NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

DANILO A. ROBLETO,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2015-5138

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:14-cv-01078-MCW, Judge Mary Ellen 

Coster Williams.

______________________ 

Decided: December 10, 2015

______________________ 

 DANILO A. ROBLETO, Philipsburg, PA, pro se.

 SOSUN BAE, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for defendant-appellee. Also represented by 

BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., DONALD 

E. KINNER. 

______________________ 
2 ROBLETO v. US

Before PROST, Chief Judge, DYK, and TARANTO, Circuit 

Judges.

PER CURIAM. 

Danilo Robleto brought this action in the United 

States Court of Federal Claims. The court dismissed the 

action for lack of jurisdiction and declined to transfer the 

case. We affirm.

BACKGROUND

Mr. Robleto, who is currently incarcerated for a 

felony, asserts that, in 2011, while imprisoned at the 

Butner Federal Correctional Complex in North Carolina, 

he fell off his upper bunk and suffered facial fractures and 

a concussion. He alleges that government negligence is at 

least partly responsible for his injuries.

On July 13, 2012, Mr. Robleto filed an administrative 

claim under the Federal Tort Claims Act. 28 U.S.C.

§ 2675(a) (requiring filing of claim with agency before 

bringing suit). See generally 28 U.S.C. §§ 1346(b), 2401, 

2671–2680. The Federal Bureau of Prisons denied his 

administrative claim on September 13, 2012. Mr. Robleto 

had six months after that denial to bring suit under the 

Federal Tort Claims Act. 28 U.S.C. § 2401(b). In November 2012, Mr. Robleto timely filed an action in the United 

States District Court for the Eastern District of North 

Carolina. In February 2013, however, finding that Mr. 

Robleto failed to comply with court orders, the court 

dismissed the action, without prejudice to refiling. Mr. 

Robleto twice moved to reopen the case, but the court 

found insufficient grounds to do so.

Mr. Robleto filed the present action in the Court of 

Federal Claims on November 3, 2014. His complaint may 

be read to assert claims for recovery under the Federal 

Tort Claims Act, 28 U.S.C. §§ 1346(b), 2674, and under 42 

U.S.C. § 1983.
ROBLETO v. US 3

The Court of Federal Claims held that claims under 

the Federal Tort Claims Act and § 1983 do not fall within 

its jurisdiction under 28 U.S.C. §§ 1346(a), 1491. The 

court therefore dismissed Mr. Robleto’s complaint for lack 

of subject-matter jurisdiction. The court also declined to 

transfer the case, under 28 U.S.C. § 1631, to a district 

court where the action could have been brought. It explained that Mr. Robleto had filed his current complaint 

in November 2014, well beyond the six months allowed 

after the September 2012 denial of his administrative 

claim, so this suit would be untimely as a Federal Tort 

Claims Act suit.

Mr. Robleto appeals. We have jurisdiction under 28 

U.S.C. § 1295(a)(3).

DISCUSSION

We review de novo the dismissal of Mr. Robleto’s 

complaint for lack of jurisdiction. Frazer v. United States, 

288 F.3d 1347, 1351 (Fed. Cir. 2002). We review the 

decision to dismiss the complaint, rather than transfer to 

another court, for abuse of discretion. Rick’s Mushroom 

Service, Inc. v. United States, 521 F.3d 1338, 1342 (Fed. 

Cir. 2008).

The only jurisdictional grant of possible relevance 

here is the Tucker Act, which gives the Court of Federal 

Claims “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. § 1491(a)(1). But both of Mr. Robleto’s claims fall

outside that limited grant of jurisdiction.

The Court of Federal Claims lacks jurisdiction over 

Mr. Robleto’s claim under the Federal Tort Claims Act. 

Congress has provided that the United States District 
4 ROBLETO v. US

Courts have “exclusive jurisdiction” to determine the 

liability of the United States under the Federal Tort 

Claims Act. 28 U.S.C. §§ 1346(b)(1), 2674. That exclusive 

grant to district courts excludes the Court of Federal 

Claims. And the Tucker Act itself confirms the exclusion 

by its provision limiting the Court of Federal Claims’ 

jurisdiction to “cases not sounding in tort.” See U.S. 

Marine, Inc. v. United States, 722 F.3d 1360, 1363, 1366 

(Fed. Cir. 2013).

The Court of Federal Claims also cannot hear Mr. 

Robleto’s claim under 42 U.S.C. § 1983. That statute is 

limited to actions under color of state (or territorial) law, 

not actions under federal law, and it applies only to “person[s]” committing such actions. 42 U.S.C. § 1983 (“Every 

person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . .”). 

There is no substantial claim here, if there ever could be, 

that the Bureau of Prisons was acting under color of state 

(or territorial) law or is a “person” doing so. See Canuto v. 

United States, 615 F. App’x 951, 953 (Fed. Cir. 2015). Mr. 

Robleto’s § 1983 claim is therefore insubstantial and was 

properly dismissed.

The Court of Federal Claims did not abuse its discretion in deciding not to transfer Mr. Robleto’s case to a 

district court. Under 28 U.S.C. § 1631, when the Court of 

Federal Claims “finds that there is a want of jurisdiction, 

the court shall, if it is in the interest of justice, transfer 

such action or appeal to any other such court in which the 

action or appeal could have been brought at the time it 

was filed or noticed.” Here, the Court of Federal Claims 

had a sufficient basis to conclude that it was not “in the 

interest of justice” to transfer the case.

First, Mr. Robleto filed the complaint in this case on 

November 3, 2014, well after the end of the six-month 

period allowed for filing after the September 2012 denial 

of his administrative claim. 28 U.S.C. § 2401(b). His late 
ROBLETO v. US 5

filing presumptively means that this case would be untimely, and properly dismissed even if transferred, although the § 2401(b) timing requirement is not 

jurisdictional. United States v. Kwai Fun Wong, 135 S. 

Ct. 1625, 1633 (2015). Mr. Robleto has not alleged any

basis for equitable tolling to excuse the untimeliness. 

Second, Mr. Robleto had earlier filed a timely Federal 

Tort Claims Act suit in the Eastern District of North 

Carolina in November 2012. He had the opportunity to 

pursue his claim, but the case was dismissed because he 

failed to comply with court orders. If there remains any 

possibility of reinstating that suit, it is a matter for the 

district court, and it is not a ground for transferring this 

untimely suit.

CONCLUSION

For the foregoing reasons, we affirm the decision of 

the Court of Federal Claims.

No costs.

AFFIRMED