Opinion
Civil Action No. 05-3729 (FLW).
January 20, 2006
ORDER
This matter having been opened to the Court by Christopher J. Christie, United States Attorney for the District of New Jersey and Dashiell C. Shapiro, Assistant United States Attorney, as counsel for Defendant Pamela Logan, an Appeals Officer for the Internal Revenue Service ("Defendant"), on Defendant's Motion, pursuant to Fed.R.Civ.P. 12(b)(1), to Dismiss the Complaint of Plaintiff Francis G. Martin, pro se; and written opposition having been filed by Plaintiff, and the Court having considered the Motion pursuant to Fed.R.Civ.P. 78; and it appearing that:
1. Although Plaintiff's Complaint satisfies the liberal notice requirements established in Fed.R.Civ.P. 8(a)(2), it does not present with great clarity the complete factual background underlying this case. However, the Court is satisfied that Plaintiff's Complaint presents those minimum facts essential to the disposition of Defendant's Motion to Dismiss. After liberally construing Plaintiff's pro se pleadings, Haines v. Kerner, 404 U.S. 519, 520 (1972); Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004), I conclude that I lack subject matter jurisdiction over his claims, and consequently, dismiss his Complaint.
2. Sometime in early 2005, Plaintiff received a Final Notice of Intent to Levy and Notice of Your Right to a Hearing ("levy notice") from the Internal Revenue Service ("IRS") related to certain outstanding and unpaid tax obligations. Plaintiff's Complaint ("Compl.") at ¶ 12. In response to the levy notice, Plaintiff sent Defendant a written request for a face-to-face Collection Due Process ("CDP") hearing, pursuant to 26 U.S.C. § 6330(b). Id. at ¶ 13. Defendant responded in a March 8, 2005 letter to Plaintiff in which she denied Plaintiff's request for a face-to-face CDP hearing. See March 8, 2005 Letter from Defendant to Plaintiff, attached to Compl. as Exhibit 1 ("Exh. 1").
3. In her letter, Defendant explained that courts had deemed frivolous the issues Plaintiff sought to discuss at his requested face-to-face CDP hearing, and, consequently, Plaintiff was not entitled to a face-to-face hearing to discuss only such matters.Id. Defendant instructed Plaintiff to inform her in writing by March 23, 2005, of any legitimate issues he wished to discuss at a face-to-face CDP hearing. Id. Defendant also offered Plaintiff two alternatives to a face-to-face CDP hearing. First, she informed Plaintiff that she would address whatever issues he wished to raise in a telephone conference on April 7, 2005. Id. Second, Defendant suggested Plaintiff present his arguments through written correspondence. Id. Defendant indicated that, if necessary, the telephone conference could be rescheduled for a date with fourteen days of April 7, 2005. Id. Defendant also informed Plaintiff that if he failed to respond by April 7, 2005, she would issue a Notice of Determination based on the information in Plaintiff's IRS file.
A Notice of Determination is a letter memorializing the administrative determination of the IRS that a particular taxpayer is liable in a collection action. See e.g., Turner v. United States, 372 F. Supp. 2d 1053, 1056 (S.D. Ohio 2005).
4. Plaintiff responded in an April 4, 2005 Letter in which he declined a phone conference and reiterated his request for a face-to-face CDP hearing to be held at the IRS location closest to his home. See April 4, 2005 Letter from Plaintiff to Defendant, attached to Compl. as Exhibit 2 ("Exh. 2"). Plaintiff explained that "at the heart" of his tax dispute was the United States' "statutory authority for assessment of taxes." Id. He disagreed with Defendant that such an issue was "frivolous" and asserted that it was an appropriate topic for a face-to-face CDP hearing. Id. Plaintiff warned Defendant that he considered a denial of such a face-to-face hearing a "willful violation of [his] right to due process" and "would prosecute all such violations . . . to the full extent of the law." Id. Apparently, Defendant treated Plaintiff's April 4, 2005 response as an acceptance of her offer to address his arguments by correspondence. On May 25, 2005, Defendant issued Plaintiff a Notice of Determination. Compl. at ¶ 17.
5. On July 25, 2005, Plaintiff filed a Complaint against Defendant in which he asserts Defendant denied him due process by refusing to afford him a face-to-face CDP hearing. Compl. at ¶ 18. Plaintiff does not seek money damages nor does he seek to restrain the assessment or collection of taxes as prohibited by 26 U.S.C. § 7421. Id. at ¶¶ 7-8. Instead, Plaintiff seeksmandamus relief, and asks the Court to order Defendant to provide Plaintiff with a face-to-face CDP hearing. Id. at "Relief Sought" section of Plaintiff's Complaint ("¶ 19").
Although Plaintiff's Complaint does not expressly seekmandamus relief, the Court infers such from Plaintiff's citation to 28 U.S.C. § 1361 as supporting jurisdiction in this case. That statute provides: "The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." To establish jurisdiction, Plaintiff also relies on 28 U.S.C. § 1331, which provides district courts with original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States"; and 28 U.S.C. 1391, which is an inapplicable venue statute.
6. On September 23, 2005, Defendant filed this Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1). Defendant argues that the Court lacks jurisdiction to consider Plaintiff's claims.See Brief in Support of Defendant's Motion to Dismiss ("Defendant's Br.") at 2. Specifically, Defendant argues that 28 U.S.C. § 1331, which vests district courts with jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States," does not waive the United States' sovereign immunity and, therefore, Plaintiff's claims are barred. Defendant's Br. at 2. Defendant further argues that Plaintiff has no right to proceed under 28 U.S.C. § 1361 because he is not entitled to the mandamus relief he seeks. Id.
7. A facial attack on a court's jurisdiction "is directed to the sufficiency of the pleading as a basis for subject matter jurisdiction." The Med. Soc'y of New Jersey v. Herr, 191 F. Supp. 2d 574, 578 (D.N.J. 2002). Thus, a court "must only consider the allegations of the complaint and the documents referenced therein and attached thereto in the light most favorable to the plaintiff." Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).
8. At the outset, it should be noted that since Plaintiff alleges wrongdoing by Defendant in her official capacity as an Appeals Officer of the Internal Revenue Service and seeksmandamus relief on that basis, the proper party defendant in this case is the United States. See Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) ("a suit against IRS employees in their official capacity is essentially a suit against the United States."); Bell v. Rossotti, 227 F. Supp. 2d 315, 320 (M.D. Pa. 2002) (same);Barnard v. Pavlish, No. 97-CV-0236, 1998 WL 247768 at *5 (M.D. Pa. March 30, 1998) ("Moreover, the claims asserted against [an IRS agent] relating to his official tax assessment and collection duties must be treated as a suit against the United States."),aff'd, 187 F.3d 625 (3d Cir. 1999). However, the Court will not dismiss Plaintiff's Complaint to allow for substitution of the United States as a party defendant because such an amendment would prove futile. See Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000) ("An amendment is futile if the amended complaint would not survive a motion to dismiss"). Id.
9. Plaintiff's first basis for jurisdiction in this case is 28 U.S.C. § 1331. As Defendant argues, however, § 1331 does not waive the United States' sovereign immunity from suit. It is well settled that the United States is a sovereign, and, as such, is immune from suit unless it has expressly waived such immunity and consented to be sued. FDIC v. Meyer, 510 U.S. 471, 475 (1994);Matsko v. U.S., 372 F.3d 556, 558 (3d Cir. 2004). The IRS enjoys sovereign immunity as an agency of the United States unless that immunity has been waived by Congress. See Jorden v. National Guard Bureau, 799 F.2d 99, 102 n. 3 (3d Cir. 1986),cert. denied sub nom. Sajer v. Jorden, 484 U.S. 815 (1987). Sovereign immunity is not defeated by the act of naming officers and employees of the United States as defendants in a suit that properly is against the United States. Larson v. Domestic Foreign Commerce Corp., 337 U.S. 682, 688 (1949); Gilbert, 756 F.2d at 1458; Watts v. IRS, 925 F. Supp. 271, 275 (D.N.J. 1996) (suit against IRS employees acting in their official capacities is "in effect an action against the United States and is barred by the doctrine of sovereign immunity.") (Orlofsky, J.).
10. The United States has waived its sovereign immunity for certain tort claims under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 et seq. and 1346(b), however, it has not waived its sovereign immunity for common law torts allegedly committed by the IRS concerning the assessment and collection of taxes. 28 U.S.C. § 2680(c). Indeed, a suit based on the assessment or collection of taxes is expressly excluded from the FTCA's waiver of sovereign immunity. See e.g., Fishburn v. Brown, 125 F.3d 979, 981-982 (6th Cir. 1997); Aetna Casualty Surety Co. V. United States, 71 F.3d 475, 478 (2d Cir. 1995); Nat'l Commodity Barter Ass'n v. Gibbs, 886 F.2d 1240, 1246 (10th Cir. 1989);Capozzoli v. Tracey, 663 F.2d 654, 658 (5th Cir. 1981); Lang v. Rubin, 73 F. Supp. 2d 448, 450 (D.N.J. 1999) (Simandle, J.);Pugh v. Internal Revenue Service, 472 F. Supp. 350, 352 (E.D. Pa. 1979). This is so because another compensatory scheme exists for challenges to taxation. See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 427 n. 5 (1995).
Specifically, 28 U.S.C. § 2680(c) exempts from the FTCA any claim "arising in respect of the assessment or collection of any tax. . . ." Courts have interpreted 28 U.S.C. § 2680(c) liberally "to encompass any activities of an IRS agent even remotely related to his or her official duties." Capozzoli, 663 F.2d at 658. See also Childress v. Northrop Corp., 618 F. Supp. 44 (D.D.C. 1985) (interpreting § 2680(c) to bar a claim alleging constitutional violations; collecting and discussing other cases).
11. Plaintiff argues that a waiver of the United States' sovereign immunity is not required for him to proceed on his Complaint. He asserts that because his claim arises out of an alleged constitutional violation, for which he seeks equitable relief rather than money damages, his Complaint is exempt from "Defendant's immunity under the Federal Tort Claims Act," pursuant to 28 U.S.C. § 2679(b)(2)(A). See Plaintiff's Brief in Opposition to Defendant's Motion to Dismiss ("Plaintiff's Opp.") at 3. Plaintiff is mistaken.
12. In limited circumstances, damage actions may be maintained against federal officials for violations of an individual's constitutional rights committed by an officer acting in his or her official capacity. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 391, 397 (1971). SuchBivens claims, as they are commonly known, would otherwise be barred by the FTCA's exclusive remedy provision in instances when a plaintiff has also pursued an action against the United States. Section 2679(b)(2)(A) does not provide an independent jurisdictional basis nor does it waive the United States' sovereign immunity, rather, it merely excludes Bivens claims from the otherwise exclusive remedial scope of the FTCA. See United States v. Smith, 499 U.S. 160, 166-67 (1991) (explaining that § 2679(b)(2)(A) relieves a plaintiff asserting a Bivens claim from the FTCA's exclusive remedy provision.); Fishburn, 125 F.3d at 982 ("exclusivity of remedy provided under the FTCA does not apply to a Bivens action [by virtue of § 2679(b)(2)(A)]"). Consequently, § 2679(b)(2)(A) provides Plaintiff no refuge because he expressly disavows any attempt to state a Bivens claim. See Plaintiff's Br. at 1. Thus, his claim is barred by 28 U.S.C. § 2680(c).
13. Additionally, to the extent Plaintiff argues that his pursuit of only equitable relief shields his claim from the exception established in § 2680(c), he again misapprehends the law. Absent an express waiver, the principle of sovereign immunity bars claims for money damages as well as equitable relief. Malone v. Bowdoin, 369 U.S. 643, 648 (1962) (specific performance barred when sought in "an action which is in sum and substance one against the United States without its consent");Jaffee v. United States, 592 F.2d 712, 717 n. 10 (3d Cir.) ("unless sovereign immunity has been waived, it bars equitable as well as legal remedies against the United States."), cert. denied, 441 U.S. 961 (1979).
14. Furthermore, Plaintiff's reliance on 28 U.S.C. § 1361, which vests district courts with original jurisdiction over cases seeking mandamus relief, is also misplaced because Plaintiff is not entitled to such relief. A writ of mandamus is appropriate only in "extraordinary situations" and should only be granted if there is a clear right to the relief sought and no other adequate remedy is available. See In re Asbestos School Litigation, 46 F.3d 1284, 1288-89 (3d Cir. 1994). As the Fourth Circuit has explained, "[w]here mandamus relief is sought against a public official, 'the alleged duty to act [must] involve a mandatory or ministerial obligation which is so plainly prescribed as to be free from doubt.'" Estate of Michael ex rel. Michael v. Lullo, 173 F.3d 503, 512-13 (4th Cir. 1999) (quotingFirst Fed. Sav. Loan Ass'n v. Baker, 860 F.2d 135, 138 (4th Cir. 1988)). Plaintiff cannot satisfy any of these requirements.
15. First, plaintiff has no clear right to a face-to-face CDP hearing. To be sure, 26 U.S.C. § 6330(b) states that "[i]f a person requests a [CDP] hearing, such hearing shall be held by the IRS Office of Appeals." However, federal regulations implementing CDP hearings under § 6330(b) impose critical limitations on the "right" to such a hearing. Specifically, 26 C.F.R. § 301.6330-1(d)(2) QA-D6, states:
The formal hearing procedures required under the Administrative Procedure Act, 5 U.S.C. 551 et seq., do not apply to CDP hearings. CDP hearings are . . . informal in nature and do not require the Appeals officer or employee and the taxpayer, or the taxpayer's representative, to hold a face-to-face meeting. A CDP hearing may, but is not required to, consist of a face-to-face meeting, one or more written or oral communications between an Appeals officer or employee and the taxpayer or the taxpayer's representative, or some combination thereof. . . .
(Emphasis added). The language of the this regulation makes clear that a taxpayer is not guaranteed nor entitled to a face-to-face CDP hearing. See Quigley v. United States, 358 F. Supp. 2d 427, 430 (E.D. Pa. 2004) ("[ 26 C.F.R. § 301.6330-1(d)(2)] clearly states that the taxpayer is not guaranteed nor entitled to a face-to-face meeting with an appeals officer."); Turner v. United States, 372 F. Supp. 2d 1053, 1056 (S.D. Ohio 2005) ("[Plaintiff] not guaranteed and not entitled to an in-person [CDP] hearing."). Gardner v. United States, 2005 U.S. Dist. LEXIS 12364, *7 (D.N.J. April 5, 2005) (same).
16. Second, a writ of mandamus is not Plaintiff's only remedy. Indeed, Congress provided a remedy under § 6330 which allows appeal of a Notice of Determination within thirty days of its issuance to a federal district court or tax court. See 26 U.S.C. § 6330(d). Accordingly, a writ of mandamus is plainly not warranted in this case.
The Court notes that the thirty-day period within which Plaintiff could have challenged the Notice of Determination issued by Defendant expired well before Plaintiff filed this action. Defendant issued the Notice of Determination on May 25, 2005, see Compl. ¶ at 17, and Plaintiff filed his Complaint on July 20, 2005. Accordingly, I will not consider this action as an appeal under § 6330(d).
17. Finally, Plaintiff's reliance on 28 U.S.C. § 1391 to establish jurisdiction is also error. Section 1391 addresses venue, not jurisdiction. Thus, it provides no jurisdictional basis. Accordingly, and for good cause shown:
IT IS on this 20th day of January, 2006, hereby
ORDERED that Defendant's Motion to Dismiss Plaintiff's Complaint pursuant to Fed.R.Civ.P. 12(b)(1) is GRANTED.