In the Gnited States Court of Federal Claims

No. 19-292C

(Filed: June 19, 2019)

 

(NOT TO BE PUBLISHED)
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DEBRA L. E. CARTER, )
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Plaintiff, J
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v. }
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UNITED STATES, )
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Defendant. )
)

 

Debra L.E, Carter, pro se, Emporia, Virginia.

Alexis J. Echols, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., for defendant. With her on the brief were
Joseph H. Hunt, Assistant Attorney General, Civil Division, and Robert E, Kirschman, Jr.,
Director, and Deborah A. Bynum, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C,

OPINION AND ORDER

LETTOW, Senior Judge.

Plaintiff Debra L. E. Carter has brought suit seeking unspecified compensatory and
punitive damages relating to an automobile accident that occurred several years ago in Virginia.
Compl. at 1, 8, ECF No. 1.' Ms. Carter names as defendants the following entities: Greensville
County, Virginia; Curtis Contracting, Inc.; the Virginia Association of Counties Group, Self-
Insurance Risk Pool: The Hartford and Travelers insurance companies; the Virginia Department
of Motor Vehicles; and the United States, acting through the National Highway Traffic Safety
Administration (“NHTSA”). Compl. at 1. The United States (“the government”) has moved to
dismiss the complaint pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims
(“RCFC”). See Def.’s Mot. for Summ. Dismissal of Pro Se Compl. (“Def.’s Mot.”), ECF No. 8.

 

\Cjtations to the complaint and its attachments correspond to the page marking as
reproduced in the Electronic Case Filing system.

 
Because this court lacks subject-matter jurisdiction over all but one of the defendants and
also over the basis of the claim, the government’s motion to dismiss Ms. Carter’s complaint is
GRANTED.

BACKGROUND

Ms. Carter claims that on the evening of February 16, 2017, she was driving her car
southbound on Otterdam Road in Greenville County, Virginia, when she was involved ina
single-vehicle accident immediately south of the intersection with Aberdour Road. Compl. at 1-
> Ms. Carter was traveling from her home on Aberdour Road to a nearby church on Otterdam
Road. Compl. at 1-2. That stretch of Otterdam Road had been under construction since January
2017, with Curtis Contracting, Inc. performing the work on behalf of Greenville County. Compl.
at 1-3, 7; Compl. Attach. 1 at 8. Ms. Carter notes that signage indicated Otterdam Road was
closed to all but local traffic and construction equipment was present. Compl. at 1-2; Compl.
Attach. 2 at 37, 44. Ms. Carter contends, however, that at the time of her accident, no signs
specifically advised drivers of loose gravel or to slow their speed, though orange cones lining the
road subsequently appeared. Compl. at 1, 7. Ms, Carter claims that back and nerve injuries
resulted from the accident. Compl. at 4-5, 7-8.

Ms. Carter’s insurance provider denied her claim because she carried only liability
coverage. Compl. Attach. 1 at 13-14. Insurance providers for both Curtis Contracting and
Greenville County also denied her claim because they each found her solely responsible for the
accident. Compl. Attach. 1 at 15-17.

Ms. Carter also makes several allegations of harassment by employees of Curtis
Contracting and obstruction of justice by state or local government employees. Compl. at 3-4, 8.

On May 3, 2019, the court granted Ms. Carter’s motion for additional time to respond to
the government’s motion to dismiss, allowing Ms. Carter to respond by June 4, 2019. See Order
of May 3, 2019, ECF No. 10. Ms. Carter has not filed a response, timely or otherwise.

STANDARDS FOR DECISION
Rule 12(b)(1) ~ Lack of Subject-Matter Jurisdiction

The Tucker Act provides this court with jurisdiction over “any claim against the United
States founded cither 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. § 1491 {a)()). To
invoke this court’s Tucker Act jurisdiction, “a plaintiff must identify a separate source of
substantive law that creates the right to money damages.” Fisher v. United States, 402 F.3d
1167, 1172 (Fed. Cir. 2005) (en bane in relevant part) (citing United States v. Mitchell, 463 U.S.
206, 216 (1983); United States v. Testan, 424 U.S, 392, 398 (1976)). Ifa plaintiff fails to do so,
this court “should [dismiss] for lack of subject matter jurisdiction.” Jan’s Helicopter Serv., Tne.
y, Federal Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir, 2008) (quoting Greenlee Cty. v.
United States, 487 F.3d 871, 876 (Fed. Cir, 2007)).

 
Ms. Carter, as plaintiff, must establish jurisdiction by a preponderance of the evidence.
Trusted Integration, Inc, v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011) (citing Reynolds
v, Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)).2, When ruling on a
motion to dismiss for lack of jurisdiction, the court must “accept as true all undisputed facts
asserted in the plaintiff's complaint and draw all reasonable inferences in favor of the plaintiff.”
Id. (citing Henke v. United States, 00 F.3d 795, 797 (Fed. Cir. 1995)). “Ifa court lacks
jurisdiction to decide the merits of a case, dismissal is required as a matter of law.” Gray v.
United States, 69 Fed. Cl, 95, 98 (2005) (citing Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514
(1868); Thoen v. United States, 765 F.2d 1110, 1116 (Fed. Cir. 1985)); see also RCFC 12(h)G)
(“If the court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.”).

ANALYSIS

The government argues that this court lacks jurisdiction because Ms. Carter’s claims
represent tort claims over which this court lacks jurisdiction. Def.’s Mot. at 4-5, Mr. Carter’s
complaint has not specifically addressed jurisdiction. See generally Compl.

For this court to exercise jurisdiction over Ms. Carter’s claims, it must do so under the
Tucker Act, 28 U.S.C. § 1491(a). Under the Tucker Act, this court can only hear claims against
the United States, and only claims for monetary compensation resulting from a breach of
contract with the federal government or from federal government violations of constitutional,
statutory, or regulatory law, excluding tort cases. 28 US.C. § 1491(a). Accordingly, this court
may not consider claims against states or their instrumentalities, nor against private parties. 28
U.S.C. § 1491 (a); see also, 2.2., Bowles v. United States, 639 Fed. Appx. 647 (Fed. Cir. 2016)
(no jurisdiction over states or their instrumentalities); Arunga v. Clinton, T7 Fed. Cl. 120, 124-25
(2007) (no jurisdiction over disputes between private parties). Here, only NHTSA, an agency of
the federal government, is a proper defendant before this court. The remainder are state or local
instrumentalities (i.e., Greenville County and the Virginia Department of Motor Vehicles) or
private parties (7.e., the insurance companies and Curtis Contracting). Accordingly, claims
against all defendants other than the NHTSA must be dismissed for lack of jurisdiction.

Conceptually, while a claim against NHTSA might proceed before this court, Ms.
Carter’s complaint contains two incurable deficiencies. First, while Ms. Carter provides a
detailed complaint with attendant insurance letters, e-mails between local officials, and
photographs of the road construction, no factual allegations implicate NHTSA. The accident
occurred along what appears to be road operated by Virginia or Greenville County, and allegedly
was attributable to road construction conducted by a private contractor. Accepting Ms. Carter’s
assertions as true for the purposes of the government’s motion to dismiss, the court cannot

 

2A court may “grant the pro se litigant leeway on procedural matters, such as pleading
requirements,” McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356 (Fed. Cir. 2007) (citing
Hughes v. Rowe, 449 U.S. 5,9 (1980) (An unrepresented litigant should not be punished for his
failure to recognize subtle factual or legal deficiencies in his claims.”)). But this leniency cannot
extend to lessening jurisdictional requirements. See Kelley v. Secretary, United States Dep't of
Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987) (“[A] court may not... take a liberal view of...
jurisdictional requirement[s] and set a different rule for pro se litigants only.”).

 
conceive of an interpretation of the facts that would link Ms, Carter’s claims to the federal
government. Accordingly, Ms. Carter has not satisfied her burden to demonstrate this court’s
jurisdiction.

Second, Ms. Carter’s complaint raises only tort claims. Ms. Carter alleges her car
accident was caused by the reckless, or perhaps negligent, behavior of the County or its private
contractor. See Compl. at 1-2, 7-8. Harassment and obstruction of justice are also alleged
against private citizens or County employees. See Compl. at 3-4, 8. The Tucker Act, however,
excludes tort claims from this court’s jurisdiction. E.g., 28 U S.C. § 1491(a); see also, e.g., New
Am. Shipbuilders, Inc. v. United States, 871 F.2d 1077, 1079 (Fed. Cir. 1989) (tort claims), of.
Brown vy. United States, 88 Fed. Cl. 322, 328 (2009) (citing Joshua v. United States, 17 F.3d 378,
379 (Fed. Cir. 1994)) (criminal claims). Because the court lacks subject-matter jurisdiction, the
court cannot opine on the validity of the claims.

CONCLUSION

For the reasons stated, the government’s motion to dismiss Ms. Carter’s complaint is
GRANTED. Ms. Carter’s complaint shall be DISMISSED without prejudice, The clerk shall
enter judgment accordingly.

No costs.

It is so ORDERED. bbb

Charles F. Lettow
Senior Judge

 
