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                                                          No.   16-369C

                                                       (Filed: July 5,2016)                FILED
     :f   *
                                                (NOT TO BE PUBLISHED)
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                                                                                         JUL   - 5 20t6
                                                                                         U.S. COURT OF
     soLoMoN uPsHAW,                                                                    FEDERAL CLAIMS


                                     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.

                  Solomon Upshaw seeks damages under the Federal rort claims Act, codified
-^ -q.lc
      , llarnliff
           g 2674. He alleges that Arma upshiw, family
                                                                                           at
?l                                             a        member, was driving in acar on June
19   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
avers that on July 12, 1993 employees ofthe state ofGeorgia, incruding
                                                                               *titv.
                                                                           r,a.. uprir* i'".trr*
                                                                          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.


               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,
 

, 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").

                                         CONCLUSION

          The court concludes that Mr. Upshaw's complaint must be dismissed for lack of subiect
matter   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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