
    Chandra KANT, Pro Se, Plaintiff, v. The UNITED STATES, Defendant.
    No. 15-458C
    United States Court of Federal Claims.
    (Filed: October 22, 2015)
   Pro Se; Motion to Dismiss; Lack of Subject Matter Jurisdiction; RCFC 12(b)(1); Lost or Damaged Mail

ORDER GRANTING THE GOVERNMENT’S MOTION TO DISMISS

FIRESTONE, Judge.

Pro se 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 lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted under Rules 12(b)(1) and 12(b)(6) of the United States Court of Federal Claims (“RCFC”). On August 17, 2016, 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.

The court has determined that oral argument is not necessary. For the reasons that follow, the government’s motion to dismiss is GRANTED.

1. 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 Pl.’s Compl. 1; 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 the items to a post office, where a clerk took possession of the toys, gave her a “Receipt for Article(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. I.

Ms. Kant alleges that after several weeks she received a letter from the International Research Group of the USPS (“IRG”), which investigates possible damage 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. See 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 Article(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. 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 cheek for $664.91 in the mail in a few days. See id. Ms. Kant alleges that she never received the check despite her best efforts to track down the claim. 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.

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. § 1491(a)(1). 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 “coneede[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 ease because it fails to allege that the government 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.

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 pro se 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 pro se plaintiff ... must satisfy jurisdictional requirements.” Anderson v. United States, 587 Fed.Appx. 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. § 1491(a)(1) (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. See 28 U.S.C. § 1491(a)(1) (expressly excluding from the court’s jurisdiction claims “sounding in tort”); Keene Corp. v. United States, 508 U.S. 200, 214, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) (noting that tort claims such as conversion are 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. United States, 388 Fed.Appx. 961, 963 (Fed.Cir.2010))). 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 that this court does not have jurisdiction to hear Ms. Kant’s tort claims, the court now turns to whether Ms. Kant’s allegations regarding the USPS’s actions are 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. In Marine Insurance, the United States Court of Claims expressly held that the government is liable for lost or damaged mail only to the extent authorized by regulation and cannot be held liable under a Fifth 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 the 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 (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.

Attachment 
      
      . These regulations are set forth in the USPS’s International Mail Manual and relevant provisions are attached to this decision,
     
      
      . In her complaint and response, Ms. Kant alleges that she took the items to the post office on August 29, 2014. See Compl. 1; 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. 1.
     
      
      .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.
     
      
      . Plaintiff alleges in her complaint that she has recorded this phone conversation with the USPS employee. See Compl. 2. On October 21, 2015, the court granted Ms. Kant leave to file a surre-ply which also describes this phone conversation.
     
      
      . 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.
     
      
      . 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’s mind may be alleged generally.”
     
      
      . Because the court does not have jurisdiction, it does not rfeach 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).
     
      
      . 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 of reh’g, 563 Fed.Appx. 769 (Fed.Cir.2014).
     