Mobley v. U.S. Gov't, 5:19-cv-116

CourtUnited States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
Docket Number5:19-cv-116
Decision Date14 January 2021



United States District Court for the Southern District of Georgia Waycross Division

January 14, 2021


Before the Court is the Motion to Dismiss Plaintiffs' Amended Complaint, dkt. no. 34, filed by Defendant, the United States Government (the "Government"). For the reasons stated below, the Government's Motion to Dismiss is GRANTED in part and DENIED in part.


This case arises from a series of interactions between pro se Plaintiffs Dylan Chase Mobley and Elijah Thomas (collectively, "Plaintiffs")2 and the Internal Revenue Service (the "IRS").

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Plaintiffs seem to believe they are not subject to federal income tax because "income tax [i]s an excise tax," they "are not engaged in any state or federal regulated activity," and they "are not employees, officers, or elected officials of the United States." Dkt. No. 29 at 4. Accordingly, in August 2017, Plaintiffs sent a "written request for verified determination of status for individual income" to the Department of Treasury (the "DOT"). Id. Neither the IRS nor the DOT responded to Plaintiffs' letter. Id. at 5. Plaintiffs thereafter filed a "zero return" with the IRS for the 2017-2018 tax period. Id. at 8. Plaintiffs allege that "the IRS/DOT agreed with [Plaintiff Thomas] that he owe[d] nothing on his return [in 2017]," even though Plaintiff Thomas earned over $40,000 that year. Id.

In May 2018, Plaintiffs requested copies of their "certificate of assessment forms for the years 2014-2018 from the IRS/DOT." Id. In June 2018, the IRS/DOT responded to this request by mailing Plaintiffs "copies of their certificate of assessment and payment forms for the years 2014-2018 that were unsigned and undated by the assessment officer." Id. Plaintiffs further allege that they never received a "Notice of Deficiency" indicating a deficiency in Plaintiffs' tax assessments for the years 2014 to 2018. Id. at 6. In a later correspondence with Plaintiff Thomas,

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the DOT stated: "I find no Notice of Deficiency pertaining to" Plaintiff Thomas. Id. at 7.

In February 2019, Plaintiffs filed a tax refund request with the Secretary of Treasury, the IRS District Director, and the IRS Commissioner. Id. at 8. Plaintiffs requested a refund "due to over payment of taxes" for the years 2014 to 2018. Id. at 8. Plaintiffs allege that "[t]he commissioner/Secretary of Treasury denied plaintiffs a right to a refund," but they do not allege any further facts regarding this refund request. Id.

In or around March 2019,3 the IRS filed a "notice of levy on wages, salary and other income" with Plaintiff Thomas's employer. Id. at 9. Between April and July 2019, the IRS and/or DOT levied over $7,500 from Plaintiff Thomas's earnings. Id. Additionally, on April 22, 2019, the DOT filed a tax lien against Plaintiffs in the Superior Court of Coffee County, Georgia. Id. at 7. Plaintiffs allege that they "filed an appeal and affidavit in support of release of [this] tax lien with DOT/Secretary of Treasury, [an "ACS W&I" employee,] and District Directory [sic]." Id. at 2, 7. Plaintiffs also state that in May 2019, they filed a "Collection Due Process hearing request," to which they attached

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a copy of their August 2017 letter to the IRS, an "[a]ffidavit in support of withdrawal of tax lien," a copy of the tax lien, and "Collection due process hearing request form CP231A." Id. The DOT denied Plaintiffs' hearing request and their "appeal."4 Id. at 8.5 Plaintiffs also allege that between April 2017 and July 2020, "the IRS/DOT . . . imposed penalties in excess of $25,000 upon plaintiffs." Id. at 10.

Plaintiffs then filed their original complaint in this case on December 16, 2019. Dkt. No. 1 (the "Petition"). Plaintiffs' suit was initially styled as a "Petition for Writ of Mandamus," which named as defendants the Government, the DOT, the IRS, the IRS Commissioner, and the IRS District Director. Id. The Government moved to dismiss the Petition on March 3, 2020. Dkt. No. 9. The Court granted that motion on April 30, 2020, dismissing Plaintiffs' Petition without prejudice. Dkt. No. 18. Plaintiffs then filed a motion to amend/correct petition, dkt. no. 19, and a motion to alter or amend the dismissal order, dkt. no. 21. On July 21, 2020, the Court orally granted Plaintiffs' motion to amend and denied Plaintiffs' motion to alter or amend the dismissal order as moot. Dkt. No. 28. An amended Petition for Writ of Mandamus, dkt. no. 27, was filed that same day. Later, on August 4, 2020,

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Plaintiffs filed an Amended Complaint, dkt. no. 29. The Government moved for clarification as to which pleading was operative, dkt. no. 30, and Plaintiffs responded by averring "the most recent amended complaint (see dkt 29) superseded the former amended complaint (see dkt 27)." Dkt. No. 33 at 1.

In Plaintiffs' Amended Complaint, the Government is the only named defendant. Dkt. No. 29 at 1. Plaintiffs allege that the Government has violated their rights in a host of ways, including:

• "the collection of unlawful debt,"
• "fail[ing] to release federal tax lien when [the Department of Treasury] learned there was no valid assessment or notice of deficiency,"
• "fail[ing] to give plaintiffs a refund for overpayment," and
• "fail[ing] to remove the Notice of Levy after [the IRS employees] knew it was based upon a void assessment and no notice of deficiency."

Dkt. No. 29 at 9-11. Plaintiffs assert that the Court has jurisdiction over this case "[f]or recovery of IRS erroneous assessed and collected tax" pursuant to 28 U.S.C. § 1346, "claims of failure to release lien" pursuant to 26 U.S.C. §§ 7432(a) and (b)(1), "unauthorized collection of taxes and for intentional disregard of regulations" pursuant to 26 U.S.C. §§ 7433(a) and (b), "refunds" pursuant to 26 U.S.C. § 7422, and "RICO Acts" under 18 U.S.C. § 1964. Id. at 1-2. Plaintiffs also state that "[a]ll claims herein have been fully exhausted." Id. at 11, 12.

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The Government filed the present Motion to Dismiss Plaintiffs' Amended Complaint on September 3, 2020. Dkt. No. 34. The Government contends that Plaintiffs' Amended Complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(1) for failure to plead facts showing that the United States has waived its sovereign immunity and under 12(b)(6) for failure to plead facts showing an injury for which Plaintiffs are owed damages. Id. at 1. Plaintiffs responded in opposition to the Government's Motion to Dismiss, attaching a number of exhibits to support their contentions. Dkt. No. 35.6 The Government filed a reply to Plaintiffs' response, dkt. no. 38, and Plaintiffs subsequently filed a "Good Faith Notice," informing the Government "that it has not filed response to plaintiffs affidavit affirming denying or affirming [sic] each claim therein," and that if the Government "does not file response to said affidavit the court will be required to accept all statements or claims made therein as true." Dkt. No. 42. When asked at a hearing on the Motion what Plaintiffs' authority was for this assertion in the "Good Faith Notice," Plaintiffs replied: "the Uniform Commercial Code." See Dkt. No. 47.

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Federal courts have limited jurisdiction. Ishler v. Internal Revenue, 237 F. App'x 394, 395 (11th Cir. 2007) (citing Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005)). The plaintiff bears the burden of establishing the court's subject matter jurisdiction. Id. Under Federal Rule of Civil Procedure 12(b)(1), there are two types of motions to dismiss for lack of subject matter jurisdiction—facial attacks and factual attacks. Morrison v. Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003) (citing Lawrence v. Dubar, 919 F.2d 1525, 1529 (11th Cir. 1990)). "Facial attacks challenge subject matter jurisdiction based on allegations in the complaint, and the district court takes the allegations as true in deciding whether to grant the motion." Id. "Factual attacks challenge subject matter jurisdiction in fact, irrespective of the pleadings." Id. In resolving a factual attack, the district court may consider extrinsic evidence such as testimony and affidavits." Id. In considering a factual attack:

the trial court may proceed as it never could under 12(b)(6) or Fed. R. Civ. P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction-its very power to hear the case-there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of the jurisdictional claims.

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Lawrence, 919 F.2d at 1529 (citing Williamson v. Tucker, 645 F.2d 404, 412-413 (5th Cir. 1981)).

Further, Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief." While this pleading standard does not require "detailed factual allegations," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In order to withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). 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." Id.

It is important to note that while the factual allegations set forth in the complaint are to be considered true at the motion to...

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