UPSHAW v. USA

Filing 9

UNREPORTED Order directing the Clerk to enter judgment dismissing plaintiff's complaint for lack of subject matter jurisdiction. No costs. Signed by Judge Charles F. Lettow. (dls) Copy to parties.

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No.

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16-369C

FILED

(Filed: July 5,2016)
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(NOT TO BE PUBLISHED)
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JUL

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U.S. COURT OF
FEDERAL CLAIMS

soLoMoN uPsHAW,
Plaintiff,
v.

UNITED STATES,
Defendant.
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Solomon Upshaw, pro .re, Cape Neddick, Maine.
Elizabeth Anne Speck,'frial Attorney, commercial Litigation Branch, civil
Division,
.
united slates Department of Justice, washington, D.c., for defendant. with-her
on the briefs
were Benjamin c. Mizer, Principal Deputy Assistant Attomey General,
civil Division, and
Robert E. Kirschman, Jr., Director, and Deborah A. Bynum, Assistant Director,
commerciar
Litigation Branch, civil Division, United States Department of Justice, washington,
D.c.

ORDER
LETTOW, Judge.
seeks
- , llarnliff Solomon Upshaw Arma damages under the Federal rort claims Act, codified at
q.lc g 2674. He alleges that
upshiw, a family member, was driving in acar on June
?l

-^

1993 when she was struck and killed by another vehicle. Mr. upshaw's
coriplaint does not
allege who was driving the other vehicle, but his subsequent filings suggest
that the driver may
have been negligently driving a vehicle owned by a govemment
r,a.. uprir* i'".trr*
avers that on July 12, 1993 employees ofthe state ofGeorgia, incruding
a coroner in columbus,
Georgia, prepared a death certificate for Alma Upshaw but negligently-failed
to name the driver
oflhe other vehicle. Mr. upshaw makes no specific allegations regarding the United
states, a
federal agency, or any federal employee. The governmeit has moied
to lismiss Mr. upshaw,s
complaint, and Mr. Upshaw,s response opposel that motion.
19

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*titv.

rln Mr. Upshaw's brief
in response to the united

States, motion to dismiss, he states that
"Alma upshaw was killed in defendants automobile in Georgia in June 1993,
due to n"giig.o".
of another driver conduct Acts death of victim, omission of iJame, and Alma
upshaw ii not a
wife of Solomon Upshaw, and never was a wife.,' pl.,s Opp'n at l, ECF No.
7.

A. JURISDICTION
Pursuant to the Tucker Act, codified at 28 U. S.C. $ 1a91(a), this court's jurisdiction is
limited 10 claims against the United States, not "private parties." United States v. Sherwood, 3l2

U.S. 584, 588 (1941). The Tucker Act further limits the court's jurisdiction to cases "not
sounding in tort." 28 U.S.C. $ l49l(aXl); Sounders v. South Carolina Pub. Serv. Auth.,497
F.3d 1303, 1307 (Fed. Cir.2007). And even ifa case does arise under the court's Tucker Act
jurisdiction, the claims are justiciable only ifthey are filed within six years of the date on which
they accrue. 28 U.S.C. $ 2501. If the court at any time determines it lacks jurisdiction, it must
dismiss the case. Rule 12(hX3) of the Rules of the Court of Federal Claims ("RCFC"); see also
Bradyv. United States,541 Fed. Appx. 991, 993 (Fed. Cir. 2013) (affirming sua sponre dismissal
of a pro se complaint for lack ofjurisdiction); Kelley v. Secretary, United States Dep't ofLabor,
812 F.2d 1378, 1380 (Fed. Cir. 1987) (although courts holdpro se plaintiffs to less stringent
standards, this leniency does not extend to plaintiffs burden of establishing jurisdiction).
Because Mr. Upshaw makes no allegations against the United States, the court must dismiss his
case. Altemately, and to the extent his allegations could be construed as claims against the
United states, his claims must be dismissed because they sound in tort. Finally, his claims
arising out of conduct in 1993 are outside the court's six-year statute of limitations.
B. TRANSFER
-fhe

court also declines to transfer the case pusuant to 28 u.s.c. $ 163 l, which permits
transfer in the interest ofjustice to another federal court that would have had jurisdiction.
Plaintiffs complaint fails to state a claim under RCFC l2(bx6) because it contains no
allegations about his relationship to Alma Upshaw, nor does it provide any factual support
showing that certain actors were negligent. For that reason, transfer is not in the inteieit of
justice. see Bedell v. unircd sates,637 Fed. Appx. 596, 597 (Fed. cir. 2016) (rransfer nor rn
interest ofjustice when complaint fails to state a claim). Moreover, tort claims against the
lederal government generally must be presented to the relevant lederal agency within two years
of the alleged unlawful action, and thereafter must be filed in federal court within six months. 28
u.s.c. $ 2401(b). Mr. Upshaw's filings provide no reason to believe he has presented a claim to
any federal agency. As a consequence, it is likely that no federal court would consider Mr.
upshaw's action under the Federal rort claims Act. cf. United states v. Kwai Fun llong,
U.S. _,
135 S. Cr. 1625, 1629 & 1638 (2015) (holding that the rime limits in 28
lJ.S.C. $ 2401(b) are non-jurisdictional and subject to equitable tolling, but plaintiff must still
provide "a good reason for filing late").

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_,

CONCLUSION
matter

The court concludes that Mr. Upshaw's complaint must be dismissed for lack of subiect
jurisdiction. The clerk is directed to enter judgment in accord with this disposition

No costs.

It is so ORDERED.

Charles
Judge
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