Opinion
Case No. 3:00-CV-1002-J-25TJC
May 25, 2001
ORDER
This cause is before the Court on Plaintiff's Affidavit Challenging Jurisdiction for Removal (Dkt. 9) which the Court shall treat as a motion to remand, Defendants Charles O. Rossotti, R. Erin Whitney, Mike Maltby, Robert G. Johnson, and Ted Brown's Motion to Dismiss and Memorandum in Support Thereof (Dkt. 10), and Plaintiff's response (Dkt. 11). Upon consideration, the Court finds as follows:
Plaintiff, appearing pro se, filed this action in state court. Plaintiff's complaint alleges violations of Florida Statutes §§ 671.103, 671.207, 673.305, 817.03, and 812.014 as a result of a wage levy and other collection efforts taken by the Internal Revenue Service to collect Plaintiff's federal tax debt. Defendants Charles O. Rossotti, R. Erin Whitney, Mike Maltby, Robert G. Johnson, and Ted Brown's ("Defendants") removed this case to federal court on September 8, 2000.
Plaintiff asserts that Defendants improperly removed this action and seeks to have this matter remanded to state court. Contrary to Plaintiff's arguments, Defendants properly removed this case pursuant to 28 U.S.C. § 1442, which states:
(a) A civil action or criminal prosecution commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of revenue.
Consequently, this action was properly removed from state court.
In their motion to dismiss, Defendants contend that this action, although alleged to be brought against Defendants in their individual capacities, is actually an action against Defendants in their official capacities. Plaintiff's complaint appears to be seeking relief from a wage levy imposed by the Internal Revenue Service. Plaintiff does not allege that Defendants have failed to comply with any applicable sections of the Internal Revenue Code; instead, Plaintiff argues that Defendants, through theft, deception, and fraudulent means, obtained control over Plaintiff's property. See Plaintiff's complaint at ¶¶ 1, 2. Plaintiff also appears to argue that Defendants violated federal debt collection statutes in attempting to collect Plaintiff's tax debt. Accordingly, the Court finds that this action should be treated as one against Defendants in their official capacities as revenue officers for the United States.
The Court uses the term "appears" because Plaintiff's complaint, which completely fails to comply with the requirements of Rules 8(a) and 10(b) of the Federal Rules of Civil Procedure, contains over 100 paragraphs that have little, if anything, to do with any actions taken by Defendants.
Plaintiff does allege that Defendants failed to comply with a section of the Internal Revenue Code dealing with jeopardy levy or assessment procedures but has alleged no facts that indicate he is the subject of a jeopardy levy or assessment.
A suit against a governmental official in his or her official capacity is actually a suit against the governmental entity that he or she represents, which in this case is the United States. Kentucky v. Graham, 473 U.S. 159, 166 (1985); see also Rosado v. Curtis, 885 F. Supp. 1538, 1542 (M.D. Fla. 1995) (recognizing that suit against IRS employee in his official capacity is suit against United States) (citation omitted)), aff'd without opinion, 84 F.3d 437 (11th Cir. 1996). Under the doctrine of sovereign immunity, no relief may be awarded against the United States, unless it has expressly and unequivocally waived its sovereign immunity and consents to be sued. See Department of Army v. Blue Fox, Inc., 525 U.S. 255, 260-61 (1999). Because the United States has not waived its immunity or consented to be sued under Florida Statutes §§ 671.103, 671.207, 673.305, 817.03, and 812.014, the Court finds that it lacks subject matter jurisdiction over these claims, and thus they should be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
Plaintiff's complaint may also allege a violation of the Fair Debt Collection Practices Act. See Plaintiff's complaint at ¶¶ 18, 19. However, the act specifically excludes from the definition of a "debt collector" "any officer or employee of the United States or any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties." 15 U.S.C. § 1692(6)(c). Further, Plaintiff may also allege a violation of the Federal Debt Collection Procedures Act, see Plaintiff's complaint at ¶ 21, which excludes from its coverage collection of taxes by the United States under any Federal or State law. 28 U.S.C. § 3003(b)(1). Consequently, Plaintiff has failed to plead a cause of action against Defendants based on either of these statutes.
Accordingly, it is ORDERED:
1. Plaintiff's Affidavit Challenging Jurisdiction for Removal (Dkt. 9) is DENIED.
2. Defendants Charles O. Rossotti, R. Erin Whitney, Mike Maltby, Robert G. Johnson, and Ted Brown's Motion to Dismiss and Memorandum in Support Thereof (Dkt. 10) is GRANTED, and this action is hereby DISMISSED WITH PREJUDICE as to Charles O. Rossotti, R. Erin Whitney, Mike Maltby, Robert G. Johnson, and Ted Brown.
3. The Clerk is DIRECTED to enter Judgment in favor of Defendants Charles O. Rossotti, R. Erin Whitney, Mike Maltby, Robert G. Johnson, and Ted Brown and against Plaintiff.
4. Plaintiff shall show cause within ten (10) days of the date of this order as to why this matter should not be dismissed as to defendant David Carver for Plaintiff's failure to timely serve said defendant. A failure to timely respond shall result in dismissal of this matter as to defendant David Carver without further order or notice of the Court .