Gorski v. United States

94 Fed. Cl. 253, 106 A.F.T.R.2d (RIA) 6064, 2010 U.S. Claims LEXIS 616, 2010 WL 3448195
CourtUnited States Court of Federal Claims
DecidedAugust 17, 2010
DocketNo. 09-742T
StatusPublished
Cited by3 cases

This text of 94 Fed. Cl. 253 (Gorski v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gorski v. United States, 94 Fed. Cl. 253, 106 A.F.T.R.2d (RIA) 6064, 2010 U.S. Claims LEXIS 616, 2010 WL 3448195 (uscfc 2010).

Opinion

MEMORANDUM OPINION AND ORDER

BRADEN, Judge.

I. RELEVANT FACTUAL BACKGROUND.1

In 1999, the City of Chicago (“the City”) demolished a house and sold land owned by the Estate of Roman M. Gorski (“the Estate”), the father of John R. Gorski (“the Plaintiff’) and Wayne Gorski, to satisfy unspecified outstanding legal bills. Gov’t Att. at A-4. Plaintiff and Wayne Gorski were the sole heirs to the Estate. Id. On May 8, 2003, the Circuit Court of Cook County, Illinois (“the Circuit Court”) entered judgment against the City in favor of Wayne Gorski, as the Administrator of the Estate, for $120,278.00, because the City failed to notify Plaintiff and Wayne Gorski of the pending demolition. Id.; see also Am. Compl. Ex. 5 at 9. On December 3, 2003, the Circuit Court entered the final notice of account for the Estate, discharging the case for $124,309.51, that included miscellaneous costs and the deduction of legal fees. Am. Compl. Ex. 5 at 2, 5.

On October 19, 2004, Plaintiff and his wife, Jean Gorski, filed a joint federal income tax return, Form 1040, for the taxable year 2003. Gov’t Att. at A-5. Therein, Plaintiff stated that his occupation was “disabled” and that his wife was a Special Education Teacher. Gov’t Att. at A-6. During the taxable year 2003, Plaintiff reported $13,634.34 in Social Security benefits and $60,764.71 from Mrs. Gorski’s job. Gov’t Att. at A-5, A-7. Their joint return claimed the standard deduction and did not claim a casualty loss. Gov’t Att. at A-6.

On April 19, 2006, Plaintiff and his wife filed an amended joint federal income tax return, Form 1040X, for the 2003 tax year. Gov’t Att. at A-8. On the amended return, itemized deductions and a casualty loss of $269,230.37 were reported and a refund was claimed for the entire amount of federal taxes paid for the 2003 tax year, i.e., $8,251.00. Gov’t Att. at A-8, A-10, A-ll. The Gorskis also filed an Application for Tentative Refund, Form 1045, for claimed carry-back losses for the 2000, 2001, and 2002 tax years. Gov’t Att. at A-15.

On June 13, 2007 and October 31, 2007, the Internal Revenue Service (“IRS”) sent letters to the Gorskis, disallowing the 2003 refund claim in total, because casualty losses are deductible only in the taxable year that the casualty occurred, so that loss was not timely filed. Gov’t Att. at A-l; Am. Compl. Ex. 2 at 1. The IRS also explained that the casualty loss was not allowed, because it was not substantiated, since the Gorskis “have not shown that the fair market value [of Roman M. Gorski’s demolished house] immediately before the loss was more than you received or expected to receive as insurance proceeds or other compensation.” Am. Compl. Ex. 2 at 1.

II. PROCEDURAL HISTORY.

On October 29, 2009, Plaintiff filed a Complaint in the United States Court of Federal Claims alleging that the IRS unlawfully denied his “claim of overpayment based on a ... casualty loss.” Compl. ¶ 1. On the same day, Plaintiff filed a Motion For Leave To Proceed In Forma Pauperis, that the court granted on November 2, 2009. On Decem[255]*255ber 28, 2009, the Government filed an Answer.'

On January 29, 2010, the Government filed a Motion For Joinder Of A Person Necessary For Just Adjudication (“Gov’t Mot.”) to add Jean Gorski as a Plaintiff. On February 22, 2010, Plaintiff filed a Response (“Pl.Resp.”). On February 23, 2010, the Government filed a Reply (“Gov’t Reply”). On February 24, 2010 and March 22, 2010, the court convened telephone status conferences to discuss the Government’s pending motion.

On March 18, 2010, the parties filed a Joint Preliminary Status Report (“JPSR”). On March 23, 2010, the court entered a Discovery Scheduling Order, providing that: fact discovery is to be completed on or before August 31, 2010; and the parties are to file a Joint Status Report on or before September 30, 2010, regarding further proceedings.

On May 4, 2010, the Government filed a Motion For Leave To File A Motion For More Definite Statement and requested that the court “address [the Government’s January 29, 2010 Motion For Joinder[.]” 5/4/10 Gov’t Mot. at 5.

On July 20, 2010, in lieu of filing a response to the Government’s May 4, 2010 Motion, Plaintiff filed an Amended Complaint. On August 6, 2010, the Government filed a Motion For An Enlargement Of Time To File Defendant’s Answer, that the court granted on August 10, 2010. In the Government’s August 6, 2010 Motion, the Government also filed a Notice Of Withdrawal Of Defendant’s [May 4, 2010] Motion. On August 10, 2010, the parties filed a Joint Motion For Extension Of Fact Discovery, that the court granted on August 12, 2010. Fact discovery is to be completed on or before December 31, 2010; and the parties are to file a Joint Status Report on or before January 31, 2011, regarding further proceedings.

Accordingly, this Memorandum Opinion And Order addresses only the Government’s unresolved January 29, 2010 Motion For Joinder that is fully briefed and ready for the court’s disposition.

III. DISCUSSION.

A. Jurisdiction.

The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28 U.S.C. § 1491, “to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an 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. § 1491(a)(1). The Tucker Act, however, is “a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages ... the Act merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the substantive right exists.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (citations omitted). Therefore, to pursue a substantive right under the Tucker Act, a plaintiff must identify and plead an independent contractual relationship, Constitutional provision, federal statute, and/or executive agency regulation that provides a substantive right to money damages. Todd v. United States, 386 F.3d 1091, 1094 (Fed.Cir.2004) (“[Jurisdiction under the Tucker Act requires the litigant to identify a substantive right for money damages against the United States separate from the Tucker Aet[.]”); see also Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (en banc) (“The Tucker Act ... does not create a substantive cause of action; in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages. In the parlance of Tucker Act cases, that source must be ‘money-mandating.’ ”) (citations omitted).

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94 Fed. Cl. 253, 106 A.F.T.R.2d (RIA) 6064, 2010 U.S. Claims LEXIS 616, 2010 WL 3448195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gorski-v-united-states-uscfc-2010.