Straw v. United States

Case: 21-1596   Document: 21     Page: 1   Filed: 07/14/2021




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                ANDREW U.D. STRAW,
                  Plaintiff-Appellant

                            v.

                   UNITED STATES,
                   Defendant-Appellee
                 ______________________

                       2021-1596
                 ______________________

     Appeal from the United States Court of Federal Claims
 in No. 1:20-cv-01132-DAT, Judge David A. Tapp.
                  ______________________

                 Decided: July 14, 2021
                 ______________________

    ANDREW U.D. STRAW, Washington, DC, pro se.

     ANDREW JAMES HUNTER, Commercial Litigation
 Branch, Civil Division, United States Department of Jus-
 tice, Washington, DC, for defendant-appellee. Also repre-
 sented by BRIAN M. BOYNTON, TARA K. HOGAN, ROBERT
 EDWARD KIRSCHMAN, JR.
                 ______________________

    Before LOURIE, BRYSON, and CHEN, Circuit Judges.
 PER CURIAM.
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 2                                                STRAW   v. US



     Andrew U.D. Straw appeals from a judgment of the
 United States Court of Federal Claims (“the Claims Court”)
 dismissing his complaint for lack of jurisdiction. We af-
 firm.
                               I
     Mr. Straw has filed several actions focused on his claim
 that he was injured as an infant by contaminated water at
 Camp Lejeune in North Carolina, and that his injury re-
 sulted in a mental disability. In this case, he seeks
 $6,000,000 in compensatory damages for what he regards
 as a taking of property without just compensation, in vio-
 lation of the Takings Clause of the Fifth Amendment.
     Mr. Straw’s Takings Clause theory stems from an ac-
 tion he brought under the Federal Tort Claims Act
 (“FTCA”) seeking recovery for the alleged injury he and his
 family members suffered because of the contaminated wa-
 ter. That action was combined with other similar cases in
 a Multidistrict Litigation proceeding in the United States
 District Court for the Northern District of Georgia. The
 district court in the Multidistrict Litigation proceeding
 ruled that Mr. Straw’s claims under the FTCA were barred
 by North Carolina’s ten-year statute of repose. In re Camp
 Lejeune N.C. Water Contamination Litig., 263 F. Supp. 3d
 1318, 1327–28 (N.D. Ga. 2016). The Eleventh Circuit af-
 firmed the dismissal of Mr. Straw’s action, 774 F. App’x 564
 (11th Cir. 2019), and the Supreme Court denied certiorari,
 140 S. Ct. 2825 (2020).
     Mr. Straw then brought this action in the Claims
 Court, arguing that the rulings of the Georgia district court
 dismissing his FTCA claims effected a judicial taking of his
 tort claims and the damages he sought in that action.
 Straw v. United States, No. 20-1132, at 1 (Fed. Cl. Jan. 12,
 2021). The Claims Court rejected his takings claim and
 dismissed his complaint for want of subject matter jurisdic-
 tion. Id. at 1–3. The court explained that by claiming that
 the Georgia district court and the Eleventh Circuit had
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 STRAW   v. US                                               3



 caused a taking of his personal-injury cause of action, Mr.
 Straw was in effect asking for the Claims Court to overturn
 the decisions of those courts that his FTCA claim was time-
 barred. Id. The Claims Court refused to do so, holding that
 it lacked jurisdiction to review the decision of a United
 States district court. Id.
     Relatedly, the court held that Mr. Straw’s claim
 sounded in tort. Id. at 2. That was because his takings
 claim depends on a theory that he is entitled to compensa-
 tion for personal bodily harm, a paradigmatic tort claim.
 Id. And tort claims, the court noted, are expressly excluded
 from the jurisdiction of the Claims Court under the Tucker
 Act, 28 U.S.C. § 1491.
     Mr. Straw appeals to this court.
                               II
      This appeal is frivolous. The Claims Court correctly
 explained that Mr. Straw’s Takings Clause theory is mer-
 itless because it constitutes a collateral attack on the final
 judgment of a federal district court in a tort case, which the
 Claims Court lacks jurisdiction to entertain. Nonetheless,
 Mr. Straw has raised the same issues before us, while add-
 ing unwarranted personal attacks on the trial judge. 1



     1   In addition to the case before the district court in
 the Northern District of Georgia, Mr. Straw in 2017 filed
 an action in the Claims Court almost identical to this one.
 That action resulted in a dismissal by the Claims Court
 and an affirmance by this court. See Straw v. United
 States, No. 17-560C, 2017 WL 6492003 (Fed. Cl. May 24,
 2017), aff’d, 710 F. App’x 881 (Fed. Cir. 2017). Mr. Straw
 then asserted a claim for compensation from the Depart-
 ment of Veterans Affairs, which the Department denied,
 followed by a denial of relief by the United States Court of
 Veterans Claims, 32 Vet. App. 374 (2020), whose judgment
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 4                                                STRAW   v. US



     As the trial court noted, the Claims Court does not have
 jurisdiction to review the decisions of federal district
 courts. Petro-Hunt, L.L.C. v. United States, 862 F.3d 1370,
 1384–85 (Fed. Cir. 2017); Shinnecock Indian Nation v.
 United States, 782 F.3d 1345, 1352 (Fed. Cir. 2015); Joshua
 v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994). 2 Be-
 cause Mr. Straw’s takings claim depends on him challeng-
 ing the Georgia district court’s decision—which is final and
 preclusive—the Claims Court correctly held that it cannot
 grant the relief he seeks.



 was affirmed by this court, Straw v. Wilkie, 843 F. App’x
 263 (Fed. Cir. 2021). In addition, Mr. Straw filed five other
 actions in the Claims Court between 2017 and early 2021:
 Straw v. United States, No. 17-1082; Straw v. United
 States, No. 20-1145; Straw v. United States, No. 20-1154;
 Straw v. United States, No. 20-1157; and Straw v. United
 States, No. 21-745. Besides the appeal in this case, he cur-
 rently has four other appeals pending before this court:
 Straw v. United States, No. 21-1597; Straw v. United
 States, No. 21-1598; Straw v. United States, No. 21-1600;
 and Straw v. United States, No. 21-1602. As of 2017, the
 Claims Court noted that since 2014 Mr. Straw had filed at
 least 21 complaints and 12 appeals on his own behalf in
 various federal courts. See Straw v. United States, No. 17-
 1082C, 2017 WL 6045984, at *5 (Fed. Cl. Dec. 6, 2017).
 Since then, Mr. Straw has filed a number of additional ac-
 tions and appeals in various courts with himself as plaintiff
 or appellant.
     2    Mr. Straw objects to the Claims Court’s reliance on
 Joshua on the ground that the plaintiff in that case was
 incarcerated and was seeking an unrealistic amount of
 monetary damages. Those facts have no effect on our hold-
 ing in Joshua, which was that the Claims Court does not
 have jurisdiction to review the decisions of United States
 district courts.
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 STRAW   v. US                                               5



     The Claims Court was also correct in holding that Mr.
 Straw’s claim is in essence a tort claim, which is outside
 the jurisdiction of the Claims Court under the Tucker Act,
 Hercules Inc. v. United States, 516 U.S. 417, 423 (1996).
 See Straw, No. 20-1132, at 2 (citing and relying on Straw
 Estate of Stevens v. United States, 710 F. App’x 881, 883
 (Fed. Cir. 2017)).
      Mr. Straw complains that the Georgia district court ef-
 fectively deprived him of “the law of the place where the
 damage happened.” Appellant’s Opening Br. 2. That is not
 true. The Georgia district court applied the North Carolina
 statute of repose, and Mr. Straw does not contend that any
 other law was applicable in that case. His actual complaint
 is that the case was improperly transferred to the Northern
 District of Georgia as part of the Multidistrict Litigation
 proceeding and that the Georgia district court construed
 the North Carolina limitations statute in a manner con-
 trary to the way it has been construed by the Fourth Cir-
 cuit. But those were issues for the Georgia district court
 and the Eleventh Circuit to resolve. They are not issues
 that either the Claims Court or this court has jurisdiction
 to address, particularly now that the decisions of the Geor-
 gia district court and the Eleventh Circuit have become fi-
 nal.
     Mr. Straw contends that a claim of a taking of property
 without just compensation is cognizable even if the alleged
 taking is effected by judicial branch officers. The extent to
 which the Takings Clause of the Fifth Amendment applies
 to the actions of courts has been the subject of debate.
 Compare Stop the Beach Renourishment, Inc. v. Fla. Dep’t
 of Env’t Prot., 560 U.S. 702, 713–15 (opinion of Scalia, J.),
 with id. at 733–42 (opinion of Kennedy, J.). But even ac-
 cepting that the prohibition against taking property with-
 out just compensation applies to courts in the same manner
 that it does to other governmental entities, there is no force
 to Mr. Straw’s argument that a party can characterize an
 adverse judicial decision in a tort case as a taking of a
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 6                                                 STRAW   v. US



 “chose in action” and seek “compensation” for that taking
 through an action in the Court of Federal Claims. 3
     At bottom, Mr. Straw’s takings theory is based on the
 assertion that when a court errs in denying a plaintiff relief
 in a tort case, it effectively “takes” his cause of action and
 his entitlement to relief. Under that logic, all cases sound-
 ing in tort in which a plaintiff is denied relief could be re-
 cast as Takings Clause claims and re-presented to the
 Claims Court, notwithstanding the prohibition in the
 Tucker Act against the Claims Court exercising jurisdic-
 tion over tort claims. Not surprisingly, Mr. Straw cites no
 authority in support of that theory of recovery.
     Neither Chicago, Burlington & Quincy R.R. Co. v. City
 of Chicago, 166 U.S. 226 (1897), nor Logan v. Zimmerman
 Brush Co., 455 U.S. 422 (1982), cited by Mr. Straw, provide
 support for his claim. The Chicago, Burlington & Quincy
 case established that a state’s taking of property without
 just compensation constitutes a denial of due process under
 the Fourteenth Amendment. 166 U.S. at 233–39. The
 Court went on to hold that the prohibition against uncom-
 pensated takings applies to a state’s courts as well as its
 legislative and executive branches, but that case concerned
 a traditional eminent domain proceeding. Id. at 233–41.


     3    Justice Scalia’s plurality opinion in Stop the Beach
 does not support Mr. Straw’s theory. That opinion con-
 cluded that “the Takings Clause bars the State from taking
 private property without paying for it, no matter which
 branch is the instrument of the taking.” 560 U.S. at 715.
 But nothing in Justice Scalia’s opinion supports the propo-
 sition that a court “takes” a party’s cause of action for per-
 sonal injury when it denies the claim on the merits. See In
 re Lazy Days’ RV Ctr. Inc., 724 F.3d 418, 425 (3d Cir. 2013)
 (The court “adjudicated the parties’ bona fide dispute re-
 garding their rights . . . . This sort of adjudication of dis-
 puted and competing claims cannot be a taking.”).
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 STRAW   v. US                                               7



 The Logan case held that a procedural error by a state
 agency that extinguished a claimant’s cause of action con-
 stituted a violation of due process. 455 U.S. at 433–37.
 Neither of those cases nor Smith v. United States, 709 F.3d
 1114 (Fed. Cir. 2013), also cited by Mr. Straw, support his
 contention that an erroneous decision by a federal district
 court in a tort case constitutes a taking of property without
 just compensation for which a remedy lies in the Court of
 Federal Claims.
      Contrary to Mr. Straw’s contention, a court does not
 “take” a party’s chose in action by ruling against that party
 on the merits. Takings claims based on that theory have
 been repeatedly rejected by this court. See Campbell v.
 United States, 932 F.3d 1331, 1340 (Fed. Cir. 2019) (“It is
 well established that the Claims Court ‘cannot entertain a
 taking[s] claim that requires the court to scrutinize the ac-
 tions of another tribunal.’” (citation omitted)); Petro-Hunt,
 862 F.3d at 1385 (“[T]he Court of Federal Claims correctly
 dismissed Petro-Hunt’s judicial takings claim because it
 could not determine if Petro-Hunt’s mineral servitudes
 were ‘previously imprescriptible’ or ‘transformed’ from pri-
 vate to public property without determining whether the
 Fifth Circuit’s interpretation of precedent was correct.”);
 Shinnecock Indian Nation, 782 F.3d at 1352 (“Adjudication
 of the Nation’s proposed judicial takings claim would re-
 quire the Court of Federal Claims to scrutinize the merits
 of the district court’s judgment, a task it is without author-
 ity to undertake.”); Vereda, Ltda. v. United States, 271 F.3d
 1367, 1375 (Fed. Cir. 2001) (“[T]he Court of Federal Claims
 cannot entertain a taking claim that requires the court to
 ‘scrutinize the actions of’ another tribunal.” (citation omit-
 ted)); Allustiarte v. United States, 256 F.3d 1349, 1352
 (Fed. Cir. 2001) (“To permit collateral attacks on bank-
 ruptcy court judgments would ‘seriously undercut[] the or-
 derly process of the law. . . . The proper forum for
 appellants’ challenges to the bankruptcy trustees’ actions
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 8                                                 STRAW   v. US



 therefore lies in the Ninth Circuit, not the Court of Federal
 Claims.” (citation omitted)).
      In addition to his legal claims, Mr. Straw asserts that
 the trial judge was biased against him based on the iden-
 tity of the President who appointed the judge and on a
 statement in the judge’s opinion referring to Mr. Straw’s
 effort to recast his tort claim as “sly.” Appellant’s Opening
 Br. 2–3. Neither of those complaints has any merit. There
 is no support whatsoever for the contention that a judge
 can be disqualified based simply on the identity of the Pres-
 ident who appointed him. See MacDraw, Inc. v. CIT Grp.
 Equip. Fin., Inc., 138 F.3d 33, 38 (2d Cir. 1998) (appoint-
 ment by a particular administration is not a ground for
 questioning a judge’s impartiality); McKee v. U.S. Dep’t of
 Just., 253 F. Supp. 3d 78, 81 (D.D.C. 2017) (“[T]he identity
 of the President who appointed the judge assigned to a case
 has no bearing on recusal.”); Armenian Assembly of Am.,
 Inc. v. Cafesjian, 783 F. Supp. 2d 78, 93 (D.D.C. 2011) (“The
 case law is clear that recusal is not warranted where a
 judge is alleged to be biased based solely on political con-
 nections to the President who appointed her.”). And the
 use of the term “sly” is not “insulting,” contrary to Mr.
 Straw’s suggestion; it merely calls attention to the fact that
 Mr. Straw has sought to recast a tort claim as something
 that it manifestly is not—a case arising under the Takings
 Clause. The term “sly” strikes us as a rather mild way to
 characterize that effort at legal legerdemain.
     Mr. Straw also alludes to the “Anti-Filing” order en-
 tered against him by the Claims Court. Appellant’s Open-
 ing Br. 3. He appears to invoke that order in support of his
 claim that the trial judge was biased against him. Because
 Mr. Straw was permitted to file the present action, the
 anti-filing order had no effect on him with regard to this
 case, and we therefore will not address the merits of that
 order in this appeal. To the extent Mr. Straw points to the
 order as evidence of bias on the part of the trial judge, we
 do not regard the order as indicating any such bias,
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 STRAW   v. US                                               9



 particularly in light of the large number of meritless filings
 by Mr. Straw in the Claims Court and other courts during
 the past several years.
                         AFFIRMED