Riley v. Transit Security Administration

Filing 46

REPORT AND RECOMMENDATION: For the reasons stated below, the Magistrate Judge recommends that the Defendants' motion to dismiss (Docket Entry 32 ) be granted and this case be dismissed without prejudice for lack of jurisdiction. Signed by Magistrate Judge Joe Brown on 10/14/2015. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ZACH RILEY,
Plaintiff
v.
TRANSIT SECURITY ADMINISTRATION
d/b/a UNIVERSAL ENROLLMENT
SERVICES, UNITED STATES
OF AMERICA,
Defendants

)
)
)
)
)
)
)
)
)
)
)
)

No. 3:15-0228
Judge Campbell/Brown

TO: THE HONORABLE TODD J. CAMPBELL
REPORT AND RECOMMENDATION
For

the

reasons

stated

below,

the

Magistrate

Judge

recommends that the Defendants’ motion to dismiss (Docket Entry 32)
be granted and this case be dismissed without prejudice for lack of
jurisdiction.
BACKGROUND
For the purpose of a motion to dismiss, facts as stated
in the complaint are taken as true. On July 30, 2014, the Plaintiff
paid $86.50 to Universal Enrollment Services (UES) to provide
enrollment services for the Transit Security Administration (TSA)
to

enroll

in

TSA’s

hazardous

material

endorsement

assessment

program so that he could gain a hazardous materials endorsement
(HME)

on

his

commercial

driver’s

license.

According

to

his

complaint, the Plaintiff did not receive the results of his
application and he further alleges that the TSA and its contractor
refused to give him a refund of his $86.50 application fee despite

their guarantee that he would have the results within 21 days or
six weeks (Docket Entry 1-1, Page ID #5). He further alleges that
he received a call from a TSA employee, Arisha, on Friday, October
17, 2014, advising him that his application should be approved. He
then states that TSA processed the information and cleared him to
test for an HME in a matter of a one-day turnaround. This would
seem to indicate that the Plaintiff received his clearance to test
for the HME on October 18, 2014 (Docket Entry 1-1, Page ID #6-7).
Because of the delay, the Plaintiff seeks damages in the amount of
$25,000,000 (Docket Entry 1-1, Page ID #7).
After the Plaintiff filed his complaint in Circuit Court
for Davidson County on February 2, 2015 (Docket Entry 1-1, Page ID
#3), the United States removed the complaint to federal district
court on March 13, 2015, and the United States was substituted as
the Defendant in this case (Docket Entry 5).
Although

the

Plaintiff

in

his

complaint

states

that

he

received the requested clearance on or about October 18th, his
subsequent pleadings are inconsistent with this statement (Docket
Entry 38).

In that pleading the Plaintiff requests “that TSA be

ordered to explain why they never mailed my results if they claimed
I was cleared to test” (Docket Entry 38, Page ID #84). He again
states that “To this day I have yet to receive any result as to if
I’m cleared to test for a hazardous endorsement” (Docket Entry 41,
Page ID #89).

2

The Plaintiff subsequently filed an administrative claim
with the agency, which was received on July 17, 2015 (Docket Entry
34).
After the United States filed its motion to dismiss, the
Magistrate

Judge

entered

an

order

specifically

advising

the

Plaintiff that he must respond to the motion on or before September
18, 2015, and that failure to do so could be taken that he had no
opposition to the motion being granted (Docket Entry 35).
The Plaintiff then sent the Clerk two letters which the
Magistrate Judge considered as motions. Neither appeared to be
directly addressing the Government’s motion to dismiss. After
reviewing the matter in the two motions which the Clerk had
initially filed as letters, the Magistrate Judge entered an order
(Docket Entry 43), having them filed as motions.
The

Magistrate

Judge

will

therefore

consider

the

Plaintiff’s two motions (Docket Entries 38 and 41) as his best
effort to respond to the motion to dismiss.
LEGAL DISCUSSION
The United States has filed a lengthy memorandum of law
(Docket Entry 33) in support of their motion to dismiss (Docket
Entry 32). Although the Plaintiff does not state specific statutory
authority or citation to statutes for his various causes of action,
the Magistrate Judge believes that the Government is correct in
their assessment that all of these claims are under either the
Federal Tort Claims Act (FTCA) 28 U.S.C. §§ 2671-2680 or the Tucker

3

Act 28 U.S.C. 1491(a)(1). It is also clear from the pleadings that
the Plaintiff filed a claim under the FTCA on July 17, 2015.
As such, the Court lacks jurisdiction until either the
claim has been denied or six months have passed since the Plaintiff
filed his demand on the United States for a sum certain. McNeil v.
United States, 508 U.S. 106, 111-113.1
The Government is also correct that there is no waiver of
sovereign immunity for claims which allege an intentional tort
claim. 28 U.S.C. § 2680(h); Singleman v. United States, 277 F.3d
864, 872 (6th Cir. 2002).
To the extent the Plaintiff seeks relief for contract
claim he fails because

28 U.S.C. § 1491(a)(1),

provides that the

United States Court of Federal Claims has exclusive jurisdiction
for nontort claims arising under expressed and implied contracts
with the United States if the amount of dispute is more than
$10,000. In this case the Plaintiff alleged damages in the millions
well in excess of the $10,000 limit that would allow the current
jurisdiction of the district court and the court of federal claims.
Cleveland Chair v. U.S., 526 F.2d, 497, 499 (6th Cir. 1975).
In short, this court lacks jurisdiction to hear the
Plaintiff’s complaint and it should be dismissed for lack of

1

In his complaint (Page ID #6) the Plaintiff makes a passing
reference to a “lawsuit Letter” “contemplating $10,000,000" sent to the
TSA Chief Counsel on October 9, 2014 giving the TSA a week to respond or
his demand would go to $25,000,000. He has provided no additional
information about this demand or whether it would comply with the
requirements of the FTCA.

4

jurisdiction and all other pending motions should be terminated as
moot.
Since the dismissal would be for lack of jurisdiction, it
would be without prejudice to the Plaintiff refiling his case once
the United States has either denied the claim or six months has
passed. If the Plaintiff were to consider refiling his case he
should carefully consider the other matters raised in the United
States motion as they also appear to have merit although because of
the Jurisdiction issues the Magistrate Judge has not discussed
them.
RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that this case be dismissed without prejudice for lack
of jurisdiction and that all pending motions be denied as moot.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

Report

and

Recommendation in which to file any written objections to this
Recommendation with the District Court. Any party opposing said
objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further
appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 106 S.
Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).

5

ENTER this 15th day of October, 2015.

/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

6