Marsoun v. United States

• Decision Date: 30 July 2012
• Docket Number: Civil Action No. 07–2078 (JDB).
• Citation: 880 F.Supp.2d 59
• Parties: Michael Robert MARSOUN, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Columbia

880 F.Supp.2d 59

Michael Robert MARSOUN, Plaintiff,

v.UNITED STATES of America, Defendant.

Civil Action No. 07–2078 (JDB).

United States District Court,

District of Columbia.

July 30, 2012.

Michael Robert Marsoun, Kealakekua, HI, pro se.

Duston K. Barton, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

This case has returned to the Court on remand from the D.C. Circuit. Plaintiff initially brought this suit against the United States based on the IRS's alleged disregard of federal tax law, and this Court dismissed his complaint. On appeal, the Circuit affirmed many aspects of that decision but reversed this Court's dismissal of some of plaintiff's claims for failure to exhaust administrative remedies. On remand, defendant has renewed its motion to dismiss, offering new, alternative grounds for dismissing each remaining claim. For the reasons stated below, the Court will grant defendant's renewed motion and dismiss the remaining claims.

I. Background

Plaintiff Michael Marsoun brought this action against the United States on November 13, 2007, claiming that the IRS and its officers disregarded federal tax law while assessing and collecting his taxes from 1990 through 2003. See Am. Compl. at 8–27 (July 29, 2008) [Docket Entry 11]. Plaintiff sought damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for violations of his constitutional due-process rights, as well as under the Taxpayer Bill of Rights, I.R.C. § 7433, for violations of the Internal Revenue Code. Id. On December 23, 2008, this Court granted the government's motion to dismiss the complaint for failure to state a claim. See Mem. Op. (Dec. 23, 2008) [Docket Entry 16], 591 F.Supp.2d 41, 47–48 (D.D.C.2008). In that decision, the Court reasoned that plaintiff's Bivens claims were not available because Congress had created a comprehensive remedial scheme to address when taxpayers can sue the United States for alleged abuses by the IRS and its officers. Id. Accordingly, the Court dismissed Counts 1 through 18 of plaintiff's complaint. Id.

The Court dismissed plaintiff's remaining claims, which are asserted under § 7433, for non-exhaustion of administrative remedies. Before a § 7433 claim can be pursued, § 7433(d)(1) requires the plaintiff to exhaust all available administrative remedies. This Court interpreted a then-recent Supreme Court decision, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), to require dismissal of a claim if the complaint does not indicate that the plaintiff has exhausted administrative remedies. SeeMem. Op., 591 F.Supp.2d at 45–46. Because neither plaintiff's amended complaint nor his response to the government's motion to dismiss contained “even a bare contention that he ha[d] satisfied the exhaustion requirement” set out in § 7433(d)(1) and its accompanying regulations, the Court dismissed the remainder of his claims. Id. at 46–47.

On appeal, the D.C. Circuit upheld this Court's ruling on the unavailability of a cause of action under Bivens for plaintiff's constitutional claims. The Circuit, however, reversed the dismissal of Counts 19 through 25, as well as Count 27. Marsoun v. United States, 439 Fed.Appx. 4, 5 (D.C.Cir.2011) (per curiam).¹ The court relied on a recent Circuit decision, Kim v. United States, 632 F.3d 713, 718–19 (D.C.Cir.2011), issued after this Court's 2008 decision, for the conclusion that non-exhaustion is not a proper ground for dismissal under these circumstances. See Marsoun, 439 Fed.Appx. at 5.

In Kim, 632 F.3d at 718–19, the D.C. Circuit concluded that, contrary to this Court's previous conclusion, a claim should not be dismissed for failure to exhaust administrative remedies when the complaint does not plead that administrative remedies have been exhausted. Kim reasoned that, unlike a motion for summary judgment, a motion for dismissal does not allow the parties to present evidence on what administrative remedies have been pursued. See id. And because failure to exhaust administrative remedies is an affirmative defense, not a pleading requirement, “the district court [must] go beyond the face of the complaint and conduct a further inquiry.” Id. Hence, a motion to dismiss for failure to state a claim should not be granted for non-exhaustion.

Accordingly, the Circuit reversed the dismissal of claims that this Court had predicated on non-exhaustion and remanded those claims for further consideration, consistent with Kim. See Marsoun, 439 Fed.Appx. at 5. The government has now renewed its motion to dismiss, raising a number of alternative reasons for dismissing remaining each count of plaintiff's complaint.

II. Standard of Review

All that the Federal Rules of Civil Procedure require of a complaint is that it contain “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the “grounds” of “entitle[ment] to relief,” a plaintiff must furnish “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555–56, 127 S.Ct. 1955;see also Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955);accord Atherton v. Dist. of Columbia Office of the Mayor, 567 F.3d 672, 681 (D.C.Cir.2009). A complaint is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. This amounts to a “two-pronged approach” under which a court first identifies the factual allegations entitled to an assumption of truth and then determines “whether they plausibly give rise to an entitlement to relief.” Id. at 679–680, 129 S.Ct. 1937.

The notice pleading rules are not meant to impose a great burden on a plaintiff. Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512–13, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). When the sufficiency of a complaint is challenged by a motion to dismiss under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should be liberally construed in his or her favor. Leatherman v. Tarrant Cnty. Narcotics & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C.Cir.1979); see also Erickson, 551 U.S. at 94, 127 S.Ct. 2197 (citing Twombly, 550 U.S. at 555–56, 127 S.Ct. 1955). The plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000). However, “the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Nor does the court accept “a legal conclusion couched as a factual allegation,” or “naked assertions [of unlawful misconduct] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (internal quotation marks omitted); see also Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 n. 4 (D.C.Cir.2008) (explaining that the court has “never accepted legal conclusions cast in the form of factual allegations”).

III. Discussion

Each of the remaining claims is appropriate for dismissal. The grounds for dismissal fall under four different categories. Counts 19, 24, and 25 must be dismissed because, contrary to § 7433's express requirements, they do not relate to the collection of taxes. Counts 20, 21, and 23 must be dismissed because they lack supporting factual allegations. Count 22 must be dismissed because it is time-barred under § 7433's statute of limitations. And Count 27 must be dismissed because it alleges activity that is not unlawful.

A. Counts 19, 24, and 25 Do Not Relate to the Collection of Taxes

Section 7433 allows a taxpayer to bring a civil suit against the United States based on the reckless, intentional, or negligent actions of IRS officers or employees. However, a § 7433 claim is only available if the reckless, intentional, or negligent actions were “in connection with any collection of federal tax.” § 7433(a); see also Kim, 632 F.3d at 715. When a prospective § 7433 claim is not connected to tax collection, no relief is available. See Pollinger v. United States, 539 F.Supp.2d 242, 247–48, 256 (D.D.C.2008). Some courts have dismissed claims unconnected to tax collection for lack of subject-matter jurisdiction. See Kim, 632 F.3d at 716–17. A claim against the United States, when not connected to tax collection, is beyond § 7433's scope; therefore, absent some other basis for jurisdiction, a district court has no power to hear such a claim. See id.

In Count 19, plaintiff alleges that the Commissioner of Internal Revenue failed to develop and implement certain administrative procedures related to liens, levies, and seizures. Compl. at 11 (Nov. 13, 2007) [Docket...