Opinion
NO. CIV-02-0609-HE
March 17, 2003
ORDER
Before the Court is a motion to amend the complaint filed by plaintiff (Doc. #9) and defendant's combined objection to the motion to amend and motion for partial dismissal (Doc. #17). Upon review, the Court concludes the plaintiffs motion to amend should be denied and the defendant's motion for partial dismissal should be granted.
In his motion to amend, plaintiff attempts to name the Internal Revenue Service ("IRS") and Revenue Officer David A. Parsons as defendants in this case. However, the IRS is not an entity which is subject to suit. As a result, it is not a proper party to this action. Krouse v. U.S. Gov't Treasury Dep't Internal Revenue Serv., 380 F. Supp. 219, 221 (C.D. Cal. 1974) (citing Blackmar v. Guerre, 342 U.S. 512, 515 (1952) ("When Congress authorizes one of its agencies to be sued eo nomine, it does so in explicit language, or impliedly because the agency is the offspring of such a suable entity.")). See Castleberry v. Alcohol. Tobacco Firearms Div., 530 F.2d 672, 673 n. 3 (5th Cir. 1976) (Congress has not authorized suits against the IRS); Pace v. Platt, 228 F. Supp.2d 1332, 1335 (N.D. Fla. 2002) (same). In addition, a suit against Mr. Parsons for actions taken in his official capacity is in effect a suit against the United States. See State of Hawaii v. Gordon, 373 U.S. 57, 58 (1963) ("relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter"). See also Atkinson v. O'Neill, 867 F.2d 589, 590 (1989). Therefore, the United States is the only proper party to this action. Accordingly, plaintiffs motion to amend the complaint to add the IRS and Mr. Parsons as defendants is DENIED.
In general, a claim for specific relief under the Mandamus Act against an officer who is alleged to have acted outside the scope of his authority, if established, would not be considered an action against the United States. See Larson v. Domestic Foreign commerce Corp., 337 U.S. 682, 689 (1949) ("There may be, of course, suits for specific relief against officers of the sovereign which are not suits against the sovereign."). However, any claims against Mr. Parsons in this capacity would be subject to dismissal for lack of jurisdiction unless plaintiff established a clear entitlement to mandamus relief See Marguez-Ramos v. Reno, 69 F.3d 477, 479 (10th Cir. 1995) ("the question of whether a particular act is discretionary or miniserial rises to the jurisdictional level"). In order to meet this burden plaintiff must show that Mr. Parsons has a plainly defined ministerial duty to perform the acts in question and that no other adequate remedy is available. See Heckler v. Ringer, 466 U.S. 602, 616 (1984) ("The common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy for a plaint if only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty."). Mandamus relief is not available to review discretionary acts of agency officials. See Marquez-Ramos, 69 F.3d at 479 ("to the extent a statute vests discretion in a public official, his exercise of that discretion should not be controlled by the judiciary"). Here plaintiff has not established a clear right to the relief sought nor identified a plaintiff prescribed, non-discretionary duty on the part of Mr. Parsons. As a result, mandamus relief against Mr. Parsons is inappropriate and it would be futile to add him as a defendant in this action.
In its motion for partial dismissal, defendant moves for dismissal of all of plaintiffs claims, except those related to a judicial review of plaintiffs Collection Due Process ("CDP") hearing conducted by the Internal Revenue Service. Defendant concedes the Court has subject matter jurisdiction over plaintiffs request for judicial review of his CDP hearing. See 26 U.S.C. § 6330(d) (providing judicial review of a CDP hearing). However, with respect to plaintiffs other claims which request mandamus relief, defendant asserts a lack of subject matter jurisdiction based on its sovereign immunity from suit.
Plaintiff cites four statutes as bases for subject matter jurisdiction: 5 U.S.C. § 702-706 (providing for judicial review of agency determinations under the Administrative Procedures Act); 26 U.S.C. § 6330(d) (providing for judicial review of a collection due process hearing); 28 U.S.C. § 1346(a) (providing jurisdiction for the recovery of any internal revenue tax erroneously assessed or collected); and 28 US.C. § 1361 ("providing for jurisdiction over actions in the nature of mandamus"). Having restricted his arguments in his response to the motion to dismiss to 26 U.S.C. § 6330 and 28 U.S.C. § 1361, plaint if concedes a lack of subject matter jurisdiction based on 28 U.S.C § 1346 and the Administrative Procedures Act. Therefore, those statutes will not be considered by the Court as bases for jurisdiction.
"It is well settled that the United States and its employees, sued in their official capacities, are immune from suit, unless sovereign immunity has been waived." Atkinson 867 F.2d at 590. See Tracy v. U.S., 426 F. Supp. 5, 6-7 (W.D. Okla. 1976) (officer acting within the scope of employment enjoys immunity from suit). A waiver of sovereign imnnnity cannot be implied, but must be explicitly expressed. Fostvedt v. U.S., 978 F.2d 1201, 1202-03 (10th Cir. 1992). General jurisdiction statutes, such as 28 U.S.C. § 1361, do not operate to waive sovereign immunity. Fostvedt, 978 F.2d at 1203; Lonsdale v. U.S., 919 F.2d 1440, 1443-44 (10th Cir. 1990).
In this case, the Court has subject matter jurisdiction to review only those issues properly raised at the CDP hearing. See LoofBourrow v. Comm'r of Internal Revenue Serv., 208 F. Supp.2d 698, 706 (S.D. Tex. 2002) ("It is well settled that judicial review is limited to those issues properly raised during the collection due process hearing.") (internal citations and quotations omitted); Martinec v. U.S., No. 01-1207, 2002 WL 1987734, at *2 (D. Nev. July 10, 2002) (finding judicial review limited to matters actually raised at the administrative hearing). Contrary to plaintiffs assertion, the Mandamus Act cannot be used to expand the scope of review under § 6330(d). See Marquez-Ramos, 69 F.3d at 479 n. 3 (the test for jurisdiction is "whether mandamus relief would be an appropriate means of relief'). Therefore, plaintiffs claims which seek to compel the United States to take action are barred by sovereign immunity. Accordingly, defendant's motion to dismiss plaintiffs mandamus claims is GRANTED.