Summary
noting that "defamation claims are not cognizable under the FTCA"
Summary of this case from Coulibaly v. KerryOpinion
No. 10-5275.
Filed On: February 2, 2011.
BEFORE: Sentelle, Chief Judge, and Ginsburg and Tatel, Circuit Judges
ORDER
Upon consideration of the motion for appointment of counsel and the supplement thereto; the motion for leave to file surreply; and the motions for summary affirmance, the response thereto and supplement, the reply and supplement, and the lodged surreply, it is
ORDERED that the motion for leave to file surreply be denied. It is
FURTHER ORDERED that the motion for appointment of counsel be denied. With the exception of defendants appealing or defending in criminal cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits. It is
FURTHER ORDERED that the motions for summary affirmance be granted. The merits of the parties' positions are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam).
The district court appropriately dismissed all claims against the United States for lack of jurisdiction. See National Air Traffic Controllers Ass'n v. Federal Service Impasses Panel, 606 F.3d 780, 786 (D.C. Cir. 2010) (citation omitted) (district court's grant of motion to dismiss is reviewed de novo). None of the allegations in the complaint or first amended complaint had any connection to any act or omission by the United States or its employees. Although appellant added a defamation claim against the United States in his second amended complaint, the district court properly dismissed that claim as well, because: (1) appellant failed to demonstrate he had exhausted his administrative remedies under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2675, which is a jurisdictional prerequisite to obtaining judicial review of such a claim; and (2) even if appellant had exhausted, defamation claims are not cognizable under the FTCA,see 28 U.S.C. § 2680(h).
Nor did the district court abuse its discretion in granting as conceded the motions of the Public Defender Service (PDS) and the District of Columbia (DC). See Federal Deposit Insurance Corporation v. Bender, 127 F.3d 58, 68 (D.C. Cir. 1997) (discretion lies wholly with the district court to grant motion to dismiss as conceded). The district court advised appellant on two separate occasions — first after PDS filed its motion to dismiss, and again after DC filed its motion for judgment on the pleadings, or in the alternative, for summary judgment — that failure to respond could result in treating each motion as conceded and his case being dismissed. Although appellant "responded" to each motion, each response consisted solely of information identifying appellant by name, military rank, military service number, and date of birth; neither response addressed the substance of either motion. See id. at 67-68; cf. Hopkins v. Women's Div., General Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (citations omitted) ("It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded."), aff'd 2004 WL 1178772 (D.C. Cir. 2004). Further, any argument not made in the district court is forfeited and will not be considered on appeal absent "exceptional circumstances," not presented here.See Salazar v. District of Columbia, 602 F.3d 431, 437 (D.C. Cir. 2010) (citation omitted).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc.See Fed.R.App.P. 41(b); D.C. Cir. Rule 41.