Opinion
No. C03-2045 LRR.
June 18, 2004
ORDER
This matter is before the court on Defendants' Motion to Dismiss (docket no. 3) and Plaintiff Elmer P. Scheckel's Motion for Default Judgment (docket no. 10).
I. INTRODUCTION
Pro se Plaintiff Elmer P. Scheckel did not file federal income tax returns for the years 1996, 1997, 1998, 1999, 2000, 2001, and 2002. On August 22, 2003, Scheckel filed this Bivens action against the Internal Revenue Service (the "IRS") and against IRS agent J.A. Wiese ("Wiese") in his "private capacity" and "public capacity." Scheckel objects to Defendants' efforts to collect Scheckel's unpaid federal taxes. Scheckel attacks the validity of the Internal Revenue Code and questions the authority of the IRS to collect federal taxes from him. In his Complaint, Scheckel asks the court to: (1) require the IRS to answer certain questions set out in his Complaint; (2) enjoin the IRS from collecting federal taxes from him; (3) return monies collected from him in the past; and (4) award him $1.5 million dollars in punitive damages.
The Court is cognizant of Scheckel's pro se status, and as such his pleadings are to be liberally construed and held to a less stringent standard than a formal pleading drafted by a lawyer. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, pro se litigants are not excused from compliance with relevant procedural and local rules. Schooley v. Kennedy, 712 F.2d 372, 373 (8th Cir. 1983).
The court has reviewed Scheckel's Complaint and finds that it contains frivolous and groundless tax protestor rhetoric that has been rejected repeatedly by this and every other court that has considered it.
On October 27, 2003, Defendants filed a Motion to Dismiss on the basis that Scheckel's Complaint fails to state a claim upon which relief can be granted. Specifically, Defendants argue: (1) the United States government should be substituted for both named defendants as the real party in interest; (2) there is no constitutional tort remedy with respect to actions relating to the assessment and collection of federal taxes; (3) Scheckel's action violates the sovereign immunity of the United States of America; (4) Scheckel does not have a valid claim under the Federal Tort Claims Act; (5) Scheckel does not have a valid claim under 42 U.S.C. § 1983; and (6) Scheckel failed to properly serve the IRS and its agent.
II. STANDARD OF REVIEW
The issue on a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) is not whether a plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer evidence in support of his claims. United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 1376 (8th Cir. 1989). In considering a motion to dismiss under Rule 12(b)(6), the court must assume that all facts alleged by the complaining party are true. Gross v. Weber, 186 F.3d 1089, 1090 (8th Cir. 1999). The court also must liberally construe the complaining party's allegations in the light most favorable to the non-movant. Id. In treating the factual allegations of a complaint as true pursuant to Rule 12(b)(6), the court must "reject conclusory allegations of law and unwarranted inferences." Silver v. H R Block, Inc., 105 F.3d 394, 397 (8th Cir. 1997) (citing In re Syntex Corp. Securities Lit., 95 F.3d 922, 926 (9th Cir. 1996)).
The United States Supreme Court and the Eighth Circuit Court of Appeals both have observed that "a court should grant the motion and dismiss the action `only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Handeen v. Lemaire, 112 F.3d 1339, 1347 (8th Cir. 1997) (quoting Hishon v. King Spalding, 467 U.S. 69, 73 (1984)). Federal Rule of Civil Procedure 12(b)(6) does not countenance dismissals based on a judge's disbelief of a complaint's factual allegations. Neitzke v. Williams, 490 U.S. 319, 327 (1989). Thus, "[a] motion to dismiss should be granted as a practical matter only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief." Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995) (internal quotation marks and ellipses omitted).
III. DISCUSSION A. Substitution of Defendants
Scheckel's Complaint names the IRS and its agent as defendants. In their Motion to Dismiss, Defendants assert that the United States government is the only proper defendant in this action. The crucial inquiry for determining whether a suit is against an employee or the sovereign itself is which entity will provide the relief sought. Larson v. Domestic Foreign Commerce Corp., 337 U.S. 682, 687 (1949). Here, Scheckel is not suing to recover damages for a government agent's personal actions. Rather, Scheckel seeks an injunction to prevent the IRS from collecting federal taxes from him. Scheckel also seeks a refund of monies collected by the United States through its agency, the IRS. The relief sought — injunctive relief and monetary damages — would be provided by the United States government, not by the named defendants. Therefore, the IRS and Wiese shall be dismissed from the action and the United States government substituted as the proper defendant. See Larson, 337 U.S. 687-88 (finding that injunctive or declaratory relief against an officer of the United States are suits against the sovereign). See also Coleman v. Espy, 986 F.2d 1184, 1189 (8th Cir. 1993) (finding that when the desired judgment "would expend the public treasury, restrain the government from acting, or compel it to act," the suit is against the sovereign entity); Searcy v. Donelson, 204 F.3d 797, 798 (8th Cir. 2000) (finding that a suit against an official of the federal government in the officer's official capacity is considered a suit against the United States).
B. Sovereign Immunity
The jurisdictional bar of sovereign immunity applies when an action seeks to impose liability on the United States for money or property or to engender some form of coercive injunctive relief. See Dugan v. Rank, 372 U.S. 609, 620 (1963). ("The general rule is that a suit is against the sovereign `if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,' Land v. Dollar, 330 U.S. 731, 738 . . . (1947), or if the effect of the judgment would be `to restrain the Government from acting, or compel it to act.' Larson v. Domestic Foreign Corp., supra, 337 U.S. at 704. . . ."). Although the United States has consented to suit under the Federal Tort Claims Act (the "FTCA"), the FTCA does not apply to this case because the FTCA does not reach federal constitutional torts. FDIC v. Meyer, 510 U.S. 471, 475, 477 (1994). The FTCA therefore does not help Scheckel. To the extent Scheckel requests declaratory relief, the Declaratory Judgment Act, 28 U.S.C. § 2201(a), like the Anti-Injunction Act, 26 U.S.C. § 7421, forbids suits for the purpose of restraining the assessment or collection of any tax, see Bob Jones Univ. v. Simon, 416 U.S. 725, 732 n. 7 (1974). Scheckel does not allege his claims fall within the limited judicial exception set forth in Enochs v. Williams Packing Navigation Co., 370 U.S. 1, 7 (1962).
A " Bivens action" may be maintained against federal officials in their individual capacity for their constitutional torts. In Bivens, the United States Supreme Court recognized that damages may be obtained for constitutional injuries inflicted by individual federal officials. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 395-97 (1971). However, a Bivens action cannot be implied directly against the United States, its agencies, and, by extension, against federal agents and employees in their official capacity. FDIC v. Meyer, 510 U.S. at 473, 484-86. The Eighth Circuit Court of Appeals has specifically disavowed any Bivens remedy for alleged violations associated with tax assessment and collection activities. See, e.g., Vennes v. An Unknown Number of Unidentified Agents, 26 F.3d 1448, 1453-54 (8th Cir. 1995). The court shall therefore grant Defendants' Motion to Dismiss.
IV. CONCLUSION
Upon consideration of the record, IT IS HEREBY ORDERED that:
1. Defendants' Motion to Dismiss (docket no. 3) is GRANTED; and
2. This matter is DISMISSED with prejudice.
3. All remaining pending motions in this case, including docket no. 10, are DENIED as moot.
IT IS SO ORDERED.