Opinion
Case No. CV00-714-N-EJL
September 19, 2002
ORDER
The following motions are currently pending before this Court: (1) Plaintiff's Motion to Amend the Complaint (Docket No. 13); (2) Plaintiffs Motion for Pre-Trial Hearing (Docket No. 15); (3) Motion to Dismiss for Defendants Scott and Miller (Docket No. 16); (4) Motion to Dismiss for Defendants Kratina and Burlington Northern Santa Fe (Docket No. 18); (5) Plaintiffs Motion to Strike the Court's Denial of Temporary Restraining Order (Docket No. 24); and (6) Plaintiffs Motion for Judgment (Docket No. 25).
Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and current record. Accordingly, in the interest of avoiding further delay, and because the Court finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without a hearing.
I. BACKGROUND
Plaintiff is an employee of Burlington Northern Santa Fe Railroad Company (BNSF). In January of 2000, Internal Revenue Service (IRS) employee, John Miller, sent a letter to BNSF notifying them about the due date for filing new Forms W-4, Plaintiff was notified that he needed to file a new Form WA for the tax year 2000. In February of 2000, Plaintiff submitted a document in lieu of the Form W-4, and claimed zero tax liability for the 2000 tax year. Plaintiff received a letter from W.B. Scott. an IRS employee, informing him that BNSF had been instructed to disregard Plaintiffs document in lieu of Form W-4. Plaintiff demanded to know the basis for the IRS determination regarding the deficiency of his document in lieu of Form W-4.
Plaintiff notified BNSF to stop withholding money from his wages until the IRS provided authority for its directive. Starting on September 15, 2000, BNSF withheld money from Plaintiffs wages. BNSF's employee, Sheila Kratina, notified Plaintiff that. despite his objections, taxes would continue to be withheld from his wages pursuant to the IRS directive. Ms. Kratina was allegedly relying upon a directive from John Miller.
Plaintiff has sued BNSF, Sheila Kratina, John Miller, and W.B. Scott. Plaintiff asserts 28 U.S.C. § 1343 and § 1983 as the basis for this Court's jurisdiction. He also alleges that Defendants have formed a conspiracy against him to deny his due process rights. Plaintiff claims that he has fallen behind in his personal financial commitments and his credit rating has suffered as a result of the alleged wrongful tax withholding. As a remedy, Plaintiff demands that Defendants return the funds withheld from his wages and pay him monetary damages.
28 U.S.C. § 1343 provides for this Court's jurisdiction over civil actions involving civil rights violations under color of state law. See 28 U.S.C. § 1343(a)(3). The statute also specifically mentions jurisdiction over cases violating 42 U.S.C. § 1985, governing conspiracies to violate civil rights. See 28 U.S.C. § 1343(a)(1) and (2). The statute also covers jurisdiction in voting rights cases. See 28 U.S.C. § 1343(a)(4). Plaintiffs claims are not properly brought under § 1343. This Court has jurisdiction over this case under 28 U.S.C. § 1346 which involves matters brought against the United States for erroneously collected taxes. See 28 U.S.C. § 1346(a)(1).
On January 2, 2001, Plaintiff filed a Motion to Amend the Complaint. The Motion did not contain a proposed amended complaint. In the body of the motion, Plaintiff requested leave to insert a new paragraph into the Complaint, alleging that he brings his lawsuit as a "Bivins" action, rather than a § 1983 action. See Docket No. 13.
On February 1, 2001, Defendants filed motions to dismiss Plaintiffs Complaint. A Notice to Pro Se Litigants of the Summary Judgment Rule Requirements was sent to Plaintiff on February 2, 2001. Apparently in response to the Notice, Plaintiff filed a Motion for Judgment on February 12, 2001.
II. PLAINTIFF'S MOTION TO AMEND
Prior to the time Defendants filed Motions to Dismiss, Plaintiff tiled a Motion to Amend his Complaint. The general rule is that a party may file an amended complaint once as a matter of course at any time before a responsive pleading is served. See Fed.R.Civ.P. 15. The problem with Plaintiffs motion is that it failed to include an amended complaint. An amended complaint must contain all of the allegations in a single pleading, and cannot rely upon or incorporate by reference prior pleadings. See D. Idaho L. Civ. R. 15.1 ("Any amendment to a pleading, whether filed as a matter of course or upon a motion to amend, shall reproduce the entire pleading as amended.").
It appears from Plaintiff's Motion to Amend that his amended complaint would delete the reference to 42 U.S.C. § 1983, and instead allege that the action was being brought as a "Bivins" action. The Court assumes that Plaintiff is referring to the case of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). Bivens authorized plaintiffs to sue federal employees acting under the authority of federal law for constitutional rights violations. Id., 91 S.Ct. at 2005. Whereas, § 1983 allows plaintiffs to sue those acting under the authority of state law for constitutional rights violations. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).
For purposes of resolving the outstanding motions in this case, the Court will consider the new allegation Plaintiff has set forth in his Motion to Amend as part of the Complaint in his case. On that basis, the Court grants Plaintiffs Motion to Amend the Complaint (Docket No. 13).
III MOTION FOR PRETRIAL HEARING
Plaintiff also filed a Motion for Pretrial Hearing. The motion requests that the Court make determinations about the following matters: (1) assess the validity of the lawsuit; (2) determine the statutory authority under which the IRS employees were acting; (3) determine whether the United States is a proper defendant; (4) and determine whether Plaintiff is entitled to the home addresses of the named Defendants. See Docket No. 15.
As previously stated in this Order, the Court has determined that a ruling on the various outstanding motions may be made without an oral argument. The various issues on which Plaintiff seeks determination will be dealt with in this Order. Accordingly, the Motion for Pretrial Hearing (Docket No. 15) is denied.
IV. MOTIONS TO DISMISS
Motions to Dismiss have been filed on behalf of all Defendants. Defendants Miller and Scott (federal Defendants) challenge the sufficiency of the Complaint under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Defendants BNSF and Kratina bring their motion to dismiss under Rule 12(b)(6).
A. Sovereign Immunity
The federal Defendants raise the issue of sovereign immunity as a basis for dismissal under Rule 12(b)(1) due to lack of subject matter jurisdiction. "The United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769-70 (1941) (citations omitted); see also Arnsberg v. United States, 757 F.2d 971, 977-78 (9th Cir. 1985) (no right to money damages against United States without sovereign immunity waiver). "A waiver of sovereign immunity `cannot be implied but must be unequivocally expressed' by Congress." Doe v. Attorney General of the United States, 941 F.2d 780, 788 (9th Cir. 1991) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503 (1969)). Plaintiff bears the burden of showing that the United States has unequivocally waived its sovereign immunity. See Baker v. United States, 817 F.2d 560, 562 (9th Cir. 1987), cert. denied, 487 U.S. 1204 (1988).
Plaintiff has not shown a waiver of sovereign immunity in his lawsuit against the IRS agents. Thus, to the extent Plaintiff sues the federal Defendants in their official capacities as IRS agents, the Court lacks subject matter jurisdiction, and the claims are subject to dismissal. See Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) (dismissing a suit against IRS agents in their official capacities due to lack of subject matter jurisdiction).
Plaintiff submitted a pleading in opposition to dismissal which sets forth an argument regarding admiralty law and federal jurisdiction. He appears to be claiming that admiralty law provides the necessary subject matter jurisdiction for this Court to proceed with his claims. Plaintiff also states that "federal employment tax laws cannot be applied to him because he has not entered federal jurisdiction by contract or otherwise." Docket No. 29, p. 4-5. The Court has been unable to discern the basis for Plaintiff's argument, and, therefore, has difficulty responding to it. The law as set forth above regarding sovereign immunity has been derived from a long history of case law in our country regarding claims against the federal government. Plaintiff may not agree with the law, but this Court is bound by it in ruling on his case.
B. Civil Rights Conspiracy
Defendants also request dismissal of Plaintiff's Compliant on the basis that the conspiracy allegations fail to state a claim upon which relief may be granted. See Fed.R. Civ, P. 12(b)(6). A complaint should not be dismissed for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987) (quoting Conley v. Gibson, 355 U.S. 41, 4546, 78 S.Ct. 99, 102 (1957)). In reviewing a case for dismissal, the Court is required to treat all allegations of material fact as true and to construe them in a light most favorable to the non-moving party. Id. (quoting Western Reserve Oil Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir. 1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795 (1986)).
Courts must liberally construe civil rights actions filed by pro se litigants, so as not to close the courthouse doors to those truly in need of relief Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). A pro se litigant bringing a civil rights suit must have an opportunity to amend the complaint to overcome deficiencies, unless it is clear that amendment would be futile. See Lopez v. Smith, 203 F.3d 1122, 1128 (9th Cir. 2000) (a pro se pleading may be dismissed without notice of the deficiencies and an opportunity to amend if a complaint lacks merit entirely and cannot be saved by amendment).
Plaintiffs Complaint contains vague and conclusory allegations regarding a conspiracy between the federal Defendants and the BNSF Defendants to violate his civil rights "under the color of U.S. Territorial laws." Although Plaintiff does not specifically mention 42 U.S.C. § 1985 as the basis for his conspiracy claim, the statute upon which he claims this Court has jurisdiction refers to it.
Section 1985 governs conspiracies to interfere with civil rights. In order to state a claim under this section, Plaintiff must allege a racial or class-based discriminatory animus behind the conspirators' actions. See Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989); see also A A Concrete, Inc. v. White Mountain Apache Tribe, 676 F.2d 1330, 1333 (9th Cir. 1982) (claims under sections 1985(2) and 1985(3) require the element of class-based animus). Plaintiff does not allege a racial or other protected class-based animus, therefore, his conspiracy claim brought under § 1985 fails to state a claim upon which relief may be granted.
To the extent Plaintiff alleges a conspiracy to violate civil rights based on other statutory grounds, the Complaint fails to state a claim upon which relief may be granted. The Complaint is devoid of allegations linking the Defendants to conspiratorial acts. Plaintiff has alleged that the IRS agents sent letters to him and made directives to his employer regarding tax withholding, and his employer followed the directives. Vague and conclusory allegations of participation in a conspiracy to violate civil rights are inadequate to withstand a Rule 12(b)(6) motion. See Gibson v. United States, 781 F.2d 1334, 1343 (9th Cir. 1986). Based on the foregoing, Plaintiff's conspiracy to violate civil rights claim is dismissed as to all Defendants.
C. Constitutional Rights Violations
Plaintiffs Complaint alleges that the Defendants' acts deprived him of property without due process in violation of the "Constitution and laws of the United States." Docket No. 1, p. 1. He appears to be alleging both Fourth and Fifth Amendment violations. In order for Plaintiff to sue the federal Defendants in their personal capacities, he must allege acts violating his clearly established constitutional rights. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 392, 91 S.Ct. 1999, 2005 (1971) (authorizing lawsuits against federal employees acting under the authority of federal law for constitutional rights violations); Branch v. Tunnell II, 937 F.2d 1382, 1386 (9th Cir. 1991).
The Constitution of the United States, Article I, Section 8, provides for the "Power to lay and collect Taxes, Duties, Imposts and Excises." Based on this power, the Ninth Circuit has "never recognized a constitutional violation arising from the collection of taxes." Wages v. Internal Revenue Service, 915 F.2d 1230, 1235 (9th Cir. 1990). "The prompt collection of taxes is necessary for the nation's continued existence and is an important governmental interest that justifies postponing notice and an opportunity for a hearing." Stonecipher V. Bray, 653 F.2d 398, 401 (9th Cir. 1981) (holding that the IRS was not required to grant the tax payer a hearing prior to a determination that his exemption from federal tax withholding was denied). The allegations in Plaintiffs Complaint fall squarely within the taxing authority of the IRS. See id, 653 F.2d at 402 (IRS employee has explicit grant of authority to review Forms W-4 and declare invalid those he or she determines are invalid). Consequently, Plaintiffs Fourth and Fifth Amendment rights have not been violated, and his Complaint fails to state a claim upon which relief may be granted. The alleged constitutional rights violations claims against the federal Defendants are also dismissed.
D. Claims Against Plaintiff's Employer
Plaintiffs remaining claims against BNSF and Defendant Kratina all stem from his employer's decision to follow the IRS directive to deduct federal taxes from his wages. In a case analogous to Plaintiff's, the Ninth Circuit held that an employer was required to follow IRS directives regarding withholding taxes from an employee's wages. See Maxfield v. United States Postal Service, 752 F.2d 433, 434 (9th Cir. 1984) (finding that 26 U.S.C. § 3402 does not provide an employer discretion to decide against withholding taxes). Further, the Court held that "the employer is immune from liability to the employee for the withholding, since the duty to withhold is mandatory, rather than discretionary." Id.
Internal Revenue Code, 26 U.S.C. § 3403 provides that an employer is liable to the IRS for withholding taxes, but the employer "shall not be liable to any person for the amount of any such payment." 26 U.S.C. § 3403. "Thus, suits by employees against employers for tax withheld are `statutorily barred.'" Bright v. Bechtel Petroleum Inc., 780 F.2d 766, 770 (9th Cir. 1986) (quoting Chandler v. Perini Power Constructors, Inc., 520 F. Supp. 1152, 1153 (D.N.H. 1981)).
In both the Maxfield and Bright cascs, the plaintiffs appealed the dismissal of their lawsuits to the Ninth Circuit Court of Appeals. The appeals were found to be without merit, and the Court awarded attorney fees and double costs to the defendants. See Maxfield, 780 F.2d at 434; Bright, 780 F.2d at 772.
Based on the foregoing analysis, Plaintiff's Complaint against his employer and Defendant Kratina fail to state a claim upon which relief may be granted. The claims against these Defendants are also dismissed.
V. PLAINTIFF'S ADDTTIONAL MOTIONS
Plaintiff also filed a Motion to Strike this Court's Order denying his request for a temporary restraining order (Docket No. 24) and a pleading entitled "Motion for Judgment" (Docket No. 25). The latter requests that the Court order Defendants to admit numerous alleged facts and statements of law. It appears to be written in response to Defendants' motions to dismiss the Complaint. In light of the Court's dismissal of Plaintiff's Complaint in its entirety due to its failure to state claims against Defendants, the Court finds that these remaining motions are moot.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Plaintiff's Motion to Amend the Complaint (Docket No. 13) is GRANTED.
IT IS FURTHER HEREBY ORDERED that Plaintiffs Motion for a Pretrial Hearing (Docket No. 15) is DENIED.
IT IS FURTHER HEREBY ORDERED that the Motion to Dismiss for Defendants W.B. Scott and John Miller (Docket No. 16) is GRANTED.
IT IS FURTHER HEREBY ORDERED that the Motion to Dismiss for Defendants Burlington Northern Santa Fe and Sheila Kratina (Docket No. 18) is GRANTED.
IT IS FURTHER HEREBY ORDERED that Plaintiffs Motion to Strike the court's Order denying his request for temporary restraining order (Docket No. 24) is moot.
IT IS FURTHER HEREBY ORDERED that Plaintiff's Motion for Judgment (Docket No. 25) is moot.