POLES v. USA

Filing 41

Order dismissing Plaintiff's case without prejudice for failure to prosecute and denying as moot 39 Motion to Dismiss - Rule 12(b)(1). The Clerk is directed to enter judgment. Signed by Judge Kathryn C. Davis. (beg) Service on parties made.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
___________________________________
)
ROBERT EUGENE POLES,
)
)
Plaintiff,
)
)
v.
)
No. 20-100C
)
THE UNITED STATES,
)
Filed: September 24, 2021
)
Defendant.
)
___________________________________ )
ORDER
Following the court’s June 29, 2020 Order (ECF No. 24) remanding Plaintiff Robert Poles’
case to the Army Board for Correction of Military Records, an informal Physical Evaluation Board
(“PEB”) recommended his separation designator be changed to permanent disability retirement,
assigning Plaintiff a disability rating of 70 percent. Def.’s Status Report at 2, ECF No. 37. Plaintiff
concurred with the PEB’s recommendation. Id. In keeping with this new designation, his
Separation Program Designator was changed to “Retirement, Disability, Permanent,” and his
disability was made retroactive to May 6, 1977. Id. The Government has advised that the Defense
Finance and Accounting Service will provide Plaintiff permanent retirement pay and other
allowances once he activates a retired pay account, and that the U.S. Army Physical Disability
Agency has provided Plaintiff with activation instructions. Id.
Believing this relief satisfies Plaintiff’s claims, the Government sought his consent to
voluntarily dismiss the case as moot. Id. Plaintiff denied that consent, expressing his intent to
pursue a negligence claim against the Army. Def.’s Mot. to Dismiss at 2–3, ECF No. 39.
Accordingly, the Government moved to dismiss Plaintiff’s case under Rule 12(b)(1) of the Rules
of the United States Court of Federal Claims (“RCFC”) on grounds that his claims are moot and

that any negligence claim would be beyond the Court’s jurisdiction. See id. at 4–5. Plaintiff failed
to file a response to the Government’s Motion by the July 26, 2021 deadline. On August 16, 2021,
the Court ordered him to file a response by no later than September 3, 2021 or face possible
dismissal of his case. See Order, ECF No. 40. As of this date, Plaintiff has not complied with the
Court’s August 16 Order.
RCFC 41(b) allows the Court to dismiss a plaintiff’s case sua sponte “[i]f the plaintiff fails
to prosecute or to comply with these rules or a court order.” That Plaintiff is acting pro se in this
matter does not change this fact. See Duncan v. United States, 432 F. App’x 963, 965–66 (Fed.
Cir. 2011) (affirming dismissal of a pro se plaintiff’s case where the court’s order “was clear and
unambiguous in stating that it could dismiss [the plaintiff’s] case” if she did not comply with the
order); Whiting v. United States, 99 Fed. Cl. 13, 17 (2011) (citing Kadin Corp. v. United States,
782 F.2d 175, 176–77 (Fed. Cir. 1986) (“While dismissal of a claim is a harsh action, especially
to a pro se litigant, it is justified when a party fails to pursue litigation diligently and disregards
the court’s rules . . . .”).
Here, Plaintiff failed to comply with the Court’s rules requiring a response to the
Government’s Motion be filed within 28 days after service of the motion. See RCFC 7.2(b)(1).
Because of his pro se status, the Court sua sponte provided additional time for Plaintiff to comply.
ECF No. 40. The Order further warned that noncompliance might result in dismissal. Id. Neither
the Order’s instructions, nor its stated consequence for noncompliance, were ambiguous. See
Duncan, 432 F. App’x at 966. Despite having 60 additional days to file his response, Plaintiff still
has not done so.

2

Consequently, the Court DISMISSES Plaintiff’s case without prejudice under RCFC 41(b)
for failure to prosecute. The Government’s Motion to Dismiss is therefore DENIED as MOOT.
The Clerk is directed to enter judgment accordingly.
SO ORDERED.

Dated: September 24, 2021

/s/ Kathryn C. Davis
KATHRYN C. DAVIS
Judge

3