FILED United States Court of Appeals Tenth Circuit 

### October 30, 2018 Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS TENTH CIRCUIT

GREGORY EDWARD KUCERA, Plaintiff - Appellant,

v. CENTRAL INTELLIGENCE AGENCY, Defendant - Appellee. No. 18-2087 (D.C. No. 1:18-CV-00094-JB-GJF) (D.N.M.)

ORDER AND JUDGMENT *

Before BRISCOE , HOLMES , andMATHESON , Circuit Judges.
In January 2018, Gregory Edward Kucera filed a pro se complaintagainst the Central Intelligence Agency (“CIA”). But before that compl aint was served on the CIA, the district court dismissed the case without preju dice for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(h)(3). Proceeding pro se, Mr. Kucera has timely appealed that order. Exercising appellate jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s

* This Order and Judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral esto ppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.order.
I Mr. Kucera drafted his complaint without the aid of a lawyer. Perhaps as a consequence, the finished product omitted important details. The district court took very seriously its obligation to construe Mr. Kucera’s pro se complaint liberally 1 and worked hard to discern whether the complaint evinced a bas is for the court’s subject-matter jurisdiction. However, the court ul timately found that the complaint did not do so; its omissions were too many and it s facts too few. Accordingly, the court dismissed Mr. Kucera’s case for lack of subject-matter jurisdiction. A As a pro se litigant, Mr. Kucera drafted his complaint using a form offered by the district court. The form that he used was styled as a “ Civil Rights Complaint Pursuant to 42 U.S.C. § 1983.” R. at 3 (Civil Rights Compl., filed Jan. 30, 2018). But the two causes of action that Mr. Kucera assert ed did not seem to relate to a civil-rights violation cognizable under § 1983. Fo r instance, Mr. Kucera described his first count as a “federal tort claim actio n.” Id. at 5. And the second count, Mr. Kucera wrote, was “classified.” Id. For both counts, Mr.

1 See, e.g. , Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991) (“A pro se litigant’s pleadings are to be construed liberally and h eld to a less stringent standard than formal pleadings drafted by lawyers.”). 2Kucera declined to specify which of his civil rights were viola ted, who violated those unspecified rights, or how those unnamed persons did so. The supporting facts Mr. Kucera provided in the complaint form did not fill in those gaps. On his first count, he claimed the supporting f acts were “classified and/or available to [a] representing attorney, once appointed.” Id. For “further information,” Mr. Kucera directed the court to “review [his] So cial Security number.” Id. The facts supporting his second count were similarly “classif ied.” Id. Although Mr. Kucera wrote a bit more in the form’s section titl ed “Previous Lawsuits and Administrative Relief,” id. at 6, what he wrote did not clarify things. For example, he checked the box indicating tha t he had “begun other lawsuits in state or federal court dealing with the same facts.” Id. But he claimed the name of the court or courts hearing any such lawsui ts, as well as the lawsuits’ docket numbers, were “sealed with this court.” Id. Mr. Kucera also checked the box to indicate that he had “previously sought info rmal or formal releif [sic] from appropriate administrative officials.” Id. at 7. But that information, too, was “sealed at this courthouse.” Id. The only other facts that Mr. Kucera included were equally unhe lpful. In the space provided to state the background of his case, Mr. Kuc era again described his suit as “a federal tort claim action.” Id. at 4. He also explained that the suit “purports to show loss of life and property due to inj ury and harm 3associated with [his] relationships [with] the [CIA].” Id. No who, when, what, where, how, or why accompanied that allegation.
B The district court could not identify facts in Mr. Kucera’s complaint that could evince a basis for subject-matter jurisdiction. Conseque ntly, the district court sua sponte dismissed the case for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(h)(3). The court did so, however, only after reading the complaint lib erally and conducting a very thorough analysis. Specifically, the court c onsidered the three most plausible causes of action Mr. Kucera may have been making —a § 1983 claim, a federal constitutional action under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388 (1971), and a suit under the Federal Tort Claims Act, 28 U.S.C. §§ 2671–2680. Unfortunately for Mr. Kucera, even reading the complaint to state one of those causes of acti on, the court could not identify facts in the complaint sufficient to invoke its ju risdiction. The district court first considered whether 42 U.S.C. § 1983 mi ght help Mr. Kucera. It did not. As the court explained, that section allo ws suits against persons acting under color of state, not federal, law. The CIA acts under the latter. Consequently, if Mr. Kucera intended to file a § 1983 action against the CIA, the court lacked subject-matter jurisdiction to hear that case. Next, the court inquired whether Mr. Kucera might have intendedto bring a 4Bivens action. Although a Bivens action could lie against officers of a federal agency, like the CIA, who violate an individual’s constitutiona l rights, Mr. Kucera had neither claimed that he was bringing a Bivens action nor offered facts that suggested such an action would be appropriate. Indeed, he failed to even generally allege that any member of “the CIA violated his const itutional rights.” R. at 21 n.4 (Mem. Op. and Order of Dismissal, filed May 31, 20 18). Thus, the court determined that Bivens could not solve Mr. Kucera’s jurisdictional problem. Finally, the district court considered whether Mr. Kucera meantto bring a Federal Tort Claims Act (“FTCA”) suit. That perhaps made some sense. After all, Mr. Kucera had at least twice described his case as a “fed eral tort claim.” Id. at 21. But even if that is what he intended, the district cour t determined that it did not have jurisdiction for two reasons. First, the CIA was not a proper defendant for a FTCA action because “[t]he United States is the only proper defendant” in such a suit. Smith v. United States , 561 F.3d 1090, 1099 (10th Cir. 2009) (quoting Oxendine v. Kaplan , 241 F.3d 1272, 1275 n.4 (10th Cir. 2001)). Second, even had Mr. Kucera named the United States as a party, the court reasoned that Mr. Kucera had not showed that he complied with § 2675(a) of the FTCA. That section requires plaintiffs to first present their claims “to the appropriate Federal agency” before suing the United States in f ederal court. 28 U.S.C. § 2675(a). Mr. Kucera’s failure to show that he had complied with this requirement, the court reasoned, deprived it of jurisdiction ov er any claim Mr.
5Kucera may have intended to bring under the FTCA with respect t o the CIA’s conduct. See, e.g. , Lopez v. United States , 823 F.3d 970, 976 (10th Cir. 2016) (stating that § 2675(a) is jurisdictional). In short, the district court considered and rejected what it pe rceived to be every possible source of jurisdiction. Therefore, the court dis missed Mr. Kucera’s case without prejudice for lack of subject-matter jurisdiction.
II We review a district court’s order dismissing a case for lack o f subjectmatter jurisdiction de novo. See, e.g. , Full Life Hospice, LLC v. Sebelius , 709 F.3d 1012, 1016 (10th Cir. 2013). In doing so, we are mindful that “[f]ederal courts are ‘courts of limited jurisdiction.’” Devon Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad, Inc. , 693 F.3d 1195, 1201 (10th Cir. 2012) (quoting Exxon Mobil Corp. v. Allapattah Servs., Inc. , 545 U.S. 546, 552 (2005)). In accordance with this limitation, we presume that we lack jurisd iction unless “the party invoking federal jurisdiction” proves otherwise. Full Life Hospice , 709 F.3d at 1016 (quoting Marcus v. Kan. Dep’t of Revenue , 170 F.3d 1305, 1309 (10th Cir. 1999)). When deciding if pro se litigants have made that showing, we co nstrue their filings liberally. See Ghailani v. Sessions , 859 F.3d 1295, 1303 (10th Cir. 2017). We hold pro se filings “to a less stringent standard than forma l pleadings drafted by lawyers.” Id. (quoting Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991)).

6That said, pro se litigants must still “follow the same rules o f procedure that govern other litigants.” United States v. Green , 886 F.3d 1300, 1307 (10th Cir. 2018) (quoting Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005)).
III On appeal, Mr. Kucera mounts no intelligible challenge to the d istrict court’s reasoning in dismissing his complaint. On this basis a lone, we could deny him relief. See, e.g. , Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are n ot raised, or are inadequately presented, in an appellant’s opening brief.”); United States v. Hardman , 297 F.3d 1116, 1131 (10th Cir. 2002) (“Arguments raised in a perfunctory manner, such as in a footnote, are waived.”); see also FarrakhanMuhammad v. Oliver , 688 F. App’x 560, 565 (10th Cir. 2017) (unpublished) (noting that pro se litigant’s argument “fails at the thresholdbecause it is devoid of record citations and conclusory and does not even explain wh at the district court did wrong”). However, we have nevertheless studied Mr. Kucera’s complaint de novo and conclude that he has not alleged facts sufficient to show that the district court had subject-matter jurisdiction. We reach this conclusion for substantially the same reasons as the district court. IV

7Accordingly, we AFFIRM the district court’s order dismissing Mr. Kucera’s case for lack of subject-matter jurisdiction. 2

ENTERED FOR THE COURT

Jerome A. Holmes Circuit Judge

2 Because we affirm the district court’s order dismissing the cas e, we DENY as moot allof Mr. Kucera’s pending motions before this court, including his motion to seal the case, his motion to review classified in formation, and his motion to review a confidential personnel file from the CIA. 8