Opinion
Civil Action No. 01-10369-REK
October 25, 2001
MEMORANDUM
I.
Now pending before this court is Defendants' Motion to Dismiss (Docket No. 8, filed July 2, 2001) with supporting Memorandum (Docket No. 9, filed July 2, 2001). The plaintiff, who is proceeding pro se, has not filed an opposition to this motion. For the reasons detailed below, the motion is ALLOWED.
II.
Arthur Lewis Sullivan initiated this action on March 15, 2001, by filing a pro se complaint in the United States District Court for the District of Massachusetts. The complaint names as defendants the Federal Communications Commission (FCC), Arthur Curths, an employee of the FCC, Gary Thompson, a retired employee of the FCC, and Charles Kerivan, III, an employee of the Internal Revenue Service (IRS). Mr. Sullivan retired from his employment at the FCC on November 5, 1985. Mr. Sullivan claims that his ex-wife filed certain documents with the FCC under his name ten days later. Complaint at ¶ 3b. She also apparently sought to have Mr. Sullivan civilly committed around the same time. Id. at ¶ 3c. The documents designated three individuals as beneficiaries of Mr. Sullivan's life insurance. The named individuals, according to the document, are Edith G. Margetson, the plaintiff's mother, Michael E. Sullivan, the plaintiff's brother, and Antonia K. Sullivan, identified as the plaintiffs daughter. Mr. Sullivan asserts that Antonia Sullivan is not his child, but the child of his wife and brother. Id. at ¶ 3g. Moreover, the form Mr. Sullivan originally filed listed eight additional beneficiaries. Id. at ¶ 3h. It is Mr. Sullivan's understanding that an extra $25.21 is withheld from his monthly annuity payment to provide "additional optional insurance to these [eleven] people which would have given each beneficiary $250,000 dollars (sic)." Id. The complaint further states: "Due to the ex-wife's falsified document and filling by first and second defendants the Plaintiff had to repay his original contribution of $7,604.00 (after receiving it and not knowing why having to repay) receiving half the awarded monthly annuity pension payment and paying over $3,500.00 in false levy's by the IRS." Id. at ¶ 3i.
III.
On a motion to dismiss, this court must read a pro se plaintiffs allegations liberally and apply a less stringent standard to a pro se pleading than to a complaint drafted by counsel. Hains v. Kerner, 404 U.S. 519, 520-21 (1972). Mr. Sullivan requests 30 separate and somewhat confusing categories of relief. As far as may be discerned, Mr. Sullivan seeks an order of this court reinstating his previous submissions with respect to his retirement and a stay of levy of tax liability. Complaint at ¶¶ 4a, 4c. Specifically,
4a) Plaintiff (Pro Se) is requesting relief from the court: To reinstate Plaintiffs original CSRS submittance of November 5, 1985. Restoring receipt of Plaintiffs original contribution of $7,604.00 and returning to tax exempt status, as well as, pro-rating Plaintiff retirement package back to the 171 GS-11 status with all monitory anumiration restored retroactively . . . . 4c) To have third Defendant cease levy on grounds of new evidence and to await the courts judgment.
Id.
The United States asserts that its motion to dismiss is based "on the grounds that the Court lacks jurisdiction over its subject matter pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure." Docket No. 8. In fact, in their Memorandum accompanying that motion, Defendants' raise questions that are more properly construed as encompassing both subsections 1 and 4 of Rule 12(b).
A. Insufficiency of Process
Defendants' move for dismissal pursuant to Rule 12(b)(4), alleging insufficiency of process. Rule 4 of the Federal Rules of Civil Procedure governs service of process, and Rule 4(i) specifically addresses instances where the United States or its officers are defendants. The rule provides, in part:
(2)(A) Service on an agency or corporation of the United States, or an officer or employee of the United States sued only in an official capacity, is effected by serving the United States in the manner prescribed by Rule 4(i)(1) and by also sending a copy of the summons and complaint by registered or certified mail to the officer, employee, agency, or corporation.
(B) Service on an officer or employee of the United States sued in an individual capacity for acts or omissions occurring in connection with the performance of duties on behalf of the United States — whether or not the officer or employee is sued also in an official capacity — is effected by serving the United States in the manner prescribed by Rule 4 (i)(1) and by serving the officer or employee in the manner prescribed by Rule 4(e), (f), or (g).
(3) The court shall allow a reasonable time to serve process under Rule 4(i) for the purpose of curing the failure to serve:
(A) all persons required to be served in an action governed by Rule 4(i)(2)(A), if the plaintiff has served either the United States attorney or the Attorney General of the United States, or
(B) the United States in an action governed by Rule 4 (i)(2)(B), if the plaintiff has served an officer or employee of the United States sued in an individual capacity.
F.R.C.P. 4(i). In this case, Mr. Sullivan served the individual defendants by certified mail, return receipt requested. See Docket Nos. 5, 6, 7. He failed, however, to deliver a copy of the summons to the United States Attorney or the Attorney General of the United States as required by the rule, and his claim therefore should be dismissed under Rule 12(b)(4). Rule 4 makes clear, however, that the court must allow the plaintiff a reasonable time to cure the defect in service. I assume for purposes of this memorandum that Mr. Sullivan could and would cure this defect, and therefore go on to consider the defendants' further grounds for dismissal.
B. Subject Matter Jurisdiction
Under the long-standing doctrine of sovereign immunity, actions against the United States may be maintained only with its consent. Hawaii v. Gordon, 373 U.S. 57, 58 (1963). The consent of the United States must arise expressly from an act of Congress. United States v. Dalm, 494 U.S. 596, 608 (1990). The absence of a waiver of sovereign immunity deprives this court of jurisdiction in the matter. See Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475-76 (1994). Although the instant action nominally involves individual defendants, the acts complained of were taken by defendants in their official capacity as agents of the United States, and the relief requested operates only against the United States. Under such circumstances, the action is, in fact, one against the United States. See id.: Burgos v. Milton, 709 F.2d 1, 2 (1st Cir. 1983). I can find no provision under which Mr. Sullivan's complaint might arise wherein the United States has waived its immunity or consented to be sued. Therefore, sovereign immunity bars this action from proceeding further.
Assuming, arguendo, that the United States had waived its sovereign immunity, the Anti-Injunction Act would still substantially limit the authority of this court to order the relief requested by Mr. Sullivan, at least insofar as he seeks an injunction of a levy action. The Act provides, with exceptions not relevant here, "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed." 26 U.S.C. § 7421 (a). The purpose of the Act is to protect "the Government's need to assess and collect taxes as expeditiously as possible with a minimum of pre-enforcement judicial interference." Bob Jones Univ. v. Simon, 416 U.S. 725, 736 (1974) (internal citations omitted). The Supreme Court has recognized an exception to the general rule that the IRS can not be enjoined from assessing or collecting a tax if two conditions are met. First, an action for an injunction may be maintained when the taxpayer can show that under no circumstances could the government ultimately prevail on the merits of the tax claim at issue. See Enochs v. Williams Packing Navigation Co., 370 U.S. 1, 7 (1962). Second, once the taxpayer has shown that the government's case is futile, the taxpayer must also show that equity jurisdiction otherwise exists due to a threat of irreparable harm for which the taxpayer has no legal remedy. Id.
Even read liberally, Mr. Sullivan's complaint fails to satisfy' either prong of this test. Nothing in his complaint could lead one to conclude that the government could not, under any circumstances, prevail on the merits; he therefore fails to meet the first prong. Mr. Sullivan can not satisfy the second requirement of Enochs because the Tax Court would have had jurisdiction to provide a hearing before the levy, providing an alternative legal remedy. See 26 U.S.C. § 6330; Treas. Reg. § 301.6330-IT(f)(2)(1999); Goza v. Comm'r, 114 T.C. 176. Moreover, Mr. Sullivan has not articulated any harm other than that arising from the collection of his tax liability, and financial harm alone can not rise to the level of irreparable injury. See Enochs, 370 U.S. at 6. Therefore, the Anti-Injunction act precludes this court from issuing the injunctive relief Mr. Sullivan seeks.
This court is similarly without jurisdiction to issue the declaratory relief contemplated by Mr. Sullivan. Mr. Sullivan asks the court to reinstate his original CSRS submission and return him to tax exempt status. See Complaint at ¶ 4a. When the court otherwise has jurisdiction, it may "declare the rights and other legal relations of any interested party seeking such declaration." 28 U.S.C. § 2201 (a);Benvenuti v. Department of Defense, 587 F. Supp. 348 (D.D.C. 1984). Because this court does not otherwise have jurisdiction over some portion of Mr. Sullivan's claim, it can not issue declaratory relief. Even if jurisdiction otherwise existed, moreover, the act expressly excludes actions "with respect to Federal taxes." 28 U.S.C. § 2201 (a).
Finally, Mr. Sullivan's complaint might be viewed as a request for mandamus pursuant to 28 U.S.C. § 1361. Courts in this circuit, however, have not viewed that section as conferring independent jurisdiction on them when none otherwise exists. See Akins v. Saxbe, 380 F. Supp. 1210 (D.Me. 1974); Martinez v. Smith, 595 F. Supp. 778 (D.Puerto Rico 1984). Mr. Sullivan's action must be dismissed, therefore, because I can find no provision in which the United States waives its immunity from suit in circumstances such as these and because even if such a waiver existed, this court is without authority to hear the suit under the Anti-Injunction Act or the provisions authorizing Mandamus or Declaratory actions.
ORDER
For the foregoing reasons it is ordered:
(1) Defendants' Motion to Dismiss (Docket No. 8, filed July 2, 2001) is ALLOWED;
(2) The Clerk is directed to enter on a separate document a Final Judgment as follows:
For the reasons stated in the Memorandum and Order of October 25, 2001, it is hereby ORDERED:
This Civil Action is DISMISSED.