O'Meara v. Waters

• Decision Date: 04 October 2006
• Docket Number: Civil Case No. RDB 05-3363.
• Citation: 464 F.Supp.2d 474
• Parties: Jerome T. O'MEARA, Pro Se, Plaintiff, v. K.C. WATERS, Settlement Officer, IRS, Defendant.
• Court: U.S. District Court — District of Maryland

464 F.Supp.2d 474

Jerome T. O'MEARA, Pro Se, Plaintiff, v. K.C. WATERS, Settlement Officer, IRS, Defendant.

Civil Case No. RDB 05-3363.

United States District Court, D. Maryland.

October 4, 2006.

Jerome T. O'MEARA, Baltimore, MD, pro se.

Jonathan D. Carroll, United States Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

BENNETT, District Judge.

Plaintiff Jerome T. O'Meara ("O'Meara"), proceeding in proper person, has filed a complaint in this action against K.C. Waters ("Waters"), an employee of the Internal Revenue Service. The complaint alleges a violation of O'Meara's due process rights under the Fifth Amendment to the United States Constitution. The complaint was filed in this Court on December 15, 2005, under 28 U.S.C. § 1361. Pending before this Court is Waters' Motion to Dismiss O'Meara's claim against her for ineffective service of process and lack of subject matter jurisdiction. For the reasons set forth below, the Defendant's Motion to Dismiss is DENIED with respect to the ineffectual service of process claim, but GRANTED with respect to a lack of subject matter jurisdiction.

BACKGROUND

On May 28, 2004, the Internal Revenue Service ("IRS") issued O'Meara a Notice of Deficiency and Notice of Intent to Levy in regard to deficiencies in his 1999, 2000, 2001 and 2002 tax returns. Upon receiving the Notice, O'Meara submitted a timely request for a face-to-face collection due process ("CDP") hearing. By letter dated July 29, 2005, an IRS settlement officer informed O'Meara that the issues he raised in his hearing request were considered frivolous and that the Appeals Office would not provide a face-to-face hearing. The officer advised O'Meara to describe any legitimate issues that might warrant a face-to-face hearing and to submit a completed financial statement and verification that particular tax forms for 2003 and 2004 had been filed and paid. In addition, the officer scheduled a telephone hearing for August 31, 2005.

O'Meara responded by letter dated August 5, 2005, disagreeing with the determination that the issues he raised were frivolous and stating that a face-to-face hearing should be provided. In a letter dated August 9, 2005, Waters responded to O'Meara's follow-up request. She informed O'Meara that the information in his August 5, 2005 letter was insufficient to approve a face-to-face hearing, reiterating that O'Meara's issues were frivolous. She also noted that O'Meara failed to submit requested financial information, did not file a delinquent return, and did not make any proposal to pay the delinquent liabilities. Further, she offered O'Meara the opportunity to discuss any relevant challenges during the August 31, 2005 telephone conference or by future correspondence. By letter dated August 29, 2005, O'Meara again requested a face-to-face hearing. O'Meara did not call the IRS office on August 31, 2005 for his scheduled telephone hearing.

On December 15, 2005, O'Meara, proceeding without counsel filed suit in this Court pro se. On March 23, 2006, Waters filed a Motion to Dismiss the Plaintiff's Complaint, claiming ineffective service of process pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(5) and for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) (Paper No. 6). While Waters seeks dismissal under Rule 12(b)(6), the issues raised in the motion relate to this Court's subject matter jurisdiction over the action pursuant to Rule 12(b)(1). Thus, this Court must review the dismissal motion pursuant to Rule 12(b)(1).¹ On April 11, 2006, O'Meara filed a Response in Opposition to Defendant's Motion to Dismiss (Paper No. 8).

STANDARDS OF LAW

V. Rule 12(b)(5)

A motion to dismiss for insufficient service of process is permitted by Federal Rule 12(b)(5). Once service has been contested, the plaintiff bears the burden of establishing the validity of service pursuant to Rule 4. See Norlock v. City of Garland, 768 F.2d 654, 656 (5th Cir.1985). Generally, when service of process gives the defendant actual notice of the pending action, the courts may construe Rule 4 liberally to effectuate service and uphold the jurisdiction of the court. Karlsson v. Rabinowitz, 318 F.2d 666, 668 (4th Cir. 1963); Armco, Inc. v. Penrod — Stauffer Bldg. Sys., Inc., 733 F2d 1087, 1089 (4th Cir.1984). When there is actual notice, failure to strictly comply with Rule 4 may not invalidate the service of process; however, plain requirements for the means of effecting service of process may not be ignored. Armco, 733 F.2d at 1089.

II Rule 12(b)(1)

Under Federal Rule 12(b)(1), pursuant to which a defendant can challenge a court's subject matter jurisdiction, it is the plaintiff who must prove that subject matter jurisdiction exists. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999). Federal courts are courts of limited jurisdiction possessing only that power authorized by the Constitution and Congress. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citing Willy v. Coastal Corp., 503 U.S. 131, 136-37, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992); Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1325, 89 L.Ed.2d 501 (1986)); Bowman v. First National Bank of Harrisonburg, 388 F.2d 756, 750 (4th Cir.1968). For example, Article III of the Constitution extends federal court jurisdiction to cases arising under the Constitution and federal laws, and cases involving diversity of citizenship. U.S. CONST. art. 3, § 2, cl. 1. A case must be entirely dismissed by a federal court if the federal court determines that it lacks subject matter jurisdiction. Arbaugh, v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 1244, 163 L.Ed.2d 1097 (2005).

DISCUSSION

I. Service of Process

Waters seeks to dismiss the complaint pursuant to Rule 12(b)(5) because O'Meara did not serve a summons and copy Of the complaint upon Waters personally. Rule 4 provides that where a federal employee is sued in an official capacity, service of process is effected by sending a copy of the summons and complaint via certified or registered mail to the employee, and serving process upon the United States. FED. R.CIV.P. 4(i)(2). Service upon the United States is accomplished by personal service upon the United States Attorney for the district in which the action is brought and service by certified or registered mail upon the Attorney General of the United States. FED R.Crv.P. 4(i)(1). Where the employee is sued in an individual capacity for acts or omissions occurring in connection with the performance of duties on behalf of the United States, service is effected by delivering a copy of the complaint to "the individual personally or by leaving copies at the individual's dwelling (in the manner prescribed by Rule 4(e)), and complying with the aforementioned requirements for service upon the United States. FED. R.Crv.P. 4(i)(2)(3). Here, O'Meara sent copies of the summons and complaint by certified mail to Waters at her place of employment, and complied with the requirements for service upon the United States. Thus, the determination whether service was properly effected on Waters, a United States employee,' depends on whether O'Meara is suing her in an official or individual capacity.

Waters was clearly acting within her official capacity as an Appeals Officer pursuant to 26 C.F.R. § 301.6330 and Internal Revenue Manual § 8.6.1.2.5 when she denied O'Meara's request for a face-to-face Appeals hearing.² Thus, this Court concludes that O'Meara properly effectuated service of process by sending Waters a copy of the summons and complaint by certified mail. Waters' motion to dismiss the claim based on improper service of process is DENIED.

II. Subject Matter Jurisdiction

O'Meara seeks a writ of mandamus to compel an IRS employee to act. To assess whether jurisdiction is proper in this case, this Court must interpret two competing statutes. The positive grant of jurisdiction is found in the Mandamus and Venue Act ("MVA") 28 U.S.C. § 1361: "The 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 limiting jurisdictional statute, the Anti-Injunction Act ("AIA") provides that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed." 26 U.S.C. § 7421(a). While the MVA grants district courts jurisdiction over any suit seeking mandamus, it does not override the AIA. Estate of Michael ex rel. Michael v. Lullo, 173 F.3d 503, 506 (4th Cir.1999): To prevail, therefore, O'Meara must demonstrate that his claim does not implicate the AIA or that it fits within the narrow exception to the AIA, which allows plaintiffs to bring suit upon proof of irreparable injury and certainty of success on the merits. Id.

A. Implication of the Anti-Injunction Act

The Supreme Court of the United States has interpreted the principal purpose of the AIA to be the protection of the Government's need to assess and collect taxes as expeditiously as possible "with a minimum of preenforcement judicial interference" and "to require that the legal right to the disputed sums be determined in a suit for refund." Bob Jones Univ. v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974). O'Meara claims that his suit does not implicate the AIA because he is asserting his due process right to a face-to-face hearing and not challenging the levied tax liabilities. (Compl.¶ 6,7.) However, the Unites States Court of Appeals for the Fourth Circuit has interpreted the AIA to extend broadly "beyond the mere assessment and collection of taxes to embrace other activities ... that are intended to or may culminate in the assessment or collection...