Rodarmel, 221 Ct. Cl. 984

Rodarmel

221 Ct. Cl. 984 | Ct. Cl. | 1979

This case is before the court on defendant’s motion to dismiss the petition. Plaintiff has filed no response to the motion and the time for so filing under the court’s rules has expired. The petition alleges that the United States Government was negligent and failed to protect the civil liberties and rights of the plaintiff. It also states that the United States failed to apprehend or indict certain individuals for various crimes. Plaintiff demands $175,000 in exemplary and punitive damages. Plaintiffs claim is not based on contract or any constitutional provision or statute or regulation that may be fairly interpreted as mandating compensation by the Government, or on the illegal exaction or retention of monies paid to the Government. United States v. Testan, 424 U.S. 392 (1976); Eastport S.S. Corp. v. United States, 178 Ct. Cl. 599, 372 F. 2d 1002 (1967). Plaintiffs claim sounds in tort, over which we have no original jurisdiction. 28 U.S.C. § 1491 (1976).

*985We must next consider whether, under 28 U.S.C. § 1506 (1976), it is in the interest of justice to transfer this case to the proper district court. We conclude that- it is not. Plaintiffs allegation that the United States failed to apprehend or indict certain people fails to state a claim upon which relief may be granted. The FederalTort Claims Act, § 421(a), 28 U.S.C. § 2680(a) (1976), exempts the United States from liability for claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” This includes the Attorney General’s prosecutorial discretion, and thus exempts the United States from liability for the failure to prosecute alleged here. Smith v. United States, 375 F. 2d 243 (5th Cir.), cert. denied, 389 U.S. 841 (1967). Plaintiff's other allegations, that the United States was negligent and failed to protect plaintiffs civil liberties, appear to merely restate the claim for failure to indict. However, if plaintiff intends them to state a separate claim, the allegations are far too general and conclusory to show plaintiff is entitled to relief.

it is therefore ordered, upon consideration without oral argument, that defendant’s motion is granted, and the petition is dismissed.