Opinion
Civil Action No. 03-2063 (GK).
January 11, 2005
MEMORANDUM OPINION
Plaintiff, Roberta H. Jenkins, brings this action pro se against Dorothy W. Rucker and John W. Snow, in their official capacities, under the Fifth Amendment of the United States Constitution. Plaintiff alleges that tax policies implemented by Defendants violate her right to due process. This matter is now before the Court on Defendants' Motion to Dismiss. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons stated below, Defendants' Motion to Dismiss is granted in part and denied in part. I. BACKGROUND1
For purposes of ruling on a motion to dismiss, the factual allegations of the complaint must be presumed to be true and liberally construed in favor of the plaintiff. Shear v. Nat'l Rifle Ass'n of Am., 606 F.2d 1251, 1253 (D.C. Cir. 1979).
Defendants are individual employees of the Department of the Treasury or the Internal Revenue Service ("IRS") and have been sued in their official capacities. Pl.'s Opp. at 5. Plaintiff alleges that, from 1997 to 2003, Defendants subjected her to several tax policies that violated her right to due process.
Specifically, Plaintiff claims that Defendants: (1) maintained her name on a blacklist that includes individuals who criticize IRS policy; (2) improperly classified her as a "Withholding Agent `taxpayer,'" Compl. ¶ 15; and (3) inappropriately created a "Business Master File" for her, even though she does not own a business that would place her in that category.
Plaintiff's pro se Complaint does not specifically charge Defendants with particular violations. While the thrust of her allegations seems to be that Defendants maintained her name on a tax blacklist, the Complaint also extensively discusses the alleged decision to classify her as a "Withholding Agent taxpayer" and to create a "Business Master File" for her. Plaintiff does not define these terms, but the Court presumes, based on the allegations in the Complaint, that they are classifications made for the purpose of assessing taxes and that Plaintiff objects to those classifications.
Plaintiff alleges that these classifications have injured her by: (1) causing her missed business and employment opportunities; (2) damaging her credit report; (3) levying her Social Security benefits; and (4) causing stress and health problems.
On October 8, 2003, Plaintiff filed the instant action, claiming that the actions alleged violate the Due Process Clause of the Fifth Amendment. She seeks declaratory and injunctive relief.
II. STANDARD OF REVIEW
A complaint "should not be dismissed unless plaintiffs can prove no set of facts in support of their claim which would entitle them to relief." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Thus, "the complaint is construed liberally in the plaintiffs' favor, and we grant plaintiffs the benefit of all inferences that can be derived from the facts alleged." Id. However, if inferences or legal conclusions drawn by the plaintiffs are "unsupported by the facts set out in the complaint," the Court need not accept them. Id.
III. ANALYSIS
Defendants argue that the Complaint should be dismissed for four reasons. First, they contend that the Anti-Injunction Act ("AIA"), 26 U.S.C. § 7421, and the Declaratory Judgment Act ("DJA"), 28 U.S.C. § 2201, bar Plaintiff's claims. Second, they maintain that the doctrine of sovereign immunity bars Plaintiff's claims. Third, they assert that, even if Plaintiff is permitted to amend her Complaint to allege a different type of action, such as a refund action, she would still fail to state a claim. Fourth, they argue that Plaintiff's claims are moot because the IRS no longer maintains a blacklist of tax protestors.
Since the Court finds that Plaintiff's claim that Defendants kept her on a tax blacklist cannot be dismissed at this time, the Court need not reach this argument.
A. The AIA and DJA Require Dismissal of Plaintiff's Allegations of Improper Classification But Not Her Allegation of Placement on a Tax Blacklist
Defendant argues that the injunctive and declaratory relief sought by Plaintiff is barred by both the AIA and DJA because it involves the assessment and collection of taxes. Plaintiff counters that her allegation of a tax blacklist does not concern the assessment and collection of taxes and, therefore, is not barred by either statute.
The AIA prohibits lawsuits filed "for the purpose of restraining the assessment or collection of any tax." 28 U.S.C. § 7421(a). The "manifest purpose [of the AIA] is to permit the United States to assess and collect taxes alleged to be due without judicial intervention, and to require that the legal right to the disputed sums be determined in a suit for refund."Enochs v. Williams Packing Navigation Co., 370 U.S. 1, 7 (1962); see also Nat'l Taxpayers Union, Inc., v. United States, 68 F.3d 1428, 1435-36 (D.C. Cir. 1995).
Similarly, the DJA permits courts to issue declaratory judgments "except with respect to Federal taxes." 28 U.S.C. § 2201(a). Since the AIA and DJA are so similar, the analysis under the two provisions is identical. Nat'l Taxpayers Union, 68 F.3d at 1435 ("Because the AIA and DJA operate coterminously, the following analysis of the impact of the AIA upon [plaintiff's] complaint also determines the effect of the DJA").
In this case, Plaintiff alleges that Defendants improperly classified her as a "Withholding Agent `taxpayer'" and improperly classified her business by creating a "Business Master File." Compl. ¶¶ 14 and 15. Both of these allegations involve the propriety of placing Plaintiff in these categories for the purpose of collecting taxes. Claims like this involve the assessment and collection of taxes and could be addressed in a suit for refund. They therefore are barred because they fall within the scope of the AIA and DJA. Nat'l Taxpayers Union, 68 F.3d at 1435.
However, Plaintiff also contends that Defendants maintain her name on a tax blacklist. Under the Internal Revenue Service Restructuring and Reform Act of 1998, the IRS is prohibited from designating taxpayers as "illegal tax protestors." Pub.L. No. 105-206, 112 Stat. 685 (1998). Furthermore, Section 307(a)(2) of the Act requires the IRS to remove tax protestor designations from an individual's file. The allegation that Defendants maintain Plaintiff's name on a blacklist, therefore, is very different from her other allegations because it attempts to enjoin an illegal activity rather than the collection and assessment of taxes. Thus, Plaintiff's claim that Defendants have placed her on a tax blacklist does not fall within the scope of the AIA or DJA and therefore cannot be dismissed under those statutes.
B. Defendants' Argument that Plaintiff's Claims Are Moot Cannot Be Addressed at this Time
Defendants argue in their Reply brief that Plaintiff's tax blacklist claim is moot because the IRS no longer maintains a blacklist of tax protesters. Since Defendants raised this issue for the first time in their Reply brief, the Court cannot properly consider the argument at this time. See Kappus v. Comm'r of Internal Revenue, 337 F.3d 1053, 1058 n. 4 (D.C. Cir. 2003) ("`We generally will not entertain arguments omitted from [a litigant's] opening brief and raised initially in his reply brief'") (quoting McBride v. Merrell Dow Pharmaceuticals, Inc., 800 F.2d 1208, 1210 (D.C. Cir. 1986)). "Considering an argument advanced for the first time in a reply brief . . . is not only unfair to [a litigant] . . . but also entails the risk of an improvident or ill-advised opinion on the legal issues."McBride, 800 F.2d at 1211. The Court notes that the potential for unfairness is particularly high when, as here, the opposing litigant is appearing pro se.
However, the Court also realizes that, if Defendants' argument has merit, it would properly require the dismissal of Plaintiff's case. Therefore, in the interest of judicial economy, the Court will order Plaintiff to submit a response to Defendants' argument so this potentially important issue can be promptly addressed.
IV. Conclusion
For the foregoing reasons, Defendants' Motion to Dismiss is granted in part and denied in part. The Court concludes that: (1) Plaintiff's classification claims are barred by the AIA and DJA; and (2) Defendants' argument that the tax blacklist issue is moot cannot properly be decided at this time.
An appropriate Order will issue with this Opinion.