Torre v. United States , 397 F. App'x 632 ( 2010 )

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NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
ROBERT CARMELO TORRE,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2010-5124
__________________________
Appeal from the United States Court of Federal
Claims in case No. 09-CV-0761, Judge Francis M. Allegra.
___________________________
Decided: October 12, 2010
___________________________
ROBERT CARMELO TORRE, of Santa Cruz, California,
pro se.
MELISSA BRIGGS, Attorney, Tax Division, Appellate
Section, United States Department of Justice, of Wash-
ington, DC, for defendant-appellee. With her on the brief
were JOHN A. DICICCO, Acting Assistant Attorney Gen-
eral, and JOAN I. OPPENHEIMER, Attorney.
__________________________
TORRE v. US 2
Before NEWMAN, PROST, and MOORE, Circuit Judges.
MOORE, Circuit Judge.
Opinion for the court filed by Circuit Judge MOORE.
Circuit Judge Newman concurs in the result.
Appellant Robert Carmelo Torre, appearing pro se,
appeals the final decision of the United States Court of
Federal Claims dismissing his complaint for lack of juris-
diction. Because the Court of Federal Claims correctly
determined that it lacked subject matter jurisdiction over
Mr. Torre’s claims, we affirm.
BACKGROUND
On March 26, 2009, Mr. Torre filed suit against the
Internal Revenue Service (IRS) in the United States
District Court for the Northern District of California. In
his complaint, Mr. Torre alleged that the IRS had im-
properly assessed taxes against him for the 2000 tax year.
Mr. Torre further alleged that the IRS placed a levy on
his bank account and withheld portions of his Social
Security payments to collect the tax that he allegedly
owed. Mr. Torre asserted that these collection activities
were improper because he had zero tax liability for the
2000 tax year. He contended that he was suffering ongo-
ing financial losses as a result of the IRS’s improper
collection activities and sought damages pursuant to 26
U.S.C. § 7433.
On November 6, 2009, while Mr. Torre’s case was still
pending in district court, Mr. Torres filed suit in the
Court of Federal Claims. Mr. Torre’s complaint alleged
substantially the same facts as his district court com-
plaint. Mr. Torre again sought damages pursuant to 26
3 TORRE v. US
U.S.C. § 7433 and asked the Court of Federal Claims to
enjoin the IRS from continuing its collection activities.
On May 12, 2010, the Court of Federal Claims dis-
missed Mr. Torre’s complaint for lack of subject matter
jurisdiction. The Court of Federal Claims observed that
28 U.S.C. § 1500 deprives it of jurisdiction over a claim if
the plaintiff has a suit pending in any other court “for or
in respect to” that same claim. The Court of Federal
Claims found that Mr. Torre’s district court suit was
pending when he filed suit in the Court of Federal Claims.
The Court of Federal Claims also found that the two suits
involved the same claim because both related to the same
set of operative facts and sought essentially the same
relief. Therefore, the Court of Federal Claims determined
that it lacked jurisdiction over Mr. Torre’s suit under 28
U.S.C. § 1500. Mr. Torre appealed, and we have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
“We review decisions of the Court of Federal Claims
regarding subject matter jurisdiction de novo.” Res.
Conservation Group, LLC v. United States, 597 F.3d 1238,
1242 (Fed. Cir. 2010). We review the factual determina-
tions of the Court of Federal Claims for clear error.
Distributed Solutions, Inc. v. United States, 539 F.3d
1340, 1343 (Fed. Cir. 2008).
Mr. Torre argues that no other suit was ever pending
on the same claim as his Court of Federal Claims suit
because the district court denied his request to proceed in
forma pauperis. Therefore, he contends, the Court of
Federal Claims erred in determining that it lacks jurisdic-
tion under 28 U.S.C. § 1500. We disagree. Section 1500
provides that “[t]he United States Court of Federal
Claims shall not have jurisdiction of any claim for or in
respect to which the plaintiff or his assignee has pending
TORRE v. US 4
in any other court any suit or process against the United
States.” Thus, § 1500 “bar[s] jurisdiction over the claim of
a plaintiff who, upon filing, has an action pending in any
other court ‘for or in respect to’ the same claim.” Keene
Corp. v. United States, 508 U.S. 200, 209 (1993).
Mr. Torre filed suit in district court on March 26,
2009. The district court case remained pending until
June 8, 2010, when the court dismissed the suit for lack of
subject matter jurisdiction. 1 Mr. Torre filed the present
suit in the Court of Federal Claims on November 9, 2009.
Thus, the Court of Federal Claims did not clearly err in
finding that Mr. Torre’s district court suit was pending at
the time Mr. Torre filed the present suit.
The Court of Federal Claims also did not clearly err in
finding that the district court and Court of Federal
Claims suits involved the same claim. Section 1500
deprives the Court of Federal Claims of jurisdiction if
"plaintiff's other suit was based on substantially the same
operative facts . . . at least if there was some overlap in
the relief requested.” Keene Corp., 508 U.S. at 212. The
Court of Federal Claims found that the two suits arose
from the same operative facts: the IRS’s assessment of tax
against Mr. Torre for the 2000 tax year and its collection
activities. The Court of Federal Claims also found that
the two actions both sought damages under 26 U.S.C.
§ 7433 and some form of injunctive relief against the IRS.
1 The district court dismissed Mr. Torre’s case
for lack of subject matter jurisdiction based on its finding
that Mr. Torre had not complied with the requirements of
26 U.S.C. § 6532 and § 7422 prior to filing suit in federal
court. Under 26 U.S.C. § 7422(a), a taxpayer must file a
claim for refund with the IRS prior to filing suit in any
court. Under 26 U.S.C. § 6532(a)(1), a taxpayer may not
file a suit under § 7422(a) until the IRS has either denied
his claim for refund or failed to act within six months.
5 TORRE v. US
These fact findings are not clearly erroneous. Indeed, Mr.
Torre himself characterizes the two actions as being
“similar” and does not dispute the fact findings of the
Court of Federal Claims on this point.
Because the Court of Federal Claims did not clearly
err in finding that Mr. Torre’s suit related to the same
claim as his pending district court action, the court cor-
rectly determined that it lacks jurisdiction to hear Mr.
Torre’s case under 28 U.S.C. § 1500. Accordingly, we
affirm the decision of the Court of Federal Claims dis-
missing Mr. Torre’s complaint.
AFFIRMED
COSTS
No costs.
NEWMAN, Circuit Judge, concurs in the result.