Kenner v. Holder
| Decision Date | 19 December 2012 |
| Docket Number | CASE NO. 12cv1011-MMA (WVG) |
| Parties | BRIAN AND KATHLEEN KENNER, Plaintiffs, v. ERIC HOLDER, in his official capacity as the Attorney General for the United States Department of Justice, et al., Defendants. |
| Court | U.S. District Court — Southern District of California |
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
Plaintiffs Brian and Kathleen Kenner, proceeding pro se, have filed suit against Defendants Eric Holder, in his official capacity as the United States Attorney General, Tim Geithner, in his official capacity as the Secretary of the United States Treasury, and the United States, alleging the unconstitutionality of two sections of the Internal Revenue Code, the Federal Tort Claims Act, and the doctrine of judicial immunity. Defendants move to dismiss Plaintiffs' claims pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a plausible claim for relief. Plaintiffs filed an opposition to the motion, to which Defendants replied. See Doc. Nos. 7, 8. The Court took the motion under submission on the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1. For the reasons set forth below, the Court GRANTS Defendants' motion.
The underlying facts of this case arise out of Plaintiffs' interactions with the Internal Revenue Service. Claims relating directly to those events have been litigated in prior actions.1 According to Plaintiffs, Complaint ¶ 6.
Plaintiffs' claims in this case implicate the constitutionality of the various statutory and common law principles relied upon by the Court to dismiss their prior actions. Specifically, Plaintiffs allege that two provisions in the Internal Revenue Code, 26 U.S.C. §§ 7432,2 7433,3 the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq., and the doctrine of absolute judicial immunity violate their Fifth Amendment due process rights because of the immunities these laws provide to federal employees and members of the judiciary from being sued in their personal capacities for the performance of official duties. Plaintiffs further allege that these laws are unconstitutional under the First Amendment because the laws impede their efforts to petition the government for redress.Id. ¶¶ 22-35. Plaintiffs seek injunctive and declaratory relief only.4
Dismissal of a claim is appropriate under Federal Rule of Civil Procedure 12(b)(1) when the Court lacks subject matter jurisdiction over the claim. Standing is jurisdictional, cannot be waived, and is properly addressed under Rule 12(b)(1). See United States v. Hays, 515 U.S. 737, 742 (1995); Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). When ruling on a motion to dismiss for lack of standing, the Court "must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Graham v. FEMA, 149 F.3d 997, 1001 (9th Cir.1998), quoting Warth v. Seldin, 422 U.S. 490, 501 (1975).
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633 (1999). "The old formula - that the complaint must not be dismissed unless it is beyond doubt without merit - was discarded by the Bell Atlantic decision [Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007)]." Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th Cir. 2008).
A complaint must be dismissed if it does not contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp., 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009). The Court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004), citing Karam v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003). In addition, where a plaintiff appears pro se, the Court must construe the pleadings liberally and afford the plaintiff anybenefit of the doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988).
Defendants assert that Plaintiffs' claims must be dismissed as barred by the doctrine of sovereign immunity. In addition, Defendants move for dismissal on the grounds that Plaintiffs lack standing, and fail to state a claim upon which relief can be granted.5
As an initial matter, Defendants argue that this suit is barred by the doctrine of sovereign immunity. Cominotto v. United States, 802 F.2d 1127, 1129 (9th Cir. 1986). Plaintiffs must show that the government has "unequivocally expressed" a waiver of immunity. Gilbert v. DaGrossa, 756 F .2d 1455, 1458 (9th Cir. 1985). The Ninth Circuit has observed that "the bar of sovereign immunity cannot be avoided by naming officers and employees of the United States as defendants," including agency heads sued in their official capacity. Id. Sovereign immunity bars claims against federal agents in their official capacities unless a waiver of sovereign immunity is unequivocally expressed. United States v. Mitchell, 445 U.S. 535, 538 (1980).
There are exceptions to the doctrine of sovereign immunity. In particular, one of the well-established exceptions limits application of the doctrine in a suit for declaratory and/or injunctive relief against federal officials, seeking to enjoin the enforcement by those officials of an unconstitutional statute. Dugan v. Rank, 372 U.S. 609, 621-22 (1963). Plaintiffs' claims may be reasonably construed as alleging that Sections 7432 and 7433 of the Internal Revenue Code and the Federal Tort Claims Act are unconstitutional in that enforcement of these statutes by DefendantsGeithner and Holder deprives them of their rights under the Fifth and First Amendments. Dugan states that sovereign immunity will not protect a government official from suit regarding actions beyond their statutory powers or actions taken in a manner that is constitutionally void. 372 U.S. at 621-22, citing Malone v. Bowdoin, 369 U.S. 643, 647 (1962). However, the Court in Dugan went on to specify that "[i]n . . . such case[] the officer's action 'can be made the basis of a suit for specific relief against the officer as an individual.'" Id. at 622, quoting Malone, 369 U.S. at 647 (emphasis added). Here, Plaintiffs clearly have sued Attorney General Holder and Secretary Geithner in their official capacities, not as individuals. As such, the Dugan exception to the doctrine of sovereign immunity does not apply.
Furthermore, Plaintiffs fail to plead a statutory basis for the waiver of the United States' immunity in their complaint. Rather, they argue in their opposition brief that the United States has waived its sovereign immunity pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 702, et seq. Defendants assert in reply that arguments raised in Plaintiffs' opposition brief are insufficient to establish jurisdiction. Even if the Court liberally construes Plaintiffs' pro se pleading to include jurisdictional allegations based on the APA, Plaintiffs' reliance on the APA is improper. The APA affords judicial review to persons claiming to have suffered a legal wrong from any final action undertaken by a federal agency. Watson v. Chessman, 362 F. Supp. 2d 1190, 1196 (S.D. Cal. 2005), citing 14A WRIGHT, MILLER & COOPER, FEDERAL PRACTICE & PROCEDURE: JURISDICTION 3D § 3659, at 2-3 (1998). While Plaintiffs may have sought review of a "final action" of a government agency in their prior cases, this is not the nature of the relief sought in this suit. Here, Plaintiffs request prospective injunctive and declaratory relief. Plaintiffs pray for the Court to enjoin the enforcement of allegedly unconstitutional federal laws and to declare those laws unconstitutional. Complaint ¶ 36. No final action undertaken by a federal agency is directly at issue. The APA is inapplicable to this case and does not confer jurisdiction.
Defendants argue that Plaintiffs lack constitutional standing to bring this action based on their failure to allege valid injuries-in-fact. Constitutional standing under Article III requires the following for each claim: (1) the party invoking federal jurisdiction must have suffered some actualor threatened injury; (2) the injury must be fairly traceable to the challenged conduct; and (3) a favorable decision would likely redress or prevent the injury. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81, 185 (2000); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The party asserting the claim has the burden of establishing standing. See Colwell v. Dept. of Health and Human Servs., 558 F.3d 1112, 1121 (9th Cir. 2009).
According to Plaintiffs, "[s]tanding to file this lawsuit comes, in part,...
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