Hornback v. United States

127 F. App'x 964

Opinion

MEMORANDUM

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Alton B. Hornback appeals pro se the district court’s dismissal of his action alleging the United States violated the Federal Tort Claims Act (“FTCA”) in processing his patent application. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. O’Toole v. United States, 295 F.3d 1029, 1032 (9th Cir.2002) (dismissals for lack of subject matter jurisdiction under the FTCA); Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir.2002) (dismissals based on res judicata). We affirm.

The district court properly determined it lacked subject matter jurisdiction over this action, because Hornback’s claims based on the alleged fraudulent behavior defendants exhibited and tortious taking they effected during the time his patent application was held under a secrecy order constitute intentional torts to which the FTCA does not apply. See Owyhee Grazing Ass’n, Inc. v. Field, 637 F.2d 694, 697 (9th Cir.1981) (fraud, conspiracy, and misrepresentation amongst tortious conduct for which the United States has not consented to be sued, as provided by 28 U.S.C. § 2680(h)).

To the extent the district court construed Hornback’s temporary takings claim to allege a violation of the Fifth Amendment, this claim had been dismissed in a previous action. Hornback v. United States, 91 FedAppx. 679, 681-82 (Fed.Cir. 2004) (per curiam) (nonprecedential). Accordingly, the district court properly dismissed the takings claim based on res judicata. See Stewart, 297 F.3d at 956.

We find Hornback’s remaining contentions unpersuasive.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.