Opinion
Case No. 0480795-CIV-MIDDLEBROOKS/JOHNSON.
April 6, 2005
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
THIS CAUSE came before the Court upon Defendant's Motion to Dismiss (DE 14) (the "Motion"). The Court has reviewed the Motion, Plaintiff's Motion to Deny Defendant's Motion to Dismiss with Opposing Memorandum of Law (DE15) and is otherwise fully informed of the premises and finds that Defendant's Motion is due to be granted.
I. Legal Standard
A motion to dismiss is appropriate when it is demonstrated "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957). For the purpose of the motion to dismiss, the complaint is construed in the light most favorable to the plaintiff, and all facts alleged by the plaintiff are accepted as true. Hishon v. King Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984). Regardless of the alleged facts, however, a court may dismiss a complaint on a dispositive issue of law. Marshall County Bd. of Educ. v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993). Whether a governmental official is immune from suit is a such a dispositive issue of law. Accordingly, if the defendant is entitled to absolute or qualified immunity, then the instant action must be dismissed. It is from this perspective that we begin our analysis.
II. Background
The following recitation of facts comes from Plaintiff's Amended Complaint (the "Complaint"). Plaintiff alleges that the Defendant, IRS agent Linda Whitmyre, violated his constitutional rights by refusing to give him an appeals hearing relating to IRS assessments for unpaid income taxes. He also claims that his statutory right to information under the Freedom of Information Act was violated when agent Whitmyre refused to explain to him why he was not legally entitled to an appeal.
The facts alleged in the Complaint are taken to be true for this Motion to Dismiss. Hishon v. King Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984). The Court notes that the amended Complaint was virtually devoid of factual allegations. Instead, the Complaint is an exposition of demands.
Specifically, Plaintiff asserts that: (1) he wrote to Whitmyre twice requesting an appeals hearing or a legal reason accompanied by "proof/documentation" that he was not legally entitled to such hearing; (2) when Whitmyre responded to his first letter, she denied his request for an appeals hearing, but did not provide the requested "proof/documentation;" and (3) Whitmyre never responded to his second letter making identical requests to those contained in his first letter. The remainder of the Complaint sets forth various cases and "issues of law" for the Court to consider.
The Defendant filed a Motion to Dismiss pursuant to FED. R. CIV. PROC. 12 (b)(1) asserting that this action is barred by the doctrine of sovereign immunity or by application of the Anti-Injunction Act. Plaintiff has responded that his action is against agent Whitmyre in her individual capacity and so neither doctrine is applicable to the situation herein.
III. DISCUSSION
Federal courts exercise limited subject matter jurisdiction, empowered to hear only those cases within the judicial power of the United States as defined by Article III of the Constitution or otherwise authorized by Congress. Wright, Miller Cooper, 13 Federal Practice and Procedure, § 3522 (1984). In general, the United States is immune from suit under the doctrine of sovereign immunity unless it explicitly waives such immunity. United States v. Mitchell, 445 U.S. 535, 538 (1980). The Plaintiff has the burden of establishing that the United States has waived sovereign immunity, Baker v. United States, 817 F.2d 560, 562 (9th Cir. 1987), and to identify the specific statutory provision containing such waiver and underlying such suit. See Swofford v. United States, 2000 WL 1039495 (S.D. Ill. 2000). The waiver must be express and will not be implied. Lane v. Pena, 518 U.S., 187, 192 (1996). The scope of a waiver of sovereign immunity is to be strictly construed in favor of the sovereign. Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999).
The doctrine also extends to suits against federal officers and employees for actions taken within the scope of their employment. Such an action is deemed to be a suit against the United States itself, and therefore subject to the defense of sovereign immunity. See Hawaii v. Gordon, 373 U.S. 57 (1963). Plaintiff asserts, however, that this is not the case herein because the Complaint names Whitmyre solely in her individual and non-official capacity. Plaintiff's choice of nomenclature, however, does not necessarily change the nature of his suit. Defendant contends that a review of the Complaint reveals that, nomenclature aside, Plaintiff seeks damages based on Whitmyre's actions or inactions in response to his inquiries, and that as such, were taken exclusively in her official capacity as agent of the IRS. The Court agrees.
It follows then that in order for Plaintiff to proceed against Whitmyre, he must demonstrate that the United States has waived its sovereign immunity with respect to the relief sought. Huntington Towers, Ltd. v. Franklin National Bank, 559 F.2d 863, 869-70 (2d Cir. 1977), cert. denied, 434 U.S. 1012, 98 S.Ct. 726, 54 L.Ed.2d 756 (1978). Plaintiff premises jurisdiction on both 42 U.S.C. 1983 and 5 U.S.C. 552. Accordingly, the Court assesses the sufficiency of either section to confer jurisdiction upon this Court over the instant matter.
Section 4(B) of this chapter provides, in pertinent part that "[upo]n complaint, the district court of the United States in the district in which the complaint resides, or has his principal place of business, or in which the agency records are situated . . . has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant."
In evaluating the Complaint, the Court is mindful that a pro se plaintiff's complaint should be held to a less stringent standard than formal pleadings by lawyers. Additionally, when jurisdiction is premised on an alleged violation of federal law, dismissal should be denied so that the Court may allow for discovery to develop a jurisdictional foundation. However, this is not true if review of the Complaint establishes that the underlying claim is completely meritless. In such a case, dismissal is proper. With this in mind, and construing Plaintiff's claim extremely liberally, the Court finds that the Complaint is subject to dismissal.
Plaintiff first asserts that jurisdiction is proper under the Freedom of Information Act because he requested "proof/documentation that he was not legally entitled to an appeal" from agent Whitmyre and did not receive it. This position lacks merit because Plaintiff has failed to assert exactly what records/documents he requested. 15 FED. PROC., L. ED. § 38:309 provides that "[a]gencies are only required to act upon a request which `reasonably describes' identifiable non-exempt records." This requirement ensures that a public official is able to "identify and produce the records without unduly burdening or disrupting any of the agency operations." Additionally, where desired information is made readily available by an agency, a request under the Freedom of Information Act is unnecessary. Id. at § 38:299. The Court takes judicial notice that the IRS has promulgated numerous documents that enumerate their policies and procedures and inform taxpayers of their rights — and specifically the procedures they should follow to enforce their rights.
Additionally a plaintiff bringing an action under the FOIA must adequately plead that the agency (1) improperly, (2) withheld (3) agency records, and unless all three criteria are satisfied, a District Court lacks jurisdiction over the FOIA claim. See Kissinger v. Reporters Committee for Freedom of Press, 445 U.S. 136, 150, 100 S. Ct. 960, 968, 63 L.Ed.2d 267 (1980). The burden is on the Defendant to prove that the agency records were or were not improperly withheld, or that they were not in fact agency records. Id. The Court finds that it is impossible for a Defendant to carry such burden when the request is as vague as the one herein which simply states that Plaintiff requested proof/documentation of a legal right of lack of entitlement to an appeal.
In addition to the three criteria set forth above, a plaintiff must also allege that he has exhausted all of his administrative remedies prior to filing an action in a district court. See Judicial Watch, Inc. v. F.B.I., 190 F.Supp.2d (D.D.C. 2002). Plaintiff's Notice of Filing contained Whitmyre's response to his October 22nd request. The letter from Whitmyre indicate to the Court both that Plaintiff has not exhausted his administrative remedies as required and that it cannot fairly be said that Whitmyre failed to Plaintiff with the information he requested. Specifically, Ms. Whitmyre responded to Plaintiff's request by writing "[f]rom the information I reviewed I see that you did not petition the Tax Court and the amounts of deficiency have been assessed. At this point, as I mentioned in my previous letter, you can request audit consideration. The brochure describing this process is enclosed. If your case is reconsidered and you are not in agreement with the outcome, you can request an appeal at that time." (Pltf's Not. of Filing 4).
This response indicates that Plaintiff has not exhausted his administrative remedies. "A plaintiff's failure to exhaust administrative remedies precludes a federal court from exercising subject-matter jurisdiction over the party's FOIA claims." See Judicial Watch, Inc. v. F.B.I., 190 F.Supp.2d (D.D.C. 2002). "The exhaustion requirement . . . allows the top managers of an agency to correct mistakes made at lower levels and thereby obviates unnecessary judicial review." Id.; Oglesby v. United States Dep't of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990). Additionally, the letter explained why Whitmyre could not grant Plaintiff an appeal and provided information as to what actions he must take in order to secure an appeal is therefore a response to Plaintiff's vague request. This contradicts Plaintiff's assertion that he never received the requested information.
As to Plaintiff's second request three weeks after his first request, the Court finds that because the requests were identical, and because the requests were vague, as discussed above, that Whitmyre's failure to respond, even if true, does not establish a valid FOIA claim.
For these reasons, the Court finds that it is without subject matter jurisdiction over Plaintiff's FOIA claim.
Plaintiff alternatively asserts that jurisdiction is still proper pursuant to 42 U.S.C. 1983 which alleges that his constitutional rights to due process have been violated. It is well established that 42 U.S.C.A. § 1983 "provides `a remedy for deprivation of rights under color of state law. Section 1983, however, is not a proper jurisdictional basis for a suit against the United States or the IRS because this section is intended to allow a plaintiff to recovery for violations of his or her constitutional rights when the violation is committed by a person acting under color of "state law and do not apply when the defendants are acting under color of Federal Law." See Carman v. Parsons 789 F.2d 1532, 1534 (11th Cir. 1986); Seibert v. Baptist, 594 F.2d 423 (5th Cir. 1979) ( rev'd on other grounds 599 F.2d 743 (5th Cir. 1979)); Mack v. Alexander, 575 F.2d 488, 489 (5th Cir. 1978). Accordingly, the Court does not have jurisdiction pursuant to this section.
In addition to the analysis above, the Court notes that 26 U.S.C. § 7421(a) prohibits the bringing of a "suit for the purpose of restraining the assessment or collection of any tax. . . ." § 7421(a) is strictly enforced. See Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974). The purpose of the statute is to allow the United States to assess and collect taxes without judicial intervention. Enochs v. Williams Packing Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962). It is only in "rare and compelling circumstances" where a federal court will entertain such an action. See Mathes v. U.S., 901 F.2d 1031, 1033 (11th Cir. 1990). The existence of such rare and compelling circumstances may not even be evaluated unless and until a taxpayer has exhausted all available administrative and procedural remedies. As noted previously, the Complaint is devoid of, any allegations that all Plaintiff has exhausted all administrative and procedural remedies. Id. Accordingly, for the reasons set forth herein, it is
ORDERED AND ADJUDGED that the Motion (DE 14) be and is hereby GRANTED. Plaintiff's Complaint should be DISMISSED WITH PREJUDICE. It is further ORDERED AND ADJUDGED that the CLERK shall CLOSE THIS CASE and DENY any and all pending motions as MOOT.
DONE AND ORDERED.