Dockens v. United States of America

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM with Brief In Support

N.D. Ga.August 16, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION WANDA Y. DOCKENS, ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA, ) Commissioner of the IRS in ) Official Capacity and the Following IRS ) Employees in their Official Employment ) Capacities with the IRS: T. Parham ) Fraud Examiner; Kelly Taylor Operation ) 3 Manager; Paul J. Morgan Operations ) Manager Accts Management 1; Deidre ) A. Moran Operations 1 Manager; Larry ) T. Canada Jr. Operations Manager ) Accts Management 2; IRS Employee A; ) IRS Employee B, ) ) Defendants. ) __________________________________) Case No. 1:15-cv-2761-SCJ UNITED STATES’ MOTION TO DISMISS The United States of America, by and through undersigned counsel, moves this Court to dismiss Plaintiff’s Third Amended Complaint (ECF No. 31) pursuant to Fed. R. Civ. Proc. 12(b)(1), (5), and (6) for lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, and lack of proper service. On May 16, 2016 the Court granted the United States’ Motion to Dismiss Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 1 of 25 2 Plaintiff’s Amended Complaint. (ECF No. 29.)1 The dismissal was without prejudice, and the Court provided Plaintiff an opportunity to file a Third Amended Complaint, providing explicit instructions with regard to what was required to show that the Court had subject matter jurisdiction over her claims. The Court also explained that, should plaintiff again bring a claim for damages under 26 U.S.C. § 7433, she must show that she exhausted her administrative remedies in accordance with statutory and regulatory requirements. Like her prior Amended Complaint, (ECF No. 16) Plaintiff’s Third Amended Complaint fails to establish this Court’s jurisdiction over her claims and, therefore, does not comply with the Court’s instructions to her in its May 16, 2016 Order. Plaintiff now seeks to recover $1,229,730 in damages stemming from her identity theft claim, allegations of wrongdoing by IRS employees, and for unlawful collection activity relating to additional tax liability assessed by the IRS for the 2013 tax year. As with Plaintiff’s past attempts, the Third Amended Complaint also appears to seek to enjoin the IRS from collecting on income tax liabilities she contends were wrongly assessed against her. 1 The undersigned counsel did not receive any CM/ECF notices of the Court’s May 16, 2016 Order or Plaintiff’s Third Amended Complaint. Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 2 of 25 3 As discussed in the incorporated memorandum of law which follows, Plaintiff has not established that the Court has subject matter jurisdiction to grant the relief she seeks, because the Third Amended Complaint fails to establish a waiver of sovereign immunity for the causes of action it pleads, including tort claims, a claim for refund, damages relating to the IRS’ handling of her identity theft claim, and injunctive relief. The Third Amended Complaint should also be dismissed for failure to state a claim because Plaintiff has failed to show that the IRS engaged in unlawful collection activity and she has not demonstrated exhaustion of her administrative remedies pursuant to 26 U.S.C. § 7433. To the extent Plaintiff is making a claim for damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), Plaintiff has also failed to state a claim under that theory. Further, while Plaintiff now names several IRS employees as defendants in this action in addition to the United States, the proper party defendant is only the United States because Plaintiff names these individuals in their official capacity and any judgment would be paid from the public treasury. See Dugan v. Rank, 372 U.S. 609, 620 (1963). Lastly, Plaintiff has failed to properly serve the Third Amended Complaint on the IRS or the newly added individual defendants. Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 3 of 25 4 MEMORANDUM OF LAW FACTS Plaintiff, Wanda Y. Dockens, alleges that she was the victim of identity theft that resulted in the filing of a fraudulent tax return for the 2013 tax year. After Plaintiff late-filed her 2013 tax return in 2015, she was notified by the IRS that a tax return had already been filed in her name for that tax year. (ECF No. 31 at ¶ 7.) Plaintiff then was notified by the IRS that she owed additional taxes for the 2013 tax year. (Id.) Plaintiff states that she contacted the IRS on or around February 23, 2015 and filed an identity theft affidavit. (Id.) She asserts that, due to the identity theft investigation, the IRS refused to release her transcripts, which she had requested in order to close on a home sale. (Id. at ¶ 9.) Plaintiff alleges that the IRS’ refusal to release the transcripts to a mortgage lender because of the ongoing identity theft investigation caused an attempted home purchase to fall through. She alleges that this resulted in the loss of earnest money as well as future financial benefits, such as lower interest rates and the appreciation of home values, which she might have benefited from had she been able to purchase the property. (Id. at ¶ 10.) Plaintiff continues to maintain that unidentified IRS employees took an active role in the alleged identity theft and the filing of a fraudulent tax return. (Id. at ¶ 9.) Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 4 of 25 5 Although Plaintiff alleges no facts to support these allegations, she requests damages in the amount of $14,730 for unexplained “out of pocket costs,” $465,000 stemming from the lost home purchase and $750,000 for violations of her constitutional rights. Plaintiff also requests the removal of the fraudulent tax return and release of her transcripts to herself and a mortgage lender. ARGUMENT The Court should dismiss the Third Amended Complaint for lack of subject matter jurisdiction. The United States has not waived its sovereign immunity for Plaintiff’s claims for damages, and Plaintiff has not met the jurisdictional prerequisites necessary to bring a refund suit. Moreover, the Court lacks subject matter jurisdiction where Plaintiff seeks relief which violates the Anti-Injunction Act. In the alternative, the Third Amended Complaint fails to state a claim upon which relief can be granted because Plaintiff has not articulated how the IRS engaged in unlawful collection activity and she has not demonstrated that she exhausted her administrative remedies as required to sustain a claim for relief under 26 U.S.C. § 7433. To the extent Plaintiff’s Third Amended Complaint is construed as a suit against IRS employees in their individual capacities, it should also be dismissed for failure to state a claim because Bivens remedies are Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 5 of 25 6 unavailable for tax-related claims and Plaintiff has not alleged any facts to support a claim that individual IRS employees violated her constitutional rights. Finally, Plaintiff failed to properly serve the Third Amended Complaint pursuant to Fed. R. Civ. P. 4(i)(2). I. The Court Should Dismiss Plaintiff’s Third Amended Complaint for Lack of Subject Matter Jurisdiction It is well settled that the United States, as sovereign, is immune from suit unless it has consented to be sued, See United States v. Dalm, 494 U.S. 596, 608 (1990); United States v. Testan, 424 U.S. 392, 399 (1976). The terms of the United States’ consent define the Court’s jurisdiction. Id. Any waiver of the United States’ sovereign immunity must be unambiguous and strictly construed in favor of the United States. United States v. Nordic Villages, Inc., 503 U.S. 30, 34 (1992). It is also well settled that the burden to prove subject matter jurisdiction is on Plaintiff. See Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 732, n. 9 (11th Cir. 1982) (“[T]he plaintiff will have the burden of proof that jurisdiction does in fact exist.”); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (burden to establish subject matter jurisdiction is on party seeking to invoke that jurisdiction); West v. FAA, 830 F.2d 1044, 1046 (9th Cir. 1987) (plaintiff bears the burden to show an unequivocal waiver of sovereign immunity); Dalm, 494 at 609-10. The Third Amended Complaint should be dismissed because it fails to carry that burden. Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 6 of 25 7 A “defendant may challenge subject matter jurisdiction in one of two ways: Stalley v. Orlando Regional Healthcare System, Inc., 524 F.3d 1229, 1232 (11th Cir. 2008); Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). A “facial attack” on the complaint contends that the complaint has failed to allege facts upon which subject matter jurisdiction can be based, and “the facts alleged in the complaint are taken as true.” Stalley, 524 F.3d at 1232. The second type of attack is a “factual attack” on the existence of subject matter jurisdiction which looks beyond the pleadings. Id. The United States brings this motion as a facial attack to the Third Amended Complaint. As with Plaintiff’s prior pleadings, the Third Amended Complaint fails to establish subject matter jurisdiction for the following claims: (1) the tax exception to the Federal Tort Claims Act (FTCA) precludes the Court from exercising jurisdiction over any general tort claims related to actions by the IRS to collect or assesses her tax liabilities; (2) Plaintiff has not shown that she has met the jurisdictional prerequisites to bring a claim for refund under 28 U.S.C. § 1346(a)(1) and 26 U.S.C. § 7422; (3) Plaintiff has failed to show any basis for a waiver of sovereign immunity with respect to the disposition of her identity theft claim; and (4) the other relief sought in the Third Amended Complaint is barred by the Anti-Injunction Act. Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 7 of 25 8 A. This Court lacks subject matter jurisdiction over Plaintiff’s tort claims because of exceptions to the Federal Tort Claims Act Plaintiff argues that IRS employees violated the FTCA by negligently processing a 2013 tax return that had been fraudulently filed in her name and that these employees were in some way complicit in filing this fraudulent return. (ECF No. 31 at ¶¶ 8, 9.) Plaintiff also alleges tortious conduct (harassment) with respect to the assessment and collection of federal income tax liabilities for the 2013 tax year. (Id. at ¶ 9.) While the Court can hear certain claims arising from negligent or wrongful actions committed by United States employees within the scope of their official duties, 28 U.S.C. § 1346(b)(1), the FTCA does not waive the United States’ sovereign immunity for claims arising out of the assessment and collection of any tax. 28 U.S.C. §2680(c); see Zelaya v. United States, 781 F.3d 1315, 1323 (11 Cir. 2015) (“§ 2680 . . . lists exceptions to the United States’ waiver of sovereign immunity, under which the provisions of . . . section 1346(b)(1) . . . shall not apply.”) To the extent Plaintiff seeks damages for any tort allegedly committed in connection with the assessment and collection of federal taxes against her, the doctrine of sovereign immunity bars those claims against the United States or any individual employee or officer of the federal government acting in his or her official capacity. See Jones v. United States, 16 F.3d 979, 980- Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 8 of 25 9 81 (8th Cir. 1994); Brewer v. Comm’r, 430 F. Supp. 2d 1254, 1259 (S.D. Ala. 2006). B. Plaintiff has not met all of the jurisdictional prerequisites required to maintain a refund suit Plaintiff’s claim that the IRS’ actions violate 28 U.S.C. § 1346(a)(1) can be construed as a suit for refund under that provision and 26 U.S.C. § 7422. (ECF No. 31 at ¶ 8.) The United States has conditionally waived sovereign immunity with respect to suits for the refund of taxes in 28 U.S.C. § 1346(a)(1). But that waiver of sovereign immunity is specifically limited by § 7422, which requires that the taxpayer first comply with requirements applicable to the filing of tax refund claims. See Galvaz v. IRS, 448 Fed. Appx. 880, 886-87 (11th Cir. 2011) (district court lacked subject matter jurisdiction where taxpayer did not comply with jurisdictional prerequisites under § 7422(a)). Two jurisdictional prerequisites are required. First, the taxpayer must file an appropriate claim for refund. 26 U.S.C. § 7422(a); 26 C.F.R. 301.6402-2 and 26 C.F.R. 301.6402-3; Charter Company v. United States, 971 F.2d 1576, 1579 (11th Cir. 1992) (“A taxpayer may not sue the United States for a tax refund until it first files a refund claim with the government.”) Second, the challenged tax assessment must be paid in full. Flora v. United States, 362 U.S. 145, 150-51 (1960); Lawrence v. United States, 597 Fed. Appx. 599, 603 (11th Cir. 2015). Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 9 of 25 10 Plaintiff alleges that she paid the tax liability that had been assessed against her in full, but offers no evidence to support this assertion. (ECF No. 31 at ¶ 8.) Indeed, the amount she claims to have paid, $6,161, does not appear to correspond with the $24,000 she states the IRS assessed against her. (Id. at ¶¶ 7, 8.) But, even if Plaintiff could show full payment of her tax liabilities, she has not filed an appropriate claim for refund prior to bringing suit. Because she had already filed a Form 1040 for the 2013 tax year, Plaintiff was required to make a claim for refund by filing a Form 1040X (Amended U.S. Individual Income Tax Return). See 26 C.F.R. § 301.6402-3(a)(2). This claim must also “be ‘verified by a written declaration’; set forth ‘in detail each ground upon which a credit is claimed and facts sufficient to apprise the Commissioner of the exact basis’ of the claim.” Enax v. Comm’r, 476 Fed. Appx. 857, 859 (11th Cir. 2012) (citing 26 C.F.R. § 301.6402-3(a)) (letters to IRS did not constitute a valid administrative claim for refund). Here, Plaintiff’s various letters to the IRS merely contain general statements that she does not owe any of the tax liabilities assessed against her, but the communications do not request a refund or explain the grounds upon which she is entitled to a refund. (ECF No. 31, Ex. 3-1 - 3-16.) Therefore, the Court does not have subject matter jurisdiction over a claim for refund because Plaintiff did not file a valid administrative claim prior to Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 10 of 25 11 bringing suit and has not shown that she has full paid the federal income tax liabilities at issue. C. This Court lacks subject matter jurisdiction over Plaintiff’s claim for damages relating to her allegations of identity theft While it is difficult to ascertain from the Third Amended Complaint, Plaintiff appears, once again, to seek compensatory damages with regard to the IRS’ handling of her identity theft claim for the 2013 tax year. She suggests that, because of the IRS’ ongoing investigation into the fraudulently filed 2013 tax return, she lost out on an opportunity to purchase a new home. (ECF No. 31, ¶¶ 9, 10.) However, Plaintiff’s claims for damages under this theory must be dismissed because there is no, and Plaintiff has not pled any, waiver of the United States’ sovereign immunity regarding identity theft or the IRS’ response to identity theft claims. Plaintiff pursued the administrative remedies available to resolve her identity theft claim, which included filing a Form 14039, Identity Theft Affidavit, and the IRS responded by conducting an investigation, reversing the fraudulent return, and cancelling the refund associated with that return. (Id. Ex. 2-4, 4.) While it is unfortunate that Plaintiff may have been unable to close on a house because of the Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 11 of 25 12 unlawful actions of a third-party, these circumstances simply do not confer jurisdiction upon this Court for a claim for damages against the IRS. D. The relief Plaintiff seeks is barred by the Anti-Injunction Act As in her prior complaint, Plaintiff appears to be seeking to have the IRS enjoined from taking any further action to assess or collect her tax liabilities. (ECF No. 31, ¶¶ 6, 8.) 26 U.S.C. § 7431(a) provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person . . . .” The manifest purpose of section 7421(a) is “to permit the United States to assess and collect taxes alleged to be due without judicial intervention, and to require that the legal right to the disputed sum be determined in a suit for refund.” Enochs v. Williams Packing Navigation Co., 370 U.S. 1 (1962); see also Enax v. United States, 243 Fed. Appx. 449, 451 (11th Cir. 2007); Meyer v. Everson, 2006 WL 2583699, at *4 (M.D. Fla. Sept. 7, 2006). Although there are limited statutory exceptions to the Act, none apply here.2 2 I.R.C. sections 6212 and 6213 apply when a taxpayer seeks review by the Tax Court of a notice of deficiency, whereas, section 6015(e) concerns Tax Court review of innocent spouse determinations. Similarly, section 6330(e)(1) only applies to certain collection due process proceedings in Tax Court. None of the other statutory exceptions apply: section 6331(i) prohibits levy during the pendency of a suit for refund of a divisible tax (such as a trust fund recovery penalty assessed pursuant to section 6672(a)); section (continued...) Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 12 of 25 13 The limited judicial exception to the Anti-Injunction Act recognized by the Supreme Court in Williams Packing also does not apply under the facts as alleged in the Third Amended Complaint. Under Williams Packing, this Court could properly issue an injunction only if (1) it is clear that under no circumstances could the United States prevail, and (2) the taxpayer lacks an adequate remedy at law. See Williams Packing, 370 U.S. at 7. When applying this judicial exception, the court must view both the facts and the law in the light most favorable to the United States. See id.; Lange v. Phinney, 507 F.2d 1000, 1006 (5th Cir. 1975). Here, based on the allegations contained in the Third Amended Complaint, Plaintiff cannot show that the United States has no possibility of prevailing. In fact, the opposite appears to be true. She has identified no actions by the IRS that violated provisions of the Internal Revenue Code or regulations that would constitute unlawful collection under 26 U.S.C. § 7433, and her other causes of (… continued) 6672(c) applies only when a responsible person has filed a bond within 30 days of the assessment to ensure collection; sections 6225 and 6246 apply in partnership tax assessments; section 6694 applies to certain return preparer penalty proceedings; section 7426 applies in certain third-party wrongful levy actions; section 7429 applies in proceedings to review jeopardy assessments; and section 7436 applies to proceedings to determine employment status. Plaintiff has alleged no facts establishing the applicability of any of those exceptions to this action. Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 13 of 25 14 action clearly fail for lack of subject matter jurisdiction as set forth above. Consequently, Plaintiff cannot meet the first prong of the Williams Packing exception and is not entitled to an injunction. Even if Plaintiff could demonstrate that the United States was unlikely to prevail in this action, the judicial exception to the Anti-Injunction Act would not apply because the Plaintiff has adequate remedies at law for her purported claims. As noted below, to the extent Plaintiff believes the IRS has engaged in erroneous collection activities that have caused her damage, she may file an appropriate claim under 26 U.S.C. § 7433 for redress. If she believes that tax liability has been erroneously assessed against her, Plaintiff may pay the tax and file a proper administrative claim for refund and, if denied, bring a suit for refund under 26 U.S.C. § 1346(a)(1). The existence of these remedies at law preclude Plaintiff from being able to satisfy the second prong of the Williams Packing exception and render her unable to obtain any injunction here. II. The Court Should Dismiss Plaintiff’s Third Amended Complaint Because It Fails to State a Claim for Relief Even if the Court has jurisdiction over Plaintiff’s claims for damages against the United States, the Court should dismiss her Third Amended Complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) and 8(a)(2). The Court should also dismiss any Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 14 of 25 15 construed Bivens claim for the same reason. In deciding a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6), a court must accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). However, a motion to dismiss should be granted when the plaintiff has not proffered “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has factual plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A. Plaintiff has failed to allege any wrongful collection activity under 26 U.S.C. § 7433 Plaintiff has alleged that the IRS is liable under 26 U.S.C. § 7433 for unlawful collection activities related to the 2013 tax year. However, Plaintiff does not identify how specific actions by the IRS constituted unlawful collection activity under § 7433. (ECF No. 31 at ¶ 8.) In order to determine liability under § 7433, “a plaintiff [first] must prove the IRS intentionally, recklessly, or negligently disregarded part of Title 26 in connection with the collection of plaintiff’s federal tax liability . . .” Music v. United States, 17 F. Supp. 3d 1327, 1330 (N.D. Ga. 2014); see also Pollinger v. IRS Oversight Bd., 362 Fed. Appx. 4 (11th Cir. 2010) Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 15 of 25 16 (taxpayer must prove that the IRS engaged in unlawful collection procedures). In particular, a plaintiff must show that the IRS violated a specific provision of the Internal Revenue Code or regulations in connection with its collection of taxes in order to prevail under § 7433. Plaintiff has not identified any provision of the Internal Revenue Code or regulations that the IRS violated in connection with any efforts to collect the tax liabilities assessed against her. In fact, Plaintiff’s § 7433 claim appears to be merely based on the allegation that she does not owe any additional tax liability, and that the IRS acted negligently or unlawfully by assessing additional tax liabilities against her in the first place. (ECF No. 31 at ¶¶ 7, 8.) However, courts have not permitted a taxpayer’s § 7433 damages action based on the assessment of tax liability alone. See Gonsalves v. IRS, 975 F.2d 13, 16 (1st Cir. 1992) (taxpayer failed to identify provisions of the Internal Revenue Code or regulations that IRS collection activities violated). Accordingly, because Plaintiff has failed to demonstrate how the IRS engaged in unlawful collection activities in violation of 26 U.S.C. § 7433, her claim must be dismissed. B. Plaintiff has not exhausted her administrative remedies under 26 U.S.C. § 7433 Plaintiff’s failure to exhaust her administrative remedies prior to filing suit under 26 U.S.C. § 7433 also subjects the Third Amended Complaint to dismissal Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 16 of 25 17 for failure to state a claim. Federal Rule of Civil Procedure 8(a) “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the- defendant-unlawfully-harmed-me-accusation.” Id. “[O]nly a complaint that sates a plausible claim for relief survives a motion to dismiss.” Id. at 679. Section 7433 requires an aggrieved party to exhaust administrative remedies before seeking redress in court. See 26 U.S.C. § 7433(d)(1). To exhaust her administrative remedies, Plaintiff had to comply with the requirements set forth in 26 C.F.R. § 301.7433-1(e)(1)-(2). See Galvez v. IRS, 448 Fed. Appx. 880, 885-86 (11th Cir. 2011). Exhaustion of administrative remedies under 26 U.S.C. § 7433 requires making an administrative claim for damages with the IRS. This claim must include the taxpayer’s identifying number and contact information, the grounds for the claim, a description of injuries, and the dollar amount of the claim. See 26 C.F.R. § 301.7433-1(e)(2)(i)-(v). The Third Amended Complaint describes none of these actions as having been taken and Plaintiff’s letters to the IRS do not meet this standard. These communications focus on Plaintiff’s identity theft claim, contain general statements that she does not owe additional tax liabilities, and describe damages in connection with the home purchase that could not be completed because of the fraudulently filed tax return. (ECF No. 31, Ex. 3 - 3-16.) They do not identify any Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 17 of 25 18 grounds for an allegation of unlawful collection activities or describe injuries that are a result of collection activity by the IRS. Because these communications do not conform to the regulation’s requirements for a proper administrative claim under § 7433, Plaintiff has not exhausted her administrative remedies and her claim under § 7433 must be dismissed. C. The Third Amended Complaint does not state a constitutional claim under Bivens The Complaint alleges that IRS employees violated Plaintiff’s right to “inherit, purchase, lease, sell, hold, and convey real and personal property.” (ECF No. 31 at ¶ 10.) 3 To the extent the Third Amended Complaint may be construed to make a claim for violation of Plaintiff’s civil rights under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the claim must also be dismissed. In Bivens, the Supreme Court recognized the existence of an implied right of action against federal agents in their individual capacities for certain constitutional 3 Plaintiff alleges that IRS employees are liable under 42 U.S.C. § 1983. Section 1983 does not apply, however, because it only imposes liability upon a person who, under color of state law, deprives a person of “any rights, privileges, and immunity secured by the Constitution.” 42 U.S.C. § 1983. The IRS is a federal agency. Thus, the actions of its employees were not taken under the color of state law. Seibert v. Baptist, 594 F.2d 423, 429 (5th Cir. 1979). Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 18 of 25 19 violations. See also Thibeaux v. U.S. Atty. Gen., 275 Fed. Appx. 889, 892 (11th Cir. 2008) (“Bivens claims can be brought against federal officers in their individual capacities only; they do not apply to federal officers acting in their official capacities”) (citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70-72 (2001)). However, it is well settled that Bivens actions are not available in tax related disputes because there are ample avenues of redress under the Internal Revenue Code. Al-Sharif v. United States, 296 Fed. Appx. 740, 741-42 (11th Cir. 2008) (holding that “the availability of adequate statutory avenues for relief forecloses a Bivens action against individual IRS agents for alleged constitutional violations with respect to the collection and assessment of taxes.”); see also Judicial Watch v. Rossotti, 317 F.3d 401, 409-13 (4th Cir. 2004) (refusing to extend a Bivens remedy to disputes arising from the examination, assessment or collection of taxes); Schreiber v. Mastrogiovani, 214 F.3d 148, 154 (3rd Cir. 2000) (the court’s focus is “whether it is appropriate to create a damages action to remedy the wrong in light of what Congress has done.”). Here, Plaintiff may not maintain a Bivens action against IRS employees because she has sufficient remedies under the Internal Revenue Code. To the extent that she is challenging whether she owes tax for 2013, her remedy is to pay the tax and file a proper administrative claim to recover the tax she claims has been Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 19 of 25 20 erroneously assessed and paid over. If denied, she can bring a suit for refund under 26 U.S.C. § 1346(a)(1). To the extent that Plaintiff claims she was damaged by collection activity that violated the Internal Revenue Code or regulations thereunder, she has a remedy under 26 U.S.C. § 7433. As explained above, her remedy in that instance is to bring an appropriate administrative claim against the IRS specifying the basis for injuries she has incurred as a result of unlawful collection activity against the IRS. See 26 C.F.R. § 301.7433-2(e)(2). Accordingly, because Plaintiff has adequate remedies, the Court should dismiss her Third Amended Complaint. Al-Sharif, 296 Fed. Appx. at 742. Even if Plaintiff could maintain a Bivens action, the Court should dismiss her Third Amended Complaint against individual IRS employees for failure to state a claim because Plaintiff has not alleged any facts to support her claim that her constitutional rights were violated. Therefore, Plaintiff’s Third Amended Complaint does not state a claim for relief that is plausible on its face with respect to any Bivens claim against individual IRS employees. See Iqbal, 556 U.S. at 678. Specifically, Plaintiff alleges that IRS employees violated her rights by failing to resolve her identity theft claim prior to her attempt to purchase a home and refusing to provide her with transcripts for the 2013 tax year. (ECF No. 31 at ¶ 10.) These facts, however, do not show a violation of Plaintiff’s constitutional Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 20 of 25 21 rights. There is no inherent right to purchase real property, let alone a particular parcel of real property. Thus, even if the IRS’ actions adversely affected her ability to purchase a new home, this does not rise to the level of a constitutional violation. Further, even if it can be construed that Plaintiff is alleging a violation of her right to due process under the Fifth Amendment, she has not alleged any facts that show such a violation. Plaintiff acknowledges that she filed an administrative identity theft claim and the IRS is in the process of investigating the fraudulent return filed in her name, but she does not explain how the IRS’ handling of this claim or its investigation has violated her right to due process. (ECF No. 31, ¶ 7.) Accordingly, Plaintiff’s Third Amended Complaint fails to state a plausible claim that IRS employees violated any constitutional rights and must be dismissed. III. The Court Should Dismiss This Case Pursuant to Rule 12(b)(5) for Lack of Proper Service Upon the United States Plaintiff has failed to properly serve the United States pursuant to Fed. R. Civ. P. 4(i)(2) because the Third Amended Complaint now names individual IRS employees in their official capacities. Proper service upon the United states requires service of a copy of the summons and of the complaint (1) upon the United States Attorney for the district where the action is brought by either personal delivery to an Assistant United States Attorney or clerical employee Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 21 of 25 22 designated by the United States Attorney and filed in writing with the court, or by registered or certified mail to the civil-process clerk for the district where the action is brought and (2) upon the United States Attorney General by registered or certified mail. Fed. R. Civ. P. 4(i)(1). When a complaint seeks relief from an agency, officer, or employee of the United States sued in their official capacity, a plaintiff is also required to send a copy of the summons and complaint by registered or certified mail to the agency or employee. Fed. R. Civ. P. 4(i)(2). Although Plaintiff sent a copy of the Third Amended Complaint to the U.S. Attorney’s Office and the Attorney General by regular mail, service was insufficient because there is no record that the Internal Revenue Service or any of the individuals now named as defendants were served with a copy of the Third Amended Complaint. Absent proper service, the Court lacks personal jurisdiction over the United States. Although Plaintiff may be able to cure this defect, proper service will not remedy the numerous substantive deficiencies of the Third Amended Complaint described by this Motion. CONCLUSION The Amended Complaint fails to establish on its face that the Court has subject matter jurisdiction over its many claims against the IRS. It also fails to Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 22 of 25 23 state a claim for which relief can be granted under either 26 U.S.C. § 7433 or any claim under Bivens. Therefore, it should be dismissed under Federal Rules of Civil Procedure 12(b)(1), (5) and (6). Dated: August 16, 2016 CAROLINE D. CIRAOLO Principal Deputy Assistant Attorney General /s Christopher M. Whitcomb CHRISTOPHER M. WHITCOMB Trial Attorney, Tax Division U.S. Department of Justice P.O. Box 14198 Washington, D.C. 20044 202-353-9175 (v) 202-514-4963 (f) Christopher.M.Whitcomb@usdoj.gov Of Counsel: JOHN A. HORN United States Attorney Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 23 of 25 24 I certify that this pleading is being submitted in accordance with LR 5.1C. s/ Christopher M. Whitcomb CHRISTOPHER M. WHITCOMB Trial Attorney United States Department of Justice, Tax Division Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 24 of 25 25 CERTIFICATE OF SERVICE I hereby certify that on this 16th day of August, 2016, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system, and served by U.S. mail to: Wanda Y. Dockens 2105 Marsh Trail Circle Atlanta, Georgia 30328 s/ Christopher M. Whitcomb CHRISTOPHER M. WHITCOMB Trial Attorney United States Department of Justice, Tax Division Case 1:15-cv-02761-SCJ Document 34 Filed 08/16/16 Page 25 of 25