Opinion
C. A. 6:23-5259-JFA-TER
10-25-2023
Sergio Donte Latimer, #227614, Plaintiff, v. Internal Revenue Service, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge.
This is a civil action filed by a state pre-trial detainee, proceeding pro se and in forma pauperis. Pursuant to 28 U.S.C. 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the District Court. See 28 U.S.C. § 1915(e).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § 1915 and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
Plaintiff's Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action “fails to state a claim on which relief may be granted,” “is frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A finding of frivolity can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. at 31. Under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989).
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint may be subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
Plaintiff alleges his Fourth, Fifth, and Fourteenth Amendment rights have been violated because the IRS directed stimulus payments to pay debts instead of sending it to him by paper check. (ECF No. 1 at 4). Plaintiff alleges the events arose in February 2021. Plaintiff alleges it was not explained to him that the government had permission to offset to pay debts. Plaintiff alleges as injuries distress. Plaintiff's request for relief is “monetary damages to include EIPs.” (ECF No. 1 at 7). Plaintiff alleges in his grievance his ground was “failure to receive stimulus.” The IRS letters attached to the Complaint state that the first EIP was applied to “an outstanding debt reported to the Treasury Department by child support agencies or other federal or state agencies.”
The CARES Act explicitly stated that the EIPs were subject to offset for child support owed. In re Lockhart, No. 1:17-BK-00532, 2021 WL 2632765, at *8 (Bankr. N.D. W.Va. June 24, 2021).
Stimulus checks, otherwise known as Economic Impact Payments (“EIP”) were established by the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), which was signed into law in March 2020, and the Consolidated Appropriations Act of 2021 (the “CAA”) that was signed into law in December 2020. The CARES Act provided a tax credit of $1,200 to eligible individuals. 26 U.S.C. § 6428(a). An “eligible individual” is defined broadly. Id. § 6428(d). The statute provided for payment in the form of an “advance refund” to be disbursed “as rapidly as possible,” but it expressly prohibited any refund or credit after December 31, 2020. Id. § 6428(f)(2), (3). The CAA authorized a $600 payment under a scheme similar the CARES Act. 26 U.S.C. § 6428A(a)-(f). Under the CAA, no refund or credit was to be made or allowed after January 15, 2021, except in situations that are not applicable here. Id. § 6428A(f)(A)(ii).
Plaintiff alleges this is an action under Bivens against the IRS. A Bivens action can only be against individuals. Even if Plaintiff attempted to amend his Complaint to name individual IRS employees, amendment would be futile as Plaintiff would still fail to state a claim upon which relief could be granted because Plaintiff may not sue individual IRS employees or officials under Bivens due to the various statutory remedies otherwise available to a taxpayer. Aderinto v. Treasury Inspector Gen. for Tax Admin., No. 3:08-cv-1940-JFA-BM, 2008 WL 2434134, at *3 (D.S.C. June 12, 2008); Al-Sharif v. Bradley, 2008 WL 410364 (S.D. Ga. Feb.12, 2008)(collecting cases, agreeing with courts which have held relief against an IRS employee pursuant to Bivens is foreclosed based upon meaningful and adequate statutory remedies provided by Congress); see Schweiker v. Chilicky, 487 U.S. 412, 420-423(1988).
Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971) “established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right” under limited specific circumstances. Carlson v. Green, 446 U.S. 14, 18 (1980). Whether Plaintiff can state a claim under Bivens is highly in doubt. See Egbert v. Boule, 142 S.Ct. 1793, 1799 (2022).
Additionally, Bivens has not been extended to this type of claim or context by the United States Supreme Court.
To the extent that Plaintiff intended to assert a type of tort claim against the United States for offsetting anticipated monies, it is further noted that the United States has expressly consented to a limited waiver of its sovereign immunity only for those torts brought pursuant to the Federal Tort Claims Act (“FTCA”). 28 U.S.C. §§ 1346(b), 2671-2680. Federal district courts lack subject matter jurisdiction over claims asserted against federal agencies where it has not been demonstrated that a plaintiff complied with the strict provisions of the FTCA. Kokotis v. U.S. Postal Service, 223 F.3d 275, 278 (4th Cir. 2000). Plaintiff has not shown that he complied with the strict provisions of the FTCA requiring an administrative claim be filed first with the appropriate agency prior to commencing a civil action in this Court. See also 28 U.S.C. § 2401(b). Further, excepted from the FTCA is “any claim arising in respect of the assessment or collection of any tax.” See 28 U.S.C. § 2680(c). The Fourth Circuit has interpreted the phrase “collection or assessment of any tax” to bar any action for damages arising out of the Government's tax assessment and collection activities. See Perkins v. United States, 55 F.3d 910, 913 (4th Cir. 1995) (citing Broadway Open Air Theatre v. United States, 208 F.2d 257, 259 (4th Cir. 1953)). Thus, even if Plaintiff had properly named the United States as a defendant for an FTCA claim, because his claims are entirely based upon the alleged conduct of the IRS in assessing and collecting taxes from Plaintiff and then failing to issue Plaintiff a refund, any such claims cannot be maintained against the United States under the FTCA. See Knight v. Internal Revenue Serv., 2020 WL 13555163, at *3 (S.D. W.Va. Sept. 23, 2020).
Moreover, the offset statute is constitutional and unambiguous. See Copley v. United States, 959 F.3d 118, 124-25 (4th Cir. 2020) The Internal Revenue Code “direct[s] the Secretary of the Treasury to ‘intercept' certain tax refunds payable to persons who have failed to meet child-support obligations.” Sorenson v. Sec'y of Treasury of U.S., 475 U.S. 851, 852-53 (1986). The Treasury may reduce a refund in the amount of any past-due child support owed by a taxpayer. 26 U.S.C. § 6402(c) and 42 U.S.C. §§ 664(a)(1) and (2)(A). An additional reason this action is subject to summary dismissal is judicial or administrative review of this initial reduction is prohibited. 26 U.S.C. § 6402(g)(“No court of the United States shall have jurisdiction to hear any action, whether legal or equitable, brought to restrain or review a reduction authorized by subsection (c), (d), (e), or (f). No such reduction shall be subject to review by the Secretary in an administrative proceeding. No action brought against the United States to recover the amount of any such reduction shall be considered to be a suit for refund of tax.”).
Further, the CARES act does not give a private right of action as to requesting EIPs:
Further, neither the CARES Act nor the CAA provide for a private right of action. Ballard v. U.S. Treasury Dep't, No. 5:21-CV-479-BO, 2022 WL 785041, at *1 (E.D. N.C. Mar. 14, 2022) (unpublished) (“[T]he CARES Act does not provide for a private right of action.”); Byers v. Rettig, No. 1:22-CV-00126-MR, 2022 WL 3205184, at *4 (W.D. N.C. Aug. 8, 2022) (unpublished) (“To the extent that the
Plaintiff asks the Court to compel the IRS to provide his EIPs, he is not entitled to assert a private cause of action for disbursement of these funds”); Am. Video Duplicating, Inc. v. City Nat'l Bank, No. 2:20-cv-04036-JFW-JPR, 2020 WL 6882735, at *5 (C.D. Cal. Nov. 20, 2020) (“Unsurprisingly, every court to address whether the CARES Act created an implied private right of action has held that it does not.”). In addition, the express terms of the CARES Act and the CAA prohibit the distribution of funds after December 31, 2020, and January 15, 2021, respectively. 26 U.S.C. §§ 6428(f)(3), 6428A(f)(A)(ii); Byers, 2022 WL 3205184, at *4 (“As these deadlines have now passed, and no more funds may be issued, the Plaintiff cannot obtain the relief that he requests.”).Whaley v. Sec'y of U.S. Dept of the Treasury, No. 4:23-cv04473-HMH, 2023 WL 6579001, at *2 (D.S.C. Oct. 10, 2023).
For all of the above reasons, this action is subject to summary dismissal for failure to state a claim upon which relief can be granted.
RECOMMENDATION
Accordingly, it is recommended that this action be summarily dismissed with prejudice and without issuance and service of process.
It is recommended that this action be dismissed without leave to amend. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022). As discussed above, even if Plaintiff altered his defendants or his claims, Plaintiff would still fail to state a claim upon which relief could be granted.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).