Sondland v Pompeo & Trump meets Westfall Certification. Motion to Transfer to Federal Claims Court

Siri what is tort? Siri what is the Federal Claims Court…I told my followers way back in 2017 that they should get to know Federal Claims Court because undoubtedly Trump would violate FAR, TINA etc

Before we dive into the recent filings in Sondland v Pompeo et al - I think you should reread this May 27, 2021 Article. Because most might not fully understand the Westfall Act, Certification and the Immunity that’s largely available. I walked you throughout Sondland’s Complaint and the possible issues, yet I failed to articulate the Westfall Act.

Federal Employees Liability Reform and Tort Compensation Act (FELRTC) of 1988

Which is colloquially known as the Westfall Act - which became PUBLIC LAW 100-694—NOV. 18, 1988 ¹ - In 2006 this was later codified| -see 28 U.S.C. §§ 2671, 2674, 2679 ² -the Westfall Act was a direct response to the Supreme Court Case Westfall v Erwin 484 U.S. 292 (1988). . ³ SCOTUS held:

Granting absolute immunity for nondiscretionary func￾tions would not further the official immunity doctrine's central purpose of promoting effective government by insulating the decision-making process from the harassment of prospective litigation which could make federal officials unduly timid in carrying out their duties

Conduct by federal officials must be discretionary in nature, as well as being within the scope of their employment, before the conduct is ab solutely immune from state-law tort liability..

Because this left open the question of liability —Congress had to “legislate” to plug the liability hole…

To amend title 28, United States Code, to provide for an exclusive remedy against the United States for suits based upon certain negligent or wrongful acts or omissions of United States employees committed within the scope of their employment, and for other purposes.

The Federal Employees Liability Reform and Tort Compensation Act of 1988 - Amended the existing Federal Tort Claims Act. The 1988 Westfall Act folded in both the judicial and legislative branches of Government within the definition of the term "Federal agency."

Quick Detour to Receipts Road:

…within the Westfall Act legal framework “tort ⁴” (most will incorrectly assume this is secular to “contracts”) —takes on the accurate meaning of the word. So if you see some Blue-QANON crew espousing Tort this, Tort that, RICO this, RICO that —remember this is the same crew that didn’t know…basic and I mean basic “law stuff”

• there are separate US Attorneys manuals for RICO -they assumed all RICO was criminal. Racketeer Influenced and Corrupt Organizations (RICO): A Manual for Federal Prosecutors and Civil RICO: A Manual for Federal Attorneys. I kid you not they didn’t know about civil RICO

• didn’t know there’s a VCAR USAM - also Violent Crimes in Aid of Racketeering (18 U.S.C. § 1959): A Manual for Federal Prosecutors.

• didn’t know about the United States Circuit Court of Appeals-Federal Circuit

• nor did they know about the Federal Claims Court

Hilariously throwing around 5+ syllable words. For Example; “perseverating” , “elicitation” —and consistently used legalese-phrases like: “so stipulated” or “arbitrary and capricious”, “I plea the fifth” (you don’t plead - you invoke it on specific questions) —I suppose one could assume they wanted to sound smart, when in reality it did the exact opposite. It’s embarrassing (mainly for them) but as the saying goes “not my monkeys, so clearly not my circus”

What the Tort did you just say?

Westfall Act -what the “tort” are you talking about Any litigation actions brought under the Westfall Act, the United States “shall be entitled to all defenses otherwise available to an employee of the United States which are based upon judicial or legislative immunity.”

The Westfall Act provides for an exclusive remedy for actions brought against the United States for injury or loss of property, personal injury, or death resulting from the negligent or wrongful act or omission of a Government employee acting within the scope of his or her office or employment. The Act also states that this restriction shall not apply to cognizable actions against Government employees for money damages for a violation of the Constitution.

• Thereupon the certification by the Attorney General (this is particularly implied as it relates to Sondland v Pompeo - see July 14, 2021 Certification)— or Individual the Attorney General has identified as his/her designee… or from the court.

• Such Certification shall specifically state; that the employee was “acting within the scope of the employee's office or employment at the time of the incident out of which the claim arose” and any such action there upon any injury/claim is made in a U.S. district court “shall be deemed an action against the United States under the provisions of such Act”

• Additionally the United States shall be substituted as the party defendant. More broadly such certification “shall conclusively establish scope of office or employment for the purpose of removing such an action to a U.S. district court”
  
  
  

July 14, 2021 Department of Justice Westfall Certification

On July 14, 2021 NOTICE of Westfall Certification by UNITED STATES OF AMERICA -see DDC-ECF link - Attachments: # 1 Westfall Certification - see DDC-ECF link

Department of Justice has certified that former Secretary of State Michael R. Pompeo was acting within the scope of his employment as an officer or employee of the United States America at the time of the incidents alleged in this action. Accordingly, pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679(d)(1)..

…United States is hereby substituted as the defendant for all claims asserted against Mr. Pompeo… all claims asserted against Mr. Pompeo in this action sound in tort, by virtue of this substitution, the United States is now the sole defendant in this action.

On July 23, 2021 (Sondland) filed PLAINTIFF’S MOTION TO TRANSFER CASE TO THE COURT OF CLAIMS (see DDC-ECF) To be clear I find Gordon Sondland to be a loathe-some individual but I can be intellectually honest enough to say he’s making a pretty decent argument as to the breach of (oral) Contract. Keep in mind Sondland’s May 24, 2021, asserted four causes of action:

• (i) breach of contract pursuant to the Tucker Act, 28 U.S.C. § 1491 against the United States of America;

• (ii) fraud, intentional misrepresentation, against Pompeo in his individual capacity;

• (iii) negligent misrepresentation against Pompeo in his individual capacity; and,

• (iv) breach of warranty of authority against Pompeo in his individual capacity

I still think it’s hilarious that some of my stalkers/trolls (and otherwise uniformed) didn’t even know about this Court or what the Court’s jurisdiction is, so one more time for the peanut troll gallery… the Federal Claims Court —whispers if you read Sondland’s May 2021 Complaint you’ll note his main argument is based on the “breach of contract pursuant to the Tucker Act, 28 U.S.C. § 1491 against” ⁵ ⁶

• authorized to hear money claims founded upon the Constitution, federal statutes, executive regulations, or contracts, express or implied in fact, with the United States.

• cases before the court; involve tax refund suits, an area in which the court “exercises concurrent jurisdiction with the United States district courts”

• generally involve complex factual and statutory construction issues in tax law.

• the court's jurisdiction involves government contracts ⁷

Plaintiff Sondland’s Motion essentially asks the District Court to transfer his case to the Federal Claims Court - pursuant to 28 U.S.C. § 1631 —of note Sondland’s attorneys and in his Memorandum of Law, in support assert they engaged with the Government prior to filing. (See paragraphs 10 & 11)

The Certification admitted and indisputably established that Pompeo was acting within the full “scope of his employment as an officer or employee of the United States” when he promised to reimburse Plaintiff’s attorneys’ fees. (Id. at 1, 3.)

Accordingly, the Certification confirms that Pompeo did not personally commit fraud, but rather acted within the course and scope of his employment, with authority, and thereby bound United States by his promise.

Upon reaching out to the Government. Typically is parties mutually agree to transfer a case, the goal is to do so with the prerequisite stipulation - hence Courts look for “good faith efforts” by the parties (and no it’s never time to invoke “so stipulated” no legitimate attorney I have known or worked with has ever said that) - I now refer you to paragraph 11 and it’s not a good look for the Government.

Despite there seemingly not being an active dispute between the parties, the United States continued to refuse to stipulate to the transfer, and stated it would file a Motion to Dismiss rather than stipulating to the transfer of this case as provided by the statutory and case law of this jurisdiction. (Id. ¶ 4.) As a result, Plaintiff was forced to file this Motion to properly transfer this case to where it now belongs, the Court of Claims

As the Plaintiff goes on to explain why his initial complaint was filed in Federal District Court as oppose to the Federal Claims Court -he expounds on the reasoning in a footnote (on page 8) -which reads in part:

Plaintiff did not initially file this action in the Court of Claims because the instant action also asserts personal tortious claims against Pompeo in his individual capacity, which are not claims that can be asserted in the Court of Claims. Plaintiff was uncertain whether the United States would admit, as Plaintiff suspected, that Pompeo was acting with authority and within the scope of his employment when he made his promises to Plaintiff. However, with the Certification, the United States clearly confirmed that Pompeo was acting within the scope of his employment when he bound the United States to reimburse Plaintiff’s legal fees. Now that the United States has confirmed that Pompeo had the authority, there is no question this case should be transferred to the Court of Claims.

Typically I’m not in the habit of guessing or making predictions but I can see that the Government “might” (operative word) argue that the Plaintiff’s legal fees are exorbitant. Because >$1.8million for less than 90 days work does seem unreasonably high. But again that’s an educated guess on my half, so it is completely accepted to either disagree with my assessment or be skeptical of it. I won’t take it personally. As particularized in paragraph 15, the Plaintiff states that the Westfall Certification indisputably states Pompeo “at all times acting within the scope of his employment when he promised Plaintiff that he would reimburse Plaintiff’s attorneys’ fees…”

At any rate here’s the Scribd link to Sondland’s July 23, 2021 filing or you can pay the $2.30 via DDC-ECF https://ecf.dcd.uscourts.gov/doc1/04518668012 — at this point I would BOLO for the Government’s Motion to Dismiss and if I’m wrong about the “unreasonable legal fees” well remember I did stipulate with “might”

Wait are you telling me that most people don’t spend their lunchtime researching and editing articles. Sheesh I’m doing Mondays all wrong. Looks around and drops mic

1. The 100th Congress via H.R.4612 - Federal Employees Liability Reform and Tort Compensation Act of 1988 (Westfall Act) —https://www.congress.gov/bill/100th-congress/house-bill/4612 -last accessed July 23, 2021

2. As previously mentioned the Westfall Act was Codified in 2006, see 28 U.S.C. §§ 2671, 2674, 2679 - https://www.govinfo.gov/content/pkg/USCODE-2011-title28/pdf/USCODE-2011-title28-partVI-chap171.pdf because the judicial procedures are particularized in 28 U.S.C. §§ 2671, 2674, 2679

3. Westfall v. Erwin, 484 U.S. 292 (1988) - Law Library of Congress https://tile.loc.gov/storage-services/service/ll/usrep/usrep484/usrep484292/usrep484292.pdf - last accessed July 24, 2021

4. Black’s Dictionary defines “tort” as:

“Wrong ; injury; the opposite of right So called, according to Lord Coke, be cause it is wrested, or crooked, being contrary to that which is right and straight…In modern practice, tort is constantly used as au English word to denote a wrong or wrongful act, for which an action will lie, as distinguished from a contract… A tort is a legal wrong committed upon the person or property independent of contract. It may be either (1) a direct invasion of some legal right of the individual; (2) the infraction of some public duty by which special damage accrues to the individual; (3) the violation of some private obligation by which like damage accrues to the individual. In the former case, no special damage is necessary to entitle the party to recover. In the two latter cases, such damage is see necessary”

5. When the claim exceeds $10,000.00 the Court of Federal Claims possesses exclusive jurisdiction in these cases pursuant to the Tucker Act, 28 U.S.C. § 1491 - https://www.govinfo.gov/content/pkg/USCODE-2009-title28/pdf/USCODE-2009-title28-partIV-chap91-sec1491.pdf - last accessed July 25, 2021

6. The $10K cap “Little Tucker Act," 28 U.S.C. § 1346 - district courts possess concurrent jurisdiction with the Court of Federal Claims to hear any monetary claim against the United States for an amount not exceeding $10,000 "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 not sounding in tort." important exception: contracts subject to the Contract Disputes Act, 41 U.S.C. § 7101 et seq. (CDA). Thusly once the $10K cap is breached then the district courts have no jurisdiction over such claims. See 28 U.S.C. § 1346(a)(2).

7. While most might assume the Federal Claims Court has “always had” jurisdiction of federal contracts - this is not so. In 1996 within the public contracts jurisdiction that the court was given new equitable authority - https://www.uscfc.uscourts.gov/