (emphasii added). Mr. Driscoll's complaint states thal he support payments. Compl. fl 3. in the New York Claims Court requesting relief relating to child thut h. had been involved in a divorce proceeding, which Attachments to his complaint ""plain pay child support. Neither Mr. Driscoll's complaint nor apparently resulted in an obligation to its^attachments make any claims or allegations against the United States'r IMr. Driscoll states that he has also filed suit in the United States Tax Court to challenge New York state taxes. compl. fl 7.lnDriscollv. commissioner, No. 12051-16 (Tax Ct.)' the uspsrnlcKrNc* 9114 9999 4431 3548 1338 48 S.CUSTOMER For Trac{ing or inqlincs go to USPS com ffcelll-800-222-1811 RECEIPT Dockets.Justia.com The United States has filed a motion to dismiss, contending that this court lacks jurisdiction over claims against parties other than the United States. Def.'s Mot. to Dismiss ("Def.'s Mot."), ECF No. 6. As an exhibit to this motion, the govemment has submitted a decision of the New York Claims Court, which decision contains a "claim number" of "1 15969" and "motion number" of "M-76366," which are identical to the numbers cited in Mr. Driscoll's complaint. Def.'s Mot. at Ex. A (showing order of the state court). That decision shows that Mr. Driscoll filed a motion for a default judgment against the State of New York, and that the New York Claims Court denied the motion as improper under state law. /d Mr. Driscoll has responded to the govemment's motion to dismiss, elaborating on the actions of the New York Claims Court. Pl.'s Resp. to Def.'s Mot. to Dismiss, ECF No. 7. Pursuant to the Tucker Act, codifred at 28 U.S.C' $ 1a91(a), this court's jurisdiction is limited to actions against the United Starcs. United States v. Sherwood,3l2 U.S. 584, 588 (1941). If the court at any time determines it lacks jurisdiction, it must dismiss the case. Rule 12(hX3) ofthe Rules ofthe Court ofFederal Claims; see also Brady v. United States,54l Fed. Appx. 991, 993 (Fed. Cir. 2013) (affirming sac sponle dismissal of apro se complaint for lack of jurisdiction); Kelley v. Secretary, Llnited States Dep't of Labor, 812 F 2d 1 378, 13 80 (Fed. Cir. 1987) (although courts hold pro se plaintiffs to less stringent standards, this leniency does not extend to plaintiff s burden of establishing jurisdiction). Because Mr. Driscoll makes no allegations against the United States, the court must dismiss his case. The court also declines transfer of the case pursuant to 28 U.S.C. $ 163 i, which permits transfer in the interest ofjustice to another federal court that would have had jurisdiction. Federal courts generally lack jurisdiction directly to review the decisions of state tribunals, and consequently the court can discem no federal forum to which this case could be transfened. See at *1-2 (Fed. Cir' July 8,2016) Appx.-, Beils;. United States, -Fed. -,2016WL3645112' (affrrming a trial court's decision to decline transfer to another federal court, clIing the RookerietdmanToctine, when plaintiff sought review of a state tribunal's decision (refeting to Rooker v. Fidelity Trust Co.,263 U.S. 413,415-16 (1923), and District of Columbia Court of Appeals v. Feldman,460 U.S. 462 (1983))). The court concludes that Mr. Driscoll's complaint must be dismissed for lack ofsubject 2 matter iurisdiction. The clerk is directed to enter j udgment in accord with this disposition.3 No costs. Commissioner filed a motion to dismiss for lack ofjurisdiction, and Mr. Driscoll obtained an extension of time to August 17, 2016 to file a response to that motion. See Order ofJuly 26, 2016, Driscoll v. Commissioner, No. 12051-16 (Tax Ct.). 2Even if the court were to determine that Mr. Driscoll made allegations against the United States, the court would dismiss the case because 28 U.S.C. $ 1915(eX2)(BXi), (ii) is applicable (Mr. Driscoll has moved for leave to proceed informa pauperisl), and his complaint makes no ;llegations that could be construed as stating an action for monetary relief within the ambit ofthe Tucker Act. 3Plaintiff s motion to proceed informa pauperis, ECF No. 3, is GRANTED' It is so ORDERED. Charles F. Lettow Judge

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