Scotto v. United States

tl 'tr r:"q .1 E I $* " ,o r., ',! r.l"li $c llntbt @nitd $rtatts @ourt of /e[prs[ @kims Pro Se No. 15-1198C FILED (Filed: January 12,2016 | Not for Publication) JAN | 2 :$l$ U.S. COURT OF FEDERAL CI.AIMS LIVIA SCOTTO. Keyvords: Subject Matter Jurisdiction; RCFC I2(b)(l); Pro Se Plaintiff, Complaint; Recusal;28 U.S.C. $ 455 THE UNITED STATES OF AMERICA, Defendant. Livia M. Scotto, Y ahico, FL, Plaintiff pro se. Daniel B. Volk,Trial Attorney, with whom were Reginald T. B/ades, Assistant Director, Robert E. Kirschman, Jr., Dftector, urd Benjamin C. Mizer, Principal Deputy Assistant Attomey General, Commercial Litigation Branch, United States Department of Justice, Washington, DC, for Defendant. OPINION AND ORDER Cunently before the Court are Plaintiffs motion for recusal of the undersigned judge, ECF No. 8, and the govemment's motion to dismiss for lack of subject matter jurisdiction under Rules of the Court of Federal Claims (RCFC) l2(bxl), ECF No. 6. For the reasons set forth below, the PlaintifPs motion for recusal is DENIED and the govemment's motion to dismiss is GRANTED. BACKGROUND Plaintiff Livia M. Scotto filed a p19 se complaint in this case on October 13, 2015. ECF No. 1. The factual allegations in her complaint are limited and somewhat diffrcult to follow. They concem the "causation of torture, leukemia, property conversion, larceny, [and] assaults" by the United States in cormection with "atomic veteran related damages for leukemia deaths." See Compl. at 1.1 She seeks redress in the form ofa "judgment for $990 billion USD." Id. On December l, 2015, the govemment moved to dismiss Ms. Scotto's complaint under RCFC 12(bXl ), arguing that the Court lacked subject matter jurisdiction over Ms. Scotto's claims. Def. Mot. to Dismiss at 1. DISCUSSION I. Motion for Recusal As noted above, the plaintiffhas frled a motion requesting that the undersigned recuse herself from this case. A judge must recuse herself"in any proceeding in which [the judge's] impartiality might reasonably be questioned." 28 U.S.C. g 455(a). This objective test mandates recusal "when a reasonable person, knowing all the facts, would question the judge's impartiality." Allphin v. United States, 758 F.3d 1336, 1344 (Fed. Cir. 2014) (quoting Hewlett-Packard Co. v. Bausch & Lomb. Inc., 882 F.2d 1556, 1568 (Fed. Cir. 1989)). Grounds for recusal include not only actual personal bias or prejudice, but also the appearance ofpartiality. See 28 U.S.C. $ 455(b). However, ajudge is presumed to be impartial, and the movant bears a "heavy burden" of proving otherwise. See Baldwin Hardware Com. v. FrankSu Enter. Com., 78 F.3d 550, 557 (Fed. Cir. 1996). Ms. Scotto premises her motion on purported "judicial misconduct,' and ,.abuse of power" by the undersigned. See Pl.'s Mot. for Recusal at 4. However, she has not pointed to any factual bases substantiating these claims. Accordingly, the undersigned will not recuse herself from this case, and Plaintiff s motion seeking recusal is DENIED. [. Motion to Dismiss Under RCFC l2(bxf) The Court of Federal Claims is a court of "limited jurisdiction.,' E&, Marcum LLP v. United States, 753 F.3d 1380, 1382 (Fed. Cir. 2014). The court's primary grant of jurisdiction is found in the Tucker Act, which gives the court jurisdiction ,,to render judgment 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, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. $ la9l(a)(1). The Tucker Act thus waives the sovereign immunity of the United States to allow a suit for money damages. United States v. Mitchell,463 U.S. 206,212 (1983). However, it does not confer any substantive rights on a plaintiff. United States v. Testan,424U.5.392,398 (1976). Therefore, to ' Beyond this case, Ms. Scotto has filed many other complaints in several different jurisdictions, which she has characterized as "related" to this one. See Compl. at 2-4 (listing "related" cases Ms. Scotto has filed). In addition, she previously filed a claim to the Department of Veterans Affairs (VA) requesting a finding of service connection for leukemia, which the vA denied because there was "no evidence ofa current diagnosis of leukemia." See Scotto v. McDonald,620 Fed. App'x 913,913 (Fed. Cir. 2015) (per curiam). invoke the court's Tucker Act jurisdiction, a plaintiff must identifu an independent source ofa substantive right to money damages from the United States arising out ofa conftact, statute, regulation, or constitutional provision. Jan's Helicopter Serv.. Inc. v. Fed. Aviation Admin., 525 F.3d 1299,1306 (Fed. Cir. 2008); see also Golden Pacific Bancorp v. United States, 15 F.3d 1066, 1076 (Fed. Cir. 1994). In deciding a motion to dismiss for lack ofsubject matter jurisdiction, the court accepts as true all undisputed facts in the pleadings and draws all reasonable inferences in favor ofthe plaintiff. Trusted Integration. Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 201 1). Further, it is well established that complaints filed by p19 se plaintiffs (as is this one) are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kemer,404 U.S. 519,520 (1972). Nonetheless, even pro se plaintiffs must persuade the court that jurisdictional requirements have been met. Bemard v. United States,59 Fed. Cl.497, 499 (2004), affd,98 Fed. App'x 860 (Fed. Cir.2004). Applying these standards, the Court concludes that it lacks subject matter jurisdiction over Ms. Scotto's claims. Ms. Scotto's allegations of "causation of torture, leukemia, property conversion, larceny, [and] assault" can only be construed as alleging either criminal violations or tort claims. The Court of Federal Claims, however, lacks any jurisdiction over criminal matters. See Upshaw v. United States, 599 Fed. App'x 387, 388 (Fed. Cir. 2015) (per curiam) (holding that the Court ofFederal Claims' jurisdiction "does not extend to cases involving criminal law"). Likewise, because the Tucker Act expressly excludes from its coverage claims "sounding in tort," this Court lacks jurisdiction over any tort claims. 28 U.S.C. $ la91(a)(1); see also Brown v. United States, 105 F.3d 621,623 (Fed. Cir. 1997)) (holding that the Court of Federal Claims "lacks jurisdiction over tort actions against the United States"). Accordingly, the Court cannot assert jurisdiction over any of Ms. Scotto's claims. CONCLUSION For the reasons discussed above, Plaintiff s motion for recusal is DENIED, and the government's motion to dismiss is GRANTED. Plaintiff s complaint is hereby dismissed without prejudice. Each side shall bear its owrr costs, The Clerk is directed to enter judgment accordingly. IT IS SO ORDERED. 1t ELAINE D. KAPLAN Judge