Weiss v. Sawyer

• Decision Date: 19 September 1997
• Docket Number: No. CIV-96-2034-R.,CIV-96-2034-R.
• Citation: 28 F.Supp.2d 1221
• Parties: Doris Irene WEISS, Plaintiff, v. K.J. SAWYER, et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

28 F.Supp.2d 1221

Doris Irene WEISS, Plaintiff, v. K.J. SAWYER, et al., Defendants.

No. CIV-96-2034-R.

United States District Court, W.D. Oklahoma.

September 19, 1997.

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Doris Irene Weiss, Harrah, OK, pro se.

Donald N. Downie, Jr., U.S. Dept. of Justice, Tax Division, Washington, DC, Dennis C. Roberts, Oklahoma City, OK, for Defendants.

ORDER

DAVID L. RUSSELL, District Judge.

The individually named federal Defendants, K.J. Sawyer, Paul B. Nichols, Jr., Harold Wolaver, Bobby Gammel, Gary L. Collins, Brenda Faulkner and Wayne Watts, move the Court for an order dismissing the Plaintiff's complaint against them or, alternatively, for an order substituting the United States as the only proper federal defendant.

The Court construes the pro se Plaintiff's pleadings liberally, applying a less stringent standard than is applicable to pleadings filed by lawyers. Gagan v. Norton, 35 F.3d 1473, 1474 n. 1 (10th Cir.1994), cert. denied, 513 U.S. 1183, 115 S.Ct. 1175, 130 L.Ed.2d 1128 (1995); Whitney v. State of New Mexico, 113 F.3d 1170 (10th Cir.1997). The Court will not, however, supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf. A court should not assume the role of advocate for a pro se litigant. Hall v. Bellmon, 935 F.2d 1106, 1110 n. 3 (10th Cir.1991); Northington v.. Jackson, 973 F.2d 1518, 1520 (10th Cir.1992).

I. The Complaint

The Complaint alleges that the Plaintiff was tried and convicted in an Oklahoma state court, and incarcerated for a period of about 60 days. The Plaintiff's rambling, lengthy Complaint asserts some 29 causes of action against the federal defendants named above and two private persons. The Complaint cites Title 18 U.S.C. §§ 241, 242, 875(d), 876, 1001, 1341-1343 and 1581; Title 42 U.S.C. §§ 1983, 1985(3) and 1986; Title 5 U.S.C. §§ 552 and 552a; and the First, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Fourteenth Amendments to the United States Constitution. The Plaintiff also asserts claims under various other unsupported legal theories, such as the "Mississippi Burning Doctrine."

The essence of the Plaintiff's various causes of action is her claim that her federal tax assessments were "fraudulent," and that the subsequent levies against her property by certain defendants were also "fraudulent." (Complaint, pp. 10-11). The Plaintiff also complains that some of the federal defendants did not provide her with documents she claims to have requested under the federal Privacy Act and Freedom of Information Act. The Plaintiff also accuses the Defendants of "encoding, or encryption of classification of people," and alleges some scheme to "withhold and conceal documents, or parts of documents." (Complaint, p. 7).

The Complaint claims that the Defendants wrongfully disclosed information about her to the Social Security Administration and the Oklahoma Tax Commission, and that they submitted to the Oklahoma Tax Commission "falsified documents." The Plaintiff claims that she was incarcerated for about 60 days as a result of these actions. (Complaint, pp. 10 - 11).

The Plaintiff seeks an injunction requiring the Defendants to "cease and desist, with prejudice, all actions initiated, in progress, and all prior actions" arising from the allegedly falsified or incomplete documents. She asks that documents be "stricken from [her] record" pursuant to the Federal Rules of Civil Procedure, Rules 7(b)(2) and 11(a); and Title 26 U.S.C. § 6065. The Plaintiff seeks a release of "all liens, levies and seizures, with prejudice;" and "restitution and return of personal property" in the amount of approximately $35,000.00. This amount represents the money the Plaintiff alleges is due to her as consideration for her house which was "converted by defendants." The Plaintiff next seeks what she terms a "nominal amount" of damages, specifically, $10,000.00 per day from each Defendant for each day of her incarceration. Finally, the Plaintiff seeks compensatory and punitive damages. (Complaint, pp. 33-34).

II. Sovereign Immunity — Official Capacity

The moving Defendants first contend that the Plaintiff's claims are, in effect, claims against the United States. The movants argue that all of them, as federal employees and officials, are sued in their official capacities. Although the style of the Complaint names each of the movants individually, the moving Defendants interpret it as complaining of actions performed by them in their capacities as "officers, employees or agents of the Internal Revenue Service." (Complaint, p. 2).

A suit against federal officials in their official capacities is, in effect, a suit against the United States. To the extent the Complaint could thus be interpreted as raising claims against the United States, this Court has no subject matter jurisdiction absent a waiver of the United States' sovereign immunity. United States v. Dalm, 494 U.S. 596, 110 S.Ct. 1361, 1368, 108 L.Ed.2d 548 (1990). Under settled principles of sovereign immunity, "the United States, as 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.'" Dalm, supra, quoting United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976); United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). It is irrelevant that plaintiff has named individual federal employees as defendants if "the judgment sought would expend itself on the public treasury or domain." Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963) (citation omitted). "When an action is one against named individual defendants, but the acts complained of consist of actions taken by defendants in their official capacity as agents of the United States, the action is in fact one against the United States." Atkinson v. O'Neill, 867 F.2d 589, 590 (10th Cir.1989).

Although the factual allegations are vague, they all relate to the business of assessment and collection of federal taxes. The Complaint vaguely suggests that the Defendants were acting outside the scope of their employment, but does not plead facts sufficient to support such an allegation.¹

Moreover, it appears that the Plaintiff's claims for monetary damages for "fraudulent" assessment and collection of taxes would, if proven, be payable out of the public treasury, and thus, the Plaintiff's claims must be considered to be a suit against the sovereign. See Title 26 U.S.C. § 7432 (damages awarded for failure to release tax lien are payable out of funds appropriated by Congress under Title 31 U.S.C. § 1304) and § 7433 (damages awarded for unauthorized collection of taxes are likewise payable out of funds appropriated by Congress under Title 31 U.S.C. § 1304). See also Louisiana v. McAdoo, 234 U.S. 627, 629, 34 S.Ct. 938, 58 L.Ed. 1506 (1914); New Mexico v. Backer, 199 F.2d 426, 427-428 (10th Cir.1952) (Where damage award would operate against the sovereign, claim must be deemed to be an action against the United States, from which the United States is immune.).

III. Claims Under Internal Revenue Code

The Complaint alludes to the fraudulent assessment and collection of taxes, and may intend to assert the following sections of the Internal Revenue Code:

A. Section 7432 — Failure to Release a Lien.

The Complaint appears to assert wrongdoing in connection with the lien and levy against the Plaintiff's property. The Defendants assert sovereign immunity to the extent such allegations can be interpreted as complaining of the failure to release a lien on her property. Title 26 U.S.C. § 7432 of the Internal Revenue Code permits a private claim for damages — against the United States only — for failure to release a lien on a taxpayer's property. See Title 26 U.S.C. § 7432(a). That Section provides that damages "shall not be awarded ... unless the court determines that the plaintiff has exhausted the administrative remedies available ... within the Internal Revenue Service." Section 7432(d)(1). The Plaintiff has not alleged that she has made any efforts to exhaust her administrative remedies within the Internal Revenue Service; thus, she has not shown that her claim is within the limited waiver of sovereign immunity provided by Section 7432. See Overton v. United States, 925 F.2d 1282 (10th Cir.1991); Griswold v. United States, 59 F.3d 1571 (11th Cir.1995).

B. Section 7433 — Unauthorized Collection of Taxes

The moving Defendants also assert sovereign immunity insofar as the Plaintiff seeks damages "in connection with any collection of federal tax." Title 26 U.S.C. § 7433 permits a suit for damages — against the United States only — where an officer or employee of the Internal Revenue Service "recklessly or intentionally disregards any provision of" the Internal Revenue Code, or any regulation promulgated thereunder. Suit against the United States is the exclusive remedy for such actions.

Here the Plaintiff has not shown that any Internal Revenue Service officer or employee, including the individual named Defendants, recklessly or intentionally disregarded any Code provisions or regulations. Thus, the Plaintiff's claim is not within the limited waiver of sovereign immunity under Section 7433. Moreover, since the United States is the only proper defendant in such a suit, the Plaintiff is not entitled to recovery against the individual Defendants under Section 7433.

C. Section 7422 — Refund of Taxes

The Plaintiff's request for "restitution and return of personal property" also fails. The Plaintiff has improperly named federal employees rather than the United States as required by Title 26 U.S.C. § 7422(f)(1). Furthermore, the Plaintiff has not alleged that she has exhausted her administrative remedies, or that she has paid her taxes in full before filing suit. Both of these...