Opinion
Civil Action No. 99-S-1670
June 6, 2003
ORDER OF DISMISSAL
This matter is before the Court on the motion to dismiss filed by the United States, the proper party defendant in this case. Plaintiff has filed a response to the motion to dismiss and the United States has filed a reply. The Court has reviewed the motion to dismiss, the response, the reply, and the entire file in this action and is fully advised in the premises.
The Court must construe the Complaint and other papers filed by Plaintiff liberally because he is representing himself. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972); Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). If the Complaint reasonably can be read "to state a valid claim on which the plaintiff could prevail, [the Court] should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall , 935 F.2d at 1110. However, the Court should not be an advocate for a pro se litigant. See id.
This case arises out of Plaintiff's dissatisfaction with the social security system and his involuntary support of that system. He alleges that he destroyed his social security card in 1961 "because he found this program unacceptable to the principles of freedom and self determination that is [sic] the founding philosophy of the United States of America." (Compl. at ¶ 3.) He further alleges that he "would expose himself to recieve [sic] benefits from this SS system by taking a permanent number. To participate in recieving [sic] benefits from a [sic] immoral, ethically bankrupt system is not acceptable to this citizen." ( Id. at ¶ 6.) Plaintiff asserts that he was issued a temporary social security number in 1962 and that he has used the temporary number ever since. Plaintiff contends that for the 1997 tax year he was denied a personal deduction because he does not have a valid social security number. "The situation is that if the plaintiff accepts a permanent SS number he is eligible for SS benefits. If a SS number is not accepted a special tax is required. This amounts to a tax penalty based on political and religious attitudes of the citizen." ( Id. at ¶ 7.)
Plaintiff asserts three claims for relief in the Complaint. He first claims that he should be exempt from the social security system because the Tenth Amendment to the United States Constitution forbids requiring a citizen to become personally involved as a recipient of a wealth transfer. Plaintiff's second claim is asserted pursuant to the First Amendment. He claims that he is being penalized by extra taxation because the government exempts certain religious groups from the social security system but will not exempt him on the basis of his moral and ethical objections to that system. Finally, Plaintiff asserts in his third claim for relief that he may be denied medical care pursuant to section 4507 of the Balanced Budget Act of 1997, 42 U.S.C. § 1395a, which allegedly penalizes physicians who treat Medicare-eligible patients outside of the Medicare system.
The United States has moved to dismiss the complaint for lack of jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6). On a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the Court must accept as true well-pleaded factual allegations. See Miller v. Glanz , 948 F.2d 1562, 1565 (10th Cir. 1991). All reasonable inferences must be resolved in the plaintiff's favor. See Bauchman v. West High School , 132 F.3d 542, 550 (10th Cir. 1997). Dismissal is appropriate only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson , 355 U.S. 41, 45-46 (1957); see also Ramirez v. Oklahoma Dep't of Mental Health , 41 F.3d 584, 586 (10th Cir. 1994).
The government first argues that the complaint should be dismissed for lack of subject matter jurisdiction because Plaintiff fails to cite any authority providing for a waiver of sovereign immunity. Plaintiff does not cite any statutory authority providing for a waiver of the government's sovereign immunity either in the Complaint or in his response to the government's motion to dismiss. Instead, Plaintiff apparently argues that he has a right to seek relief from the government because the Social Security Administration and the Internal Revenue Service are government agencies that are violating his rights and he has a constitutional right to petition the government for redress of his grievances. This argument lacks merit.
"Jurisdiction over any suit against the Government requires a clear statement from the United States waiving sovereign immunity together with a claim falling within the terms of the waiver. The terms of consent to be sued may not be inferred, but must be unequivocally expressed." United States v. White Mountain Apache Tribe , 123 S.Ct. 1126, 1131-32 (2003) (internal citations and quotation marks omitted). Plaintiff bears the burden of demonstrating a waiver of the government's sovereign immunity. See James v. United States , 970 F.2d 750, 753 (10th Cir. 1992).
Plaintiff has failed to meet his burden of demonstrating a waiver of sovereign immunity in this action. Although Plaintiff has a constitutional right under the First Amendment to the United States Constitution to petition the government for a redress of grievances, his First Amendment right does not act as a waiver of sovereign immunity. Therefore, Plaintiff's claims for money damages must be dismissed for lack of subject matter jurisdiction.
The government also argues that Plaintiff's Complaint fails to state a claim upon which relief may be granted. The Court agrees. Plaintiff's first claim, that he should be exempt from the social security system because the Tenth Amendment forbids requiring a citizen to become personally involved as a recipient of a wealth transfer, lacks merit because nothing in the social security system requires Plaintiff to apply for and receive social security benefits.
Plaintiff's second claim, that he is being penalized by extra taxation because the government exempts certain religious groups from the social security system but will not exempt him on the basis of his moral and ethical objections to that system, also lacks merit. Plaintiff concedes that he does not qualify for the exemption from social security taxes that is available to certain religious groups. The fact that Congress has provided an exemption from social security taxes only for certain religious groups does not violate the First Amendment. See Droz v. Commissioner , 48 F.3d 1120 (9th Cir. 1995) (finding that religious exemption from social security taxes does not violate either the Establishment Clause or the Free Exercise Clause).
To the extent Plaintiff is claiming that he should not be required to contribute to the social security system through payroll taxes and that he should be allowed a personal deduction on his income tax return without providing a valid social security number, Plaintiff essentially is seeking to restrain the Internal Revenue Service from collecting taxes from him. The Court agrees that such relief is barred by the Anti-Injunction Act, which prohibits any suit "for the purpose of restraining the assessment or collection of any tax," 26 U.S.C. § 7421 (a), and the Declaratory Judgment Act, which authorizes declaratory relief "except with respect to Federal taxes," 28 U.S.C. § 2201. Therefore, this claim also must be dismissed.
Plaintiff finally claims that he may be denied medical care pursuant to section 4507 of the Balanced Budget Act of 1997, 42 U.S.C. § 1395a, which allegedly penalizes physicians who treat Medicare-eligible patients outside of the Medicare system.
The plaintiff's reading and understanding [of section 4507] is that to receive medical services, when eligible for Medicare, requires an affidavit to be signed waiving Medicare payments. To be eligible for Medicare is a function of age, as most people understand it. When a medical practitioner accepts the affidavit he is then prohibited from receiving reimbursement from Medicare for 2 years. With out a permanent injunction, relieving plaintiff of participation in the SS system, he would effectively be shut out of the medical system. This interpretation was arrived at after a conversation with plaintiff's congressman's office.
(Resp. to Mot. to Dismiss at 6-7.)
"Section 4507 of the Balanced Budget Act of 1997 provides that, for certain medical services, a doctor may not contract with a Medicare beneficiary outside of Medicare unless the doctor agrees to abstain from participating in the Medicare program for two years." United Seniors Assoc., Inc. v. Shalala , 182 F.3d 965, 966-67 (D.C. Cir. 1999). The definition of a Medicare beneficiary is a person actually enrolled in Medicare Part B. See 42 C.F.R. § 405.400. "Part B of the Medicare program is a federally subsidized, voluntary health insurance system for persons who are 65 or older or who are disabled." United States v. Erika, Inc. , 456 U.S. 201, 202 (1982) (citation omitted); see also 42 U.S.C. § 1395j.
Plaintiff's third claim for relief lacks merit because section 4507 does not prevent him from contracting with any physician to obtain medical services. Section 4507 is not even relevant if he does not choose to voluntarily participate in Medicare Part B. Even if he does choose to voluntarily participate in Medicare Part B, the only effect of section 4507 is to prevent a physician from charging more for Medicare-covered services than the scheduled fee. See United Seniors Assoc. , 182 F.3d at 970-74. Therefore, because section 4507 does not prevent Plaintiff from obtaining any medical services, the third claim in the Complaint fails to state a claim on which relief may be granted and also will be dismissed. Accordingly, it is
ORDERED that the motion to dismiss filed on March 17, 2000, is GRANTED and this civil action is DISMISSED.