Monzer Al Kassar, Appellant v. Charles E. Samuels, Jr., et al., Appellees (2017)

ORDER

Upon consideration of appellant's brief and the response thereto; and the motion for summary affirmance, the opposition thereto, and the reply, it is

ORDERED that the motion 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 correctly concluded that because appellant sought more than $10,000 in damages, the Tucker Act gave the Court of Federal Claims exclusive jurisdiction over his breach of contract claim. See 28 U.S.C. §§ 1346(a)(2), 1491; Megapulse, Inc. v. Lewis, 672 F.2d 959, 963 n.13 (D.C. Cir. 1982). As to appellant's tort claim, appellant has not argued in either his brief or opposition that he properly exhausted his administrative remedies under the Federal Tort Claims Act, and he therefore has forfeited any such argument on appeal. See U.S. ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 497 (D.C. Cir. 2004) (“Ordinarily, arguments that parties do not make on appeal are deemed to have been waived.”). Furthermore, the district court was correct that the proper vehicle for appellant's challenge to his conviction or sentence is a motion under 28 U.S.C. § 2255. See Wilkinson v. Dotson, 544 U.S. 74, 82 (2005); Davis v. U.S. Sentencing Comm'n, 716 F.3d 660, 666 (D.C. Cir. 2013).

Finally, appellant has not shown the district court abused its “broad discretion in its handling of discovery,” by not giving weight to the purported admissions. Brune v. IRS, 861 F.2d 1284, 1288 (D.C. Cir. 1988) (internal quotation marks omitted); see also Perez v. Miami-Dade County, 297 F.3d 1255, 1268 (11th Cir. 2002) (disapproving of parties who serve requests for admissions “with the wild-eyed hope that the other side will fail to respond and therefore admit essential elements”). Nor has appellant demonstrated that any of the admissions would have affected the district court's conclusion that it lacked subject matter jurisdiction. Because appellant has failed to raise on appeal the remaining arguments in his motion for reconsideration, these are forfeited. See Bombardier, 380 F.3d at 497.

Pursuant to D.C. Circuit Rule 36, this disposition will not be published.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.

Per Curiam