Espejo , 205 Ct. Cl. 837 ( 1974 )

Taxes; income tax refund; alien’s privilege to sue; tort claim. — Plaintiff seeks refund of federal income taxes collected by defendant and damages for alleged violations of law by agencies of the United States. On April 24,1974 the court issued the following order:

Before Cowen, Chief Judge, Davis and Bennett, Judges.

“This case comes before the court on defendant’s motion, filed January 24, 1974, to dismiss plaintiff’s petition on the ground that this court does not 'have jurisdiction over the type of claim alleged by plaintiff. Upon consideration thereof, together with plaintiff’s response in opposition thereto, and defendant’s reply to plaintiff’s response, without oral argument, it is concluded that plaintiff has failed to satisfy the jurisdictional requirements of this court with respect to suits brought against the United States by individuals not citizens of the United States. (See 28 U.S.C. § 2502 (1970); Rule 33 (a) of the Rules of the United States Court of Claims.) It is further concluded that plaintiff’s claim for damages for violations of law by agencies of the United States is tortious in nature and without the jurisdiction of this court. (Seel 28 U.S.C. § 1491 (Supp. II, 1972).) It is finally concluded that defendant’s counterclaim should also be dismissed since, at least for the time being, it has no claim to attach itself to, having no independent jurisdictional status in this court.

“it is therefore ordered that defendant’s motion to dismiss, filed January 24, 1974, be and the same is granted in part as to plaintiff’s claim for damages for alleged violations of law by agencies of the United States.

“it is further ordered that plaintiff is granted 45 days from the date of this order to amend his petition of May 10, 1973, so that he may satisfy, if he is able, the jurisdictional requirements of this court regarding actions brought against the United States by individuals not citizens of the United States, failing which the petition may be dismissed without further notice together with the counterclaim.”

On October 4, 1974 the court issued a further order as follows:

“This case is before the court on plaintiff’s motion filed July 26,1974, for clarification of the order of April 24,1974, and upon defendant’s response thereto. Upon consideration thereof and upon reconsideration of its orders of April 24 and June 28,1974 [on a request for additional time to comply with order of April 24, 1974], and plaintiff’s motion filed May 9, 1974, for rehearing and suspension, it is ordered as follows :

“Plaintiff’s motion for rehearing and suspension in respect to any claim for damages based on defendant’s alleged actions of a tortuous nature is dented and such claims are dismissed.

“The court is satisfied that plaintiff has stated a claim within the jurisdiction of the court for a tax refund from and against the United States. Defendant has answered the claim. The case is remaNded to the trial division for appropriate proceedings on the refund claim.”