El v. United States
| Decision Date | 20 August 2019 |
| Docket Number | No. 18-1768T,18-1768T |
| Parties | ASAFO AMEN EL, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Pro Se Plaintiff; Tax; RCFC (9)m; Subject Matter Jurisdiction; Failure to State a Claim; Breach of Contract; Due Process; Fifth Amendment.
Asafo Amen El, pro se, Detroit, Ml.
Jennifer D. Spriggs, Trial Attorney, Court of Federal Claims Section, Tax Division, United States Department of Justice, Washington, D.C., for defendant. With her were David I. Pincus, Chief, Court of Federal Claims Section, Tax Division, and Richard E. Zuckerman, Principal Deputy Assistant Attorney General, Tax Division.
On November 2, 2018, pro se plaintiff Asafo Amen El, formerly named Tyrus Lavell Tinnon, filed a complaint1 against the defendant, the United States, alleging that defendant wrongly took $47,488.47 from him for the 2017 tax year. Plaintiff also alleges that defendant intentionally committed an "'Anticipatory Breach of Contract'" by indicating that the government would send plaintiff a tax refund "within 6 to 8 weeks," but failed to do so.2
Plaintiff asserts that on April 16, 2018, he submitted documents to the IRS and to JPMorgan Chase Financial Company LLC (JP Morgan Chase), seeking a tax refund he claims the government owes him.3 Plaintiff alleges that defendant's "taking of my funds of $47,488.47, that have also, prevented me from committing to other business transactions, caused by the Capitalistic U.S. Government." (citations omitted). Plaintiff further alleges that JPMorgan Chase injured him by failing to forward back to him a "PS FORM 3811," an injury that plaintiff alleges as a Fifth Amendment takings violation. In addition, plaintiff alleges that by failing to provide a tax refund, defendant "By a preponderance of evidence of Breaching my Contract," demonstrated "an intentional gross negligence and abuse" against him by using "their 120 degrees of tricknology by deception," which plaintiff alleges defendant committed by using a different social security number other than the one he provided. According to plaintiff, by doing so, "Defendants have conspired against me with culpability too manipulate the Documents, that had been forwarded on April 16th of 2018, with intentional 'Professional Abuse in Office', that was done by virtue of theft to the victims property(s)."
In his complaint, plaintiff seeks a tax refund payment of $47,488.47, as well as "special damages, as appropriate" to compensate him for "Intentional- negligence" by the IRS, which plaintiff alleges "denied me of my substantive- due process." Plaintiff also seeks $47,488.47, as well as "special damages, as appropriate" from JPMorgan Chase for its failure to forward a "PS 3811" form to him. In addition, plaintiff demands "compensatory & punitive damages" in the amount of $9,497,694.00, for what plaintiff alleges were defendant's "reprehensible Act(s)" that were "unreasonably risky . . . maliciously; intending to defraud another without reason or justification."
Throughout the complaint, plaintiff makes numerous references to alleged legal principles, court cases, and religious and historical texts in an attempt to support his various arguments. The relevance, or correctness, of such references are not generally clear.4 For example, plaintiff asserts:
"i" am bringing a claim for prayer of relief sought for liquidating in monetary damages.Id. Eastport Steamship Corp. v. United States, 372 F.2d 1002, 1009 (Ct. Cl. 1967); Doe v. United States, 224 Ct. Cl. 632 (1980). United States v. Mitchell, 463 U.S. 206, 216 (1983); Wright v. United States, 20 Cl. Ct. 416, 420-21 (1990). Jurisdiction is proper where "i" the plaintiff is making a claim for money damages, based on these "money-mandating" source of substantive law(s), that is factual of "within the scope to the plaintiff, entitled for recover under these liquidating money-mandatingsources." Jan's Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1309 (Fed. Cir. 2008); Fisher v. United States, 402 F.3d 1167, 1173, 1175 (Fed. Cir. 2005),( 38, 36 Stat. at L. 117, chap. 6), (en banc in relevant part.) Todd v. United States, 386 F.3d 1091, 1094 (Fed. Cir. 2004).
Moreover, plaintiff seeks to invoke this court's jurisdiction "over actions involving an express 'implied-in-fact', Contract claims made by private parties against the United States Government."
On February 1, 2019, defendant submitted a motion for the plaintiff to file a more definite statement pursuant to RCFC 12 (2018), and argued that plaintiff's complaint was "vague and ambiguous" because the complaint omitted "special matters required by RCFC 9(m)," thus preventing the defendant from "determining whether this Court has jurisdiction over the complaint and responding substantively to the complaint." In its motion, defendant asserted that plaintiff's complaint failed to clearly identify "the tax period(s) for which a refund is sought," as well as "the amount, date, and place of each payment to be refunded to plaintiff." Furthermore, defendant asserted that plaintiff's complaint omitted the "copy of the claims for refund" for the specific tax period in question, and failed to include "Form 843, Claim for Refund and Request for Abatement," thus failing to comply with the tax refund claim requirements of RCFC 9(m) (2018). Additionally, defendant asserted that plaintiff's complaint was not properly redacted in compliance with RCFC 5.2 (2018).
On February 5, 2019, the court granted the defendant's motion, and ordered plaintiff to submit an amended submission that "include[s] a copy of each claim for refund for each tax year at issue, as well as the Form 843, Claim for Refund and Request for Abatement." The court also ordered plaintiff to properly redact his complaint in compliance with RCFC 5.2, and to provide the information necessary to be in compliance with RCFC 9(m).
On February 22, 2019, in response to the court's February 5, 2019 Order, plaintiff filed an eighty-five page In his response, plaintiff also refiled tax and bank documents he had provided with his original complaint, but this time redacting identifying information such as his bank account, identification, and social security numbers. In response to the court's February 5, 2019 Order, plaintiff asserts that "form 843, claim for refund is unavailable," noting that "in the Certificate of Service, that was delivered to the IRS, on 04/16/2018, there is no listening in the cell blocks, of Form(s) 843 claim for a refund." Furthermore, plaintiff asserts that he had delivered the necessary paperwork to the IRS, having "created an exclusive folder(s)" for Form 843 when he downloaded the paperwork from the Internet, but noting that the software application failed to save the information he filled in the form, a failure which plaintiff cites as a "technical glitch" and requests the court to treat as "'Harmless Error' under RCFC- Rule 61." Simultaneously, plaintiff requests that the IRS "conduct a forensic-audit" of his IRS profile to find the paperwork he alleges was delivered to the IRS.
Plaintiff also provided the following statement in his response to the court's February 5, 2019 Order:
In addition, plaintiff submitted more exhibits, including his correspondences with the Treasury Department from December 2018 to February 2019, indicating that during this period, the Treasury Department withheld portions of payments sent to plaintiff to cover his outstanding tax debts. In response to these withholdings, plaintiff asserts additional requests for relief on the basis of a Fifth Amendment taking committed against him by the defendant. For the alleged taking, plaintiff requests default judgment against defendant, and demands "monetary punitive damages, special damages" in the amount of $51.0 million, calculated by $17.0 million per claim for relief. Plaintiff further indicates that if the government continues to withhold portions of future payments owed to him, punitive damages should increase to $68.0 million.
On March 15, 2019, defendant filed a response to plaintiff's February 22, 2019 submission, arguing for dismissal of plaintiff's complaint due to plaintiff's continued failure to comply with RCFC 9(m) and failure to establish the court's subject matter jurisdiction over plaintiff's complaint. Defendant asserts that plaintiff's February 22, 2019 submission failed to comply with RCFC 9(m)(2)(A) because the submission omitted a copy of the claim for refund for the relevant tax period. Defendant also notes that plaintiff's February 22, 2019 submission failed to include the Form 843 as mandated by the court's February 5, 2019 Order. Furthermore, defendant argues that plaintiff's response still "fails to identify the date and place of each payment to be refunded," "the IRS location where the return was filed," and "the IRS location where the claim for refund was filed." Additionally, defendant asserts that plaintiff, having alleged in his original complaint that he may have multiple identification numbers associated with his IRS account, failed to provide those numbers as required under RCFC 9(m)(2)(B)(vi).
After careful consideration and cognizant of plaintiff's pro se status, on May 3, 2019, this court granted plaintiff's request to file an amended complaint, instructed plaintiff to file the amended complaint by May 24, 2019, and counseled plaintiff to "carefully consider defendant's arguments" from the defendant's March 15, 2019 response when amending the complaint. By leave of the court, given his pro se status, plaintiff was allowed to file an out of time amended...
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