Opinion
CIVIL ACTION No. 01-1188-MLB.
November 20, 2001.
MEMORANDUM AND ORDER
I. INTRODUCTION
Plaintiff filed this matter against the "Commissioner of Internal Revenue" seeking what appears to be a judicial review of the Internal Revenue Service's (IRS) tax levy against him. Doc. 1. This matter is before the court upon a motion to dismiss plaintiff's complaint. Doc. 9. For the following reasons, the motion is GRANTED and this case is dismissed with prejudice.
While plaintiff named the "Commissioner of Internal Revenue" as the defendant in this matter, the court finds that the suit is truly against the United States of America. See Atkinson v. O'Neill, 867 F.2d 589, 590 (10th Cir. 1989). For example, in Atkinson, plaintiff named certain IRS officials in their official capacity. See Atkinson, 867 F.2d at 589 (correcting the district court's construction of plaintiff's claim). The Tenth Circuit held that the action was really "against the United States." Atkinson, 867 F.2d at 590. Like in Atkinson, this court too will construe plaintiff's claims to be against the United States.
In addition to this motion, the parties have filed: (1) defendant's memorandum in support, (2) plaintiff's memorandum in opposition, (3) defendant's reply, (4) defendant's supplement, (5) plaintiff's reply, and (6) another reply filed by plaintiff. Docs. 10, 11, 12, 13, 14, and 15.
A. Motion to Dismiss Standards: FED. R. CIV. P. 12(b)(1)
Federal courts are courts of limited jurisdiction, available to exercise their power only when specifically authorized to do so. See Sellens v. Telephone Credit Union, 189 F.R.D. 461, 465 (Kan. 1999); see also Whayne v. City of Topeka, 959 F. Supp. 1370, 1371 (Kan. 1997) (noting the party invoking federal jurisdiction has the burden to prove jurisdiction is proper). Pursuant to the Federal Rules of Civil Procedure, a party may move for dismissal based upon a court's "lack of jurisdiction over the subject matter." FED. R. Civ. P. 12(b) (1). The Tenth Circuit has noted that Rule 12(b)(1) motions may take on two forms, either a "facial" attack or a "factual" attack. See Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). A "facial" attack questions the legal sufficiency of the complaint whereas a "factual" challenge contests those facts upon which the subject matter rests. Bryce v. Episcopal Church in the Diocese of Colorado, 121 F. Supp.2d 1327, 1334 (Colo. 2000). Based upon a review of plaintiff's allegations and the parties' pleadings, the court finds that this motion is a "facial" attack. When presented with facial challenges, this court presumes all of plaintiff's allegations are correct. See id.; Holt, 46 F.3d at 1002. Accordingly, the facts as alleged by plaintiff are considered, for purposes of this memorandum and order, to be true. Sellens, 189 F.R.D. at 466.
B. Pro Se Standards
Before analyzing this motion to dismiss, the court notes plaintiff is not represented by counsel. It has long been the rule that pro se pleadings must be liberally construed.See Hall v. Bellmon, 935 F.2d 1106, 1110 n. 3 (10th Cir. 1991); Hill v. Corrections Corp. of America, 14 F. Supp.2d 1235, 1237 (Kan. 1998). Liberal construction does not, however, require this court to assume the role of advocate for the pro se litigant. See Hall, 935 F.2d at 1110. Plaintiff is expected to construct his own arguments or theories and adhere to the same rules of procedure that govern any other litigant in this district. See id.; Hill, 14 F. Supp.2d at 1237. Additionally, the court need not accept as true plaintiff's conclusory allegations because no special legal training is required to recount the facts surrounding the alleged injuries. See Hill, 14 F. Supp.2d at 1237. In the end, plaintiff's pro se status, in and of itself, does not prevent this court from dismissing his claim. See Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001) (citing Hall v. Bellmon, 935 F.2d 1106, 1110, 1114 (10th Cir. 1991)) ("Even when a complaint is construed liberally, this court has dismissed pro se complaints for failure to allege sufficient facts."); Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir. 1992).
C. Facts
The allegations of fact in plaintiff's complaint are most appropriately described as "bare." In fact, it appears that plaintiff has "cut and pasted" only a few shreds of personal information into a form "complaint." While the "notice" pleading standard of the federal rules requires little, FED. R. CIV. P. 8(a), the "allegations" in plaintiff's complaint lurk somewhere near the minimal threshold. Whether his allegations are sufficient under this standard is a close question. The court will, however, give plaintiff the benefit of the doubt, given defendant has been able, without objection, to discern three claims.
The court notes that defendant has also surmised that plaintiff "may be attempting to state a claim under the Federal Tort Claims Act ("FTCA")." Doc. 10, p. 7 (footnote omitted). Defendant's speculation is too generous. Upon a review of plaintiff's pleadings, especially the fact that he attempted to sue an individual, there is nothing to indicate plaintiff's intent to seek relief under the FTCA. See Oxendine v. Kaplan, 241 F.3d 1272, 1275 n. 4 (10th Cir. 2001) (noting that a claim brought against a government official and not the United States was not cognizable under FTCA because the United States is the only proper defendant under the FTCA).
On June 20, 2001, plaintiff filed a "Request for Judicial Review of Information Relied Upon in Authorizing and/or Making Purported Assessment and/or Levy And for a Determination of the Rights of the Parties." Doc. 1. Though plaintiff's "cut and paste" complaint is largely unintelligible, the court can detect that plaintiff seeks some sort of judicial review of the IRS's April 27, 2001 levy against his property (as well as an apparently arbitrary demand for damages resulting from this levy), a declaration that he need not pay federal income taxes, and an injunction prohibiting the IRS from further collection efforts.
II. ANALYSIS
Defendant has moved to dismiss the "judicial review" claims against it because the United States has not waived its sovereign immunity. Plaintiff claims judicial review is appropriate because 26 U.S.C. § 7429 and assorted IRS regulations waive sovereign immunity. Defendant points out, however, that section 7429, while waiving sovereign immunity when a "jeopardy levy" has been undertaken, does not address the type of levy utilized against plaintiff. Doc. 10, p. 6. Plaintiff does not controvert the fact that the April 27, 2001 levy was not a "jeopardy levy." Docs. 11 and 14, and 15. Accordingly, defendant's motion with respect to plaintiff's request for a judicial review is GRANTED.
Plaintiff also seeks a declaration that he does not need to pay federal taxes. Defendant argues that the Internal Revenue Code does not permit a court to make a declaration about individual taxpayers. Doc. 10, p. 10. Defendant's motion with respect to plaintiff's request for declaratory relief is GRANTED. See Sterling Consulting Corp. v. United States, 245 F.3d 1161, 1165-66 (10th Cir. 2001); UTE Distrib. Corp. v. United States, 938 F.2d 1157, 1160-61 (10th Cir. 1991).
Finally, plaintiff seeks an injunction from this court to enjoin defendant from collecting additional taxes from plaintiff. Defendant contends the Anti-Injunction Act denies this court subject matter jurisdiction over plaintiff's claim. Doc. 10, p. 8. Defendant's motion with respect to plaintiff's request for injunctive relief is GRANTED. See 26 U.S.C. § 7421(a).
III. CONCLUSION
In conclusion, defendant's motion to dismiss is GRANTED. The case is dismissed, with prejudice.
A motion for reconsideration of this order is neither expected nor encouraged. Any such motion shall not exceed 3 double-spaced pages and shall strictly comply with the standards enunciated by this court in Comeau v. Rupp, 810 F. Supp. 1172, 1174 (1992). The response to any motion for reconsideration shall not exceed 3 double-spaced pages. No reply shall be filed. Failure to adhere to these limitations will operate as a waiver to reconsideration.
IT IS SO ORDERED.