Opinion
No. CV-S-05-0106-PMP (RJJ).
June 15, 2005
ORDER
Presently before the Court is Defendant United States' ("Government") Motion to Dismiss (Doc. #6), filed March 7, 2005. Plaintiff John Thomas Harger, Jr. ("Harger") filed a Motion to Strike United States' Motion to Dismiss (Doc. #8) on March 23, 2005. Harger also filed Plaintiff's Motion for Summery (sic) Judgment (Doc. #9) on March 23, 2005. The Government filed United States' Response to Plaintiff's Motion for Summary Judgment (Doc. #17) on April 18, 2005. Harger filed Plaintiff's Response to United States Response to Plaintiff's Motion for Summary Judgment (Doc. #19) on April 29, 2005. Harger filed a Motion to Amend the Complaint in This Instant Action (Doc. #12) on March 24, 2005. The Government filed United States' Response to Plaintiff's Motion to Amend Complaint (Doc. #16) on April 18, 2005.
I. BACKGROUND
Harger is a citizen of the United States of America who resides in Nevada. (Compl. ¶ 4.) Defendant L. Talley ("Talley") is an Agent of the Internal Revenue Service ("IRS"). (Id. ¶ 5.) Harger alleges that Talley, acting outside of the IRS's authority, issued a fraudulent Form 668W (ICS), which is an IRS Notice of Levy. (Id. ¶ 8.) Harger's employer, Stantec Consulting, Inc. ("Stantec"), received this form and complied with its instructions. (Id. ¶ 13.) Stantec remitted Harger's wages to the federal government on a biweekly basis from October 29, 2004 to January 21, 2005. (Id. ¶¶ 14-20.) According to Harger, this form applies only to federal employees, and Harger is not an employee of the federal government. (Id. ¶ 12.)
Harger filed the current action in this Court on January 8, 2005, alleging that Talley violated Harger's Fourth, Fifth, and Fourteenth Amendment rights. (Id. ¶¶ 22-24.) In response, the Government filed a Motion to Dismiss, asserting that this Court lacks subject matter jurisdiction over this controversy.
II. DISCUSSION
A. Government's Substitution as Defendant
Harger contends the Court should strike the Government's Motion to Dismiss. According to Harger, the Complaint names Talley as the sole defendant in his individual capacity, and the Government therefore has no interest in defending this action. The Government responds that because Harger has challenged Talley's issuance of notices of levy, these actions may take place only in Talley's official capacity, and the Government therefore may represent Talley as a federal employee.
Counsel on behalf of the Government may represent federal employees, even when sued in their individual capacities. See 28 C.F.R. § 50.15. Such representation is proper so long as the actions for which representation is sought reasonably appear to have been performed within the scope of employment, and the representation is in the Government's best interests. Id.
Here, Harger is suing Talley for alleged constitutional violations with respect to issuing notices of levy. Harger alleges in his Complaint that Talley can accomplish this task only in his capacity as an IRS agent. Because Talley's alleged conduct reasonably appears to have been performed within the scope of his employment, the Government has an interest in providing representation. The Court therefore will deny Harger's Motion to Strike.
B. Failure to State a Claim
The Government moves this Court to dismiss this action for lack of subject matter jurisdiction. According to the Government, Harger has not fulfilled the conditions necessary to allow him to sue the Government under Bivens v. Six Unknown Named Fed. Narcotics Agents, 403 U.S. 388 (1971). Harger argues that the Government's jurisdictional arguments do not apply because he is suing Talley solely in his individual capacity. Harger also argues that summary judgment should be granted in his favor because the Government has not disputed his version of the facts.
In certain situations, individual capacity suits for damages may be maintained against federal government officials for violations of constitutional rights. See Bivens, 403 U.S. at 388. However, a Bivens claim must involve the violation of an individual's established constitutional right. See Wages v. IRS, 915 F.2d 1230, 1235 (9th Cir. 1990). The collection of taxes does not amount to such a violation. Id. ("We have never recognized a constitutional violation arising from the collection of taxes."). Additionally, the Supreme Court has indicated that when Congress provides individuals with an alternative remedy for constitutional torts committed by federal employees, individuals may not seek relief under Bivens. See Schweiker v. Chilicky, 487 U.S. 412, 423 (1988).
Viewing the allegations in a light most favorable to Harger, he alleges in his Complaint that he is suing Talley solely in his individual capacity. Harger asserts constitutional violations in connection with Talley's efforts to collect income taxes. Harger's Bivens claim based on Talley's collection efforts do not give rise to a constitutional violation. Even if Talley's tax collection activities did violate an established constitutional right, Congress has provided Harger with an alternative remedy. Harger may seek a review of the IRS's collection efforts pursuant to 26 U.S.C. § 6330. Harger also could file a claim for a refund pursuant to 26 U.S.C. § 6511, and if denied, sue in federal district court pursuant to 26 U.S.C. § 7422. Because Talley's actions are not actionable as a constitutional violation, and are redressable through the Internal Revenue Code, Harger fails to state a claim for which relief can be granted. The Court therefore will dismiss Harger's Complaint.
C. Amendment
Generally, the Court liberally should allow for amendments to pleadings under Federal Rule of Civil Procedure 15(a). Unless it is absolutely clear that amendment would be futile, a pro se litigant must be given the opportunity to amend his or her complaint to correct any deficiencies. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). A court may deny a party leave to amend if the amendment would be futile. Wages, 915 F.2d at 1235. For example, a court may deny leave to amend when the proposed amendment would not withstand a motion to dismiss. Id.
Where Congress has created specific remedies under a "comprehensive scheme." Bivens actions are barred. Adams v. Johnson, 355 F.3d 1179, 1185 (9th Cir. 2004). For example, the Ninth Circuit has held that because of the comprehensiveness of the Internal Revenue Code and its remedial provisions for the benefit of taxpayers, Bivens relief is not available to a person challenging tax levies. Id. at 1186.
The Court determines that amendment of the plaintiff's petition would be futile. Harger will not be able to surmount the barriers preventing any prospective suit against the Government or Talley in his official capacity for their collection of tax activities. Harger may seek remedies under the aforementioned provisions of the Internal Revenue Code, but has not done so. The failure to seek remedy under these provisions precludes a Bivens claim against the Government as well as Talley in his official capacity. The Court therefore will dismiss Harger's Complaint with prejudice.
III. CONCLUSION
IT IS THEREFORE ORDERED that Defendant United States' Motion to Dismiss (Doc. #6) is hereby GRANTED.
IT IS FURTHER ORDERED that Plaintiff's Motion for Summery (sic) Judgment (Doc. #9) is hereby DENIED.
IT IS FURTHER ORDERED that Harger's Motion to Amend the Complaint in This Instant Action (Doc. #12) is hereby DENIED.