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United States District Court, D. ArizonaJul 15, 2005
No. CV-04-1516 PHX ROS. (D. Ariz. Jul. 15, 2005)

No. CV-04-1516 PHX ROS.

July 15, 2005


Pending is Defendant Timothy A. Towns' Motion to Dismiss ("Motion"). For the reasons stated below, the Motion will be granted.


On July 26, 2004, Plaintiff Christopher Peter Campion filed a Complaint regarding "God-given unalienable rights in the original estate — Article III; Constitution." [Doc. # 1 (Compl.) at 1.] In rambling prose with few factual allegations, Plaintiff complains about a seizure of property, possibly a boat, to satisfy tax liability as determined by the Internal Revenue Service ("IRS"). However, it is unclear whether a seizure has taken place. [Id. at 2-3.] Plaintiff considers the United States a foreign government, but does not allege foreign citizenship or any other basis for this allegation. [Id. at 3.] Because of the alleged status of the government, Plaintiff claims any action to seize his property must originate in a district court. [Id.] Plaintiff seeks to have this Court enjoin the IRS from "any future presentments and theft or kidnap actions." [Id. at 4.]

Additionally, the Court will correct any misunderstanding Plaintiff has concerning the text of the Thirteenth Amendment to the United States Constitution. In his Complaint, Plaintiff includes a certified copy of the Thirteenth Amendment from the Colorado State Archives which was published in 1861. As included in that compilation, the Thirteenth Amendment would strip an individual of United States citizenship if they accept any title of nobility or honor. [Doc. # 1 (Compl.) at 46.] However, this is not the Thirteenth Amendment. The correct Thirteenth Amendment prohibits slavery. Although some people claim that state publication of the erroneous Thirteenth Amendment makes it valid, Article V of the Constitution does not so provide. Jol A. Silversmith, The "Missing Thirteenth Amendment": Constitutional Nonsense and Titles of Nobility, S. Cal. Interdic. L.J. 577, 590-91 and 593 (1999).

On November 24, 2004, Defendant filed a Motion to Dismiss. [Doc. # 2.] The included Memorandum in Support of the Motion asserted that the United States was the real party in interest because any action by Towns was in his official capacity as an IRS agent. [Doc. # 3 (Mem. Supp. Mot. Dismiss) at 2.] Defendant further asserts that the Anti-Injunction Act bars the remedy Plaintiff seeks and that the Federal Tort Claims Act prevents a suit for allegations of theft or kidnap. [Id. at 5-6.] Plaintiff has not responded to Defendant's Motion to Dismiss.

Plaintiff did not respond to Defendant's Motion to Dismiss. Local Rule 7.2(i) provides that "If the opposing party does not serve and file the required answering memoranda . . . such non-compliance may be deemed a consent to the . . . granting of the motion and the Court may dispose of the motion summarily." Because Ferdik v. Bonzalet, 963 F.2d 1258, 1261 (9th Cir. 1992) established that pro se litigants should be warned about procedural missteps before dismissal and because Defendant does not invoke Local Rule 7.2(i) as grounds for granting his motion, this Court will examine whether it has subject matter jurisdiction.


I. Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. #2)

A. Legal Standard

The defense of lack of subject matter jurisdiction may be raised at any time by the parties or the court. See Fed.R.Civ.P. 12(b)(1) and 12(h)(3). Plaintiff, as the party seeking to invoke the jurisdiction of the court, bears the burden of establishing subject matter jurisdiction. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-83 (1936); See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Fenton v. Freedman, 748 F.2d 1358, 1359 (9th Cir. 1994). "If [plaintiff's] allegations of jurisdictional facts are challenged by his adversary in any appropriate manner, [plaintiff] must support them by competent proof." McNutt, 298 U.S. at 182-83. When drawn in question, the burden rests upon the plaintiff to prove by a preponderance of the evidence that jurisdiction exists. See Mid-Continent Pipe Line Co. v. Whiteley, 116 F.2d 871, 873 (10th Cir. 1940) (citing McNutt, 298 U.S. 178).

Where, as here, the moving party challenges jurisdiction based on the allegations in the complaint, the court must consider all the allegations in the complaint as true, and will not look beyond the face of the complaint to determine jurisdiction.Mortensen v. First Fed. Sav. Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).

The involvement of a pro se litigant necessitates a liberal application of procedural requirements. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that pro se pleadings are held to "less stringent standards than [those] drafted by lawyers."); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (holding that especially in civil rights claims, a court "has a duty to ensure that pro se litigants do not lose their right to a hearing on the merits . . . due to ignorance of technical procedural requirements.").

B. Analysis

As a preliminary matter, this Court notes that Plaintiff's claim is essentially against the United States. In Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985), the Ninth Circuit held that suits against an IRS employee which originate from the employee's official duties are "essentially . . . suit[s] against the United States." As a result, Plaintiff's claims are barred by sovereign immunity unless waived by statute. Here, both the Anti-Injunction Act and the Federal Tort Claims Act establish that the United States has not waived sovereign immunity and thus Plaintiff's claims will be dismissed.

1. Anti-Injunction Act

Defendant claims that the Anti-Injunction Act prohibits a suit against the United States that seeks to prevent the IRS from collecting tax due. The Act provides that except in 12 statutory exceptions, "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). The purpose of the Act "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 sums be determined in a suit for refund." Enochs v. Williams Packing Navigation Co., Inc., 370 U.S. 1, 7 (1962). However, when it is clear that the government cannot prevail on the merits and the taxpayer will be irreparably harmed by the payment of any tax, the Supreme Court has held that injunctions can be issued to prevent any collection. Id. The taxpayer bears the burden of proving each element of the Williams Packing test and additionally must demonstrate that "he has no adequate remedy at law" to cure any irreparable harm. Church of Scientology of California v. United States, 920 F.2d 1481, 1486 (9th Cir. 1990).

The 12 exceptions are not applicable in this case.

Plaintiff makes no factual statements to demonstrate that he falls within the Williams Packing exception to the Anti-Injunction Act. At most, he only makes a conclusory statement that the IRS can only collect taxes from foreign individuals through district court actions. [Doc. # 1 (Compl.) at 3.] Plaintiff offers no support for this conclusion; for example, he never alleges that he is a foreign citizen. Moreover, Plaintiff has failed to establish how he is without remedy at law. Thus, he has not demonstrated why he should fall outside the "pay-first-then-sue" purpose of the Anti-Injunction Act. The Anti-Injunction Act bars Plaintiff's claim.

2. Federal Tort Claims Act

In the event that Plaintiff is seeking recovery based on his allegations of theft, Defendant asserts that the Federal Tort Claims Act precludes any action against the United States. The Federal Tort Claims Act waives the United States' sovereign immunity in tort claims. Morris v. United States, 521 F.2d 872, 874 (9th Cir. 1975). However, the waiver is limited by 28 U.S.C. § 2680, listing numerous tort claims for which the government has not waived immunity. Id. "If a plaintiff's tort claim falls within one of the exceptions, the district court lacks subject matter jurisdiction." Id. Section 2680(c) provides that the United States has not waived immunity from "[a]ny claim arising in respect of the assessment or collection of any tax. . . ."

Assuming that the IRS seized Plaintiff's property and this constitutes a "theft," Plaintiff has made no showing the "theft" originated from any action other than the collection of taxes. In fact, all of the documents Plaintiff attached to his Complaint, except the Colorado State Archives compilation, are IRS documents relating to Plaintiff's tax liability. Therefore, any tort claim Plaintiff has against the United States arises from tax collection matters and the United States has not waived its sovereign immunity with regard to these claims.


Although Plaintiff only named Towns as a Defendant, because his suit stems from Towns' official duties as an officer of the IRS, the United States is the real party in interest. As a result, Plaintiff's claims can only proceed if the United States has waived its sovereign immunity. The Anti-Injunction Act and the Federal Tort Claims Act demonstrate that the United States has not waived any immunity and thus Plaintiff's claims will be dismissed.


IT IS ORDERED that Defendant's Motion to Dismiss (Doc. # 2) is GRANTED and this matter is DISMISSED.