Pace v. Platt
| Decision Date | 12 August 2002 |
| Docket Number | No. 3:01-CV-452/LAC.,3:01-CV-452/LAC. |
| Parties | Don H. PACE and Bonnie L. Pace, and on behalf of themselves and all others similarly situated, Plaintiffs, v. Leonard PLATT, Joan E. Klar, Timothy J. Lee, Henry O. Lamar, Jr., Jane and John Does 1-500, and the Internal Revenue Service, Defendants. |
| Court | U.S. District Court — Northern District of Florida |
Don H. Pace, Sedona, AZ, Pro se.
Bonnie L. Pace, Panama City Beach, FL, Pro se.
Wendy K. Vann, U.S. Department of Justice, Washington, DC, for Defendants.
Plaintiff DON H. PACE, a suspended Ohio attorney and perennial litigant , proceeding pro se, and his wife, Plaintiff BONNIE L. PACE, also proceeding pro se, filed the instant complaint. Plaintiffs allege that, without notice, Defendant LEONARD PLATT, an employee of the Internal Revenue Service (IRS) Criminal Investigation Division imposed an administrative control code 914 (Code 914) on Plaintiffs' 1992, 1994, and 1995 federal income tax accounts, freezing the account activities (Doc. 1, ¶¶ 16, 55). As a result, Plaintiffs contend that they did not timely receive refunds which were due to them (Id., ¶¶ 23-24, 55). Plaintiffs further contend that Defendants JOAN E. KLAR, TIMOTHY J. LEE, HENRY O. LAMAR, JR., IRS, and UNITED STATES OF AMERICA had supervisory authority over Defendant Platt and both "neglected to adequately supervise" him and "participated in, ratified, approved and covered up" his conduct (Id., ¶ 58).1 Plaintiffs also contend that Code 914 has been invoked thousands of times by Defendants Platt and JANE AND JOHN DOES 1-500 to seize and delay refunds (Id., ¶¶ 56, 61). Plaintiffs attribute Platt and Does' alleged use of Code 914 to Defendants Klar, Lee, and Lamar.
Plaintiffs filed a twenty-eight page, six-count complaint on December 3, 2001, relying on Title 28, United States Code, Sections 1343 and 1346(a)(1) & (b) for jurisdiction. In the first count of the complaint, brought pursuant to Title 42, United States Code, Section 1983, Plaintiffs seek declaratory judgment that Code 914 violates the Fifth Amendment of the United States Constitution. The second count, brought pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), asserts a "constitutional tort"-namely, that the implementation of Code 914 by the individual Defendants allegedly violated the Fifth Amendment rights of Plaintiffs. The remaining counts allege tort claims for conversion against the individual defendants (Count III) negligent hiring and supervision against United States, IRS, Klar, Lee, Lamar and Does 1-500 (Count IV); respondeat superior against United States and IRS (Count V); and intentional infliction of emotional distress against all Defendants (Count VI). Plaintiffs bring Counts III through VI pursuant to the Federal Torts Claim Act (FTCA), Title 28, United States Code, Sections 2671 through 2680. Pursuant to Title 28, United States Code, Sections 2679(b)(2) and 2679(d)(2), this Court substituted the United States for the individual Defendants in Counts III through VI and dismissed the individual Defendants from those counts (Doc. 29). Defendants now move to dismiss all claims under various theories for want of subject matter jurisdiction and failure to state a claim upon which relief can be granted (Doc. 8).2
A. Standard
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure is designed to eliminate complaints or claims over which this Court lacks subject matter jurisdiction. As the party seeking this Court's jurisdiction, Plaintiffs have the burden of alleging facts sufficient to show federal jurisdiction is appropriate. See McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 188-89, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). Plaintiffs carry the burden throughout the litigation and must support their allegations of jurisdiction with sufficient facts if challenged by Defendants or the Court. See id. "A federal court must always dismiss a case upon determining that it lacks subject matter jurisdiction, regardless of the stage of the proceedings, and facts outside of the pleadings may be considered as part of that determination." Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1331 n. 6 (11th Cir.2001).
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is designed to eliminate counts or complaints that fail to state a claim upon which relief can be granted. As such, this Court must accept all allegations of the complaint as true and construe those allegations in the light most favorable to Plaintiffs. See Lopez v. First Union Nat'l Bank of Fla., 129 F.3d 1186, 1189 (11th Cir.1997). A count may not be dismissed for failure to state a claim unless it appears beyond doubt that Plaintiffs can prove no set of facts in support of their claim which would entitled them to relief. See id. "The threshold of sufficiency that a complaint must meet to survive a motion to dismiss is exceedingly low." Quality Foods de Centro Am. v. Latin Am. Agribusiness Dev. Corp., 711 F.2d 989, 995 (11th Cir.1983).
Defendants argue that they are immune from suit on a number of Plaintiffs claims and that this Court lack subject matter jurisdiction over those claims because (a) Congress has not authorized suit against the IRS, (b) suits in respect to assessing and collecting a tax are excluded from the FTCA, and (c) Plaintiffs have failed to exhaust their administrative remedies "[T]he United States, as a sovereign, `is immune from suit, save as it consents to be sued ... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" United States v. Dalm, 494 U.S. 596, 608, 110 S.Ct. 1361, 1368, 108 L.Ed.2d 548 (1990). Any statutory waiver of sovereign immunity must be strictly construed in favor of the United States. See United States v Nordic Village, Inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011, 1014-15, 117 L.Ed.2d 181 (1992); Preserve Endangered Areas of Cobb's History, Inc. v. U.S. Army Corps of Engineers, 87 F.3d 1242, 1249 (11th Cir. 1996). When the United States has not consented to suit, the action must be dismissed for lack of subject matter jurisdiction. See United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607 (1980); Elias v. Connett, 908 F.2d 521, 527 (9th Cir.1990). Moreover, Plaintiffs, as the parties suing the United States, bear the burden of pointing to an "unequivocable waiver of immunity." Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir.1983), cert. denied, 466 U.S. 958, 104 S.Ct. 2168, 80 L.Ed.2d 552 (1984).
Plaintiffs have sued the IRS as a defendant in this action. However, Congress has not authorized suit against the IRS. Therefore, it lacks the capacity to be sued. See Blackmar v. Guerre, 342 U.S. 512, 514, 72 S.Ct. 410, 411, 96 L.Ed. 534 (1952); Castleberry v. Alcohol, Tobacco & Firearms Div., 530 F.2d 672, 673 n. 3 (5th Cir.1976);3 Washburn v. Shapiro, 409 F.Supp. 3, 8 (S.D.Fla.1976); Krouse v. U.S. Government Treasury Dept. Internal Revenue Serv., 380 F.Supp. 219, 221 (C.D.Cal.1974); Baumohl v. Columbia Jewelry Co., 127 F.Supp. 865 (D.Md.1955). Accordingly, this Court lacks subject matter jurisdiction over suits against the IRS. Therefore, Defendants' motion is GRANTED to that extent and the IRS is DISMISSED with prejudice from this action.
Defendants argue that Plaintiffs' claims under Counts III through VI are specifically exempted from the FTCA and, therefore, that this Court lacks subject matter jurisdiction over those claims. The FTCA specifically excludes "[a]ny claim arising in respect to the assessment or collection of any tax...." 28 U.S.C.A. § 2680(c) (West 1994). "Section 2680(c) has been interpreted broadly by the courts to preclude suits for damages arising out the alleged tortious activities of IRS agents when those activities were in any way related to the agents' official duties." Capozzoli v. Tracey, 663 F.2d 654, 658 (5th Cir.1981) (citing Morris v. United States, 521 F.2d 872, 874 (9th Cir.1975); Broadway Open Air Theatre v. United States, 208 F.2d 257, 259 (4th Cir.1953); Pugh v. I.R.S., 472 F.Supp. 350, 352-353 (E.D.Pa. 1979); Paige v. Dillon, 217 F.Supp. 18, 20 (S.D.N.Y.1963)); see also Perkins v. United States, 55 F.3d 910, 913 (4th Cir.1995) ().4
Plaintiffs' complaint raises claims that arise from the IRS's retention of certain taxes that Plaintiffs allege should have been refunded to them. Counts III through VI plainly arise "in respect of the assessment or collection of any tax" and the United States has not waived sovereign immunity on those claims.5 Therefore, Defendants' motion must be GRANTED as to Counts III through VI, and those counts must be DISMISSED with prejudice.
Even if the Court were to find that Defendants' actions did not fall under the assessment and collection exclusion, Counts III through VI still must be dismissed. Under the FTCA, Congress waived sovereign immunity and granted consent for the United States government to be sued for acts committed by any "employee of the Government while acting within the scope of his office or employment." 28 U.S.C.A. § 1346(b) (West Supp. 2001). However, a procedural prerequisite for such a suit is that "[a]n action ... not be instituted ... unless the claimant [has] first presented the claim to the appropriate Federal agency and his claim [has] been finally denied by the agency in writing and sent by certified or registered mail."6 28 U.S.C.A. 2675(a) (West 1994)....
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