Opinion
No. CIV.A. 05-1624 RJL.
September 29, 2006.
Charles Radcliffe, Denver, CO, pro se.
Pat S. Genis, U.S. Department of Justice, Washington, DC, for Defendant.
MEMORANDUM OPINION
Plaintiff Charles Radcliffe filed the instant action against defendant United States alleging misconduct by the Internal Revenue Service in the collection of taxes in violation of the Taxpayer Bill of Rights ("TBOR"), 26 U.S.C. § 7433. Plaintiff seeks a "[d]etermination that the defendant . . . in connection with the collection of federal tax from the plaintiff(s), recklessly, intentionally or by reason of negligence, disregarded any provision of Title 26 United States Code and/or any regulation promulgated under Title 26 United States Code" (Am. Compl. ¶ 31), and "a determination of the amount of damages for which the plaintiff(s) is/are entitled to amend the reprehensible, egregious, and vexatious behavior of the defendant" ( id. ¶ 32). Now before the Court is defendant's Motion to Dismiss for failure to state a claim and lack of subject matter jurisdiction due to plaintiff's failure to exhaust administrative remedies. For the reasons set forth below, defendant's Motion is GRANTED.
ANALYSIS
Plaintiff's Complaint is one of many nearly identical, boilerplate complaints filed in our Court by pro se plaintiffs. ( See Notice of Related Case at 1 (Dkt. #12).) These complaints ask, inter alia, that the Court ignore regulations promulgated by the Secretary of Treasury pursuant to 26 U.S.C. § 7433(d)(1), which set forth administrative remedy procedures with which taxpayers must comply before bringing suit for damages in a federal court. See 26 C.F.R. § 301.7433-1(e)(1). Plaintiff attempts to support his request by alleging an exception to the exhaustion requirement where administrative remedies "are either futile or inadequate" (Am. Compl. ¶ 30) or "when agency action exceeds statutory authorization" ( id.).In assessing the relative merits of both parties' positions, this Court finds the decision in Henry v. United States, 416 F. Supp. 2d 130 (D.D.C. 2006), recently before the Honorable Ellen Segal Huvelle of this Court, to be particularly instructive. In that case, the Court concluded that `[i]n the absence of even an assertion by plaintiff, much less any corroborating evidence, that he has complied with the statutory exhaustion requirement, the Court has not choice but to find that 26 U.S.C. § 7433(d)(1) deprives it of subject matter jurisdiction over plaintiff's claim." Henry, 416 F. Supp. 2d at 133.
The plaintiff's amended complaint in Henry is essentially similar to the Amended Complaint filed by plaintiff in this case; and Henry's Opposition to Defendant's Motion to Dismiss is virtually identical to the Opposition filed here. Thus, due to the indistinguishable nature of the arguments presented in the two cases, and because this Court agrees with Judge Huvelle's reasoned analysis in Henry, this Court adopts Judge Huvelle's Opinion and, accordingly, dismisses plaintiff's Amended Complaint. An appropriate Order will issue with this Memorandum Opinion.
ORDER
For the reasons set forth in the Memorandum Opinion entered this date, it is, this 29th , day of September 2006, hereby
ORDERED that [#16] United States' Motion to Dismiss Plaintiff's Amended Complaint is GRANTED; it is further
ORDERED that [#17] Plaintiff's Motion for Sanctions under Fed.R.Civ.P. 11(b) and for Referral to the Bar Disciplinary Committee is DENIED; and it is further
ORDERED that judgment is entered in favor of the defendant, and the case is DISMISSED.
SO ORDERED.