Judges: Nancy B. Firestone
Filed: Oct. 22, 2015
Latest Update: Mar. 02, 2020
Summary: · OR!G~NAL JJn tbt Wnittb ~tatts ~ourt of jftbtrnl ~Inints No. 15-458C FILED (Filed: October 22, 2015) OCT 2 2 2015 U.S. COURT OF ) FEDERAL CLAIMS CHANDRA KANT, ) ) Pro Se Plaintiff: ) ) Pro Se; Motion to Dismiss; Lack of v. ) Subject Matter Jurisdiction; RCFC ) 12(b)(l); Lost or Damaged Mail THE UNITED STATES, ) ) Defendant. ) ~~~~~~~~~) ORDER GRANTING THE GOVERNMENT'S MOTION TO DISMISS FIRESTONE, Judge. Prose plaintiff Chandra Kant filed the present action against the United States ("the gover
Summary: · OR!G~NAL JJn tbt Wnittb ~tatts ~ourt of jftbtrnl ~Inints No. 15-458C FILED (Filed: October 22, 2015) OCT 2 2 2015 U.S. COURT OF ) FEDERAL CLAIMS CHANDRA KANT, ) ) Pro Se Plaintiff: ) ) Pro Se; Motion to Dismiss; Lack of v. ) Subject Matter Jurisdiction; RCFC ) 12(b)(l); Lost or Damaged Mail THE UNITED STATES, ) ) Defendant. ) ~~~~~~~~~) ORDER GRANTING THE GOVERNMENT'S MOTION TO DISMISS FIRESTONE, Judge. Prose plaintiff Chandra Kant filed the present action against the United States ("the govern..
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· OR!G~NAL
JJn tbt Wnittb ~tatts ~ourt of jftbtrnl ~Inints
No. 15-458C
FILED
(Filed: October 22, 2015) OCT 2 2 2015
U.S. COURT OF
)
FEDERAL CLAIMS
CHANDRA KANT, )
)
Pro Se Plaintiff: )
) Pro Se; Motion to Dismiss; Lack of
v. ) Subject Matter Jurisdiction; RCFC
) 12(b)(l); Lost or Damaged Mail
THE UNITED STATES, )
)
Defendant. )
~~~~~~~~~)
ORDER GRANTING THE GOVERNMENT'S MOTION TO DISMISS
FIRESTONE, Judge.
Prose plaintiff Chandra Kant filed the present action against the United States
("the government") on May 5, 2015. In her complaint she alleges that the United States
Postal Service ("USPS") "stole' three electronic toy motorcycles, valued at $664.91. See
Compl. 1. According to Ms. Kant, one of the toys was damaged during shipment and
when she took the toys to the USPS to make a claim, the USPS took the toys for its
investigation but failed to settle or dismiss the claim or return the toys to her.
On July 1, 2015, the government filed a motion to dismiss for Jack of subject
matter jurisdiction and for failure to state a claim upon which relief can be granted under
Rules 12(b)(l) and 12(b)(6) of the United States Court of Federal Claims (''RCFC"). On
August 17, 2015, Ms. Kant filed a response, which, in substance reiterated the allegations
in her original complaint. The government filed a reply on September 3, 2015, adding
that Ms. Kant has failed to exhaust the administrative remedies available to her under
USPS regulations. 1
The court has determined that oral argument is not necessary. For the reasons that
follow, the government's motion to dismiss is GRANTED.
I. Background
The following facts are taken from the complaint. In July 2014, Ms. Kant
purchased, for a total of $664.91, three electronic toy motorcycles, which were delivered
from Hong Kong in three boxes on July 11, 2014 by the USPS. See PI.'s Compl. l; Pl.'s
Resp. 2. Ms. Kant alleges that one of the boxes was damaged by the USPS during
shipping. See Pl.' s Resp. 2. Ms. Kant further alleges that on July or August 29, 2014,
she took 1.he items to a post office, where a clerk took possession of the toys, gave her a
"Receipt for Articlc(s) Damaged in Mails," and told Ms. Kant that she would receive
documents in the mail that she would need to fill out and send back. See id.; Pl.'s Resp.
Ex. 1. 2
Ms. Kant alleges that after several weeks she received a letter from the
International Research Group of the USPS ("IRG"), which investigates possible damage
1
These regulations are set forth in the USPS's International Mail Manual and relevant
provisions arc attached to this decision.
2
In her complaint and response, Ms. Kant alleges that she took the items to the post
office on August29, 2014. Sec Compl. l; Pl.'s Resp. 2. The ~'Receipt for Article(s)
Damaged in Mails" attached to Ms. Kant's response is dated July 29, 2014. See Pl.'s
Resp. Ex. J.
2
or loss to parcel contents coming from abroad. See Pl. 's Resp. 2. Ms. Kant further
alleges that the IRG letter required her to reply and state whether she received the item in
damaged condition or with some contents missing. See id. Ms. Kant alleges that she
mailed her reply back to the IRG confirming that the article she received was damaged.
See
id. She also included a copy of the receipt showing the name and address of the post
office where she presented the article for examination by a postal employee. See
id.
Ms. Kant states that she did not receive a response from the USPS regarding her
claim but that on January 28, 2015 she received the same letter she had previously
received from the IRG. Sec Pl. 's Resp. Ex. 2 (letter from the IRG dated January 28,
2015). Ms. Kant states that she faxed a second reply, along with the "Receipt for
i\rticle(s) Damaged in Mails," to the fax number provided in the letter. See Pl.'s Resp. 2-
3.
Ms. Kant alleges that she called the USPS in early 2015 to inquire about her claim.
See Compl. 1; Pl. 's Resp. 3. 3 She states that she gave her case number to a USPS
employee who told Ms. Kant that the USPS had her toys in a warehouse and that USPS
would reimburse her for the items. See Pl. 's Resp. 3. Ms. Kant further alleges that the
USPS employee asked for her home address and said that she would receive a check for
3
Ms. Kant alleges in her complaint that she received the first notice from the USPS or the
IRG in 2014, called the USPS in January 2015, and then received the January 28, 2015
letter from the IRG. See Compl. 1. In her response to the government's motion to
dismiss, Ms. Kant states that she called the USPS a month after she received the January
28, 2015 letter. See Pl.' s Resp. 3.
3
$664.91 in the mail in a few days. 4 See id. Ms. Kant alleges that she never received the
check despite her best efforts to track down the claim. 5 See
id. Thus, on May 5, 2015,
she filed a complaint in this court seeking 'justice" on the grounds that USPS has
"stolen" the toys at issue. See Compl. 2. In her response to the government's motion to
dismiss, Ms. Kant describes her claim as a "Rule[] 9(b) Fraud." Pl.' s Resp. 1. 6
On July 1, 2015, the government filed a motion to dismiss Ms. Kant's complaint
for lack of subject matter jurisdiction and for failure to state a claim upon which relief
can be granted . The government's primary argument is that Ms. Kant's claim sounds in
tort and may not be heard in this court under 28 U.S.C. § 149l(a)(l). See Def. 's Mot. to
Dismiss 3. The government further argues that to the extent Ms. Kant's complaint could
be construed as alleging a taking of the toys under the Fifth Amendment, the court does
not possess jurisdiction because Ms. Kant has not "concedc[d] the validity of the
purported taking of her property," which is necessary when bringing a takings claim in
this court. See id. at 5. The government argues in the alternative that Ms. Kant's
complaint, if construed as a taking claim, should be dismissed in any case because it fails
4
Plaintiff alleges in her complaint that she has recorded this phone conversation with the
USPS employee. Sec Compl. 2. On October 21, 2015, the court granted Ms. Kant leave
to file a surreply which also describes this phone conversation.
5
Ms. Kant claims that after some months she sent two letters to two different USPS
addresses, for which she has two return receipts indicating that they were received by the
USPS. See Pl.'s Resp. 3.
6
RCFC 9(b) provides that: "In alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge,
and other conditions of a person 1s mind may be alleged generally."
4
to allege that the govermnent took her property for a public use. See id. In its reply, the
government asserts that Ms. Kant has also failed to exhaust available administrative
remedies before the USPS because her claim has not been settled or dismissed and, even
if her claim has been settled or dismissed, Ms. Kant has not engaged in the USPS's
administrative appeals process. See Def. 's Reply 3-4. 7
II. Legal Standards
In considering a motion to dismiss for lack of jurisdiction, the court accepts as true
the complaint's well-pleaded facts, and views them in the light most favorable to the non-
moving party. See Rack Room Shoes v. United States, 718 F.3d 1370, 1376 (Fed. Cir.
2013) (citing United States v. Ford Motor Co.,
497 F.3d 1331, 1336 (Fed. Cir. 2007)).
As a prose plaintiff, Ms. Kant is given more latitude in her pleadings and held to less
rigid standards than those imposed upon parties represented by counsel. See Matthews v.
United States, 750 F .3d 1320, 1322 (Fed. Cir. 2014). Nevertheless, "even the complaint
of a prose plaintiff ... must satisfy jurisdictional requirements." Anderson v. United
States,
587 F. App'x 635, 637 (Fed. Cir. 2014).
The Tucker Act provides that an action may be maintained in this court only if it is
"founded either upon the Constitution, or any Act of Congress or any regulation of an
executive department, or upon any express or implied contract with the United States, or
for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. §
7
Because the court does not have jurisdiction, it does not reach the government's
alternative grounds for dismissal for failure to state a claim upon which relief can be
granted pursuant to RCFC 12(b)(6).
5
149l(a)(l) (emphasis added). With respect to claims against the United States in
connection with mail alleged to be lost or damaged by the USPS, the United States Court
of Claims, a predecessor court to the Federal Circuit, stated:
The United States is liable to the owners of lost or damaged mail only to
the extent to which it has consented to be liable, and the extent of its
liability is defined by the Postal Laws and Regulations. Public policy
requires that the mails shall be carried subject to these regulations ... and
the liability of the Government in case of loss or damage is fixed by these
regulations.
Marine Ins. Co. v. United States, 410 F.2d 764, 766 (Ct. Cl. 1969) (quoting Twentier v.
United States,
109 F. Supp. 406, 408-09 (Ct. Cl. 1953)).
III. Discussion
A. This Court Lacks Jurisdiction to Hear Ms. Kant's Claims ''Sounding
in Tort."
Ms. Kant states that the USPS has stolen her toys by refusing to return them and
has committed fraud by failing to pay her for the damaged items. These claims for
"conversion" and "fraud" sound in tort and this court lacks jurisdiction to hear tort
claims. Sec 28 U.S.C. § 149l(a)(l) (expressly excluding from the court's jurisdiction
claims "sounding in tort"); Keene Com. v. United States, 508 U.S. 200, 214 (1993)
(noting that tort claims such as conversion arc outside the jurisdiction of this court);
Outlaw v. United States,
116 Fed. Cl. 656, 662 (2014) (finding that a claim for fraud
sounds in tort and was outside the court's subject matter jurisdiction (citing Phang v.
6
United States, 388 F. App'x 961, 963 (Fed. Cir. 2010))). 8 Accordingly, Ms. Kant's
claims sounding in tort must be dismissed.
B. This Court Does Not have Jurisdiction to Hear Ms. Kant's Complaint
based on an Alternative Takings Theory.
Having determined lhat this court does not have jurisdiction to hear Ms. Kant's
tort claims, the court now turns to whelher Ms. Kant's allegations regarding the USPS's
actions arc sufficient to establish jurisdiction under an alternative theory. The court finds
that under Marine Insurance Co. v. United States, 410 F.2d at 766, Ms. Kant cannot state
a takings claim in connection with the USPS's actions. Jn Marine Insurance, the United
States Court of Claims expressly held lhat the government is liable for lost or damaged
mail only to lhe extent authorized by regulation and cannot be held liable under a Fifih
Amendment takings theory.
Id. Based on this precedent, this court has refused to hear
cases regarding lost or damaged mail under a takings theory. See Blazavich v. United
States,
29 Fed. Cl. 371, 374-75 (1993).
In such circumstances, Ms. Kant must continue to press her claim with lhe USPS
to completion under the agency's regulations, attached to this decision, if she wants
payment or return of the toys. See, e.g., Ly v. U.S. Postal Serv., 775 F. Supp. 2d 9, 12
8
Ms. Kant cites RCFC 9(b) in support of her fraud claim. This rules describes the level
of detail a party needs to provide in order to allege fraud, mistake, or conditions of a
person's mind such as malice, intent, or knowledge. However, it does not provide
substantive grounds for jurisdiction. See, e.g., Kellogg Brown & Root Servs., Inc. v.
United States,
728 F.3d 1348, 1364-72 (Fed. Cir. 2013) (affirming, in relevant part,
dismissal of counterclaims related to alleged fraud in government contracting case),
opinion corrected on denial ofreh'g,
563 F. App'x 769 (Fed. Cir. 2014).
7
(D.D.C. 2011 ) (and cases cited therein). Thereafter, if she does not obtain the relief she
seeks from the USPS, she may be able to seek judicial review in the appropriate United
States District Court. See, e.g., Barton v. United States, 615 F. Supp. 2d 790, 794 (N.D.
Ind. 2009).
IV. CONCLUSION
For the foregoing reasons, the government's motion to dismiss is GRANTED.
The Clerk is directed to DISMISS the complaint and return Ms. Kant's filing fee.
IT IS SO ORDERED.
Judge
8
9 Inquiries, Indemnities, and Refunds
910 Reports Encouraged
Customers are urged to report losses, nondelivery, or mistreatment of mail,
even though there may be no provision for indemnity. Such reports can lead
to improved service.
920 Inquiries and Claims
921 Inquiries
921 .1 Definition
"Inquiry" is a general term that includes:
a. Requests concerning the disposition of an item mailed to or from a
foreign country.
b. Complaints or reports concerning the loss, damage, missing contents,
or improper delivery or return of an item malled to or from a foreigri
country.
921.2 Initiating an Inquiry
Inquiries can be Initiated for Global Express Guaranteed {GXG) items, Priority
Mail Express International items, registered items, and insured and ordinary
parcels. Inquiries are not accepted for ordinary letters, Priority Mail
International Flat Rate Envelopes, Priority Mail International Small Flat Rate
Priced []oxes, or M-bags. Customers must wait a reasonable amount of time
for an internationai item to be delivered In the foreign country before initiating
an inquiry. Customers must initiate inquiries within the time limits in Exhibit
921 .2.
September 14, 2015 245
921.3 International Mail Manual
Exhibit 921 ,2
Time Limits for Inquiries
When to File an Inquiry
(from malling date)
Product or Extra Service Who No Sooner Than No Later Than
Global Express U.S. Sender Only 3 days 2 30 days
Guaranteed (GXG} 1
3 days 2 90 days
Priority Mail Express U.S. Sender Only
International
Priority Mail Express U.S. Sender Only 3 days 2 30 days
International With Money-
Back Guarantee ~
Priority Mail International, Sender or 7 days 6 months
insured or ordinary Addressee 4
parcels, or Registered
Mart
I. 1ne rosra1 o:ierwce coes nor process onime r ,4umes anu c1a1ms ror u ovar r::xpress
Gu
