NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-5107
ROBERT CURTIS,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Robert Curtis, of Portland, Oregon, pro se.
Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for defendant-appellee. With
her on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen,
Director, and Bryant G. Snee, Assistant Director.
Appealed from: United States Court of Federal Claims
Senior Judge Lawrence S. Margolis
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-5107
ROBERT CURTIS,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
___________________________
DECIDED: January 10, 2007
___________________________
Before BRYSON, GAJARSA, and DYK, Circuit Judges.
PER CURIAM.
Robert Curtis appeals the judgment of the United States Court of Federal Claims,
No. 05-CV-00770, dismissing his complaint. The court dismissed the claims sounding
in tort and those directed at private parties, under Rule 12(b)(1) of the Rules of the
United States Court of Federal Claims, for lack of subject matter jurisdiction. The court
dismissed the remaining claim, under Rule 12(b)(6), for failure to state a legally viable
breach-of-contract claim. We affirm the dismissal of all the claims other than Mr.
Curtis’s breach-of-contract claims. Those claims sound in tort, and the Court of Federal
Claims lacks jurisdiction to hear tort claims. 28 U.S.C. § 1491(a); Shearin v. United
States, 992 F.2d 1195, 1197 (Fed. Cir. 1993). We also affirm the dismissal of Mr.
Curtis’s breach-of-contract claims against defendants other than the United States.
Although the complaint indicates that some of the named defendants are government
employees, the complaint is directed against them as individuals and the Court of
Federal Claims lacks jurisdiction to entertain claims against government employees in
their individual capacities, as opposed to claims against the United States. 28 U.S.C.
§ 1491(a); Brown v. United States, 105 F.3d 621, 624 (Fed. Cir. 1997).
Finally, we affirm the dismissal of Mr. Curtis’s breach-of-contract claim against
the United States. Upon motion of the government, the trial court took judicial notice of
its opinion in Curtis v. United States, 63 Fed. Cl. 172 (Fed. Cl. 2004), aff’d, 154 F. App’x
217 (Fed. Cir. 2005). That opinion shows that Mr. Curtis previously sued the
government for breach of the contract alleged in this action, the Cleghorn Creek Culvert
Replacement contract. The prior opinion notes that Mr. Curtis did not argue in that case
that an entity other than his recently formed corporation (“New Curtis”) entered into the
Cleghorn contract. Id. at 175 n.3. The ruling in the prior case rests on the conclusion
that New Curtis was the party to the Cleghorn contract and that New Curtis held any
claim for breach of that contract. Id. at 180. Based on that ruling in the prior case, the
trial court in this case held that Mr. Curtis was barred from arguing that the real party to
the Cleghorn contract was a previously formed and then dissolved corporation (“Old
Curtis”), an entity separate from New Curtis but with a similar name. The court
therefore rejected Mr. Curtis’s argument that in light of the dissolved status of Old Curtis
at the time of contracting, the right to sue on the Cleghorn contract devolved to him.
Mr. Curtis does not assign error to the trial court’s exercise of judicial notice. Nor
does he take issue with the trial court’s legal conclusion that the doctrine of issue
preclusion is applicable to his argument that Old Curtis actually executed the contract.
2006-5107 2
See generally Masco Corp. v. United States, 303 F.3d 1316, 1329 (Fed. Cir. 2002)
(explaining issue preclusion); 5B Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1357, at 708–13, 728 (3d ed. 2004) (noting that preclusion doctrines,
although affirmative defenses, can support a Rule 12(b)(6) dismissal when those
doctrines plainly apply to facts clear on the face of the complaint). Instead, he simply
contends that the conclusion reached in the first case—that New Curtis was the
contracting party—was incorrect and that the court should recognize that Old Curtis was
the true contracting party with respect to the Cleghorn contract.
Applying issue preclusion to Mr. Curtis’s current contention that Old Curtis was
the actual party to the contract and that the rights of Old Curtis were not resolved in the
earlier case, the trial court properly held that that threshold question raised by Mr. Curtis
in this case has already been resolved against him. We therefore uphold the trial
court’s dismissal of the breach-of-contract claim against the United States and uphold
the judgment of that court.
2006-5107 3