Case: 20-1740 Document: 41 Page: 1 Filed: 07/13/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GENE ALLEN SCHROEDER,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2020-1740
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-01706-DAT, Judge David A. Tapp.
______________________
Decided: July 13, 2021
______________________
GENE ALLEN SCHROEDER, Okeene, OK, pro se.
JULIE CIAMPORCERO AVETTA, Tax Division, United
States Department of Justice, Washington, DC, for defend-
ant-appellee. Also represented by ARTHUR THOMAS
CATTERALL.
______________________
Before NEWMAN, TARANTO, and CHEN, Circuit Judges.
Opinion for the court filed by Circuit Judge CHEN.
Case: 20-1740 Document: 41 Page: 2 Filed: 07/13/2021
2 SCHROEDER v. US
Circuit Judge NEWMAN concurs in the judgment of
dismissal.
CHEN, Circuit Judge.
Gene Allen Schroeder appeals a decision by the United
States Court of Federal Claims (Claims Court) dismissing
his complaint for lack of subject-matter jurisdiction.
Schroeder v. United States, No. 19-1706,
2020 WL 865409
(Fed. Cl. Feb. 21, 2020). Because we agree that the Claims
Court lacked jurisdiction over Mr. Schroeder’s claims, we
affirm. 1
BACKGROUND
The Internal Revenue Service (IRS) assessed
Mr. Schroeder with tax deficiencies for tax years spanning
from 2000 to 2018, resulting in liens on his property, gar-
nishments, and levies. Suppl. App. at 1–2. 2 In April 2019,
Mr. Schroeder filed suit in the United States Tax Court
(Tax Court) seeking redetermination of the tax deficien-
cies. Id. at 1. The Tax Court dismissed his case for lack of
jurisdiction, id. at 5, finding that: (1) Mr. Schroeder’s peti-
tion was not timely filed and (2) the IRS issued no notice of
1 This case raises arguments similar or identical to
those raised in several recent cases heard before this court.
In all of these cases, we affirmed the Claims Court’s dis-
missals for lack of subject-matter jurisdiction. See Taylor
v. United States, 844 F. App’x 369 (Fed. Cir. 2021); Fujita
v. United States, 845 F. App’x 930 (Fed. Cir. 2021); Hits-
man v. United States, 825 F. App’x 859 (Fed. Cir. 2020);
Schallmo v. United States, 825 F. App’x 826 (Fed. Cir.
2020); Taylor v. United States, 817 F. App’x 1021 (Fed. Cir.
2020), cert. denied,
141 S. Ct. 1415 (2021); Brooks v. United
States, 825 F. App’x 745 (Fed. Cir. 2020); Patterson v.
United States, 809 F. App’x 1008 (Fed. Cir. 2020).
2 “Suppl. App.” refers to the supplemental appendix
filed by the government.
Case: 20-1740 Document: 41 Page: 3 Filed: 07/13/2021
SCHROEDER v. US 3
deficiency or notice of determination that would confer ju-
risdiction to the Tax Court. Suppl. App. at 12.
In October 2019, Mr. Schroeder sued the United States
in the Claims Court, alleging that, because the Tax Court
dismissed his case for lack of jurisdiction, the IRS lacked
authority to collect his unpaid taxes. Suppl. App. at 1.
Mr. Schroeder asserted that the United States injured him
“in the amount of $934,596.49 by collecting assets without
jurisdiction.” Suppl. App. at 7.
The Claims Court dismissed Mr. Schroeder’s com-
plaint in February 2020, holding that it lacked jurisdiction
over his claims because: (1) he failed to fully pay his out-
standing tax liabilities and request a refund, both of which
are required for a tax refund claim; (2) federal district
courts possess exclusive jurisdiction over any wrongful levy
claims presented; (3) the Tucker Act does not provide a
statutory basis for the Claims Court to hear
Mr. Schroeder’s tort claim; (4) the Due Process Clause is
not a money-mandating source of law; and (5)
Mr. Schroeder did not concede the validity of the govern-
ment’s actions, a requirement for a Fifth Amendment tak-
ings claim. Suppl. App. at 5.
Mr. Schroeder appeals to this court. We have jurisdic-
tion under
28 U.S.C. § 1295(a)(3).
DISCUSSION
We review a dismissal for lack of subject-matter juris-
diction de novo and accept well-pleaded factual allegations
as true. Inter-Tribal Council of Ariz., Inc. v. United States,
956 F.3d 1328, 1338 (Fed. Cir. 2020). The plaintiff has the
burden to establish subject-matter jurisdiction by a pre-
ponderance of the evidence. Id. at 1337.
The Tucker Act limits the Claims Court’s jurisdiction
to suits “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
Case: 20-1740 Document: 41 Page: 4 Filed: 07/13/2021
4 SCHROEDER v. US
contract with the United States, or for liquidated or
unliquidated damages in cases not sounding in tort.”
28
U.S.C. § 1491(a). “To be cognizable under the Tucker Act,
[a] claim must be for money damages against the United
States, and the substantive law must be money-mandat-
ing.” Smith v. United States,
709 F.3d 1114, 1116 (Fed. Cir.
2013); see also Metz v. United States,
466 F.3d 991, 997
(Fed. Cir. 2006) (explaining that if a claim is not based on
a money-mandating source of law, then it lies beyond the
jurisdiction of the Claims Court).
In the present case, the Claims Court properly found
that it lacks jurisdiction over this action as a tax refund
suit. Under
28 U.S.C. § 1346(a)(1), “[a] taxpayer seeking a
refund of taxes erroneously or unlawfully assessed or col-
lected may bring an action against the [g]overnment either
in United States district court or in the United States
Court of Federal Claims.” United States v. Clintwood
Elkhorn Mining Co.,
553 U.S. 1, 4 (2008). To bring a tax
refund claim, the taxpayer requesting the refund must sat-
isfy the full payment rule, which requires payment of all
taxes assessed before suit can be brought in the Claims
Court. See Shore v. United States,
9 F.3d 1524, 1526 (Fed.
Cir. 1993). The taxpayer must also timely file a tax refund
claim with the IRS. See
26 U.S.C. § 7422(a). On this rec-
ord, we see no error in the Claims Court’s findings that
Mr. Schroeder did not pre-pay his back taxes or file any re-
fund claims. Suppl. App. at 3. Therefore, the Claims Court
lacks tax refund jurisdiction over his suit.
To the extent that Mr. Schroeder raised a wrongful
levy claim, the Claims Court correctly found that it lacks
jurisdiction to hear the claim. Aggrieved parties may sue
the government for a wrongful levy, failure to release a tax
lien, or other improper tax collection actions; however,
these claims may be brought only in a federal district court,
not the Claims Court. See
26 U.S.C. §§ 7426(a), 7432(a),
7433(a); Ledford v. United States,
297 F.3d 1378, 1382
(Fed. Cir. 2002).
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SCHROEDER v. US 5
Additionally, we see no error in the Claims Court’s
finding that it lacks jurisdiction over Mr. Schroeder’s claim
that the IRS “knowingly and maliciously” collected and re-
tained his assets. Suppl. App. at 4, 8. A conversion claim
sounds in tort. Thus, in accordance with the Tucker Act,
the Claims Court lacks jurisdiction over this kind of claim.
§ 1491(a) (The Claims Court “shall have jurisdiction to ren-
der judgment upon any claim against the United
States . . . not sounding in tort.”). Further, Mr. Schroeder’s
claim alleging that the government violated the Fourth
Amendment by confiscating “property for an alleged tax
debt,” Reply Br. at 2, is also outside the jurisdiction of the
Claims Court—the Fourth Amendment does not mandate
the payment of money for its violation. Brown v. United
States,
105 F.3d 621, 623–24 (Fed. Cir. 1997) (“Because
monetary damages are not available for a Fourth Amend-
ment violation, the Court of Federal Claims does not have
jurisdiction over . . . such a violation.”).
The Claims Court also lacks jurisdiction to hear
Mr. Schroeder’s claims under the Just Compensation and
Due Process clauses of the Fifth Amendment. See U.S.
CONST. amend. V. Regarding his due process claim, “[t]he
law is well settled that the Due Process clauses of both the
Fifth and Fourteenth Amendments do not mandate the
payment of money and thus do not provide a cause of action
under the Tucker Act.” Smith, 709 F.3d at 1116. As to the
takings claim, 3 we do not see error in the Claims Court’s
finding that the lawful exercise of the government’s tax col-
lection powers is not a taking. See Commonwealth Edison
Co. v. United States,
271 F.3d 1327, 1339 (Fed. Cir. 2001).
Furthermore, we agree with the Claims Court’s finding
that Mr. Schroeder did not concede the validity of the
3 Takings claims are money-mandating causes of ac-
tion under the Tucker Act. See Jan’s Helicopter Serv., Inc.
v. F.A.A.,
525 F.3d 1299, 1309 (Fed. Cir. 2008).
Case: 20-1740 Document: 41 Page: 6 Filed: 07/13/2021
6 SCHROEDER v. US
relevant IRS actions, as he referred to the agency’s collec-
tion and retention of assets as “wrongful” and “knowing[]
and malicious[].” Suppl. App. at 8. To bring a takings
claim under the Tucker Act, a “claimant must concede the
validity of the government action which is the basis of
the . . . claim.” Tabb Lakes, Ltd. v. United States,
10 F.3d
796, 802 (Fed. Cir. 1993). Absent this concession, as per
the discussion above, Mr. Schroeder’s claim sounds only in
tort. Accordingly, Mr. Schroeder’s allegations provide no
substantial basis for a takings claim. See Shapiro v.
McManus,
136 S. Ct. 450, 455–56 (2015) (discussing stand-
ards from Bell v. Hood,
327 U.S. 678 (1946), regarding in-
substantiality and frivolousness in pleadings that
transform the failure to state a claim into a lack of jurisdic-
tion); see also Jan’s Helicopter,
525 F.3d at 1309 (To assert
a takings claim, a plaintiff must make “a nonfrivolous alle-
gation that [he falls] within the class of plaintiffs entitled
to recover under” the Fifth Amendment.).
CONCLUSION
Because Mr. Schroeder identifies no other basis for the
Claims Court to exercise jurisdiction over his claim, the
Claims Court’s dismissal of his complaint is affirmed.
AFFIRMED
COSTS
No costs.
