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                                             (Pro Se)

                                                 )
    CAMERON ELLIS,                               )
                                                 )
                        Plaintiff,               )
                                                 )             No. I 9- l 489C
         V.                                      )             (Filed: February 19, 2020)
                                                 )
    THE UNITED STA TES OF AMERICA,               )
                                                 )
       Defendant.                                )
--------------                                   )



                                     OPINION AND ORDER

KAPLAN, Judge.

        Plaintiff Cameron Ellis, proceeding pro se, brings this action seeking compensation for
the value of a backpack that was lost or stolen while in the care of the United States Postal
Service. Comp!. at 2, Docket No. I. He contends that the Postal Service negligently failed to take
the steps necessary to retrieve his backpack and that it breached a contract in which it agreed to
intercept and return the backpack to him before it was delivered to the addressee.

       Presently before the Court is the government's motion to dismiss pursuant to Rule
12(b)(l) or, in the alternative, 12(b)(6) of the Rules of the Court of Federal Claims ("RCFC").
Def.'s Mot. to Dismiss at I, Docket No. 8. For the reasons that follow, the government's motion
to dismiss for lack of subject-matter jurisdiction is GRANTED and Plaintiff's complaint is
DISMISSED without prejudice for lack of subject-matter jurisdiction.

                                       BACKGROUND'

       Mr. Ellis alleges that on or about June 11, 2018, he went to the post office in Belmont,
Massachusetts and sent a new Gucci backpack to Los Angeles, California through the United
States mail. Comp!. at 2. After he shipped the backpack, but before it was delivered, Mr. Ellis
purchased "an intercept" from the post office. Id. The Postal Service offers Package Intercept
services to customers that authorize the redirection and recovery of mail with a tracking barcode.

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1 The facts set forth in this Opinion are based on the allegations in the complaint and in Mr.
Ellis's pleadings, which are undisputed, and which the Court accepts as true for purposes of
                                                                                                     II
ruling on the government's motion.                                                                   I
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Mailing Standards of the United States Postal Service, Domestic Mail Manual ("DMM") at
507.5.1.1. 2 "Interception of eligible mailpieces," however, "is not guaranteed." Id.

        The post office confirmed Mr. Eilis's purchase of the intercept and informed him it had
taken effect and that he would soon receive the backpack in the mail. Comp!. at 2. Mr. Ellis,
however, never received the backpack. Id. He reported the failure to return his backpack "to post
office officials in Massachusetts and California," whom he alleges failed to "investigate[]" or to
take "steps to locate and retrieve [his] backpack." Id. at 3. He fmiher alleges that "[p Jost office
records indicate that [his] backpack was wrongfully delivered, lost, or stolen on or about June 25,
2018." Id.

        Mr. Ellis asserts that during the course of attempting to recover his backpack, postal
service employees provided him advice and information that was unhelpful and, in some
circumstances, also inaccurate. He was initially advised to "speak with a postal inspector in
California." Id. His mother did so on his behalf and was told that the postal inspector would
attempt to locate the package. Id. According to Mr. Ellis, the inspector also advised his mother
that she should contact customer service officials for the post office in Boston. Id. Mr. Eilis's
mother made that contact and had some back and forth with an official at the post office in
Massachusetts, but the backpack was never found. Id.

        A post office worker at a Massachusetts post office then advised Mr. Ellis to file a
"complaint 'form 1000,"' which is used to make indemnity claims for insured mail, COD items,
Registered Mail with postal insurance, or Priority Mail Express packages. See id.; DMM
609.1.5.2. Acting on the post office worker's advice, Mr. Ellis submitted such a claim "via
ce1iified mail to the Post Office Domestic Claims Depmiment in Missouri," but his "claim and
appeal were denied." Comp!. at 3.

       Mr. Ellis then brought suit against the United States in this court on September 26, 2019.
Docket No. I. The United States filed a motion to dismiss pursuant to RCFC 12(b)(I) and
12(b)(6) on December 16, 2019. Docket No. 8. Mr. Ellis filed his response on January 14, 2020,
Docket No. 9, and the United States filed its reply on Janum·y 28, 2020, Docket No 10.

                                          DISCUSSION

        The government, as noted, has filed a motion to dismiss for lack of subject-matter
jurisdiction in accordance with RCFC 12(b)(1 ). When considering such a motion, the Court
accepts as true all undisputed facts in the pleadings and draws all reasonable inferences in favor
of the plaintiff. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).
The Court may, however, "inquire into jurisdictional facts" to determine whether it has
jurisdiction. Rocovich v. United States, 933 F.2d 991,993 (Fed. Cir. 1991).

       It is well-established that complaints filed by pro se plaintiffs are held to "less stringent
standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520


2
 The DMM (available at https://pe.usps.com/DMM300), is incorporated by reference into
Postal Service Regulations pursuant to 39 C.F.R. § 111.1.



                                                  2
    (1972). Nonetheless, even prose plaintiffs must persuade the Conti that jurisdictional
    requirements have been met. Harris v. United States, 113 Fed. Cl. 290,292 (2013).

        The Tucker Act provides that the Court of Federal Claims "shall have jurisdiction to
render judgment upon any claim against the United States 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. § 149l(a)(l). However, the Tucker Act-a jurisdictional statute-
"does not create any substantive right enforceable against the United States for money damages."
United States v. Testan, 424 U.S. 392, 398 (1976). Thus, a plaintiff must identify a separate
money-mandating source of substantive rights to establish the conti's jurisdiction. See Fisher v.
United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en bane in relevant part).

         Mr. Ellis's complaint, as noted, alleges that his backpack was lost or stolen as a result of
the Postal Service's negligence. Specifically, he claims that "USPS officials negligently
performed the intercept, and negligently and recklessly stated that the intercept was successful
when it was not." Pl.'s Opp'n to Def.'s Mot. to Dismiss ("Pl.'s Opp'n") at 4, Docket No. 9. The
Tucker Act, however, does not confer jurisdiction on the Conti of Federal Claims to hear claims
that sound in tort; to the contrary, it expressly withholds such jurisdiction. See 28 U.S.C. § 1491.
To the extent, therefore, that Mr. Ellis alleges the Postal Service's negligence resulted in the loss
of his backpack, his claim is not within this Court's jurisdiction. See Webber v. United States,
231 Ct. Cl. I 009, I 009 (1982) (stating that claims "base[d] upon delay in the receipt of mail or
failure to deliver mail 'aris[e] in tort and not upon a contract'"); Moore v. U.S. Postal Serv.
Emps., No. I0-65C, 2010 WL 2507797, at *2 (Fed. Cl. June 21, 2010) (dismissing claims that
mail was prevented from reaching its destination because they were tort claims over which the
Court of Federal Claims did not have jurisdiction); Nasker v. United States, 82 Fed. Cl. 319, 321
(2008) (dismissing complaint alleging claims arising from mishandling and damage to mail
pursuant to RCFC 12(b)(l) for lack of subject-matter jurisdiction). 3

        Mr. Ellis also asserts a breach of contract claim in his complaint. Breaches of express or
implied contracts with the United States are generally within this Court's Tucker Act
jurisdiction. But Mr. Ellis cannot assert a contract claim against the United States based on the
loss of his backpack because "[t]he 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." 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)). "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." Id.

        The laws and regulations provide that "[i]n order to secure protection against loss or
damage, it is necessary to use registered, insured, or c. o. d. mail." Twentier, 109 F. Supp. at 409;
see also DMM at 609.1.1. ("A customer may file an indemnity claim for insured mail, COD

3
  The Conti notes that because Mr. Ellis's negligence claim "aris[es] out of the loss, miscarriage,
or negligent transmission of letters or postal matter" it appears to also not be within the
jurisdiction of the district court under the Federal Tort Claims Act. 28 U.S.C. § 2680(b).



                                                   3
items, Registered Mail with postal insurance, or Priority Mail Express."). Mr. Ellis does not
allege that he used one of these forms of mail to ship his backpack.

        Mr. Ellis's claim based on his purchase of Package Intercept services does not fall within
the scope of liability defined by the postal service rules and regulations. His allegation that an
intercept "guarantees that a package will not be delivered to the addressee, and will be returned
to the sender," is contrary to Post Service regulations. See Comp!. at 2. The DMM, which is, as
noted, incorporated into the regulations, expressly states that "[i]nterception of eligible
mailpieces is not guaranteed." DMM at 507.5.1.1.

        Finally, in his Opposition to the government's motion to dismiss, Mr. Ellis contends that:

        Defendant created a contract with Plaintiff by accepting Plaintiffs money for the
        intercept and stating, verbally and in the tracking order, that the intercept was
        successful, and when that information proved to be false, promising to initiate an
        investigation which never took place, and when that information proved to be false,
        telling Plaintiff the backpack had been recovered and that there was no need to file
        a complaint, and when that information proved to be false, telling Plaintiff the
        backpack had probably been stolen by a USPS employee, and that he should file a
        claim with the USPS, which was hopeless, and ultimately denied.

Pl.'s Opp'n at 3---4. According to Mr. Ellis, "[h]ad these false representations not been made,
[he] could have reached out to law enforcement sources or sought assistance of others, in an
attempt to recover his backpack." Id. at 4.

         The Court is sympathetic to Mr. Ellis. The events he describes cannot be considered to
represent the Postal Service's finest hour. It is also unfortunate that he did not protect himself by
purchasing insurance or using one of the methods of mailing for which he would have been
indemnified against loss. But to the extent that Mr. Ellis's allegations of detrimental reliance
state a claim at all, the claim is one based on promissory estoppel. Such a claim "arises when a
promisor makes 'a promise [that] the promisor should reasonably [have] expect[ ed] to induce
action or forbearance on the part of the promisee ... and which d[id] induce such action or
forbearance."' XP Vehicles, Inc. v. United States, 121 Fed. Cl. 770, 782 (2015) (quoting
Restatement (Second) of Contracts§ 90(1) (2012)); see also Steinberg v. United States, 90 Fed.
Cl. 435, 443 (2009) (stating that to succeed on a promissory estoppel claim, a party must prove:
"first, that there was a promise or representation made"; "second, that the promise or
representation was relied upon by the pmiy asserting the estoppel in such a manner as to change
his position for the worse"; and "third, that the promisee's reliance was reasonable and should
have been reasonably expected by the promisor. "). Claims based on promissory estoppel rely
upon the existence of a contract that is implied in law, not one implied in fact. See Lawndale
Restoration P'ship ex rel. Boulevard Realty Servs. Corp. v. United States, 95 Fed. Cl. 498, 506
(2010); Steinberg, 90 Fed. Cl. at 443. And although the Tucker Act grants this Court jurisdiction
over claims arising under "implied contract[s]," "the Supreme Court has long held that the scope
of the Tucker Act's waiver of sovereign immunity 'extends only to contracts either express or
implied in fact, and not to claims on contracts implied in law."' Lumbermens Mut. Cas. Co. v.
United States, 654 F.3d 1305, 1316 (Fed. Cir. 2011) (quoting Hercules Inc. v. United States, 516
U.S. 417, 423 (1996). For that reason as well, the Court lacks jurisdiction over Mr. Ellis's claims


                                                  4
based on representations made to him by Postal Service personnel regarding the retrieval of his
backpack.

                                        CONCLUSION

        For the foregoing reasons, the government's motion to dismiss is GRANTED and the
complaint is DISMISSED without prejudice for lack of subject-matter jurisdiction. The Clerk
is directed to enter judgment accordingly. Each side shall bear its own costs.



       IT IS SO ORDERED.



                                                   ELAINE D. KAPLAN
                                                   Judge




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