United States District Court, D. Colorado
JOHN F. SCHLIEKER Plaintiff,
UNITED STATES OF AMERICA, TRANSPORTATION SECURITY ADMINISTRATION TSA, and ROBERT GRIMES, Branch Chief, Defendants.
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE
BY MAGISTRATE JUDGE KRISTEN L. MIX
matter is before the Court on Defendants' Motion
to Dismiss [#33] (the
“Motion”). Plaintiff, who proceeds pro se,
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,  the applicable law, and is fully advised
in the premises. For the reasons set forth below, the Motion
[#33] is GRANTED.
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
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.
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.
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.”
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).
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.
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.
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)).
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.