DESPOT v. USA

Filing 13

UNREPORTED OPINION and ORDER granting 12 Motion to Dismiss - Rule 12(b)(1). The Clerk shall enter judgment in accord with this disposition. Signed by Judge Charles F. Lettow. (ar) Copy to parties. [Sent via certified mail: 7017 1450 0000 1346 2892]

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Qeourt of

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jfrbtral Qelaitns

No . 17-414C
(Filed: August 30, 2017)
(NOT TO BE PUBLISHED)

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DAVID DESPOT,

Plaintiff,

v.
UNITED STATES,

Defendant.

FILED
AUG 3 O2017
U.S. COURT OF
FEDERAL CLAIMS

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David Despot, pro se, Pittsburgh, Pennsylvania.
Michael Duane Austin, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him on the brief
were Chad A. Readier, Acting Assistant Attorney General, Civil Division, and Robert E.
Kirschman, Jr., Director, and Patricia A. McCarthy, Assistant Director, Comruercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, D.C.
OPINION AND ORDER
LETTOW, Judge.
Plaintiff, David Despot, seeks monetary relief against the United States acting through
various government officials, agencies, and courts based upon claims brought explicitly under
the Federal Tort Claims Act, 28 U.S .C. § 2671-80. 1 His suit is premised upon a variety of
alleged actions taken by federal authorities supposedly adverse to him. Compl. at 16-91. Mr.
Despot alleges negligence, infliction of emotional distress, "breach of duty of care owed,"
invasion of privacy, trespass, and "intentional misconduct," as well as "any other applicable
1

Mr. Despot' s complaint asserts claims against a total of four federal judges, seven
executive branch officials, eight federal departments and agencies, two United States district
comis, the United States Court of Federal Claims, the United States Supreme Court, the United
States Courts of Appeals collectively, and the United States courts generally. See Compl. at 1676. These paities will be collectively referred to as "the government."

7D17 145D ODDO 1346 289 2

cause of action of any other tmi against the claimant attributable to the applicable agencies and
the applicable agencies['] employees." Comp!. at 17. Mr. Despot asserts that all of his claims
are"(!) for money damages, (2) arising from personal injury, (3) caused by a negligent or
wrongful act (4) of a federal government employee (5) acting within the scope of his or her
employment (6) in circumstances where a private person would be liable under state law," and
likewise that all of his claims are purportedly brought "under the Federal Toti Claims Act."
Comp!. at 16. In total, Mr. Despot seeks approximately $18 million in damages. 2 Pending
before the co mi is the government's motion to dismiss Mr. Despot's complaint for lack of
subject matter jurisdiction pursuant to Rule 12(b)(I) of the Rules of the Court of Federal Claims
("RCFC"), see Def. 's Mot. to Dismiss, ECF No. 12, which motion is ready for disposition.
ST AND ARDS FOR DECISION

As plaintiff, Mr. Despot has the burden of establishing jurisdiction. See Reynolds v.
Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). When ruling on a motion to
dismiss for lack of jurisdiction, the comi must "accept as true all undisputed facts asserted in the
plaintiffs complaint and draw all reasonable inferences in favor of the plaintiff." See Trusted
Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011) (citing Henke v. United
States, 60 F.3d 795, 797 (Fed. Cir. 1995)). And, the leniency afforded to be a prose plaintiff
with respect to formalities does not relieve such a litigant from satisfying jurisdictional
requirements. See Kelley v. Secretary, US. Dep 't ofLabor, 812 F.2d 1378, 1380 (Fed.Cir.
1987).
The Tucker Act provides this court with jurisdiction over "any claim against the United
States founded either upon the Constitution, or any Act of Congress or any regulation of an
executive department, or upon any express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(I)
(emphasis added). "It is well settled that the United States Court of Federal Claims lacks[-] and
its predecessor the United States Claims Court lacked[-] jurisdiction to entertain tort claims."
Shearin v. United States, 992 F.2d 1195, 1197 (Fed. Cir. 1993). "If a comi lacks jurisdiction to
decide the merits of a case, dismissal is required as a matter oflaw." Gray v. United States, 69
Fed. Cl. 95, 98 (2005) (citing Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868); Thoen v.
United States, 765 F.2d 1110, 1116 (Fed. Cir. 1985)).
ANALYSIS

Motion to Dismiss
Mr. Despot states multiple claims to compensation, all of which stem from allegedly
tmiious conduct committed by various government agencies and officials. See Comp!. at 16-92.
In addition to the express invocation of the Federal Tmi Claims Act in plaintiffs Complaint, see
Comp!. at 16, all of plaintiffs alleged harms stem from asserted causes of action soU11ding in
tort. These tort claims are jurisdictionally unavailing in this court. See Jumah v. United States,
2The

addition of all amounts listed in box 12b (Amount of Claim, Personal Injury) on
each form SF-95 attached to Mr. Despot's complaint produces a total of$18.2 million.

2

90 Fed. Cl. 603, 607 (2009) (claims for intentional infliction of emotional distress, invasion of
privacy, negligence, and trespass "are all claims sounding in tort."), aff'd, 385 Fed. Appx. 987
(Fed. Cir. 2010); McCullough v. United States, 76 Fed. Cl. 1, 4 (2006) ("Plaintiff's claims for ...
invasion of privacy, public disclosure of private facts, intrusion upon seclusion, [and] negligent
infliction of emotional distress ... are tort claims."), appeal dismissed, 236 Fed. Appx. 615 (Fed.
Cir. 2007), cert. denied 552 U.S. 1050 (2007); Somali Dev. Bank v. United States, 508 F.2d 817
(Ct. Cl. 1974) (citing United States v. Neustadt, 366 U.S. 696 (1961)) (Neustadt "removes any
doubt that claims based on ... the careless performance of a duty allegedly owed, are claims
sounding in tort.").
Ultimately, none of Mr. Despot's allegations are within the jurisdiction of this court. For
this reason, the government's motion to dismiss Mr. Despot's complaint is granted.

CONCLUSION
For the reasons stated, the government's motion to dismiss Mr. Despot's complaint is
GRANTED. The clerk shall enter judgment in accord with this disposition.
No costs.
It is so ORDERED.

Charles F. Lettow
Judge

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