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Schlieker v. United States

United States District Court, D. Colorado

February 7, 2019





         This matter is before the Court on Defendants' Motion to Dismiss [#33][1] (the “Motion”).[2] Plaintiff, who proceeds pro se, [3] filed a Response [#40], Defendant filed a Reply [#41], and Plaintiff filed a Surreply [#42]. The Court has reviewed the Motion, the Response, the Reply, the Surreply, the case record, [4] the applicable law, and is fully advised in the premises. For the reasons set forth below, the Motion [#33] is GRANTED.

         I. Background

         In mid-February 2016, Plaintiff flew from Phoenix, Arizona to Denver, Colorado, with “multiple [tax-related] files, folders, and paperwork” in his checked baggage. Am. Compl. [#27] at 1-2. Upon arriving in Denver, Plaintiff opened his baggage to find the documents missing, replaced by a Transportation Security Administration (“TSA”) “Notice of Baggage Inspection.” Id. at 1; Notice of Baggage Inspection [#1] at 10.[5] The TSA's failure to repack the documents after inspection, Plaintiff alleges, left him “unable to completely, honestly, and truthfully document his 2015 tax returns[, ] resulting in a $5, 000 loss of tax refund.” Id. at 2.

         After the TSA denied Plaintiff's $5, 000 loss claim with a form letter, Plaintiff began a fruitless five-month campaign, repeatedly calling the TSA and requesting an explanation for the denial. Id. at 3-4. At no point, however, did Plaintiff file an administrative claim with the Internal Revenue Service (“IRS”), seeking the $5, 000 tax refund. See, e.g., Response [#40] at 3. Indeed, Plaintiff states that he “is not seeking a tax refund but reparations for the lost property that occurred.” Id. at 2.

         At several points in his filings, Plaintiff also references an earlier TSA letter, which explains that “[t]he Federal Tort Claims Act (FTCA) . . . establishes your rights in regard to your claim.” See, e.g., TSA Loss Claim Receipt [#1] at 21. Among those rights, the TSA continues, “[i]f your complaint is denied . . . you may file suit in the appropriate District Court.” Id.

         Accordingly, in May 2017, Plaintiff filed this suit. Id. at 1. To support his claim, Plaintiff cites the FTCA's language, Am. Compl. [#27] at 2-3, providing district courts “exclusive jurisdiction of . . . claims against the United States, for money damages [for] loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1).

         To support his FTCA damages request, however, Plaintiff relies exclusively on the $5, 000 tax refund: “An example of how much monetary loss occurred is cited using the loss from the IRS. Plaintiffs [sic] person [sic] property was worth $5, 000.” Response [#40] at 2; see also Am. Compl. [#27] at 5 (“The state [sic] of Colorado returns indicate the same percentage discrepancies as the IRS 1040, thus a total of $5, 000.00 is being sought.”). Indeed, Plaintiff does not allege that TSA failed to repack (or damaged) any property other than the tax-related documents in his checked baggage.

         The Government filed the present Motion [#33], seeking dismissal for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). Therein, the Government argues that, under the Internal Revenue Code, “no suit seeking a tax refund, or the recovery of any sum alleged to have been excessive or in any manner wrongfully collected, may proceed until an [IRS] administrative claim for such amounts has been filed.” Motion [#33] at 2.

         II. Legal Standard

         A motion to dismiss under Rule 12(b)(1) tests whether the Court possesses subject matter jurisdiction to properly hear a case. Fed.R.Civ.P. 12(b)(1). As “federal courts are courts of limited jurisdiction, ” the Court must have a statutory basis to exercise jurisdiction. Fed.R.Civ.P. 12(b)(1); Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002). For the same reason, statutes conferring subject matter jurisdiction on federal courts require strict construction. F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction.” Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

         A motion to dismiss under Rule 12(b)(1) may take two forms: a facial attack or a factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). A facial attack asserts that the complaint's allegations do not suffice to invoke federal subject matter jurisdiction, while a factual attack disputes the truth of the allegations supporting subject matter jurisdiction. Id. When reviewing a facial attack, as it does today, the Court limits its consideration to the complaint, accepting its allegations as true. Id.

         III. ...

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