Thomas v. Internal Revenue Serv.
| Docket Number | CIVIL 21-00431 LEK-WRP |
| Decision Date | 14 December 2021 |
| Parties | ROSY ESPRECION THOMAS, Plaintiff, v. INTERNAL REVENUE SERVICE, ET AL., Defendants. |
| Court | U.S. District Court — District of Hawaii |
ORDER DENYING PLAINTIFF'S MOTION TO RECONSIDER AMENDING FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS
Before the Court is Plaintiff's Motion to Reconsider this Court's Findings and Recommendation to Deny Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs. See ECF No. 6 (Motion). On November 4, 2021, this Court recommended that the District Court deny Plaintiff's Application. See ECF No. 5 (Recommendation). Plaintiff did not file any objections to that Recommendation. See id. at 1 n.1. Instead, Plaintiff now moves for reconsideration of this Court's Recommendation, arguing that the Court should permit her to proceed in forma pauperis by making monthly payments of $50 until the filing fee is paid. See ECF No. 6 at 2. For the reasons stated below the Motion is DENIED. In addition, the Court AMENDS its prior Findings and Recommendation as detailed below.
Federal Rule of Civil Procedure 60 and Local Rule 60.1 govern motions for reconsideration, which are disfavored. Reconsideration is generally appropriate in three instances, w h en: (1) there has been an intervening change of controlling law; (2) new evidence has come to light; or (3) necessary to correct a clear error or prevent manifest injustice. See Smith v Clark Cty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013); see also LR 60.1.
“Mere disagreement with a previous order is an insufficient basis for reconsideration, and reconsideration may not be based on evidence and legal argument that could have been presented at the time of the challenged decision.” Tagupa v. Vipdesk, Inc., 2016 WL 236210, at *2 (D. Haw. Jan. 19, 2016). “Whether or not to grant reconsideration is committed to the sound discretion of the court.” Navajo Nation v. Confederated Tribes and Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003).
This Court initially recommended that the District Court deny Plaintiff's Application based on her annual household income of $23, 472 exceeding the poverty guideline for a two-person household in Hawai‘i. See ECF No. 5. In her Motion, Plaintiff objects that her initial Application made clear that her expenses exceed her income, and notes that her initial Application neglected to indicate that the IRS garnishes $274 each month-presumably, based on the allegations in her Complaint, from the Social Security pension that she reported as monthly income on her initial Application. See ECF No. 1, ECF No. 6 at 2; ECF No. 2 at 1.
The Court declines to reconsider its Recommendation based on the fact that the IRS garnishes $274 of Plaintiff's Social Security benefits. First, Plaintiff was aware of this fact when she filed her initial Application; thus, it does not provide sufficient grounds for reconsideration. See Ritchie v. Hawai'i, Dep't of Pub. Safety, 2017 WL 4172500, at *5 (D. Haw. Au g. 23, 2017). Second, the relevant statute permitting a plaintiff to proceed without prepayment of fees states that such facts must be stated in an affidavit. See 28 U.S.C. § 1915(a)(1); United St at es v. McQuade, 647 F.2d 938, 940 (9t h Cir. 1981). Plaintiffs initial Application complied with this requirement. See ECF No. 2. The additional facts contained in her Motion do not. See ECF No. 6. Finally, even if the Court were to deduct $274 from the monthly income Plaintiff initially reported ($1, 956), her annual income ($20, 184) would still exceed the poverty level for a two-person household in Hawai‘i. See Annual Update of the Health and Human Services Poverty Guidelines, 86 Fed.Reg. 7732 (Feb. 1, 2021), available at: https://aspe.hhs.gov/poverty-guidelines. For these reasons, the Court will not reconsider its Recommendation to deny Plaintiff's Application based on this fact.
Nor will the Court reconsider its Recommendation because Plaintiff's initial Application listed expenses that exceed her income. Although Plaintiff has financial obligations and other expenses, the Court recommended that the District Court deny her Application because it failed to show she is a pauper and cannot afford to prepay the costs of initiating this action. In her Motion, Plaintiff has not demonstrated that this Court must reconsider its finding that, even despite her listed expenses, Plaintiff can pay the cost of litigating this case “and still be able to provide [her]self and dependents with the necessities of life.” Adkins v. E.I. Du Pont de Nemours & Co., Inc., 335 U.S. 331, 339 (1948) (quotations omitted). For example, the Court notes that Plaintiff lists certain discretionary expenses. See, e.g., ECF No. 2 at 2 (listing $2, 880 annually for “storage”); Hoeft-Ross v. Hoeft, 2005 WL 8161746, at *2 (D. Nev. May 23, 2005) (). Thus, the Court concludes Plaintiff's argument as to her expenses does not justify reconsideration.
Finally even if the Court were to reconsider its finding regarding Plaintiff's ability to pay the fees for this action, it would nonetheless still recommend denying her Application, in addition to dismissing her Complaint with leave t o amend.
A court may deny leave to proceed in forma pauperis at the outset and dismiss the complaint if it appears from the face of the proposed complaint that the action: (1) is frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); see Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987); Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998). Here, even construing Plaintiff's Complaint liberally, Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003); Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2003), it must be dismissed. This Court therefore AMENDS its prior Recommendation to include the following additional findings and recommendation.
In her Complaint, Plaintiff names as Defendants the Internal Revenue Service (IRS) and Social Security Administration (SSA), alleging that the IRS is improperly garnishing her Social Security benefits without conducting a jury trial, and that the SSA has improperly acquiesced in this garnishment. See ECF No. 1 ¶¶ 3, 11-12. Plaintiff alleges she sent letters to the IRS in June and August of 2018 asking the IRS to verify her debt, to which the IRS never respond ed, such that this debt was discharged. See id. ¶¶ 5-9. Sh e also alleges that, because sh e paid taxes on her wages, her Social Security benefits are exempt from any additional taxes. See id. ¶ 10. Plaintiff appears to bring claims for constitutional violations, intentional infliction of emotional distress, and conspiracy. See id. ¶¶ 13-18. She seeks damages, as well as injunctive and declaratory relief, including an order that Defendants cease garnishing her checks. See id. at 5-6. The Court finds Plaintiff fails to state any claim for relief and therefore RECOMMENDS that, for this additional reason, the District Court DENY Plaintiff's Application and additionally, DISMISS Plaintiff's Complaint with leave to amend.
Unless waived, claims against the United States, federal agencies, and federal officials in their official capacities are barred by sovereign immunity. See FDIC v. Meyer, 510 U.S. 471, 475 (1994); Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir. 1997). A waiver of sovereign immunity must be “unequivocally expressed”; and any limitations and conditions upon the waiver “must be strictly observed and exceptions thereto are not to be implied.” Lehman v. Nakshian, 453 U.S. 156, 160-61 (1981) (citations omitted). Plaintiff, being “[t]he party who sues the United States[, ] bears the burden of pointing to . . . an unequivocal waiver of immunity.” Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983). Plaintiff's Complaint against two federal agencies fails to do so here.
Congress has waived the United States' sovereign immunity for some torts committed by a federal official acting within the scope of his office or employment, provided a plaintiff first exhausts her administrative remedies under the FTCA. See 28 U.S.C. § 1346(b)(1) (), § 2674 (similar), § 2675 (requiring exhaustion); D.L. v. Vassilev, 858 F.3d 1242, 1244-45 (9th Cir. 2017). The FTCA's exhaustion requirement is jurisdictional and must be strictly construed in favor of the United States. See D.L., 858 F.3d at 1244; Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006).
The FTCA is the exclusive remedy for tortious conduct by the United States, and it only allows claims against the United States; while such claims can arise from the acts or omissions of United States agencies, an agency itself cannot be sued under the FTCA. See Dichter-Mad Family Partners LLP v. United States, 709 F.3d 749, 761 (9th Cir. 2013); 28 U.S.C. § 2679(a) (). Moreover, the FTCA waives sovereign immunity only for damages claims against the United States; the statute does not subject the United States to claims for injunctive relief. See West bay St eel, Inc. v....
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