Duncan v. United States , 432 F. App'x 963 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
LAURIE LYNNE DUNCAN,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2011-5067
__________________________
Appeal from the United States Court of Federal
Claims in case no. 10-CV-697, Judge George W. Miller.
_________________________
Decided: August 4, 2011
_________________________
LAURIE LYNNE DUNCAN, Of Birmingham, Alabama,
pro se.
JOSHUA A. MANDLEBAUM, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for defendant-
appellee. With him on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and FRANKLIN E. WHITE, JR., Assistant Director.
__________________________
DUNCAN v. US 2
Before RADER, Chief Judge, PROST, and O’MALLEY, Circuit
Judges.
PER CURIAM.
Laurie Lynne Duncan, pro se, appeals the dismissal of
her action by the Court of Federal Claims for failure to
comply with a court order, court rules, and applicable
pleading requirements. Because we find that the Court of
Federal Claims did not abuse its discretion in dismissing
this action, we affirm.
BACKGROUND
On October 14, 2010, Duncan filed ten documents in
the Court of Federal Claims that were labeled as a “com-
plaint” on the court’s docket, consisting of the following:
1. A February 17, 2005 letter from the Federal
Bureau of Investigation (“FBI”) to Duncan
indicating in the first paragraph that her
name was referred to the FBI because she
was a possible victim of a federal crime. The
second paragraph of the letter detailed eight
rights that crime victims possess pursuant
to 18 U.S.C. § 3771, including the rights to
be notified about and to be present at pro-
ceedings involving the accused. In the letter
Duncan filed, the first paragraph was cir-
cled, and the second paragraph was circled
and starred;
2. A February 24, 2005 letter from the United
States Attorney’s Office for the Northern
District of Alabama to Duncan notifying her
that charges have been filed against Doris J.
Blue and informing Duncan of the date of a
sentencing hearing and her right to attend
the proceeding;
3 DUNCAN v. US
3. Duncan’s Earnings and Leave Statement
from the Department of Veterans Affairs;
4. A final order from the Alabama Crime Vic-
tims’ Compensation Commission
(“ACVCC”), dated July 15, 2010, denying
Duncan’s claim for crime victims’ compensa-
tion benefits. The order indicates that Dun-
can claimed that she was a victim of perjury
due to a February 2003 affidavit filed in
connection with a civil class action lawsuit,
in which Duncan was a plaintiff, against the
Veterans Affairs Hospital, her employer;
5. A money order payable to the “Law Office of
Jimmy A. Bell, PC”;
6. A February 2003 affidavit signed by Doris J.
Blue in a civil action in the United States
District Court for the Northern District of
Alabama captioned Hampton v. Department
of Veterans Affairs, Case No. 2:01-cv-1536;
and
7-10. Various letters from the ACVCC to Duncan
from June to September 2009 regarding her
claim for crime victims’ compensation bene-
fits.
None of these documents contain any assertions or
allegations written by Duncan, and none of the documents
bear Duncan’s signature.
On December 14, 2010, the Court of Federal Claims
entered an order requiring Duncan to file an amended
complaint that complies with Rule 11(a) of the Rules of
DUNCAN v. US 4
the United States Court of Federal Claims 1 (“RCFC”) and
other court rules by January 7, 2011. The order warned
that, if the plaintiff fails to do so, the Court “may strike
the complaint and dismiss the case.” Appellee’s Appendix
(“AA”) 6; see also AA 5 (docket entry containing the same
warning). Duncan did not take any action in response to
the court’s order. On January 21, 2011, two weeks be-
yond the stated deadline, the court issued an order strik-
ing Duncan’s complaint and dismissing the action without
prejudice pursuant to RCFC 11(a), 12(f)(1), and 41(b). 2
AA 6. Judgment was entered pursuant to RCFC 58, and
Duncan filed a timely notice of appeal.
DISCUSSION
We review the Court of Federal Claims’ dismissal in
this case for an abuse of discretion. 3 Kadin Corp. v.
1 In relevant part, RCFC 11(a) provides that,
“[e]very pleading, written motion, and other paper must
be signed by or for the attorney of record in the attorney’s
name—or by a party personally if the party is unrepre-
sented. The paper must state the signer’s address, e-mail
address, and telephone number. . . . The court must strike
an unsigned paper unless the omission is promptly cor-
rected after being called to the attorney’s or party’s atten-
tion.”
2 RCFC 12(f)(1) permits the court to “strike from a
pleading an insufficient defense or any redundant, imma-
terial, impertinent, or scandalous matter.” RCFC 41(b)
provides that, “[i]f the plaintiff fails to prosecute or to
comply with these rules or a court order, the court may
dismiss on its own motion or the defendant may move to
dismiss the action or any claim against it.”
3 The Court of Federal Claims dismissed this action
without prejudice. Although “[o]rdinarily, a dismissal
without prejudice is not a final, appealable order,” Turley
v. Gaetz, 625 F.3d 1005, 1008 n.3 (7th Cir. 2010), involun-
tary dismissals under Rule 41(b), whether with or without
prejudice, constitute final, appealable orders. See, e.g.,
5 DUNCAN v. US
United States, 782 F.2d 175, 176 (Fed. Cir. 1986) (review-
ing dismissal under RCFC 41(b)). We will not disturb the
trial court’s exercise of discretion unless, upon a weighing
of relevant factors, we are left with a “definite and firm
conviction” that the court below committed a clear error of
judgment. Claude E. Atkins Enters., Inc. v. United States,
899 F.2d 1180, 1183 (Fed. Cir. 1990) (quoting Adkins v.
United States, 816 F.2d 1580, 1582 (Fed.Cir.1987)).
On appeal, Duncan does not explain her failure to re-
spond to the court’s order requiring her to file an
amended complaint, and she does not otherwise contend
that the Court of Federal Claims abused its discretion in
dismissing her case. Rather, she appears to argue that
she is entitled to compensation under the Crime Victims’
Rights Act of 2004 (“CVRA”), 18 U.S.C. § 3771. Because
Duncan did not adequately plead a claim under the CVRA
in the Court of Federal Claims, we cannot consider the
merits of such a claim in the first instance on appeal. See
Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420,
1426 (Fed. Cir. 1997) (“[T]his court does not ‘review’ that
which was not presented to the district court.”). The only
issue for this court to consider is whether the Court of
Federal Claims abused its discretion in dismissing this
action, and we conclude that it did not.
Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1151
(10th Cir. 2007) (“Because the court’s order [dismissing
without prejudice for failure to prosecute] closed the case,
it is appealable.”); Wynder v. McMahon, 360 F.3d 73, 76
(2d Cir. 2004) (“We have jurisdiction to consider [a chal-
lenge to a Rule 41(b) dismissal] because a dismissal
without prejudice that does not give leave to amend and
closes the case is a final, appealable order under 28 U.S.C.
§ 1291.”) Accordingly, this court has jurisdiction over this
appeal.
DUNCAN v. US 6
At most, Duncan asserts unsupported constitutional
violations, contending without explanation that the Court
of Federal Claims “violated the plaintiff’s right of due
process” and “the right to protection from intimidation
and harassment.” Appellant’s Informal Br., Response to
Question 2. To the extent Duncan is arguing that dis-
missal for failure to prosecute under RCFC 41(b) is un-
constitutional, she offers no basis for that contention, and
that argument is without merit. Likewise, there is no
support for her unelaborated claim relating to intimida-
tion or harassment, and that argument must be rejected.
Here, the Court of Federal Claims gave Duncan notice
that failure to amend her complaint could result in dis-
missal of her case. In light of Duncan’s failure to respond
to this order, and based on the serious deficiencies in the
“complaint” that made proceeding with the case impossi-
ble without clarification of Duncan’s allegations, the
Court of Federal Claims did not err in dismissing this
action. Indeed, under RCFC 11(a), the court was required
to strike the complaint because it was not signed. See
RCFC 11(a) (“The court must strike an unsigned paper
unless the omission is promptly corrected after being
called to the attorney’s or party’s attention.”)(emphasis
added); see also RCFC 12(f)(1) (permitting the court to
strike from a pleading “redundant, immaterial, imperti-
nent, or scandalous matter”). Although Duncan is pro-
ceeding pro se, the court’s order was clear and
unambiguous in stating that it could dismiss Duncan’s
case if she did not submit an amended complaint. See
Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653–54
(Fed. Cir. 1992) (“The court does not expect a pro se
litigant to be made to jump through a confusing array of
procedural hoops,” but “there was nothing mysterious or
incomprehensible in the Show Cause Order”). In these
circumstances, we find no abuse of discretion.
7 DUNCAN v. US
CONCLUSION
For the reasons stated above, the decision of the Court
of Federal Claims dismissing this action is affirmed.
COSTS
Each party shall bear its own costs.
AFFIRMED