David Lee Smith, individually v. United States

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID LEE SMITH, individually and in his capac-
ity as Legal Representative of The Estate of Mary
Julia Hook,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2022-1968
______________________
Appeal from the United States Court of Federal Claims
in No. 1:22-cv-00052-AOB, Judge Armando O. Bonilla.
______________________
ON MOTION
______________________
P ER CURIAM .
O R D E R
David Lee Smith moves for leave to proceed in forma
pauperis. After consideration of the complaint, the judg-
ment of the United States Court of Federal Claims, and Mr.
Smith’s opening brief, we dismiss the appeal.
Case: 22-1968 Document: 9 Page: 1 Filed: 08/31/2022

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SMITH v. US 2
In 2019, the United States District Court for the Dis-
trict of Colorado entered an order of foreclosure and judi-
cial sale of Mr. Smith’s home. After unsuccessfully
exhausting his appeals in that matter, Mr. Smith filed this
suit on his own behalf and as the representative of his de-
ceased wife’s estate at the Court of Federal Claims assert-
ing an unlawful judicial taking of property in violation of
the Takings Clause of the Fifth Amendment. The com-
plaint alleged that the district court failed to comply with
all necessary procedures, including failing to set off
amounts owed, failing to determine the proper amount of
federal taxes owed, and failing to distribute tax exemp-
tions. The Court of Federal Claims granted Mr. Smith’s
motion for leave to proceed in forma pauperis and dis-
missed for lack of jurisdiction, certifying under 28 U.S.C.
§ 1915(a)(3) that any appeal would not be taken in good
faith. Mr. Smith now appeals, seeking in his brief for this
court to “declare the judgments and orders of . . . the Dis-
trict of Colorado and . . . the Tenth Circuit void . . . because
of the jurisdictional defects and due process violations in
those courts.” ECF No. 5-1 at 3.
Given Mr. Smith’s motion and the § 1915(a)(3) certifi-
cation, it is appropriate to assess whether Mr. Smith’s ap-
peal complies with 28 U.S.C. § 1915(e)(2)(B)(i), which
provides “the court shall dismiss . . . if the court deter-
mines that . . . the action or appeal . . . is frivolous.” It is
well settled that the Court of Federal Claims “cannot en-
tertain a taking[s] claim that requires the court to ‘scruti-
nize the actions of’ another tribunal.’” Innovair Aviation
Ltd. v. United States, 632 F.3d 1336, 1342 (Fed. Cir. 2011)
(citation omitted, alteration in the original); Petro-Hunt,
L.L.C. v. United States, 862 F.3d 1370, 1385 (Fed. Cir.
2017); Shinnecock Indian Nation v. United States, 782 F.3d
1345, 1353 (Fed. Cir. 2015). Mr. Smith has raised no co-
gent, non-frivolous argument on appeal for why the Court
of Federal Claims would have jurisdiction over his com-
plaint that, at bottom, challenges the district court’s
Case: 22-1968 Document: 9 Page: 2 Filed: 08/31/2022

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SMITH v. US 3
rulings in his foreclosure case through collateral proceed-
ings. We therefore dismiss this appeal as frivolous.
Accordingly,
I T I S O RDERED T HAT :
(1) The motion for leave to proceed in forma pauperis
is denied.
(2) The appeal is dismissed.
(3) Each side shall bear its own costs.
August 31, 2022
Date
F OR THE COURT
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
Case: 22-1968 Document: 9 Page: 3 Filed: 08/31/2022

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