                     NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit

                                     2007-5173


                                 RUTH K. KITETA,

                                                       Plaintiff-Appellant,

                                         v.


                                 UNITED STATES,

                                                       Defendant-Appellee.

      Ruth K. Kiteta, of New York, New York, pro se.

      Robert J. Branman, Attorney, Tax Division, United States Department of Justice,
of Washington, DC, for defendant-appellee. With him on the brief were Richard T.
Morrison, Acting Assistant Attorney General, and Thomas J. Clark, Attorney.

Appealed from: United States Court of Federal Claims

Judge Thomas C. Wheeler
                      NOTE: This disposition is nonprecedential.


   United States Court of Appeals for the Federal Circuit


                                      2007-5173


                                  RUTH K. KITETA

                                                     Plaintiff-Appellant,

                                          v.

                                  UNITED STATES,

                                                     Defendant-Appellee.



Appeal from the United States Court of Federal Claims in 06-CV-486, Judge Thomas C.
Wheeler.



                           DECIDED: February 6, 2008



Before RADER, SCHALL , and PROST, Circuit Judges.

PER CURIAM.

                                      DECISION

      Ruth K. Kiteta appeals the Order of the United States Court of Federal Claims

that dismissed her tax refund suit pursuant to Court of Federal Claims Rule (“RCFC”)

41(b) for failure to prosecute. Kiteta v. United States, No. 06-486T (Fed. Cl. July 20,

2007). We affirm.
                                       DISCUSSION

                                              I.

       On June 27, 2006, Ms. Kiteta filed suit in the Court of Federal Claims seeking the

refund of allegedly overpaid federal income taxes. On July 20, 2007, the Court of

Federal Claims dismissed her suit pursuant to RCFC 41(b) for failure to prosecute. The

court did so after Ms. Kiteta failed to respond to the government’s motion for summary

judgment and the court’s order to show cause why her suit should not be dismissed for

failure to prosecute. Id.

                                             II.

       We have jurisdiction over Ms. Kiteta’s appeal pursuant to 28 U.S.C. §1295(a)(3).

Pursuant to RCFC 41(b), the Court of Federal Claims may dismiss a case on its own

motion “[f]or failure of the plaintiff to prosecute or to comply with these rules or any order

of the court.” We review a dismissal pursuant to RCFC 41(b) for an abuse of discretion.

Kadin Corp. v. United States, 782 F.2d 175, 176 (Fed. Cir. 1986).

       We see no abuse of discretion by the Court of Federal Claims in this case. The

government moved for summary judgment on April 5, 2007. On July 3, 2007, after Ms.

Kiteta had failed to respond to the motion, the court issued an order to show cause why

Ms. Kiteta’s suit should not be dismissed for failure to prosecute.          Ms. Kiteta was

required to respond to the show cause order on or before July 17, 2007. When she

failed to do so, the court dismissed her suit. Under these circumstances, the court did

not abuse its discretion in dismissing Ms. Kiteta’s suit. Id. (RCFC 41(b) dismissal for

untimely response to an order to show cause was within court’s discretion).




2007-5173                                     2
       On appeal, Ms. Kiteta states that she did not respond to the summary judgment

motion and the order to show cause because she suffers from what she describes as “a

seizure brain illness” and because, during the relevant period of time, she was

experiencing the side effects of certain medication she was taking.      In making this

assertion, she relies upon documents that she attempted to file with the Court of

Federal Claims on July 30, 2007, after her suit was dismissed. The court did not accept

the documents for filing, and they are thus not properly part of the record on appeal.

However, even assuming the documents were properly before the Court of Federal

Claims and this court on appeal, they do not support Ms. Kiteta’s claim that she was

unable to respond to the summary judgment motion and the order to show cause. The

documents do not constitute evidence establishing that, during the period April 5, 2007,

through July 17, 2007, Ms. Kiteta was incapacitated to such an extent that she could

not respond to the summary judgment motion or the order to show cause or could not

request additional time for doing so.

       For the foregoing reasons, the Order of the Court of Federal Claims dismissing

Ms. Kiteta’s tax refund suit is affirmed.




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