Maehr v. U.S. Dep't of State
| Decision Date | 28 February 2020 |
| Docket Number | Civil Action No. 18-cv-02948-PAB-NRN |
| Parties | JEFFREY T. MAEHR, Plaintiff, v. UNITED STATES Department of State, including Secretary of State Mike Pompeo, in his official capacity, Defendant. |
| Court | U.S. District Court — District of Colorado |
ORDER
This matter is before the Court on the magistrate judge's Report and Recommendation on Defendant's Motion to Dismiss Plaintiff's Amended Complaint [Docket No. 55] entered on September 27, 2019. Magistrate Judge N. Reid Neureiter recommends that defendant's motion to dismiss [Docket No. 46] be granted. Docket No. 55 at 1. On October 10, 2019, the United States1 and plaintiff filed objections to the magistrate judge's recommendation. Docket No. 58; Docket No. 59. Each party responded to the opposing party's objections on October 24, 2019. Docket No. 60(defendant's response); Docket No. 61 (plaintiff's response).
The background facts and procedural history in this case are set out in the magistrate judge's recommendation and will not be repeated unless necessary for purposes of this order. In or about 2010, the Internal Revenue Service ("IRS") determined that plaintiff owed the government approximately $250,000 in federal taxes and penalties based on tax years 2003-06. Docket No. 32 at 4, ¶ 13. The IRS certified that plaintiff had a "seriously delinquent" tax debt - i.e., debt exceeding $50,000 - under 26 U.S.C. § 7345. Id. at 5, ¶ 17. On December 4, 2018, defendant sent a letter to plaintiff ordering him to surrender his passport to the State Department. Id., ¶¶ 17-18. Plaintiff voluntarily surrendered his passport. Id., ¶ 20.
Plaintiff argues that the revocation of his passport violated his constitutional right to travel. Id. at 7-8, ¶¶ 30-31, 33. He seeks an injunction ordering defendant to reinstate his passport, a declaration that the statute under which his passport was revoked, 26 U.S.C. § 7345, is unconstitutional, and an award of fees and costs. Id. at 11-12.
Magistrate Judge Neureiter recommends that defendant's motion to dismiss be granted and the case be dismissed with prejudice. Docket No. 55 at 19. Both parties filed objections to the recommendation. Docket No. 58; Docket No. 59.
The Court must "determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3). An objection is "proper" ifit is both timely and specific. United States v. One Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). A specific objection "enables the district judge to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute." Id. In the absence of a proper objection, the Court may review a magistrate judge's recommendation under any standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) ().
Defendant partially objects to the magistrate judge's order insofar as the magistrate judge determined that subject matter jurisdiction exists in this case. See Docket No. 55 at 9; see also Docket No. 58 at 2. Whether a court has subject matter jurisdiction is a threshold inquiry that must be determined before proceeding to the merits of a party's claims. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998). "If a district court lacks jurisdiction, it has no authority to rule on the merits of a plaintiff's claims." Lemarie v. FAA, 2013 WL 6858697, at *1 (W.D. Okla. Dec. 30, 2013).
In its motion to dismiss, defendant argued that plaintiff's complaint contained a jurisdictional defect in that it did not clearly set out a basis for a waiver of thegovernment's sovereign immunity. Docket No. 46 at 17.2 In response, plaintiff argued that the Court has mandamus jurisdiction under 28 U.S.C. § 1361, which provides that "district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. The magistrate judge "agree[d] that the relief sought here is generally in the nature of a mandamus action" and determined that the Court has subject matter jurisdiction. Docket No. 55 at 9.
Section 1361 of Title 28 provides "mandamus jurisdiction to all federal district courts." Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1235 (10th Cir. 2005). "[A]pplication of the mandamus remedy to require a public official to perform a duty imposed upon him in his official capacity is not limited by sovereign immunity." Id. at 1234. "The Supreme Court has made clear that the writ of mandamus is a 'drastic' remedy that is 'to be invoked only in extraordinary circumstances.'" Soc. Sec. Law Ctr., LLC v. Colvin, 542 F. App'x 720, 722 (10th Cir. 2013) (unpublished) (quoting Allied Chem. Corp. v. Daiflin, Inc., 449 U.S. 33, 34 (1980)).
However, "[t]he common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty." Heckler v. Ringer, 466 U.S. 602, 616 (1984). Defendant argues that plaintiff has failed to exhausthis administrative remedies here. Docket No. 58 at 4. Specifically, defendant argues that plaintiff has other potential remedies under 26 U.S.C. § 7345, which provides that, once it has been certified by the Commissioner of the IRS that a taxpayer has "a seriously delinquent tax debt" and this certification was been transmitted to the Secretary of State for revocation of a passport, "the taxpayer may bring a civil action against the United States in a district court of the United States, or against the Commissioner in the Tax Circuit, to determine whether the certification was erroneous or whether the Commissioner has failed to reverse the certification." 26 U.S.C. § 7345(a), (e)(1).
Plaintiff contends that he was not required to file an action under § 7345(e) because that provision cannot provide the relief he seeks here. Docket No. 61 at 7. Plaintiff challenges not the certification of his delinquent status, but the constitutionality of defendant's revocation of his passport. Id. The Court agrees with plaintiff that the nature of relief he seeks here is not of the kind that he could receive under 26 U.S.C. § 7345(e). This section permits a taxpayer to challenge the Commissioner of Internal Revenue's certification of delinquency, not the resulting passport revocation by the Secretary of State. See 26 U.S.C. § 7345(e); see also Wall v. United States, 2019 WL 7372731, at *2 (Fed. Cl. Dec. 31, 2019) (). Plaintiff, in this lawsuit, does not challenge the Commissioner's certification of his delinquency. See Docket No. 32 at 1, ¶ 1 (). Rather, "[t]he narrower purpose of [the lawsuit] is tochallenge the Government's purported revocation of [plaintiff's] passport under the FAST Act, 26 U.S.C. § 7345." Id., ¶ 2; see also id. at 7, ¶ 30 (); see also 22 U.S.C. § 2714a(e)(2) (). Because the basis of plaintiff's lawsuit could not have been raised in a challenge under § 7345(e), the Court finds that plaintiff was not required to have filed suit under that statute to exhaust his administrative remedies.
Defendant argues that "the Court cannot issue a mandamus order against the Secretary of State without invading the discretionary authority vested in another branch of government." Docket No. 58 at 5. Mandamus relief is available only if the plaintiff demonstrates that the defendant owes the plaintiff a clear, nondiscretionary duty. Heckler, 466 U.S. at 616. It is a "well-taken rule" that, "to the extent a statute vests discretion in a public official, his exercise of that discretion should not be controlled by the judiciary." Carpet, Linoleum and Resilient Tile Layers, Local Union No. 419 v. Brown, 656 F.2d 564, 566 (10th Cir. 1981). Defendant argues that, because "[i]ssuing and revoking passports are inherently discretionary activities," it would be "inappropriate for the Court to order the Secretary of State to reissue a passport to a de-certified taxpayer." Docket No. 58 at 5. Plaintiff, however, contends that defendant "did not exercise any executive discretion in following 22 U.S.C. § 2714a(e)(2) - it simply revoked [plaintiff's passport] because [he] owed the Government money, as the statute directs." Docket No. 61 at 8. In addition, he argues that his lawsuit does not "interferewith the State Department's executive discretion because the State Department has no discretion to violate the Constitution." Id.
Both parties are correct. Contrary to plaintiff's assertion, 22 U.S.C. § 2714a does not "direct" the Secretary of State to revoke an individual's passport when certain conditions are met. See 22 U.S.C. § 2714a(e)(2) ("The Secretary of State may revoke a passport previously issued to any individual described in paragraph (1)(A)" (emphasis added). By comparison, a preceding provision in the statute expressly prohibits the Secretary of State from issuing a passport to an individual who has been certified as delinquent under § 7345: ...
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