Michael A. Tulipat v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHAEL A. TULIPAT,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2021-2259
______________________
Appeal from the United States Court of Federal Claims
in No. 1:21-cv-01260-CFL, Senior Judge Charles F. Lettow.
______________________
Decided: January 13, 2022
______________________
MICHAEL A. T ULIPAT , Las Vegas, NV, pro se.
SONIA MARIE O RFIELD, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for defendant-appellee. Also represented by
BRIAN M. BOYNTON, S TEVEN J OHN G ILLINGHAM , MARTIN F.
HOCKEY , J R.
______________________
Before D YK, P ROST , and T ARANTO, Circuit Judges.
Case: 21-2259 Document: 22 Page: 1 Filed: 01/13/2022

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TULIPAT v. US 2
P ER CURIAM .
Michael A. Tulipat appeals the dismissal of his action
by the Court of Federal Claims for failure to prosecute. We
affirm.
BACKGROUND
Mr. Tulipat served in the U.S. Marine Corps from
June 2001 to May 2002, at which time he was separated
from the service with a “General (Under Honorable Condi-
tions)” discharge on the basis of “Personality Disorder.”
App’x 20–21, 24.1 Mr. Tulipat later petitioned the Naval
Discharge Review Board (“NDRB”) to upgrade his dis-
charge to “Honorable,” change the basis of his separation,
and remove two non-judicial punishments from his record
that had been imposed on him for misconduct. App’x 21;
see App’x 38. The NDRB, as well as the Board for Correc-
tion of Naval Records (“BCNR”), considered Mr. Tulipat’s
requests and ultimately modified his narrative reason for
separation from “Personality Disorder” to “Secretarial Au-
thority” but declined to provide any further relief. See
App’x 20–21 (BCNR decision).
Subsequently, in May 2020, Mr. Tulipat petitioned the
U.S. Court of Appeals for the Ninth Circuit for review of
the BCNR decision. App’x 1. The Ninth Circuit dismissed
Mr. Tulipat’s case on April 16, 2021, on the basis that it did
not have original jurisdiction to review a decision of the
BCNR. App’x 44. In dismissing, the Ninth Circuit directed
that Mr. Tulipat’s petition be transferred to the Court of
Federal Claims “for whatever consideration that court
deems appropriate.” App’x 44.
On April 21, 2021, the Court of Federal Claims issued
a “Notice” to the parties that acknowledged receipt of the
1 “App’x” refers to the appendix filed with the gov-
ernment’s response brief.
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TULIPAT v. US 3
record from the Ninth Circuit and provided specific instruc-
tions to Mr. Tulipat regarding how to proceed, as a pro se
litigant or otherwise. App’x 45–46. In particular, the No-
tice informed Mr. Tulipat that he was required “[to] file a
transfer or amended complaint” with the Court of Federal
Claims “[w]ithin 28 days after service of the Notice.”
App’x 46. The Notice also cautioned that “failure to comply
with the enclosed instructions, within the time provided,
may result in the case being dismissed for failure to prose-
cute.” App’x 45 (emphasis removed and capitalization nor-
malized). Mr. Tulipat’s case was then randomly assigned
to Judge Charles F. Lettow. App’x 47.
On July 27, 2021, over three months after the case had
been transferred from the Ninth Circuit, the Court of Fed-
eral Claims dismissed the case sua sponte under Rule 41(b)
of the Rules of the Court of Federal Claims “for failure to
prosecute.” App’x 48. The court explained that Mr. Tu-
lipat had failed to file a complaint even though “[i]nfor-
mation regarding the transfer and further instructions
were served on [Mr. Tulipat] via United States mail on
April 21, 2021,” with those instructions including a re-
quirement that Mr. Tulipat file his complaint “on or before
May 19, 2021.” App’x 48.
Mr. Tulipat appealed. We have jurisdiction to consider
this appeal under 28 U.S.C. § 1295(a)(3).
D ISCUSSION
In relevant part, Rule 41(b) of the Rules of the Court of
Federal Claims provides that “[i]f the plaintiff fails to pros-
ecute or to comply with these rules or a court order, the
court may dismiss on its own motion.” We review a
Rule 41(b) dismissal for an abuse of discretion. Claude E.
Atkins Enters., Inc. v. United States, 899 F.2d 1180, 1183
(Fed. Cir. 1990). Under this standard, “the trial court’s ex-
ercise of discretion will not be disturbed on appeal unless
. . . we are left with a definite and firm conviction that the
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TULIPAT v. US 4
court below committed a clear error of judgment.” Id.
(cleaned up).
Mr. Tulipat does not contest that he received the trial
court’s Notice, which required him to file a complaint with
the trial court by a certain date. Instead, he argues that
the trial court should have provided him with “[a] warning
that [his] case was about to be dismissed and time to re-
spond.” Appellant’s Br. 2 (emphasis added). In support,
Mr. Tulipat contends that he “was in a stressful position as
a [recruit] in police academy” and that the trial court dis-
missed his case without “understand[ing] the totality of the
circumstances.” Appellant’s Br. 2.
Recognizing that Mr. Tulipat was and is proceeding pro
se, we nonetheless conclude that the trial court acted
within its discretion in dismissing Mr. Tulipat’s case sua
sponte. The trial court clearly and specifically warned
Mr. Tulipat that failure to file his complaint in a timely
fashion could result in dismissal of his case. And at the
time of dismissal, over two months had elapsed since the
deadline to file a complaint. Further, at the time of dismis-
sal, Mr. Tulipat had not offered any explanation for his un-
timeliness. Nor had he sought an extension of time.
Indeed, after the case was transferred from the Ninth Cir-
cuit, Mr. Tulipat made no filings whatsoever with the trial
court until his notice of appeal to this court. On this record,
the trial court did not abuse its discretion in dismissing un-
der Rule 41(b).
Mr. Tulipat separately argues that the trial court’s de-
cision was wrong because Judge Lettow “served in the
U.S. Army” and “may have bias towards individuals” suing
the government. Appellant’s Br. 2. We reject this argu-
ment at least because Mr. Tulipat fails to cite any evidence
indicating bias in the record.
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TULIPAT v. US 5
CONCLUSION
We have considered Mr. Tulipat’s remaining argu-
ments but find them unpersuasive. For the reasons above,
we affirm the decision of the Court of Federal Claims dis-
missing this action.
AFFIRMED
COSTS
No costs.
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