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Does 28 U.S.C 1915(d) require all court of federal claims  to screen complaints ? If so are pro se litigants moving informa pauperis  given a chance to amend their complaint to correct any ''procedural'' or ''jurisdictional'' defect found in the complaint that is correctable?      

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15 hours ago, foolish said:

Does 28 U.S.C 1915(d) require all court of federal claims  to screen complaints ?

 

Does it "require all court of federal claims to screen"?  Huh?

 

Section 1915(d) has nothing to do with anyone "screening" anything.  Section 1915(d) states as follows:  "The officers of the court shall issue and serve all process, and perform all duties in [cases in which a party is proceeding in forma pauperis].  Witnesses shall attend as in other cases, and the same remedies shall be available as are provided for by law in other cases."

 

 

15 hours ago, foolish said:

are pro se litigants moving informa pauperis  given a chance to amend their complaint to correct any ''procedural'' or ''jurisdictional'' defect found in the complaint that is correctable?

 

If a complaint is challenged, the plaintiff is typically given the opportunity to correct things that are likely to be correctable.

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17 hours ago, foolish said:

Does 28 U.S.C 1915(d) require all court of federal claims  to screen complaints ? If so are pro se litigants moving informa pauperis  given a chance to amend their complaint to correct any ''procedural'' or ''jurisdictional'' defect found in the complaint that is correctable?      

 

I think you mean § 1915(e)(2), and that section does not mandate that any federal court screen cases of those moving informa pauperis. But it does say that a court must dismiss a case, regardless of whether any fee has been paid, in the following circumstances:

 

Quote

 

(A) the allegation of poverty is untrue; or
(B) the action or appeal—
      (i) is frivolous or malicious;
      (ii) fails to state a claim on which relief may be granted; or
      (iii) seeks monetary relief against a defendant who is immune from such relief.

 

 
While the court may grant a plaintiff the chance to amend a defective complaint before dismissing it, it doesn't have to do that. Courts usually will allow at least one shot to fix it unless the court determines that there is nothing that can be done to save the complaint, e.g. it is clear from the complaint that there is simply no valid cause of action available. It's the same rule in the Claims Court as it is in district court.

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The OP's reference to 1915(d) may come from cases interpreting/applying an older version of 28 USC 1915 (pre-1996) where at least part of the language now found in (e)(2) was then found in 1915(d).

 

Before doing a little reading, I would have fully agreed with TaxCounsel's response.

After doing a little reading, I'm not sure I do.

 

Some courts do interpret and apply 1915(e)(2) as requiring screening of in forma pauperis complaints. 

 

There's no argument that the courts MUST screen when the in forma pauperis complaint is filed by a prisoner (ref 28 USC 1915A), but at least some courts do extend that further to non-prisoner cases.

 

The court of Federal Claims appears to be one of the courts that, relying on 1915(e)(2), does screen in forma pauperis complaints even if filed by non-prisoners.

I base that on some unpublished decisions that I saw courtesy of Google search.

 

47 minutes ago, Tax_Counsel said:

While the court may grant a plaintiff the chance to amend a defective complaint before dismissing it, it doesn't have to do that. Courts usually will allow at least one shot to fix it unless the court determines that there is nothing that can be done to save the complaint, e.g. it is clear from the complaint that there is simply no valid cause of action available. It's the same rule in the Claims Court as it is in district court.

 

I do, however, agree with TaxCounsel on this point.

 

 

 

 

 

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8 hours ago, MiddlePart said:

 

Some courts do interpret and apply 1915(e)(2) as requiring screening of in forma pauperis complaints. 

 

 

There's no argument that the courts MUST screen when the in forma pauperis complaint is filed by a prisoner (ref 28 USC 1915A), but at least some courts do extend that further to non-prisoner cases.

 

The court of Federal Claims appears to be one of the courts that, relying on 1915(e)(2), does screen in forma pauperis complaints even if filed by non-prisoners.

I base that on some unpublished decisions that I saw courtesy of Google search.

 

 

The statute on its face does not mandate a court to screen the case, though of course it does authorize the court to do it. I've not found any appellate cases that have squarely said the trial court must do it, either. The record in the trial courts are mixed. Even within the Court of Federal Claims it is mixed, with some cases saying it must be done, and others saying only that it may be done. The most recent one I found is one of the latter:

 

Quote

Finally, for plaintiffs proceeding or seeking to proceed in forma pauperis under Section 1915, the court may screen their complaint and dismiss it if “the court determines that ... the action or appeal-is frivolous or ... fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(i), (ii). Where the court determines that a case is frivolous or fails to state a claim upon which relief may be granted, Section 1915 requires the court to dismiss the case “[n]otwithstanding any filing fee, or any portion thereof, that may have been paid.” 28 U.S.C. § 1915(e)(2).


Kennedy v. United States, No. 18-1028C, 2018 WL 3617618, at *2 (Fed. Cl. July 30, 2018)(underlining added).

 

The Federal Circuit has not yet addressed it. So, at the moment, I'm comfortable saying that it's not mandated as the statute doesn't say it nor do I see the federal circuit (or any other) saying that either. It appears it is up to each trial court to decide whether it must done. But as the court may do it even if it is not required, it all seems to boil down to whether the trial court decides to do the screening promptly upon filing or not. Either way, the screening of the complaint itself gives the plaintiff nothing to fight over. The court clearly can do it.

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I admit I typed some obvious mistakes for example (1) I cited 1915(d) which should have been subparagraph (e)(2) of sect. 1915: (2) I also placed "all" before the federal court of federal. That mistake was obvious in that there is only one court of federal claims which is national. But they were obvious to studied person in the practice of law.  The remarks are for primarily for effect, but unnecessary, but I do appreciate positive input.     

 

Actually the screening aspect of the complaint as I  experienced is to weed out defects in the complaint and allowing the plaintiff to correct any procedural or jurisdictional defect found in the complaint before serving the defendants,   as my understanding pro se litigants are given an opportunity to correct any defects in the complaint that are correctable, if so

 

The real question is this does 28 U.S.C sec. 1500 bar a court of federal claims from granting a rule 59e and or rule 60(b)(6) motion after the case was dismissed for lack of jurisdiction?

   I see no bar in the language used in sec. 1500.  Am I wrong?. 

 

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So did the Claims Court dismiss under § 1915(e)(2), i.e. because the complaint failed to state a claim, was frivolous or malicious, or sought relief from a party that was immune, or did the court dismiss the lawsuit under 28 U.S.C. § 1500? Those are very different situations. In the latter, if there was already the same claim pending in another court (and we discussed that in an earlier thread) then the court has no jurisdiction. If the court has no jurisdiction it cannot further consider any motions in the case. The only exception I can see to that is a motion to convince the court to reverse the judgment because it made a mistake holding that it lacked jurisdiction. That would, of course, be a long shot as I'm guessing you have no new facts to present that would alter the situation that the court ruled upon.

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Just now, Tax_Counsel said:

So did the Claims Court dismiss under § 1915(e)(2), i.e. because the complaint failed to state a claim, was frivolous or malicious, or sought relief from a party that was immune, or did the court dismiss the lawsuit under 28 U.S.C. § 1500? Those are very different situations. In the latter, if there was already the same claim pending in another court (and we discussed that in an earlier thread) then the court has no jurisdiction. If the court has no jurisdiction it cannot further consider any motions in the case. The only exception I can see to that is a motion to convince the court to reverse the judgment because it made a mistake holding that it lacked jurisdiction. That would, of course, be a long shot as I'm guessing you have no new facts to present that would alter the situation that the court ruled upon.

 

the complaint was dismissed on the latter,  I understand that the court would lack jurisdiction over the case when their a similar pending case.  Drawing the exception to this case by reversing its order or judgment where new evidence was proffered that the pending case dismissal order was based voluntarily dismissal was granted to clear the jurisdictional bar. (FRAP 42(b)).  

 

I am reading the interpretation of Keene Corp,  508 U.S. 200, 219-22 (dissent).  

 

 

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4 hours ago, foolish said:

 

the complaint was dismissed on the latter,  I understand that the court would lack jurisdiction over the case when their a similar pending case.  Drawing the exception to this case by reversing its order or judgment where new evidence was proffered that the pending case dismissal order was based voluntarily dismissal was granted to clear the jurisdictional bar. (FRAP 42(b)).  

 

I am reading the interpretation of Keene Corp,  508 U.S. 200, 219-22 (dissent).  

 

 

 

Was the case in the district court still pending at the time the complaint was filed in the claims court? If so, the subsequent dismissal from the district court would not have solved your problem. The majority in Keene (8 of the 9 justices) upheld the Claims Court ruling that held that the determination is made by looking at the state of things on the day the complaint is filed in the Claims Court. And, as we discussed in your earlier thread on this, the fact that the two cases rest on different theories (tort in one vs. contract in the other) doesn't matter. If the underlying facts of the two cases were essentially the same and the one was pending in district court at the time the case in the Claims Court was filed, the Claims Court lacks jurisdiction per 28 U.S.C. § 1500 and the Claims Court must dismiss it. I mentioned that to you in that prior discussion.

 

The dissent by Stevens in Keene does not help you in the least. The Claims Court has to apply the majority decision. I discussed that too in the prior discussion. So bringing to the Claim Court's attention that the district court case was dismissed after you filed in the Claims Court as new information would not change the outcome given the Keene decision.

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No, I understand that that Court considered the ''the state of things on the day the complaint is filed in the Claims Court'',  that's the point that I am struggling with its a complete waste of everybody's time by having refile these claims  all over again and start anew. . . ([my inner thoughts ]this would have never gone on this long, had I not been deprived of the copy of the transcripts to those proceedings despite my timely countless of request,  I was set-up for failure from day one, because otherwise they would have lost automatically had the transcripts seen the light of day..]).

 

Thanks for the help. 

 

 

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