Opinion
Civil No. 05-2628 (FLW).
August 15, 2005
ORDER TO DISMISS
This matter having been opened to the Court by the United States (the "Government"), seeking to dismiss the Petition of Plaintiff Linda Shute ("Plaintiff"), pro se, on the basis of lack of subject matter jurisdiction; and the Court, having reached out to Plaintiff regarding the submission of opposition papers to the Government's motion and not having received a response to date, and having considered the current motion unopposed pursuant to Fed.R.Civ.P. 78; and it appearing that:
1. Fed.R.Civ.P. 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A claim should be dismissed 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." In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 215 (3d Cir. 2002) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The inquiry is not whether the plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claims. Id. (citation omitted). In deciding a Rule 12(b)(6) motion, courts must accept all well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Id. Nevertheless, courts are not required to credit bald assertions or legal conclusions alleged in the complaint. Id. (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429 (3d Cir. 1997)). Similarly, legal conclusions draped in the guise of factual allegations do not benefit from the presumption of truthfulness. Id. (citing In re Nice Sys., Ltd. Sec. Litig., 135 F.Supp.2d 551, 565 (D.N.J. 2001)). In this Circuit, however, the pleadings of pro se plaintiffs are to be construed liberally. Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004) (citing Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003)).
2. In the instant matter, Plaintiff challenges the Internal Revenue Service's issuance of notices of intent to levy and filing of a notice of a federal tax lien against Plaintiff in Salem County, New Jersey. Plaintiff alleges that P.S. Lane, the named Defendant in this action and an employee of the Internal Revenue Service whose name appears on the notice of federal tax lien, see Pl. Aff. at 5, violated her rights under the Fourth and Fifth Amendments of the United States Constitution. Specifically, Plaintiff claims that she was deprived of property without due process of law in violation of the Fifth Amendment and that the levy on her property was an unreasonable government seizure under the Fourth Amendment. See Pl. Pet. Writ of Mandamus ¶¶ 4-7.
3. In this matter, Plaintiff has sued Defendant "in his . . . personal capacity," id. ¶ 2; however, it is clear from the record that Defendant was acting in his official capacity as an employee of the IRS when he signed the notice of federal tax lien against Plaintiff. Thus, the Court concludes that the Government should be substituted as the proper party defendant and that Plaintiff's suit is an action brought against the United States. However, "[i]t is a fundamental principle of sovereign immunity that federal courts do not have jurisdiction over suits against the United States unless Congress, via a statute, expressly and unequivocally waives the United States' immunity to suit." Dolan v. United States Postal Service, 377 F.3d 285, 287 (3d Cir. 2004) (citations and internal quotations omitted); see also United States v. Mitchell, 463 U.S. 206, 212 (1983). "[W]aivers of the Government's sovereign immunity, to be effective, must be `unequivocally expressed,'" and any such waiver must be construed strictly in favor of the sovereign. United States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992). The IRS, as an agency of the United States, is thus shielded from private actions unless sovereign immunity has been waived. See Beneficial Consumer Discount Co. v. Poltonowicz, 47 F.3d 91, 94 (3d Cir. 1995) (citation omitted). In addition, Plaintiff bears the burden of demonstrating an explicit waiver of the Government's sovereign immunity from suit. See United States v. Dalm, 494 U.S. 596, 608 (1990). Here, Plaintiff has set forth no evidence showing that such a waiver exists. Furthermore, although an action against a federal official in his official capacity is not a suit against the United States if the suit alleges that the actions taken by such official were beyond his statutory powers, see Malone v. Bowdoin, 369 U.S. 643, 647 (1962), Plaintiff's Petition does not contain any allegations from which it may be inferred that Defendant acted outside the scope of his authority by merely signing the notice of federal tax lien. A reference to the failure "to perform the ministerial responsibilities," Pl. Pet. Writ of Mandamus ¶ 12, is not sufficient for this Court to determine whether Defendant was not acting within the scope of his employment.
4. Plaintiff also fails to state a cause of action under the Fifth and Fourth Amendments. In her Fifth Amendment claim, Plaintiff alleges that she was denied a hearing and an opportunity to present her objections to the IRS's levy; however, the record indicates that Plaintiff did not exercise her right to request a collection due process hearing pursuant to 26 U.S.C. §§ 6320 and 6330. Under these statutes, a taxpayer may request such a hearing within 30 days of the issuance of a notice of levy or filing of a notice of federal tax lien. See 26 U.S.C. §§ 6320, 6330. The collection due process hearing is held before the Office of Appeals of the Internal Revenue Service and is subject to judicial review. See 26 U.S.C. § 6320(b), (c); § 6330(b), (d). Here, there is nothing in the record showing that Plaintiff availed herself of these procedures. In addition, while Plaintiff claims that she "filed all proper claims and has adhered to all administrative remedies and requirements as imposed in 26 U.S.C. § 6343," Pl. Pet. Writ of Mandamus ¶ 8, there is no evidence showing that Plaintiff satisfied the conditions justifying the release of the levy pursuant to that statute. Plaintiff also claims that she complied with the requirements of 26 U.S.C. § 6326, but there is no evidence indicating that she did, in fact, file an appeal after the filing of the IRS's notice of lien.
5. Plaintiff's Fourth Amendment claim is also without merit. Plaintiff claims that her property was "`liened' without a 4th Amendment search warrant or probable cause Affidavit." Pl. Memo. at 5. Under 26 U.S.C. § 6331(a), taxes may be collected "by levy upon all property and rights to property" belonging to a person who "neglects or refuses to pay" any tax "or on which there is a lien . . . for the payment of such tax." 26 U.S.C. § 6331(a). "[T]he Fourth Amendment protects two types of expectations, one involving searches, and the other seizures. A search occurs when an individual's reasonable expectation of privacy is infringed. A seizure of property occurs where there is some meaningful interference with an individual's possessory interests in that property." Soldal v. Cook County, 506 U.S. 56, 63 (1992) (internal quotations and citations omitted). There is no Fourth Amendment deprivation, however, where the Government, in an attempt to collect taxes, does not enter the taxpayer's own premises, conducts a search, or actually seizes the property subject to a valid tax lien. See G.M. Leasing v. United States, 429 U.S. 338, 354 (1977). Here, the filing of the tax lien by the IRS did not involve an invasion of Plaintiff's premises or seizure of her personal property and as such cannot establish a Fourth Amendment violation.
6. Furthermore, the Anti-Injunction Act, 26 U.S.C. § 7421(a), bars Plaintiff's action. This statute provides that "[e]xcept as provided in sections 6015(e), 6212(a) and (c), 6213(a), 6225(b), 6246(b), 6330(e)(1), 6331(i), 6672(c), 6694(c), 7426(a) and (b)(1), 7429(b), and 7436, no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person. . . ." 26 U.S.C. § 7421(a). In this matter, it does not appear that any of the exceptions listed in § 7421(a) have any application to Plaintiff's Petition. While an injunction may be obtained against the collection of any tax if (1) it is "`clear that under no circumstances could the government ultimately prevail', and (2) `equity jurisdiction' otherwise exists, i.e., the taxpayer shows that he would otherwise suffer irreparable injury," Commissioner v. Shapiro, 424 U.S. 614, 627 (1976) (quoting Enochs v. Williams Packing Navigation Co., 370 U.S. 1, 7 (1962)), the burden is on the taxpayer to establish both prongs of the test. See Alexander v. "Americans United" Inc., 416 U.S. 752, 758 (1974). Unless both prongs are met, injunctive relief is unwarranted. See id. Here, there is nothing in the record indicating that the Government's claim is baseless or that Plaintiff has no adequate remedy at law or will suffer irreparable harm.
The Court notes that Plaintiff, rather than filing a complaint, filed a petition for writ of mandamus ("Petition") with the Superior Court of New Jersey, Law Division, on April 12, 2005. On May 20, 2005, pursuant to 28 U.S.C. §§ 1441, 1442, and 1444, the Government removed the action to this Court.
The Court notes that this is not a case where the existence of federal tax liens vests the district court with jurisdiction to hear a quiet title claim. See Kabakjian v. United States, 267 F.3d 208, 211 (3d Cir. 2001). In Kabakjian, the Third Circuit stated that the United States is not immune from suit under a claim brought under 28 U.S.C. § 2410(a). See id. In this case, however, Plaintiff has not set forth any allegations required by § 2410(a). There are no allegations in Plaintiff's Petition that indicate she is setting forth a claim to quiet title.
Accordingly,
IT IS on this 15th day of August, 2005,
ORDERED that the Government's motion to dismiss Plaintiff's Complaint is GRANTED.