Ford v. Ciraolo-Klepper
| Decision Date | 18 May 2017 |
| Docket Number | No. 1:17-cv-00034-DAD-EPG,1:17-cv-00034-DAD-EPG |
| Parties | MELBA FORD, Plaintiff, v. CAROLINE CIRAOLO-KLEPPER, DENNIS STIFFLER, COMMISSIONER, INTERNAL REVENUE OFFICE OF PROCEDURE AND ADMINISTRATION, UNITED STATES ATTORNEY GENERAL, and TWO UNKNOWN-NAMED ATTORNEYS (ONE IRS, ONE DOJ), Defendants. |
| Court | U.S. District Court — Eastern District of California |
ORDER GRANTING MOTION TO DISMISS BASED ON LACK OF SUBJECT MATTER JURISDICTION
Plaintiff is proceeding pro se in this matter against the United States, various offices within the federal government, employees of the Internal Revenue Service ("IRS") and the Department of Justice ("DOJ").1 Plaintiff seeks to prevent the IRS from engaging in certain practices related to individuals who, like herself, fail to file tax returns. The government moved to dismiss this action on March 31, 2017. (Doc. No. 13.) The court held oral argument on themotion to dismiss on May 2, 2017. Defendants appeared through U.S. Department of Justice Tax Division Trial Attorney Jonathan Hauck. Plaintiff did not appear at the hearing. For the reasons that follow, the motion to dismiss will be granted.
Plaintiff brings this complaint noting it is the thirteenth of "thousands which could be filed by members of the Class,2 each of whom have been similarly savaged" by the actions of the named defendants. (Doc. No. 1 at 2.) Both parties note that a number of actions have been filed in the District Court for the District of Columbia containing substantially the same allegations. See, e.g., DePolo v. Ciraolo-Klepper, 197 F. Supp. 3d 186, 190-91 (D.D.C. 2016); Ellis v. Jarvis, No. 16-31 (JEB), 2016 WL 3072244, at *3 ; McNeil v. Commissioner of the Internal Rev. Serv., 179 F. Supp. 3d 1, 6-8 (D.D.C. 2016); Ellis v. Comm'r of Internal Rev. Serv., 67 F. Supp. 3d 325, 331-38 (D.D.C. 2014). The court notes that each of these earlier filed cases was dismissed at the pleading stage.
(Doc. No. 1 at 3.) Plaintiff believes the IRS lacks the authority to issue "substitutes for returns" in relation to income tax matters, and may only do so in excise, employment, and partnership taxmatters. (Id.) Plaintiff claims the use of these substitutes is tantamount to falsifying government records in violation of 18 U.S.C. § 1001 and the Fourth and Fifth Amendments. (Id.) Additionally, plaintiff alleges the government does not actually create these substituted returns, and falsifies records showing it has. (Id.)
Plaintiff wishes the court to "grant the very reasonable inference . . . that Congress imposed no duty upon her to file any return, since no Government agency is authorized to commit crimes to enforce the law." (Id. at 5.) According to plaintiff's complaint, the "IRS admits it has no authority to execute substitute income tax returns for 'non-filers,'" falsifies its records by representing it has executed substitute tax returns when in fact it has not, and has been "carrying on a long-standing covert war against the Rule of Law, the Constitution of the United States and the hitherto helpless American people." (Id. at 6.) Because these records are allegedly falsified, plaintiff believes they should be barred from use in criminal prosecutions for failure to file tax returns.3 (Id. at 7.)
According to plaintiff, the existence of the purported record falsification scheme is "the strongest possible inference Congress did not impose any duty upon Americans to file income tax returns." (Id. at 8.) In her complaint plaintiff alleges that there is only one means for IRS to "exert its' summary assessment authority under 26 USC §6020(b)," which is when a person voluntarily signs a return under penalty of perjury. (Id.) As such, according to plaintiff, the "IRS has no lawful power to compel payment of the income tax unless a person activates IRS' summary authority by swearing out a return under penalty of perjury, which "non-filers", by definition, don't do." (Id. at 9.) Ultimately, plaintiff contends that "no Government attorney or IRS staffer can point to the source of delegated Treasury authority to perform 'substitute income tax' returns." (Id. at 12.)
Plaintiff's allegations reflect her belief that there is a vast conspiracy among the DOJ and various federal courts to seek to deny her and the alleged class members referred to in her complaint the right to make their claims in federal court. (Id. at 13-14.) According to plaintiff,both DOJ attorneys and federal courts routinely falsify the relief sought by plaintiffs, misapprehend their factual allegations, and dismiss their complaints without providing them meaningful access to the courts, in violation of her and other class members' First Amendment rights. (Id. at 14.) According to plaintiff, this conspiracy involves not just federal judges, but also the staff of the federal circuit courts of appeal. (Id. at 15.) Meanwhile, members of the referred to class are purportedly being prosecuted by the Attorney General for failing to follow the tax laws. (Id. at 16.)
Plaintiff contends that her "six primary goals" are: (1) to compel the commissioner of the IRS to "cease falsifying and concealing falsified IRS records"; (2) to compel the IRS and DOJ to stop using these records; (3) to "[t]erminate the efforts of DoJ employees . . . to conceal and prolong the underlying scheme by filing false and misleading documents in civil cases initiated by victims"; (4) to enjoin the "creation of fraudulent pretended precedent by judicial staff when no Court has addressed the underlying scheme"; (5) to "[s]ecure review of the underlying IRS/DoJ fraud"; and (6) to compel the Attorney General to give grand juries investigating plaintiff and other non-filers the alleged "substantial exculpatory evidence of the IRS' felony record fabrication program." (Id. at 7-8.) In her complaint, plaintiff alleges three causes of action: (1) for violation of the APA, 5 U.S.C. § 702; (2) for violation of her Fourth and Fifth Amendment rights; and (3) for violation of her First Amendment rights. (Id. at 17-18.) Concerning the requested relief, plaintiff asks the IRS be enjoined from presuming "a zero amount due was shown on an imaginary return, pursuant to any regulation, including §301.6211"; from making substituted returns for people who fail to file their tax returns; from falsifying records; and from circumventing its "lack of authority to perform substitute 'income tax' returns." (Id. at 21.) Plaintiff also seeks to enjoin the DOJ from criminally prosecuting "non-filers," from seeking to prevent cross-examination of IRS employees concerning the IRS's authority to "take any action," and other various purportedly illegal schemes, frauds, and stratagems related to its attempts to represent the United States. (Id. at 21-22.)
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Defendants move to dismiss plaintiff's claims for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Rule 12(b)(1) allows a defendant to raise the defense, by motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific claims alleged in the action.4 "In civil cases, subject matter jurisdiction is generally conferred upon federal district courts either through diversity jurisdiction, 28 U.S.C. § 1332, or federal question jurisdiction, 28 U.S.C. § 1331." Peralta v. Hispanic Bus., Inc., 419 F.3d 1064, 1068 (9th Cir. 2005). "A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a 'speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
When a party brings a facial attack to subject matter jurisdiction, that party contends that the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a Rule 12(b)(1) motion of this type, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made. See Sea Vessel Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir. 1994); Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). Accordingly, the factual allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n.1 (9th Cir. 2003); Miranda v. Reno, 238 F.3d 1156, 1157 n.1 (9th Cir. 2001). Nonetheless, district courts "may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment" when resolving a facial attack. Safe Air for Everyone, 373 F.3d at 1039.
When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction, however, no presumption of truthfulness attaches to the plaintiff's allegations. Thornhill Publ'g, 594 F.2d at 733. "[T]he district court is not restricted to the face of the pleadings, but may reviewany evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, plaintiff has the burden of establishing that such jurisdiction does in fact exist....
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