McElver
v.
Commissioner of Internal Revenue

United States District Court, D. IdahoDec 10, 2001
Case No. CV01-472-N-EJL (D. Idaho Dec. 10, 2001)

Case No. CV01-472-N-EJL

December 10, 2001


ORDER


Currently pending before the Court is Defendant United States of America's Motion to Dismiss. Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.

Preliminarily, the court observes that the Plaintiffs have filed this action on their own behalf, pro se. In deference to their pro se status, the court has liberally construed the Plaintiffs' pleadings to encompass any legally cognizable arguments which may be reasonably encompassed therein.

In addition, on November 13, 2001, the Court sent the Plaintiffs a Notice to Pro Se Litigants of the Summary Judgment Rule Requirements to advise them of the procedure governing the pending dispositive motion.

The Plaintiffs seek a "Determination of Taxpayer Status" to establish that they are nonresident aliens without income under the tax code and to obtain an injunction barring all tax collection activities against them. In an effort to obtain this relief, the Plaintiffs have sued the Commissioner of the Internal Revenue Service ("Commissioner"). Because the relief requested implicates the duties of the Commissioner in his official capacity, the Plaintiffs' lawsuit against the Commissioner is essentially a lawsuit against the United States. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) ("It has long been the ride that the bar of sovereign immunity cannot be avoided by naming officers and employees of the United States as defendants. Thus, a suit against IRS employees in their official capacity is essentially a suit against the United States." (citation omitted)).

The United States, as a sovereign, may not be sued in federal court without its consent. United States v. Testan, 424 U.S. 392, 399 (1976). Federal jurisdiction, then, is dependent on a determination that two prerequisites we present: 1) a waiver of sovereign immunity, and 2) statutory authority granting subject matter jurisdiction over the claims asserted by the plaintiff. E.J. Friedman Co., Inc. v. United States, 6 F.3d 1355, 1357 (9th Cir. 1993); Arford v. United States, 934 F.2d 229, 231 (9th Cir. 1991). Contrary to the Plaintiffs' belief, the "party bringing a cause of action against the federal government bears the burden of showing an unequivocal waiver of immunity." Baker v. United States, 817 F.2d 560, 562 (9th Cir. 1987), cert. denied, 487 U.S. 1204 (1988).

The Plaintiffs have failed to carry their burden on this issue. The Plaintiffs fail to identify any statute, regulation or rule that waives the United States' sovereign immunity with respect to the claims they assert. Nor has the Court been able to find any provision that contains the necessary waiver. Without a valid waiver of sovereign immunity, this Court does not have subject matter jurisdiction over this matter and, accordingly, the case must be dismissed. See E.J. Friedman Co., Inc., 6 F.3d at 1358-59.

Given the Court's ruling, it need not address the United States' other arguments offered in support of the Motion to Dismiss.

ORDER

Based on the Foregoing, and the Court being fully advised in the premises, it is HEREBY ORDERED that:

1. The Plaintiffs' Motion to Exceed Page Limit (Docket No. 14) is GRANTED.

2. The Plaintiffs' Motion for Determination of Taxpayer Status (Docket No. 1) is DENIED.

3. The United States' Motion to Dismiss (Docket No. 9) is GRANTED.

IT IS FURTHER ORDERED that this case is DISMISSED in its entirety.