Rucker v. SECRETARY OF TREASURY OF UNITED STATES

• Decision Date: 10 February 1983
• Docket Number: Civ. A. No. 82-K-1450.
• Citation: 555 F. Supp. 1051
• Parties: Dalleen RUCKER, Plaintiff, Rosa Ortega and Kathy Warner, Intervenors, v. The SECRETARY OF the TREASURY OF the UNITED STATES of America, and The United States of America, Defendants.
• Court: U.S. District Court — District of Colorado

555 F. Supp. 1051

Dalleen RUCKER, Plaintiff Rosa Ortega and Kathy Warner, Intervenors, v. The SECRETARY OF the TREASURY OF the UNITED STATES of America, and The United States of America, Defendants.

Civ. A. No. 82-K-1450.

United States District Court, D. Colorado.

February 10, 1983.

Glenn Meyers and Israel Galindo, Colo. Rural Legal Services, Denver, Colo., Jacquie Higinbotham, Colo. Rural Legal Services, Fort Morgan, Colo., for plaintiff.

Susan Souder, Tax Div., Dept. of Justice, Washington, D.C., Robert Miller, U.S. Atty., Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

This motion to dismiss alleges that subject matter jurisdiction over the pertinent issues is lacking, that express statutory procedural limitations prohibit the exercise of this court's jurisdiction, and that declaratory and injunctive relief are proscribed in federal tax actions.

Two other parties petitioned to intervene in this action pursuant to F.R.Civ.P. 24, and those motions were granted. It is proper to decide an intervenor's claim after dismissal of the original action when the intervenor's claim possesses independent grounds for jurisdiction. Goto v. District of Columbia Bd. of Zoning Adjustment, 423 A.2d 917, 922 (D.C.App.1980); Magdoff v. Saphin Television & Appliance, Inc., 228 F.2d 214 (5th Cir.1955); Kruse v. Zenith Radio Corp., 82 F.R.D. 66, 69 (D.Pa.1979). See also, Wright & Miller, Federal Practice and Procedure: Civil § 1920. However, in the instant case, the intervenors have adopted by reference Dalleen Rucker's claims as their own. Therefore, the intervenors' grounds for jurisdiction are likewise insufficient. Because I hold that the court lacks jurisdiction to decide plaintiff Rucker's case, I do not now reach the additional issues raised in defendant's motion.

Plaintiff is a married woman who is a resident of Fort Morgan, Colorado. Her husband is indebted to the State of Colorado due to his delinquency in making required child support payments to his children of a previous marriage. In April, 1982, plaintiff and her husband filed a joint federal income tax return for 1981 in which plaintiff's wages represented a portion of the reported income. It was anticipated that approximately $1124 would be returned to plaintiff and her husband due to an expected earned income credit and a refund which partially resulted from money withheld from plaintiff's wages. However, plaintiff did not receive her expected return. The Internal Revenue Service (IRS) notified the plaintiff and her husband that pursuant to 42 U.S.C. § 664, the entire amount of their refund and earned income credit had been retained in order to fully or partially offset the amount which her husband owed the State of Colorado for nonpayment of child support. Plaintiff first contacted the Department of Social Services and then the IRS to request the return of her allocable portion. She was instructed to complete and file a special IRS form in order to obtain her refund and earned income credit, and was informed that a three to six month delay would occur before any refund would be forthcoming. Acting upon information and belief that the refund and credit had already been paid to the Colorado Department of Social Services by the IRS, plaintiff instituted the present action on August 31, 1982.

Shortly after plaintiff's amended tax return was received by the IRS, her proportionate share of the refund and earned income credit was returned to her. She received a total of $126; $31 in withholdings and $95 of earned income credit. For the most part, plaintiff does not dispute the amount of money returned, but argues that the government is not authorized to retain funds owed to an individual without a child support obligation to the state, and that the taking of property without notice violates the Due Process Clause of the Fifth Amendment to the Constitution of the United States. However plaintiff also asserts that 42 U.S.C. § 664 does not apply to the transfer of earned income credits in whole or in part. Therefore, to cover fully the issue of mootness, I must further consider whether the Secretary of the Treasury has the statutory authority to withhold any earned income credit under the transfer and intercept statute, and whether a proportionate share of an earned income credit may be withheld.¹

Each plaintiff must establish a continuing substantial controversy between the parties in order to meet the constitutional requirement of Article III. The absence of a "case...