Andrews v. Geithner et al

Filing 52

OPINION AND ORDER OVERRULING OBJECTIONS, ADOPTING RECOMMENDATION, AND GRANTING MOTION TO DISMISS. The Court OVERRULES Mr. Andrews' 51 Objections and ADOPTS the 49 Magistrate Judge's Recommendation The Defendants' 9 Motion to Dismiss is GRANTED, and all claims against all Defendants other than Ms. Huber are DISMISSED. The caption of the case is AMENDED to omit reference to any Defendant other than Ms. Huber, by Judge Marcia S. Krieger on 03/05/2012.(wjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 11-cv-01366-MSK-KLM
WAYNE ANDREWS,
Plaintiff,
v.
TIMOTHY GEITHNER;
DOUGLAS SHULMAN;
OFFICER IN CHARGE OF COLLECTIONS;
GARY QUICK;
DONNA M. MILLER;
LISA K. JONES; and
ROXY HUBER,
Defendants.
______________________________________________________________________________
OPINION AND ORDER OVERRULING OBJECTIONS, ADOPTING
RECOMMENDATION,
AND GRANTING MOTION TO DISMISS
______________________________________________________________________________
THIS MATTER comes before the Court pursuant to the Plaintiff’s Objections (# 51) to
the January 30, 2012 Recommendation (# 49) of the Magistrate Judge that the Defendants’
(except Ms. Huber, who moves separately) Motion to Dismiss (# 9) be granted.
Mr. Andews, proceeding pro se, commenced this action against Mr. Geithner, as
Secretary of the Treasury, and various agents of the Internal Revenue Service (“IRS”), alleging
that between 1999 and 2008, the Defendants “did create fictitious amounts and claim that they
were taxable income” received by Mr. Andrews, and that as a result, Mr. Andrews owed taxes,

penalties, and interest on those amounts.1 Those taxes and penalties went unpaid, and
eventually, the IRS placed a lien on Mr. Andrews’ property. Mr. Andrews’ pro se Complaint (#
1) alleges, variously, claims of fraud and civil conspiracy, among other things.
The Defendants (except Ms. Huber, who was belatedly served) moved to dismiss (# 9)
Mr. Andrews’ Complaint on various grounds. This Court referred the Defendants’ motion to the
Magistrate Judge, and on January 30, 2012, the Magistrate Judge issued a Recommendation
(#49) that the motion to dismiss be granted in its entirety. Among other things, the Magistrate
Judge found: (i) Mr. Andrews had not adequately demonstrated sufficient service of process on
the Defendants; (ii) his Bivens claims were insufficient, insofar as such claims do not lie against
IRS officials (rather, 26 U.S.C. § 7433 provides Mr. Andrews’ sole remedy); and (iii) leave to
amend the Complaint should not be granted, as the constitutional claims urged by Mr. Andrews
cannot colorably be asserted regardless of the underlying facts.
On Februrary 17, 2012, Mr. Andrews filed a “Notice of Intent to File Objections,” stating
that he had just discovered the existence of the Recommendation by logging onto the Court’s
electronic docket software, and that he had not received any mailed copy of that document. He
requested that the Court permit him to promptly file Objections, and on February 22, 2012, he
did so (# 51). The somewhat rambling Objections primarily argue: (i) the Magistrate Judge erred
in analyzing the issues under Dahn v. United States, 127 F.3d 1249 (10th Cir. 1997), insofar as
that case relates only to tax assessments and “this case is not about an assessment” as “an
assessment only exists when there are supporting documentation” and here, Defendant Quick
“created amounts [of tax liability] with no documentation”; and (ii) that “26 U.S.C. § 7422 [is]

1

Mr. Andrews contends that in those years, he reported that he received no income and
was entitled to refunds.

not mandatory,” as “these sections are guidelines and not codified in law”and that relief under
Bivens cannot be denied “if the defendants act under Color of Authority and violate the
Constitutional rights of the plaintiff.”
Mindful of Mr. Andrews’ pro se status, the Court has according his pleadings the liberal
construction they are entitled. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The Court
reviews the objected-to portions of a Magistrate Judge’s Recommendation de novo. Fed. R. Civ.
P. 72(b). Upon that de novo review, the Court finds the Magistrate Judge’s thorough
Recommendation to be correct in all respects, and Mr. Andrews’ Objections to be without merit.
With regard to Dahn, Mr. Andrews is partially correct in his assertion that the decision in
that case is driven by its facts. There, the taxpayer brought (among others) Bivens claims
challenging “the seizure of his property to pay tax debts of . . . his parents.” 127 F.3d at 1251.
The 10th Circuit concluded that such claims were not cognizable and the wrongful levy statute,
26 U.S.C. § 7426 (which provides for an action for “wrongful levy”), was the taxpayer’s sole
remedy. Neither the facts in Dahn, nor the statute providing the remedy, is analogous to Mr.
Andrews’ claims here that IRS agents fabricated records to justify assessing taxes against him.
But the Magistrate Judge cited Dahn not based on a belief that it was on all fours with
this case, but merely for the more general rule it articulates: “The United States and its agencies
are not subject to suit under Bivens [and] in light of the comprehensive administrative scheme
created by Congress to resolve tax-related disputes, individual agents of the IRS are also not
subject to Bivens actions.” Nothing in Dahn suggests that this rule differs depending on the
nature of the wrongdoing allegedly committed by the IRS agents. Indeed, Dahn relies on
National Commodity and Barter Ass’n v. Gibbs, 886 F.2d 1240 (10th Cir. 1989) for this
proposition. National Commodity did not involve claims of wrongful levy; there, the plaintiffs

alleges that IRS agents “had engaged in a conspiracy . . . by their continued, unwarranted
investigation of the organization . . . and by their collection of unlawful penalties under the
Internal Revenue Code.” Id. at 1243. Nevertheless, the 10th Circuit soundly rejected any
argument that liability under Bivens could attach, finding that the plaintiff has “all sorts of right
against an overzealous officialdom, including, most fundamentally, the right to sue the
government for a refund if forced to overpay taxes.”2 Id. at 1248. Accordingly, this Court finds
that the Magistrate Judge properly relied on Dahn to conclude that Mr. Andrews’ Bivens claims
are not cognizable in these circumstances.
Less discussion is warranted with regard to Mr. Andrews’ contention that 26 U.S.C.
§7422 is “not mandatory” and “not codified in law.” This is nothing more than a variant of the
legally-frivolous contention that various tax laws are non-binding, ultra vires, or otherwise
inapplicable. 26 U.S.C. § 7422(a) is valid and clearly provides the exclusive remedy for claims
“for the recovery of any internal revenue tax alleged to have been erroneously or illegally
asserted or collected.”
Accordingly, the Court OVERRULES Mr. Andrews’ Objections (# 51) and ADOPTS

2

National Commodity recognized that a Bivens claim against IRS agents could lie for
claims premised on the First and Fourth Amendments to the U.S. Constitution (i.e. that the IRS
retaliated against the plaintiff for the exercise of their First Amendment rights or that the IRS
engaged in an unlawful search of the plaintiffs’ property in violation of the Fourth Amendment).
The court noted hat “certain values, such as those protected by [these] amendments, may be
superior to the need to protect the integrity of the internal revenue system,” and thus, Bivens
claims based on these amendments might lie. Id. at 1248.
Mr. Andrews’ Objections attempts to cast his claims as falling within these amendments,
but he does so in a tortured way. Rather than contending that his First Amendment rights were
violated by the Defendants here, he alleges that the Defendants cannot invoke the First
Amendment to protect their “false speech.” To the extent he alleges that the improper placing of
liens on his property constitutes a Fourth Amendment violation, that claim aligns more closely
with a Fifth Amendment Due Process claim, not a Fourth Amendment unreasonable seizure
claim.

the Magistrate Judge’s Recommendation (# 49).3 The Defendants’ Motion to Dismiss (# 9) is
GRANTED, and all claims against all Defendants other than Ms. Huber are DISMISSED. The
caption of the case is AMENDED to omit reference to any Defendant other than Ms. Huber.
Dated this 5th day of March, 2012
BY THE COURT:

Marcia S. Krieger
United States District Judge

3

Mr. Andrews does not challenge the Magistrate Judge’s reasoning for refusing to sua
sponte grant him leave to amend. Arguably, Mr. Andrews could amend his Complaint to instead
fashion this suit as one brought for a refund pursuant to 26 U.S.C. § 7422(f), although to do so,
he would first have to demonstrate the exhaustion of administrative remedies required by §
7422(a). This Court will not assume that Mr. Andrews intends to so dramatically change the
thrust of his claims, nor that he has completed the required administrative exhaustion. Thus, the
Court adopts that portion of the Magistrate Judge’s Recommendation that denies a reflexive
grant of leave to amend, but the Court will entertain a prompt motion seeking leave to amend by
Mr. Andrews, provided that motion is supported by a proposed Amended Complaint that states a
cognizable claim.