MEMORANDUM AND ORDER

ERIC F. MELGREN, District Judge.

Plaintiff Laura Murray Cicco filed suit against Defendant the National Aeronautics and Space Administration ("NASA"). She brings this action seeking a declaratory judgment that she is the rightful owner of a vial of dust from the surface of the moon given to her from Neil Armstrong. Defendant seeks dismissal of the action asserting that the Court lacks subject matter jurisdiction, Plaintiff lacks standing, and for improper venue (Doc. 6). For the reasons stated below, the Court finds that it lacks subject matter jurisdiction and grants Defendant's motion.

I. Factual and Procedural Background

When Plaintiff was about 10 years old (in 1970), Plaintiff's mother gave her a glass vial full of light grey dust and Plaintiff's father's business card. On the back of her father's business card was a note from Neil Armstrong, an American astronaut and commander of the Apollo 11 mission to the moon. The note said, "To Laura Ann Murray — Best of Luck — Neil Armstrong Apollo 11." Plaintiff's mother told Plaintiff that the vial contained dust from the moon. Armstrong's signature on the card has been authenticated by an expert, and testing has demonstrated that the glass vial contains lunar and terrestrial material.

Plaintiff contends that there is no law against private persons owning lunar material and that it is not illegal to own or possess it. She alleges that Defendant has taken the position, in a 2014 California case, that all lunalogic material is the property of NASA.1

Plaintiff filed suit against Defendant NASA on June 6, 2018. She states that Neil Armstrong gifted her the vial of lunar dust when she was a child and she seeks a declaratory judgment that she is the rightful and legal owner of the vial and its contents. Defendant has filed a Motion to Dismiss asserting that the Court lacks subject matter jurisdiction, Plaintiff lacks Article III standing, and the District of Kansas is an improper venue.

II. Legal Standard

Defendant brings its motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) because it asserts that the Court lacks subject matter jurisdiction. Motions to dismiss for lack of subject matter jurisdiction generally take one of two forms: (1) facial attacks, which question the sufficiency of the allegations in the complaint; or (2) factual attacks, which challenge the content of the allegations regarding subject matter jurisdiction.2 There is a presumption against subject matter jurisdiction because federal courts are courts of limited jurisdiction.3 Once jurisdiction is challenged, "the burden is on the party claiming jurisdiction to show it by a preponderance of the evidence."4

III. Analysis

Defendant asserts that the Court lacks subject matter jurisdiction because Plaintiff cannot establish a waiver of its sovereign immunity. "Sovereign immunity generally shields the United States, its agencies, and its officers acting in their official capacity from suit."5 "Courts lack subject matter jurisdiction over a claim against the United States for which sovereign immunity has not been waived."6 A party suing the United States, or one of its agencies, "must allege both a basis for the court's jurisdiction [ ] and a specific statute containing a waiver of the government's immunity from suit."7 Failure to identify "an express waiver of immunity over any of the claims in question" in the pleadings deprives a federal court of subject matter jurisdiction.8

In Plaintiff's Complaint, she asserts that she brings her action pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, to settle ownership of the vial containing dust from the moon. She contends that 28 U.S.C. § 1655 provides subject matter jurisdiction because this statute addresses quieting title to personal property. This statute provides, in part, that "[i]n an action in a district court to enforce any lien upon or claim to, or to remove any incumbrance or lien or cloud upon the title to, real or personal property within the district, where any defendant cannot be served within the State, or does not voluntarily appear, the court may order the absent defendant to appear or plead by a day certain."9 Neither of these statutes act as a waiver of Defendant's sovereign immunity.

The lien enforcement statute, 28 U.S.C. § 1655, does not constitute an independent basis for subject matter jurisdiction. "Section 1655 does not extend or enlarge the original jurisdiction of the district courts of the United States."10 This statute "has been consistently construed as simply permitting substituted service in certain cases where the court has jurisdiction; the jurisdictional facts requisite to support federal jurisdiction of the action involved, such as diversity of citizenship and jurisdictional amount, must be independently present."11 In addition, several cases have noted that § 1655 does not allow suit against the United States when consent has not been given.12 Likewise, 28 U.S.C. § 2201 does not by itself "confer jurisdiction on a federal court where none otherwise exists."13 Thus, Plaintiff fails to plead a basis for waiver of sovereign immunity and subject matter jurisdiction.

In Plaintiff's response to Defendant's motion to dismiss, she contends that 5 U.S.C. § 702 waives sovereign immunity for all non-monetary actions against a federal agency.14 Plaintiff contends that the second sentence stands on its own as a waiver of sovereign immunity. The statute states:

This statute provides for a waiver of sovereign immunity in actions that do not seek money damages. The plain language of the statute, however, would make it inapplicable to the instant case. The statute states that a person must be stating a claim "that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority."15 Plaintiff does not allege any unlawful action, or inaction, by an agency or employee. There are no allegations that Defendant, or any of its employees or officers, have performed any actions or failures to act in this case.16 Instead, she simply seeks a declaration that she is the rightful owner of a vial containing dust from the moon. Thus, even though she is seeking relief other than monetary damages, she does not state a claim that Defendant "acted or failed to act."

Furthermore, even if this statute could be read to provide a waiver of sovereign immunity, the statute itself does not provide subject matter jurisdiction.17 There must be an independent basis for federal court jurisdiction even if there is a finding of the waiver of sovereign immunity under § 702.18 The plaintiff's claim must arise "under the Constitution, laws, or treaties of the United States" so that the Court has independent jurisdiction pursuant to 28 U.S.C. § 1331.19 As noted above, neither the Declaratory Judgment Act (28 U.S.C. § 2201) nor the lien enforcement statute (28 U.S.C. § 1655) provides an independent basis for this Court's jurisdiction. Accordingly, the Court must dismiss for lack of subject matter jurisdiction.

IT IS THEREFORE ORDERED that Defendant's Motion to Dismiss (Doc. 6) is GRANTED.

This case is closed.

IT IS SO ORDERED.