Opinion
No. 4:03-CV-1272-A.
April 26, 2004
ORDER
Pro se plaintiffs, Johnny Dewayne Rupe and Sherry June Rupe, filed this action in state court to challenge the assessment and collection efforts of federal tax liabilities. It was removed by the United States on behalf of defendant Karen W. Gardner ("Gardner"). Subsequently, plaintiffs filed their "second amended original petition," which is their active pleading in this action. On February 10, 2004, Gardner and the United States filed a motion to dismiss or for summary judgment. After reviewing the motion, the response of plaintiffs, and defendants' reply, the court finds that said motion should be granted.
The court considers Gardner as the only individual defendant in this action. Plaintiffs have included "Does 1 to 300,000 Inclusive" in their style of the action. However, listing an arbitrary number of unnamed "does," that apparently plaintiffs believe are employees of the Internal Revenue Service ("IRS"), in the action's style is not sufficient to make any individual a defendant.
Although plaintiffs repeatedly claim that they are pursuing Gardner only in her personal capacity, they seek the court to order her to remove all liens and levies against them and to enjoin her from filing further federal tax liens and levies. An order to such effect would prohibit Gardner from performing in her official capacity as an employee of the Internal Revenue Service, compel the government to act, and restrain it from acting. Therefore, the court construes this action as one against the United States and finds that she is a proper party defendant.See Bank One, Tex., N.A. v. Taylor, 970 F.2d 16, 33 (5th Cir. 1992).
Plaintiffs allege that they were damaged as a result of the assessment of civil penalties for frivolous tax returns filed by them and fraudulent federal tax liens. Plaintiffs' active pleading can be interpreted as attempting to allege causes of action for: (1) unlawful acts of Gardner as an employee of the United States collecting revenue in violation of 26 U.S.C. § 7214; (2) denial of due process; (3) intentional infliction of emotional distress; (4) intentional interference with prospective economic advantage; and (5) defamation.
If plaintiffs' had tort claims, they would have to be asserted against the United States under the Federal Tort Claims Act ("FTCA"). See 28 U.S.C. § 2679(b)(1). However, the United States has not waived her sovereign immunity to claims arising in respect of the assessment or collection of taxes. See 28 U.S.C. § 2680(c); Jones v. United States, 16 F.3d 979, 980-81 (8th Cir. 1994). Plaintiffs also cannot recover on their constitutional claims, as such an action against the United States will not lie,see F.D.I.C. v. Meyer, 510 U.S. 471, 483-86 (1994), and plaintiffs have not stated a deprivation of due process sufficient to establish a claim against Gardner under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Finally, 26 U.S.C. § 7214 does not provide an avenue for plaintiffs to recover for the alleged wrongful actions of Gardner unless the United States first obtains a conviction of her for such wrongful acts. See 26 U.S.C. § 7214(a).
Because plaintiffs have failed to state a claim upon which relief can be granted,
The court ORDERS that the motion to dismiss of defendants be, and is hereby, granted, and that all claims and causes of action asserted by plaintiffs in the above-styled and numbered action — be, and are hereby, dismissed with prejudice.