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Pro Se

No. 15-1198C

(Filed: January 12,2016 | Not for Publication)

FILED

JAN | 2 :$l$

U.S. COURT OF

FEDERAL CI.AIMS

LIVIA SCOTTO. Keyvords: Subject Matter

Jurisdiction; RCFC I2(b)(l); Pro Se

Complaint; Recusal;28 U.S.C. Plaintiff, $ 455

THE UNITED STATES OF AMERICA,

Defendant.

Livia M. Scotto, Y ahico, FL, Plaintiff pro se.

Daniel B. Volk,Trial Attorney, with whom were Reginald T. B/ades, Assistant Director,

Robert E. Kirschman, Jr., Dftector, urd Benjamin C. Mizer, Principal Deputy Assistant

Attomey General, Commercial Litigation Branch, United States Department of Justice,

Washington, DC, for Defendant.

OPINION AND ORDER

Cunently before the Court are Plaintiffs motion for recusal of the undersigned

judge, ECF No. 8, and the govemment's motion to dismiss for lack of subject matter

jurisdiction under Rules of the Court of Federal Claims (RCFC) l2(bxl), ECF No. 6. For

the reasons set forth below, the PlaintifPs motion for recusal is DENIED and the

govemment's motion to dismiss is GRANTED.

BACKGROUND

Plaintiff Livia M. Scotto filed a p19 se complaint in this case on October 13, 2015.

ECF No. 1. The factual allegations in her complaint are limited and somewhat diffrcult to

follow. They concem the "causation of torture, leukemia, property conversion, larceny,

[and] assaults" by the United States in cormection with "atomic veteran related damages
for leukemia deaths." See Compl. at 1.1 She seeks redress in the form ofa "judgment for

$990 billion USD." Id.

On December l, 2015, the govemment moved to dismiss Ms. Scotto's complaint

under RCFC 12(bXl ), arguing that the Court lacked subject matter jurisdiction over Ms.

Scotto's claims. Def. Mot. to Dismiss at 1.

DISCUSSION

I. Motion for Recusal

As noted above, the plaintiffhas frled a motion requesting that the undersigned

recuse herself from this case. A judge must recuse herself"in any proceeding in which

[the judge's] impartiality might reasonably be questioned." 28 U.S.C. g 455(a). This

objective test mandates recusal "when a reasonable person, knowing all the facts, would

question the judge's impartiality." Allphin v. United States, 758 F.3d 1336, 1344 (Fed.

Cir. 2014) (quoting Hewlett-Packard Co. v. Bausch & Lomb. Inc., 882 F.2d 1556, 1568

(Fed. Cir. 1989)). Grounds for recusal include not only actual personal bias or prejudice,

but also the appearance ofpartiality. See 28 U.S.C. $ 455(b). However, ajudge is

presumed to be impartial, and the movant bears a "heavy burden" of proving otherwise.

See Baldwin Hardware Com. v. FrankSu Enter. Com., 78 F.3d 550, 557 (Fed. Cir. 1996).

Ms. Scotto premises her motion on purported "judicial misconduct,' and ,.abuse of

power" by the undersigned. See Pl.'s Mot. for Recusal at 4. However, she has not pointed

to any factual bases substantiating these claims. Accordingly, the undersigned will not

recuse herself from this case, and Plaintiff s motion seeking recusal is DENIED.

[. Motion to Dismiss Under RCFC l2(bxf)

The Court of Federal Claims is a court of "limited jurisdiction.,' E&, Marcum

LLP v. United States, 753 F.3d 1380, 1382 (Fed. Cir. 2014). The court's primary grant of

jurisdiction is found in the Tucker Act, which gives the court jurisdiction ,,to render

judgment 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, or for liquidated or unliquidated damages in

cases not sounding in tort." 28 U.S.C. $ la9l(a)(1). The Tucker Act thus waives the

sovereign immunity of the United States to allow a suit for money damages. United

States v. Mitchell,463 U.S. 206,212 (1983). However, it does not confer any substantive

rights on a plaintiff. United States v. Testan,424U.5.392,398 (1976). Therefore, to

' Beyond this case, Ms. Scotto has filed many other complaints in several different

jurisdictions, which she has characterized as "related" to this one. See Compl. at 2-4

(listing "related" cases Ms. Scotto has filed). In addition, she previously filed a claim to

the Department of Veterans Affairs (VA) requesting a finding of service connection for

leukemia, which the vA denied because there was "no evidence ofa current diagnosis of

leukemia." See Scotto v. McDonald,620 Fed. App'x 913,913 (Fed. Cir. 2015) (per

curiam).
invoke the court's Tucker Act jurisdiction, a plaintiff must identifu an independent source

ofa substantive right to money damages from the United States arising out ofa conftact,

statute, regulation, or constitutional provision. Jan's Helicopter Serv.. Inc. v. Fed.

Aviation Admin., 525 F.3d 1299,1306 (Fed. Cir. 2008); see also Golden Pacific Bancorp

v. United States, 15 F.3d 1066, 1076 (Fed. Cir. 1994).

In deciding a motion to dismiss for lack ofsubject matter jurisdiction, the court

accepts as true all undisputed facts in the pleadings and draws all reasonable inferences in

favor ofthe plaintiff. Trusted Integration. Inc. v. United States, 659 F.3d 1159, 1163

(Fed. Cir. 201 1). Further, it is well established that complaints filed by p19 se plaintiffs

(as is this one) are held to "less stringent standards than formal pleadings drafted by

lawyers." Haines v. Kemer,404 U.S. 519,520 (1972). Nonetheless, even pro se plaintiffs

must persuade the court that jurisdictional requirements have been met. Bemard v. United

States,59 Fed. Cl.497, 499 (2004), affd,98 Fed. App'x 860 (Fed. Cir.2004).

Applying these standards, the Court concludes that it lacks subject matter

jurisdiction over Ms. Scotto's claims. Ms. Scotto's allegations of "causation of torture,

leukemia, property conversion, larceny, [and] assault" can only be construed as alleging

either criminal violations or tort claims. The Court of Federal Claims, however, lacks any

jurisdiction over criminal matters. See Upshaw v. United States, 599 Fed. App'x 387, 388

(Fed. Cir. 2015) (per curiam) (holding that the Court ofFederal Claims' jurisdiction

"does not extend to cases involving criminal law"). Likewise, because the Tucker Act

expressly excludes from its coverage claims "sounding in tort," this Court lacks

jurisdiction over any tort claims. 28 U.S.C. $ la91(a)(1); see also Brown v. United States,

105 F.3d 621,623 (Fed. Cir. 1997)) (holding that the Court of Federal Claims "lacks

jurisdiction over tort actions against the United States"). Accordingly, the Court cannot

assert jurisdiction over any of Ms. Scotto's claims.

CONCLUSION

For the reasons discussed above, Plaintiff s motion for recusal is DENIED, and

the government's motion to dismiss is GRANTED. Plaintiff s complaint is hereby

dismissed without prejudice. Each side shall bear its owrr costs,

The Clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

ELAINE D. KAPLAN

Judge

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