Hirsch Friedman v. United States

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
December 02, 2004
No. 03-14336 THOMAS K. KAHN
________________________ CLERK

D.C. Docket No. 02-02461-CV-BBM-1

HIRSCH FRIEDMAN,
Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,
UNNAMED OFFICERS AND EMPLOYEES
OF THE UNITED STATES, WILLIAM T.
THIGPEN, JR., CARL BOYER, ELLEN
HASTINGS, ROBERT STACK, individually
and in their official capacities as officers/employees
of the United States,
Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(December 2, 2004)
Before BARKETT and HILL, Circuit Judges, and FORRESTER*, District Judge.

PER CURIAM.

Hirsch Friedman and the United States of America entered into an

agreement (the “Settlement Agreement”) to settle Mr. Friedman’s medical

malpractice claim against the United States Department of Veterans Affairs (the

“DVA”). According to the agreement, Mr. Friedman was to receive $200,000 in

“full settlement and satisfaction” of certain claims for personal injury he had

asserted against the DVA arising out of treatment he received at a DVA-

administered hospital. There was a provision in the Settlement Agreement which

stated that the settlement amount was “without set off or claim of any nature

thereon by, the United States of America, its agents, servants[ ] and employees.”

Subsequently, the Internal Revenue Service (the “IRS”) assessed a jeopardy levy

on the check representing such funds. Mr. Friedman has brought this action to

enforce the terms of the settlement agreement, which he claims do not permit the

IRS levy.

The district court dismissed this action for lack of subject matter

jurisdiction, holding that jurisdiction over contract claims for more than $10,000

*
Honorable J. Owen Forrester, United States District Judge for the Northern District of
Georgia, sitting by designation.

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lies exclusively in the United States Court of Federal Claims. As to claims

exceeding $10,000, 28 U.S.C. § 1491(a)(1) provides:

[t]he United States Court of Federal Claims shall have jurisdiction to
render judgment upon 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.

We have held that this provision, known as the “Tucker Act,” requires that

claims against the United States for amounts in excess of $10,000 founded on

contracts with the United States must be brought in the Court of Claims. Mark

Dunning Indus., Inc. v. Cheney, 934 F.2d 266, 269 (11th Cir. 1991); Graham v.

Henegar, 640 F.2d 732, 734 (5th Cir. 1981).

Mr. Friedman has sought to avoid this result by alleging other claims

sounding in tort in his complaint. A plaintiff cannot avoid the jurisdictional

limitations of the Tucker Act, however, by artful pleading. Megapulse, Inc. v.

Lewis, 672 F.2d 959, 967 (D.C. Cir. 1982). Accordingly, “a plaintiff whose claims

against the United States are essentially contractual should not be allowed to avoid

the jurisdictional (and hence remedial) restrictions of the Tucker Act by casting its

pleading in terms that would enable a district court to exercise jurisdiction under a

separate statute.” Id. It is “well-established that where a tort claim stems from a

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breach of contract, the cause of action is ultimately one arising in contract, and

thus is properly within the exclusive jurisdiction of the Court of Federal Claims to

the extent that damages exceed $10,000.” Awad v. United States, 301 F.3d 1367,

1372 (Fed. Cir. 2002).

Additionally, Mr. Friedman amended his complaint in the district court to

include his original tort claim, thereby seeking to invoke the district court’s

jurisdiction under the Federal Tort Claims Act. This claim, however, has been

extinguished by the Settlement Agreement. Until and unless the Settlement

Agreement is set aside, this claim no longer exists.

Accordingly, finding no error in the district court’s determination that

jurisdiction over this action lies in the Court of Claims, the judgment of the district

court is

AFFIRMED.

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