Ploof v. Internal Revenue Service et al

Filing 23

Order by Magistrate Judge Nandor J. Vadas granting 17 Motion to Dismiss for Lack of Jurisdiction. (Attachments: # 1 Certificate/Proof of Service)(njvlc1, COURT STAFF) (Filed on 5/24/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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RONALD EARL PLOOF,

Case No. 15-cv-06040-NJV

Plaintiff,
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ORDER GRANTING MOTION TO
DISMISS AND DISMISSING ALL
FEDERAL DEFENDANTS

v.
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INTERNAL REVENUE SERVICE, et al.,

Re: Dkt. No. 17

United States District Court
Northern District of California

Defendants.
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Ronald Earl Ploof, proceeding pro se, filed this civil action on December 23, 2015. The

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parties who have appeared have consented to the jurisdiction of the magistrate judge. (Docs. 10,

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18.) Pending before the court is the Motion to Dismiss filed March 23, 2016, by Defendants the

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Internal Revenue Service and John Koskinen, Commissioner of the Internal Revenue Service.

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(Doc. 17.) For the reasons discussed below, the court grants the Motion to Dismiss and will

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dismiss all federal Defendants.

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LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(1) allows a defendant to move to dismiss an action

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for lack of subject matter jurisdiction. On such a motion, the plaintiff bears the burden of

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establishing that subject matter jurisdiction exists. See Kokkonen v. Guardian Life Ins. Co. of Am.,

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511 U.S. 375, 377 (1994). "To confer subject matter jurisdiction in an action against a sovereign,

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in addition to a waiver of sovereign immunity, there must be statutory authority vesting a district

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court with subject matter jurisdiction." Alvarado v. Table Mountain Rancheria, 509 F.3d 1008,

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1016 (9th Cir. 2007). The United States, as a sovereign, may not be sued except in strict

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accordance with the terms of a specific and explicit waiver of sovereign immunity granted by

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Congress, and the terms of the waiver define the court’s jurisdiction. See United States v. Nordic

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Village, Inc., 503 U.S. 30, 33 (1992) (construing Section 106 of the Bankruptcy Code); United

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States v. Dalm, 494 U.S. 596, 608 (1990) (construing 28 U.S.C. Section 1346(a)(1)). Waivers of

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sovereign immunity “cannot be implied, but must be unequivocally expressed,” and are strictly

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construed in favor of the sovereign. Dunn & Black P.S. v. U.S., 492 F.3d 1084, 1088 (9th Cir.

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2007) (quoting Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985)). Where the United

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States has not consented to suit, the court lacks jurisdiction over the subject matter of the action

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and dismissal is required. Id.
DISCUSSION

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United States District Court
Northern District of California

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Defendants the Internal Revenue Service and John Koskinen, Commissioner of the Internal

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Revenue Service, move to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(1)

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for lack of subject matter jurisdiction. Although Plaintiff has the burden of establishing subject

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matter jurisdiction and asserting a waiver of sovereign immunity, the Complaint fails to assert any

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such waiver of sovereign immunity by the United States. Plaintiff merely alleges that “the federal

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court has jurisdiction because it deals with the IRS the Securities and Exchange Commission &

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Congressman Huffman.” Complaint, p. 12. Plaintiff does not cite any statute authorizing this

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court to exercise jurisdiction over any of the claims against the several federal defendants named

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in this action.

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Although 28 U.S.C. § 1331 provides that “[t]he district courts shall have original

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jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United

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States,” and 28 U.S.C. § 1340 generally confers jurisdiction for matters arising under the Internal

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Revenue Code (“IRC” or “Title 26”), it is well established that the United States has not waived

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its sovereign immunity to suit based on general jurisdictional statutes. See Hughes v. U.S., 953 F.

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2d 531, 539 n. 5 (9th Cir. 1992) (neither 28 U.S.C. §§ 1331, 1340 nor 1343 constitute a waiver of

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sovereign immunity). Rather, the grant of jurisdiction in such statutes is limited to cases in which

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the Government has already consented to suit. See Arford v. United States, 934 F.2d 229, 231 (9th

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Cir. 1991) (discussing waiver of sovereign immunity under 28 U.S.C. § 7426 and 28 U.S.C.
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§ 2410). In this instance, the United States has not consented to suit.
Where, as here, a federal employee is named as a defendant in his official capacity and a

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judgment necessarily would operate against the Government, the suit is considered to be one

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against the United States, for which there must be a waiver of sovereign immunity allowing the

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suit to be maintained. Land v. Dollar, 330 U.S. 731, 737-38 (1947); Gilbert v. DaGrossa, 756

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F.2d 1455, 1458 (9th Cir. 1985). Again, Plaintiff bears the burden of establishing both jurisdiction

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and a waiver of sovereign immunity in a suit against the United States. In certain circumstances, a

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suit for damages may be maintained against an official of the United States in his individual or

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personal capacity for alleged violations of an individual’s constitutional rights. See Bivens v. Six

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Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971); Stonecipher v.

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United States District Court
Northern District of California

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Bray, 653 F.2d 398, 401-403 (9th Cir. 1981). Plaintiff's Complaint is devoid of allegations based

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on individual acts by Commissioner Koskinen or other federal employees depriving him of his

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constitutional rights. Accordingly, the court cannot construe this action as a Bivens action against

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the named federal employees in their individual capacities.
Based on the foregoing, the court finds that Plaintiff has failed to meet his burden of

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showing that the court may exercise subject matter jurisdiction over the Internal Revenue Service

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and John Koskinen, Commissioner of the Internal Revenue Service. For the same reasons, the

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court further finds that Plaintiff has failed to demonstrate the existence of subject matter

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jurisdiction over the other named federal defendants: Congressman Jared Huffman, the United

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States Securities and Exchange Commission, Jack Hardy, Roy Sheetz, and Amy Rosenthal.

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Accordingly, this action must be dismissed for lack of subject matter jurisdiction as against all

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federal defendants. Because the court has determined that it lacks subject matter jurisdiction, it

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does not reach Defendants' arguments regarding other grounds for dismissal.

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The Motion to Dismiss is GRANTED. Defendants the Internal Revenue Service; John

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Koskinen, Commissioner of the Internal Revenue Service; Congressman Jared Huffman; the

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United States Securities and Exchange Commission; Jack Hardy; Roy Sheetz, and Amy Rosenthal

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are HEREBY DISMISSED from this action with prejudice.

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IT IS SO ORDERED.

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Dated: May 24, 2016
______________________________________
NANDOR J. VADAS
United States Magistrate Judge

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United States District Court
Northern District of California

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