Case: 11-41343     Document: 00511905674         Page: 1     Date Filed: 06/29/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           June 29, 2012

                                     No. 11-41343                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



KIMBERLEY VOGT,

                                                  Plaintiff-Appellant
v.

UNITED STATES OF AMERICA; JIM VERNARDO;
IRS DOES; NATIONAL TAXPAYER ADVOCATE;
NORMA BRUDWICK; LINDA J. ANDRIST,

                                                  Defendants-Appellees.



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 6:11-CV-62


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Kimberley Vogt, proceeding pro se and in forma
pauperis, appeals the dismissal of her claims against Defendants-Appellees, all
with prejudice except for her claim pursuant to 26 U.S.C. § 7422, which was
dismissed without prejudice. We affirm all dismissals, those with prejudice and
the one without prejudice.

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-41343

      Asserting that she had filed her federal income tax return, Form 1020, for
tax year 2009 on April 12, 2010, Vogt filed the instant suit on February 9, 2011,
less than a month after her 2009 federal income tax return was actually received
by the IRS.    Her complaint asserted claims against Defendants-Appellees
pursuant to 26 U.S.C. § 7433 for “intentional breach and conspiracy to breach
IRS regulations and statutes pertaining to refund credits” and pursuant to §
7422 for failure to issue a timely refund. In addition, Vogt sought mandamus in
connection with her claimed refund.
      Vogt acknowledged that her claims against the individual Defendants-
Appellees should be dismissed for lack of jurisdiction, complaining only that the
dismissal should be without prejudice. On appeal, Vogt continues to oppose the
with-prejudice dismissal of her claims against the individuals, and she opposes
dismissal altogether of her claims against the United States, including her
mandamus claim.
      The district court dismissed Vogt’s claims against the individual
Defendants-Appellees with prejudice, pursuant to Federal Rule of Civil
Procedure 12(b)(6). We agree that Vogt failed to state a claim susceptible of
recovery against any of the individual Defendants-Appellees, and that she
cannot. Thus, such dismissal with prejudice pursuant to Fed. R. Civ. P. 12(b)(6)
was proper and is affirmed.
      The district court’s dismissal of Vogt’s § 7422 refund claim without
prejudice is also affirmed. As a condition of suing for a tax refund, Vogt first had
to file an administrative claim for refund “with the Secretary [of the Treasury],
according to the provisions of law in that regard, and the regulations of the
Secretary established in pursuance thereof.” See 26 U.S.C. § 7422(a). Thus,
Vogt is required to file an administrative claim and then wait six months before
filing suit in federal court seeking relief. As there is no genuine dispute that
Vogt’s Form 1040 was not received by the IRS until January 12, 2011 or that she

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                                  No. 11-41343

instituted this suit less than a month later, without waiting the required six
months or seeking administrative remedy, she did not meet the jurisdictional
requirements to sue for relief under § 7422. Thus, the district court’s summary
judgment dismissal of that claim without prejudice was proper.
      Finally, as Vogt’s mandamus claim does not seek performance of a non-
discretionary duty imposed on the United States by law, mandamus relief is not
available.   As the Magistrate Judge correctly noted in her Report and
Recommendation to the district court, “[t]he United States enjoys sovereign
immunity from the mandamus relief sought by [Vogt] in this lawsuit and [Vogt’s]
mandamus claim should be dismissed.”
      The district court’s dismissal of Vogt’s action is, in all respects,
AFFIRMED.




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