                             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
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   of
 thelaw." Id.

        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 defendant treats as torts are in actuality "pages of evidence citing the violations ofthe
 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.
T'estan,424 U.S. 392, 395 (1976). Rather, in order to lall within the scope ofthe
                                                                                      'Iucker Act, "a
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
 implied covenant of good faith and fair dealing." Compl. at   l.  Mr. Rothing's cause of action
 sounds in tort, and nothing has been provided that   would lend this Court a basis to otherwise
 interpret Mr. Rothing's complaint.

        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
                                                                                                     -    /t.   t   I   I
                                                         For Loren A. Smith, Senior                  a.f-t,.J(r+)yd,h
