Opinion
No. 3:00-CV-300-J-21-TJC
December 10, 2001
ORDER
Filed herein is Respondents' Motion to Dismiss (Dkt. 4) Petitioner's "Verified Petition for Writ of Mandamus [or Writ of Certiorari, Prohibition or other Writ] as the Court deems appropriate remedy [Code of Civil Procedures § 1085, 1086, 1102, 1103]" (hereinafter "Petition") (Dkt. 2).
I. BACKGROUND
The facts giving rise to this Petition are set forth in the Petition, wherein Petitioner, Jerry L. Brantley, alleges in relevant part:
5. Petitioner on several separate occasions . . . requested, pursuant to the Administrative Procedures Act, an Impartial Adjudicatory Administrative Appeal Hearing. . . . All such requests were ignored and thereby denied as a violation of Petitioner's Rights to Due Process of the Law.
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6. The right of petitioner to be secure in his/her person, house, papers and effects against and [sic] unreasonable government seizure, is an unalienable right mandated in the 4th Amendment
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7. The 4th and 5th Amendments were, in truth and substance, created to prohibit the arbitrary, unlawful attack by the Government on a Citizen's private property and to afford all Citizens the right to due process and must be afforded an opportunity for a fair and impartial hearing. . . .
8. Petitioner has filed all proper claims and has adhered to all administrative remedies and requirements. . . .
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11. Petitioner has complied or has attempted to comply with all Administrative Procedures and was ignored by Respondent and denied all such redress of grievances. All such remedies have, thereby, been exhausted.
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16. Whereas, the deliberate bad-faith refusal of the respondent to perform such ministerial duty owed to Plaintiff [sic] has continued for quite some time, during which Petitioner was deprived of money, property and/or lien or liens on his/her person. Failure to perform duty by Respondent has resulted in mental anguish, embarrassment, and defamation of character to employer, bank, creditors, and others, creating additional damages to Petitioner.
The Petition prays for the following relief:
1. That the court issue a peremptory writ in the first instance commanding respondent to:
a) Issue signed Release of Levy for the years [sic] 1995;
b) Issue signed Releases of Liens for the years [sic] 1995;
c) Return property belonging to Petitioner, to which he has an immediate right to the legal, beneficial and possessory interest thereof, if applicable; and
d) Cease and desist all future collection activity against Petitioner until such a time as respondent can substantiate the claim with evidence and adhere to proper administrative procedure;
2. That the court, alternatively, first issue a writ commanding respondent(s) to perform the above ministerial duties or in the alternative, appear to show cause and provide evidence why they have no duty to do so, verifying that such information is true and correct, under the penalty of perjury of the State of Florida;
3. For damages as this Court deems just; and
4. For costs of this proceeding and for such other and further relief as the honorable court deems appropriate.
Attached to the Petition is an eight page "Memorandum of Points and Authorities in Support of Petition for Writ of Mandate, Mandating Return of Petitioner's Property Until Adhering to Due Process of Law and Providing 4th Amendment Warrant." Petitioner has also attached twenty pages of exhibits, including a "Notice of Federal Tax Lien" for $8,113.84, which Petitioner received on December 22, 1999. Attached to the Notice were certain documents, including Form 12153, Request for a Collection Due Process Hearing. Thereafter, on January 6, 2000, Petitioner sent the IRS a fifteen page response thereto entitled "Claim for Release of Erroneous Notice of Lien/Levy."
The Petitioner originally filed this matter in Florida state court on January 24, 2000 against Respondents, District Director, Jacksonville, Florida in his individual capacity, and Does I-XX. Respondents removed the case to this Court on March 21, 2000, pursuant to 28 U.S.C. § 1441 (a), 1442(a)(1), or 1444 and filed the instant Motion to Dismiss seeking dismissal with prejudice.
It appears from the Petitioner's Complaint that Does I-XX, whose identities are to be determined through the discovery process, are also agents and officers of the IRS.
II. DISCUSSION
In evaluating the sufficiency of a complaint for purposes of a motion to dismiss, as a general matter the allegations of the complaint must be accepted as true, Id., Hishon v. King Spalding, 467 U.S. 69, 73 (1984), and viewed in a light most favorable to the plaintiff. See Cannon v. Macon County, 1 F.3d 1558, 1565 (11th Cir. 1993) (citing Scheuer v. Rhodes, 416 U.S. 232 (1974)). A petition, as submitted herein, is analogous to a complaint. A complaint should not be dismissed for failure to state a claim unless it appears "beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A complaint is sufficiently pled "if it shows that the plaintiff is entitled to any relief which the Court can grant, regardless of whether it asks for the proper relief." Dotschay v. Nat. Mutual. Ins. Co. of District of Columbia, 246 F.2d 221, 223 (5th Cir. 1957). With regard to the sufficiency of a complaint filed by a pro se plaintiff, courts should show leniency to pro se litigants not enjoyed by those with the benefit of a legal education; nevertheless, even in the case of pro se litigants, such leniency does not give a court license to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading in order to sustain an action. See GJR Investments, Inc. v. County of Escambia, Florida, 132 F.3d 1359, 1369 (11th Cir. 1998).
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions rendered by the former Fifth Circuit prior to October 1, 1981.
A. Insufficiency of Service of Process
Respondents argue that process was not properly served upon either the United States, which Respondents argue is the proper party respondent, or the individually-named Respondents. Therefore, Respondents maintain that this Court lacks jurisdiction over the Respondents. This argument is unavailing because this case was filed in state court. Proper service of process in Florida is governed by § 48.031(a), Florida Statutes, which provides:
Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper. . . .
Respondent, District Director of the Internal Revenue Service in Jacksonville, Florida was properly served under state law with a summons and the Petition on February 25, 2000.
As to the Respondents claim that Petitioner's service fails under federal law, the Court notes that under Rule 81(c), Federal Rules of Civil Procedure, "[t]hese rules apply to civil actions removed to the United States district courts from the state courts and govern procedure after removal." (emphasis added).
Even assuming arguendo that service under Florida and Federal law was improper, Petitioner's failure to properly serve the Respondents as required by Federal law does not necessitate dismissal. In fact, Rule 4 (i), Federal Rules of Civil Procedure, which governs service of process upon the United States, and its agencies, corporations, or officers, includes a provision which "saves the plaintiff from the hazard of losing a substantive right because of failure to comply with the complex requirements of multiple service under this subdivision." Rule 4 (i), Advisory Committee Notes, 1993 Amendments. This provision, as recently amended, instructs the Court to allow Petitioner a "reasonable time to serve process under Rule 4(i) for the purpose of curing the failure to serve. . . ." Moreover, according to the 1993 Advisory Committee Notes, this provision is to be read in conjunction with Rule 15 (c), which relates to the amendment of pleadings.
Under Rule 4i, proper service herein would have been effectuated by delivering a copy of the Summons and Petition by registered or certified mail to the civil process clerk at the office of the United States attorney for the Middle District of Florida, to the Attorney General of the United States in Washington. DC. and to the individually-named officer or agency.
The comments in the Historical Notes section for the 2000 Amendments to Rule 4(i) are instructive:
Paragraph (3) is amended to ensure that failure to serve the United States . . . does not defeat an action. This protection is adopted because there will be cases in which the plaintiff reasonably fails to appreciate the need to serve the United States. There is no requirement, however, that the plaintiff show that the failure to serve the United States was reasonable. A reasonable time to effect service on the United States must be allowed after the failure is pointed out.
Accordingly, as to the insufficiency of the service of process, the Court finds that the District Director has been properly served under the applicable law and Respondents' motion to dismiss on these grounds is due to be denied.
B. Proper Party
A review of the Petition reveals that the allegations involved in this lawsuit concern the actions of IRS officers and agents acting in their official capacities. Petitioner seeks to enjoin the IRS officer and agents from collecting taxes and for other unspecified damages and costs. While Petitioner attempts to state these claims against the individual officers, "[t]he general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter." State of Hawaii v. Gordon, 373 U.S. 57, 58 (1963); State of Florida, Dept. of Bus. Reg. v. United States Dept. of Interior, 768 F.2d 1248, 1251 (11th Cir. 1985).
An action for damages is considered to be against the sovereign if the resulting award for damages would be collected from the public treasury. See Dugan v. Rank, 372 U.S. 609, 620 (1963). Herein there is no question that the unspecified damages sought by Petitioner for the improper lien on his property would be recoverable from the public treasury. Any injunction issued by this Court regarding the collection of taxes would enjoin the IRS from acting or compel it to act and would interfere with the public administration of the Federal income tax laws. The United States is, therefore, entitled to be substituted as the proper party respondent for all claims wherein the Petitioner seeks unspecified damages and injunctive relief. Id.
The United States is not, however, a proper party for allegations of Constitutional violations by a federal agent or officer. Such claims may be brought only as a Bivens action, but even if properly designated as such, these claims would fail. Where Congress has provided an adequate remedy, a Bivens action is improper. See Schweiker v. Chilicky, 487 U.S. 412, 423 (1988) ("When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies"). The Eleventh Circuit has expressly adopted this limitation on Bivens actions, but has not directly applied this reasoning to a taxpayer's claims.
See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics 403 U.S. 388 (1971).
See e.g., Lee v. Hughes. 145 F.3d 1272, 1275 (11th Cir. 1998) (wherein a federal employee who is not afforded administrative or judicial remedy under Civil Service Reform Act of 1978 is nonetheless precluded from bringing Bivens claim to recover monetary damages for alleged constitutional violations); Miller v. United States Dept. of Agri. Farm Services Agency, 143 F.3d 1413, 1415 (11th Cir. 1998) (holding that "[b]ecause of its better vantage point, Congress may preclude a Bivens-type constitutional action by express declaration or by creating an exclusive statutory remedy"); Stephens v. Dept. of Health and Human Services, 901 F.2d 1571. 1574 (11th Cir. 1990) (holding that the Civil Service Reform Act provides the exclusive remedy for preference-eligible, as well as non preference-eligible, federal employees who challenge allegedly prohibited personnel practices and that the employee's claim that his constitutional rights had been violated did not provide a separate basis for a Bivens claim).
It is settled that a taxpayer's exclusive remedy for the improper collection of taxes is set forth in the Internal Revenue Code:
(a) In general. — If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence disregards any provision of this title, or any regulation promulgated under this title, such taxpayer may bring a civil action for damages against the United States in a district court of the United States. Except as provided in section 7432, such civil action shall be the exclusive remedy for recovering damages resulting from such actions.26 U.S.C. § 7433. While the exclusivity of this section does not prohibit a taxpayer from bringing a cause of action against IRS officers or agents for allegations of Constitutional violations in connection with the collection of taxes, the courts which have addressed this issue have declined to create a Bivens cause of action. The Court is persuaded by the reasoning of these courts and, accordingly, any claims of Constitutional violations in the collection of taxes against individuals are due to be dismissed.
See e.g., Fishburn v. Brown, 125 F.3d 979, 982-83 (6th Cir. 1997); Vennes v. An Unknown Number of Unidentified Agents of the United States, 26 F.3d 1448, 1453-54 (8th Cir. 1994); McMillen v. United States Dep't of Treasury, 960 F.2d 187, 190-91 (1st Cir. 1991); Schwarz v. United States, 234 F.3d 428, 434 (9th Cir. 2000); Gassaway v. United States, 188 F.3d 518, (10th Cir. 1999); Jenkins v. Internal Revenue Service, 1994 WL 806075 *5 (N.D. Ga. 1994).
Next, the Court reviews Petitioner's claim that Respondents' actions have resulted in his "mental anguish, embarrassment, and defamation of character to employer, bank, creditors, and others. . . ." First, even looking at the Petition in the light most favorable to Petitioner, there are no factual allegations of tortious behavior and, thus, no basis for these claims. The allegations in the Petition merely reflect collection efforts by the IRS. This claim is not properly brought against the individual officers and agents as stated in § 7433, but would be properly brought against the United States.
Therefore, as all claims brought against the individuals are either not allowed or are required to be brought against the United States, the individuals named herein are due to be dismissed from this action as there are no claims remaining against them.
To the extent that the Petition states a claim against the United States for the improper collection of taxes resulting in emotional harm, the United States is immune from this type of lawsuit. See Federal Torts Claims Act, 28 U.S.C. § 1346 (b) and 2680(a) and (c) (excluding claims based upon the performance of a discretionary function by a government official as well as claims arising out of the assessment and collection of taxes). Thus, the tort claim against the United States is due to be dismissed.
C. Anti-Injunction Act
To the extent that Petitioner seeks to enjoin the Respondents from continuing the collection process, this claim is due to be dismissed because the Court is barred from restraining the IRS under the Anti-Injunction Act, 26 U.S.C. § 7421 (a), which provides, in pertinent part:
(a) Tax. — Except as provided in sections 6015(e), 6212(a) and (c), 6213(a), 6225(b), 6246 (b), 6330(e)(1), 6331(i), 6672(c), 6694(c), 7426 (a) and (b)(1), 7429(b), and 7436, 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.
It does not appear, from a thorough review of the Petition and its attachments, that any of the statutorily listed exceptions apply. Neither do the claims herein fall within the judicial exception to the Anti-Injunction Act. See Commissioner v. Shapiro, 424 U.S. 614, 627 (1976) ("[A]n injunction may be obtained against the collection of any tax if (1) it is clear that under no circumstances could the government ultimately prevail and (2) equity jurisdiction otherwise exists, i. e., [t]he taxpayer shows that he would otherwise suffer irreparable injury") (citing Enochs v. Williams Packing Navigation Co., Inc., 370 U.S. 1, 7 (1962)).
Sections 6015(e), 6212(a), 6212(c), and 6213(a) involve a notice of deficiency. Sections 6225(a) and 6246(b) pertain to partnership matters. Sections 6330(e)(1) and 6331 pertain to levy and distraint. Section 6331(i) provides for an injunction for any unpaid divisible tax. Section 6672 pertains to the failure to collect and pay over tax or attempt to evade or defeat tax. Section 6694 pertains to the understatement of a taxpayer's liability by an income tax return preparer. Section 7426 pertains to civil actions by persons other than taxpayers. Section 7429 pertains to review of jeopardy levy or assessment procedures. Section 7436 pertains to proceedings for determination of employment status.
The heavy burden of establishing exceptions to the Anti-Injunction Act fall on the Petitioner. See McCabe v. Alexander, 526 F.2d 963, 965 (5th Cir. 1976). Petitioner fails in this respect. As no exceptions apply, this claim is due to be dismissed.
D. Right to a Hearing
The Court turns now to the last remaining count against the United States concerning its failure to grant Petitioner a hearing after placing a lien on his property. The IRS sent Petitioner a "Notice of Federal Tax Lien Filing and Your Right to a Hearing under IRC 6320" which he attached to his Petition. As stated in that form, Petitioner has the right to a post-lien hearing under 26 U.S.C. § 6320. Attached to the Notice was Form 12153, Request for a Collection Due Process Hearing ("CDP hearing").
Petitioner did not complete and submit Form 12153; rather, Petitioner responded to the Notice with a fifteen-page "Claim for Release of Erroneous Notice of Lien/Levy" on January 6, 2000. Assuming arguendo that the response sent by the Petitioner was sufficient to request a CDP hearing, the hearing must be conducted by the IRS Office of Appeals. See 26 U.S.C. § 6320 (b)(1).
The Court notes that Temp. Treas. Reg. § 6320-IT(c)(2), Q. A. C-1 states that a "written request in any form, which requests a CDP hearing, will be acceptable." The Petitioner did not specifically refer to 26 U.S.C. § 6320 in his response, but rather submitted a fifteen page, mostly single-spaced, rambling letter wherein much of what is stated appears to be without foundation or application to this matter. However, Petitioner does entitle his submission:
Claim for Release of Erroneous Notice of Lien/Levy Appeal Alleging Procedural Errors in Filing of Notice of Tax Lien
Demand for Impartial Judicial Appeal Hearing if Claim is Denied and he does demand a certificate of release of notice of lien/levy. This alone may have been sufficient to trigger the requirement that the IRS conduct a CDP hearing. The Court does not herein address whether Petitioner's prolix document sufficiently requested such a hearing, but out of an abundance of caution assumes that it did so.
Petitioner argues that the IRS failed to respond to his request within thirty days and that, therefore, his request had been ignored and thereby denied. In that regard, the Court notes that Petitioner filed this case on January 24, 2000, only eighteen days after he submitted his request to the IRS. Moreover, there is no statutory language that sets forth a time frame for the hearing nor a time limit for the IRS's response to a request for a CDP hearing. See, also, Temp. Treas. Reg. § 301.6320-IT(e)(3), Q. A. E-8 (2001) (stating that there is no time limit on the CDP hearing but that the IRS Office of Appeals will attempt to conduct the hearing as "expeditiously as possible").
The validity of Petitioner's claim is determined by the actions and conduct of the IRS at the time Petitioner asserted his claim and filed the subject Petition. The mere passage of time does not breathe life into a claim that is without foundation. Whether any such right to assert a claim, either in this Court or the Tax Court, regarding denial of due process for the IRS's failure to hold a CDP hearing, matured subsequent to the filing of this suit is not before the Court.
The Court does not decide here whether the Tax Court would have exclusive jurisdiction over a claim that Petitioner has been denied due process because he has not yet had a hearing.
III. CONCLUSION
All claims stated by Petitioner are due to be dismissed. As to whether the dismissal should be with prejudice, the Eleventh Circuit instructs that:
[g]enerally, "[w]here a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice." Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991). A district court need not, however, allow an amendment (1) where there has been undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by amendments previously allowed; (2) where allowing amendment would cause undue prejudice to the opposing party; or (3) where amendment would be futile.
Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Herein, even if the Petition was properly organized into a complaint with distinct causes of action against specific defendants, there are no violations which would give rise to a proper cause of action against the individual officers and agents of the IRS nor the United States as discussed in detail above. However, the dismissal ordered herein is not intended to address any claims which may have accrued or matured subsequent to the filing of this suit.
Accordingly, upon consideration thereof, it is hereby ORDERED:
1. Respondents' Motion to Dismiss is GRANTED and this Petition is dismissed with prejudice.
2. The Clerk is directed to CLOSE this file and terminate all pending motions and delete this case from the roll of pending cases.
DONE AND ORDERED, at Jacksonville, Florida.