REGGIE B. WALTON, District Judge.
Timothy Morrow, the pro se plaintiff in this civil case, seeks "damages[ ] in a[ ] sum certain to be determined by the Court," Complaint ("Compl.") at 25, for the alleged "denial of [his] right to due process of the tax law, administrative law, and record-keeping law of the United States," id. at 1, as well as for the defendants' alleged "disregard of provisions of the tax law of the United States and regulations promulgated thereunder," id. at 2. Currently before the Court is the defendant United States' Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), which the plaintiff opposes, Response to Motion to Dismiss Complaint ("Pl.'s Opp'n").
The plaintiff filed his twenty-seven count Complaint on March 23, 2009, naming the "United States (Government)," the "IRS [Internal Revenue Service] Commissioner," and "Unknown agent(s)" as the defendants. Compl. at 1. The Complaint is one of many pro se tax protest suits filed in this jurisdiction, asserting a variety of forms of misconduct by the Internal Revenue Service (the "IRS"), see Bean v. United States, 538 F.Supp.2d 220, 222 n. 1
The alleged violations of the Internal Revenue Code (the "Code") listed in the Complaint fall broadly into two categories. Compl. at 8-24.
See generally Compl. at 8-20.
In addition, counts 19 through 27 are styled as "[26 U.S.C.] § 7433/disregard in connection with collection," where the
See generally Compl. at 20-24.
As an attachment to his Complaint, the plaintiff has submitted a statement of facts. Statement of Facts of Timothy Morrow ("Pl.'s Facts"). According to that document, beginning in approximately 1988, the plaintiff has received over 100 correspondences and telephone communications from unknown IRS agents, id. ¶¶ 1-2, which he states were "in an apparent attempt to collect [alleged] past due taxes." Id. ¶ 3 (alteration in original). The plaintiff also claims that since approximately 1988 he has had at least three "face-to-face contacts with Unknown IRS agent(s)," id. ¶ 4, and also since that time the IRS has "filed several liens and/or levies against" him, resulting in the plaintiff being "forced to hire counsel to remove said liens and/or levies in order to maintain a tolerable living standard." Id. ¶ 5.
The United States has moved to dismiss this case, arguing that the Court lacks subject matter jurisdiction over counts 1 through 19, 24, and 25 because those counts "are merely an improper attempt to challenge the underlying tax liability" and "do not relate to collection activities." Def.'s. Mem. at 2. The United States also claims that the Court lacks subject matter jurisdiction over counts 1 through 19, stating that a "Bivens cause of action is not available against the United States, which has not waived its sovereign immunity for such claims." Id. at 3. As to the remaining counts, 20 through 23, 26 and 27, the United States moves to dismiss them pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting that those counts "fail to provide the necessary factual detail to state a claim." Id. at 4.
A motion for dismissal under 12(b)(1) "presents a threshold challenge to the court's jurisdiction. . . ." Haase v. Sessions, 835 F.2d 902, 906 (D.C.Cir.1987); see also Grand Lodge Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13
On the other hand, a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests whether a complaint has properly stated a claim upon which relief may be granted. Woodruff v. DiMario, 197 F.R.D. 191, 193 (D.D.C.2000). For a complaint to survive a Rule 12(b)(6) motion, it need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R.Civ.P. 8(a)(2), which is sufficient to "give the defendant fair notice of what the claim is and the grounds on which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations and quotations omitted). Although Rule 8(a) does not require "detailed factual allegations," a plaintiff is required to provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation," Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955) (internal quotations omitted). In other words, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). A complaint alleging facts that are "merely consistent with a defendant's liability ... stops short of the line between possibility and plausibility of entitlement to relief." Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955) (internal quotation marks omitted).
In evaluating a Rule 12(b)(6) motion under this framework, "[t]he complaint must be liberally construed in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged," Young v. Covington & Burling LLP, 689 F.Supp.2d 69, 76 (D.D.C.2010) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979)) (internal quotation marks), and the Court "may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint[,] and matters of which [the Court] may take judicial notice," E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997) (footnote omitted). Although the Court must accept the plaintiffs' factual allegations as true, conclusory
The plaintiff admits that counts 1 through 18 are Bivens claims brought against "individual officers and employees" of the United States. Pl.'s Opp'n at 2; see Compl. at 4. The United States, likely construing these particular claims as directed against the federal government as a whole, has moved to dismiss pursuant to Rule 12(b)(1), contending that a "Bivens cause of action is not available against the United States, which has not waived its sovereign immunity for such claims." Def.'s Mem. at 3.
That is not the end of the Court's analysis, however, because the identities of the specific individual defendants the plaintiff intends to sue remains unclear. Although the plaintiff seeks to bring counts 1-18 against the "IRS Commissioner" and "Unknown agent(s)," Compl. at 1, the plaintiff never identifies these parties by name. And because the plaintiff is alleging interactions with the IRS that have been going on from "approximately... 1988 to the present," Pl.'s Facts ¶¶ 1-2, 4-5, and as there have surely been numerous individuals serving in those positions over the past twenty-two years, there is no way for the Court (let alone the United States) to discern the particular individuals that are the subject of the plaintiff's Bivens claims.
The Court finds that the sensible approach in this situation is to allow the plaintiff leave to amend counts 1 through 18 of the Complaint. This is in keeping with the guidance in this jurisdiction that "[p]ro se litigants are afforded more latitude than litigants represented by counsel to correct defects in ... pleadings," Moore v. Agency for Int'l Dev., 994 F.2d 874, 876 (D.C.Cir.1993), as well as the Federal Rules of Civil Procedure, which provide that the Court may grant the plaintiff leave to amend a complaint, Fed.R.Civ.P. 15(a). In amending these counts, the Court fully expects that the plaintiff will follow the pleading guidance recently set forth by the Supreme Court in Twombly, 550 U.S. 544, 127 S.Ct. 1955, and Iqbal, 129 S.Ct. 1937, and otherwise abide by the applicable provisions of the Federal Rules of Civil Procedure. As the District of Columbia Circuit has observed, proceeding pro se "does not constitute a license ... to ignore the Federal Rules of Civil Procedure." Moore, 994 F.2d at 876 (internal quotations and citations omitted). Accordingly, the defendants' motion to dismiss counts 1 through 18 of the Complaint is denied without prejudice, and the plaintiff is granted limited leave to re-file the Complaint amending these counts by the date specified in the Order that accompanies this opinion.
The United States also moves to dismiss counts 19, 24, and 25 under Rule 12(b)(1) because the allegations asserted in these claims "involve non-collection activities" and are therefore "not cognizant" under 26 U.S.C. § 7433. Def.'s Mem. at 3. These counts are pled as violations of § 7433, which the plaintiff claims are "directed at" the United States. Pl.'s Opp'n at 2. However, it is well settled that the United States is immune from suit unless Congress has expressly provided consent to be sued; that is, when Congress has waived the United States' sovereign immunity. E.g., FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) ("Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit. Sovereign immunity is jurisdictional in nature.") (internal citations omitted). If the United States has not consented to be sued, sovereign immunity requires the Court to dismiss the claims for lack of jurisdiction. First Va. Bank v. Randolph, 110 F.3d 75, 77 (D.C.Cir.1997).
Here, as a basis for invoking the jurisdiction of this Court, the plaintiff relies on the Administrative Procedure Act (the "APA"), 5 U.S.C. §§ 704-706 (2006), the Federal Records Act, 44 U.S.C. §§ 3101-3107 (2006), the National Archives Act, 44 U.S.C. §§ 2901-2910 (2006), Bivens, and 26 U.S.C. § 7433. See Compl. at 3-5. But as other members of this Court have determined, neither the APA, the Federal Records Act, nor the National Archives Act waive sovereign immunity with respect to claims against the United States for monetary damages.
Similarly, "Bivens by its very nature is a private damages action against individual federal employees for violating a citizen's constitutional rights," and "is not waiver of sovereign immunity for actions against the United States." Scinto v. Fed. Bureau of Prisons, 608 F.Supp.2d 4, 8 (D.D.C.2009) (emphasis added); see Cooper v. Johnson, 652 F.Supp.2d 33, 39 (D.D.C.2009) (Walton, J.) ("The United States has not waived its sovereign immunity for constitutional tort claims[.]" (citing Meyer, 510 U.S. at 477, 114 S.Ct. 996)). Thus, whether the plaintiff can proceed against the United States with counts 19, 24, and 25 depends upon the extent sovereign immunity has been waived by 26 U.S.C. § 7433.
In the context of what is alleged this case, counts 19, 24, and 25 are therefore dismissed because the Court lacks subject matter jurisdiction to consider them. In count 19, the plaintiff alleges that the defendants failed to develop and implement procedures for the supervisory review and certification of decisions to issue liens and levies. Compl. at 20-21. But this claim clearly relates to the alleged failure to promulgate regulations and procedures and is therefore outside of § 7433's tax collection activities sovereign immunity waiver. See Scott, 608 F.Supp.2d at 80 (dismissing similar count). Count 24 alleges that a supervisor failed to provide written authorization of any penalty determination. Compl. at 23. However this also implicates duties performed by the IRS in the course of rendering tax assessments, and falls outside the sovereign immunity waiver in § 7433. Finally, count 25 alleges that the defendants "asserted liens for which no assessment was made in accordance with" 26 U.S.C. § 6203 and 26 C.F.R. § 301.6203-1. Compl. at 23. This count plainly refers to the process of assessing a tax obligation and not anything related to tax collection. As with counts 19 and 24, the Court lacks subject matter jurisdiction over count 25 because it falls outside the sovereign immunity waiver of § 7433.
The United States moves to dismiss the remaining counts, 20 through 23, 26, and 27, for failure to state a claim under Rule 12(b)(6), asserting that these counts "merely restate[ ] the statutory language and allege[ ] no facts to support a claim for damages." Def.'s Mem. at 4. The plaintiff responds that "it is legally absurd" for the United States to make this argument, when it is "presumed to know the law" and should therefore be aware of the basis of his claims. See Pl.'s Opp'n at 5-6. Upon reviewing the specific claims, however, it is clear that the plaintiff's claims fall short of the minimum pleadings standards imposed by the Supreme Court in Twombly and Iqbal.
Count 21 contains the sort of "formulaic recitation of elements of a cause of action" proscribed by the Supreme Court in Twombly. Specifically, the plaintiff alleges that the defendants engaged in conduct "the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of any unpaid tax." Compl. at 22. This is merely quoting from the language of 26 U.S.C. § 6304(b), and even when read in conjunction with the plaintiff's statement of facts, at no point does the plaintiff describe where or when the defendants "harass[ed], oppress[ed], or abuse[d]" him "in connection with collection of any unpaid tax." Compl. at 22. And assuming that the more than 100 phone calls and letters the plaintiff received from the IRS over the course of more than two decades is true, Pl.'s Facts ¶¶ 1-2, the "reasonable inference," Iqbal, ___ U.S. at ___, 129 S.Ct. at 1949, the Court draws is that these were instances of IRS agents performing their official duties rather than "conduct the natural consequences of which is to harass, oppress, or abuse" the plaintiff. Compl. at 22. Accordingly, the plaintiff's allegations are not enough to "nudge[ ] [his] claim[ ] across the line from conceivable to plausible," Twombly, 550 U.S. at 570, 127 S.Ct. 1955, and count 21 is therefore dismissed for failure to state a claim.
Count 26 alleges that the defendants failed to certify the plaintiff's liens pursuant to Montana state law. Compl. at 23-24. However this claim lacks merit because the plaintiff failed to identify what, if anything, was improper about the notice of the lien, and in any event "[i]t is well settled that the form and content of a notice of federal tax lien are controlled by federal, not state, law." Spahr, 501 F.Supp.2d at 98; see also 26 U.S.C. § 6323(f)(3) ("The form and content of [a notice of federal tax liens] shall be prescribed by the Secretary [of the Treasury]. Such notice shall be valid notwithstanding any other provision of law regarding the form or content of a notice of lien."). Count 26 is therefore dismissed for failure to state a claim.
Finally, in count 27, the plaintiff alleges that the defendants unlawfully disclosed his tax return information and were "unable or unwilling to produce the records of assessment required to legally authorize the disclosures." Compl. at 24. However this count is also devoid of factual support, and the particular section of the Code relied upon by the plaintiff, 26 U.S.C. § 7213, is actually a criminal provision that does not provide for a private right of action and is therefore unenforceable
For the reasons set forth above, the United States' motion to dismiss is granted in part and denied in part.