ROTHING v. USA, No. 1:2016cv01444 - Document 12 (Fed. Cl. 2017)
Court Description: UNREPORTED OPINION granting 7 Motion to Dismiss - Rule 12(b)(1) and (6). The Clerk is directed to enter judgment. Mailed USPS 7016 3010 0000 4308 2771. Signed by Judge Margaret M. Sweeney for Senior Judge Loren A. Smith. (ae) Copy to parties.
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ROTHING v. USA Doc. 12 Offi$ffi$NAr @nfte[ btuttg @ourt of fplrrsl tlsimg No. 16-1444 C Filed: May 26,2017 FILED MAY 2 6 20t7 PETERROTHING, U.S. COURT OF FEDERAL CLAIMS Plaintift RCFC 12(b)(1); Lack of Subject-Matter Jurisdiction RCFC l2(bX6); Failure to State a Claim THE L]NITED STATES, Del'endant. Peter Rothing, pro se plaintifl. Lauren S. Moore, lJniled States Department of Justice, Civil Division, Washington, DC, for defendant. OPINIONAND ORDER SMITH, Senior Judge This action is before the court on defendant's motion to dismiss' On November 2, 2016, plaintiff, proceedingpro se, filed a complaint seeking various forms ofrelief. Plaintiff, a former litigant in the United States District Court for the District of Montana, seeks damages for personal injury and property damage caused by various alleged torts committed by members of the federal judiciary. Plaintiffls complaint asserts, inter alia, that specificjudges on the United States Court of Appeals for the Ninth Circuit (hereinafter "Ninth Circuit") committed tortious actions and conspired to deny plaintiffaccess to the court system' On January 31,2017, defendant filed a motion to dismiss plaintiff s complaint for lack of jurisdiction, pursuanr to Rule 12(b)(l) ofthe Rules of the U.S. Court of Federal Claims, or, in the altemative, for fbilure to state a claim upon which reliefcan be granted, pursuant to Rule 12(b)(6) of the Rules of the U.S. Court of Federal Claims (hereinafter "RCFC"). For the following reasons, the Court grants defendant's motion to dismiss. I. Background Mr. Rothing filed two civil actions against Montana state court judges and state employees in the United States District Court for the District of Montana alleging "violations of the Constitution, RICO conspiracy to obstruct justice and numerous tort violations...." Plaintiff s Response to Defendant's Motion to Dismiss (hereinafter "P's Resp.") at 4. The cases were Dockets.Justia.com originally set before two differentjudges in the district, but they were ultimately consolidated before one ofthe district's magistrate judges. Plaintiffs Complaint (hereinafter "Compl.") at 2. On September 2,2015, the magistrate judge dismissed both cases and issued an order declaring Mr. Rothing a vexatious litigant. Id. On September 11,2015, Mr. Rothing filed an objection to the magistrate judge's September 2 Order pursuant to 28 U.S.C. $ 636(bxlXC) and Federal Rules of Civil Procedure Rule 72 (hereinafter "FRCP"), allowing a district court judge to de novo review a magistrate judge's order. /d. at 3. Plaintiff alleges that Montana District Court ChiefJudge Dana L. Christensen ignored his objection to the September 2 Order and, in doing so, ignored the "will thelaw." Id. of Mr. Rothing then filed complaints under the Judicial Conduct and Disability Act, 28 U.S.C. $$ 351-364 (hereinafter "JCDA'), and submitted those complaints to the Ninth Circuit' 1d. Plaintiff alleges that thee judges from the Ninth Circuit and a Ninth Circuit Executive dismissed his complaints and thus commifted torts "by failing to uphold the law and by their failure to adhere to the mandatory rules for [p]roceedings under the [Judicial conduct and Disabilityl Act." Id. In addition to his original complaints against the federal judges from the Montana district, plaintiff subsequently filed JCDA complaints against thee judges on the Ninth Circuit who were assigned to review those original complaints. Id. at4' On November 2, 201 6, plaintiff filed a complaint in this Court, naming three judges on the Ninth Circuit and the "Chief [E]xecutive Officer" of the Ninth Circuit as defendants. Compl. at 1. Plaintiff asserts that "these individuals' actions constitute torts of, but not limited to, negligence, fraud and malice, negligent and intentional infliction of emotional distress, nuisance, and breach of the implied covenant of good faith and fair dealing." 1d. Plaintiff is seeking ,,pursuant to the Federal Tort Claims Act" (hereinafter "FTCA") in the amount of damages $1,000,000 for personal injury and $450,000 for the regulatory taking of real property. Id. at 5. on January 31,2017, the govemment filed a motion to dismiss Mr. Rothing's complaint for lack of subject-matter jurisdiction, or, in the altemative, for failure to state a claim upon which relief can be granted. Defendant's Motion to Dismiss (hereinafter "MTD') at 1. The govemment contends that Mr. Rothing's complaint fails to identify any money-mandating provision that properly invokes this Court's jurisdiction. 1d. Fu(hermore, the government irgues that Mr. Rothing's complaint fails to state a basis for a cognizable claim. Id. on February 21,2017, plaintifffiled his response to the government's motion to dismiss. In his response, Mr. Rothing posits that "subject matter jurisdiction of this court is granted pursuant to the Federal Tort Claims Act, 28 USC 267l-2680 and is authorized by the Tucker that [A1"t, al.o." P's Resp. at 1. Plaintiff further argues that the components of his complaint the violations ofthe the defendant treats as torts are in actuality "pages of evidence citing Constitution, Federal statutes and laws, the Fed. R. Civ. P., and multiple violations of the Rules for Proceedings under the Judicial conduct and Disability Act, all of which fall under the jurisdiction of this Court, under the Tucker Act." 1d. at 2. on March 7 ,201': , the govemment filed its reply in support of its motion to dismiss this case. The government reiterates its position that this Cou( lacks jurisdiction over tort claims and that neither the Constitution nor the JCDA provides a money-mandating provision to establish this Court's jurisdiction. Defendant's Reply in Support of its Motion to Dismiss (hereinafter "D's Reply") at2. The government also argues that plaintiff s complaint fails to sufficiently demonstrate the existence ofan express or implied contract between the plaintiffand the govemment. 1d. at 4. II. Discussion This Court's jurisdictional grant is primarily defined by the Tucker Act, which provides this Court the power "to render anyjudgment upon any claim against the United States founded either upon the Constitution, or any Act ofCongress or any regulation ofan executive department, or upon any express or implied contract with the United States ' . . in cases nol sounding in tort." 28 U.S.C. S 1a91(a)(1) (emphasis added). Although the Tucker Act expressly waives the sovereign immunity ofthe United States against such claims, it "does not create any substantive right enforceable against the United States for money damages." United States v. 'Iucker Act, "a T'estan,424 U.S. 392, 395 (1976). Rather, in order to lall within the scope ofthe plaintiff must identif' a separate source of substantive law that creates the right to money damages." Fisher v. United States,402 F.3d 1167,1172 (Fed. Cir. 2005) (en banc in relevant part). When considering a motion to dismiss for lack of subject-matter jurisdiction, the Court ,.must accept as true all undisputed facts asserted in the plaintiff s complaint and draw all reasonable lnferences in favor of the plaintiff ." Trusted Integration, Inc. v. United Stntes,659 F.3d 1159, 1163 (2011) (citing Henke v. United States,60 F.3d 795, 797 (Fed. Cir. 1995)). Further, pleadings from pro se plaintiffs are held to more lenient standards than pleadings drafted by lawyers. Hughes v. Rowe,449 U S. 5,9 (1980); see also Ericl<son v Pardus,55l U S' 89,94 lies outside of this IiOOZ;. rnls leniency, however, does not extend to saving a complaint that dourt;s jurisdiction. "Despite this permissive standard, apro se plaintiff must still satisfy the court,s jurisdictional requiremenis." Trevinor. unitedslates,l l3 Fed. C|.204,208 (2013)' affd,557 F.App'x995 (Fed. Cir.2014) (citations omitted). Pro se or nor, the plaintiff still has tiie burden ofesiablishing by a preponderance ofthe evidence that this Court has jurisdiction over its claims. see Kokkonen v. Guardian Life Ins. co. of Am.,511 U.S. 375, 377 (1994). The Tucker Act explicitly excludes tort claims against the United States from this Court's jurisdiction. "lt is well settled that the United States Court of Federal Claims lacks-and its tort claims." iredecessor the United States claims court lacked-jurisdiction to entertain ihearin v. (Jnited states, 9g2F .2d 1 i 95, 1 197 (Fed. Cir. 1993); see also sellers v. United states, ll0Fed. C\.62,66 (2013). United States district courts have exclusive jurisdiction to hear tort claims against the United States, including all claims under the FTCA See 28 U S C' $ 1346(b)( l ). Here, Mr. Rothing fails to establish by a preponderance ofthe evidence that this Court has jurisdiction over his claims. The first sentence of plaintiff s complaint states, "[t]his claim is being filed pursuant to the [FTCA]...." Compl. at f . in response to the government's motion to dismiss, Mi. Rothing asserts that the FTCA is under this Court's jurisdiction "because it is an Actof Congress." P'sResp. aI2. He then argues that his claims "are founded upon violations of Acts of congress,,'and specifically names the FTCA and JCDA. P's Resp. at 3. Neither the FTCA nor the JCDA provide a cognizable source ofjurisdiction for this Court. As previously discussed, this Court does not have jurisdiction over tort claims, and such jurisdiction lies exclusively with the United States district courts. See, e.g., Souders v. S.C. Pub. Serv. Auth., 497 F .3d 1303, I 307 & n.5 (Fed. Cir. 2007) (holding that the plaintiff s negligence claims sounded in tort and thus were beyond thejurisdiction of the United States Court of Federal Claims); Moore v. Durango Jail,77 Fed. Cl. 92,96 (2007) (holding that the Court of Federal Claims did not have jurisdiction over the plaintiffs claim because the "plaintiffs claim of negligence sounds in tort"). Apart from the fact that this Court lacks jurisdiction over claims under the FTCA, this Court also "does not have jurisdiction over other federal courts or their employees." Trevino,l 13 Fed. Cl. at 208 (citing Joshua v. Unikd States, 17 F 3d 378,3 80 (Fed. Cir. 1994)). In addition to Mr. Rothing's personal injury claims, he is seeking "$450,000 for the regulatory taking of my real property, due to the tortious actions ofthe courts, in conspiring to deny me access to the courts, as required by law." Compl. at 5. While a regulatory takings claim might provide a basis for monetary reliefas required by the Tucker Acl (see Fisher,402 F.3d at I 172), a thorough reading of the plaintifls pleadings does not lead to any alleged facts regarding a "regulatory taking." In plaintiff s own words, the regulatory taking ofreal property is "due to the tortious actions ofthe courts," meaning the taking ofproperty arises from the underlying torts and, as a result, would not provide an independent basis for a claim. The crux of plaintiff s case involves tortious conduct allegedly committed by the federal judiciary; "these individuals' actions constitute torts o{ but not limited to, negligence, fraud and malice, negligence and intentional infliction of emotional distress, nuisance, and breach ofthe Mr. Rothing's cause of action implied covenant of good faith and fair dealing." Compl. at would lend this Court a basis to otherwise sounds in tort, and nothing has been provided that interpret Mr. Rothing's complaint. l. Accordingly, the court lacks subject-matter jurisdiction and the plaintiff s complaint must be dismissed. III. Conclusion For the reasons set forth above, defendant's MOTION to dismiss is GRANTED' The Clerk is directed to enter Judgment in tavor of defendant, consistent with this opinion. IT IS SO ORDERED, M. SweepCy, Judge For Loren A. Smith, Senior - /t. t I I a.f-t,.J(r+)yd,h
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