Curl v. Internal Revenue Service

Filing 19

MEMORANDUM ORDER - granting re 15 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction Over the Subject Matter filed by United States of America. Signed by Judge Leonard P. Stark on 9/2/11. (rwc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Gary E. Curl,
Plaintiff,

CONSOLIDATED
Civ. No. 09-933-LPS

v.
United States of America,
Defendant.

MEMORANDUM ORDER
At Wilmington this 2nd day of September, 2011:

Presently before the Court is Defendant United States of America's Motion to Dismiss.

(D.l. 15) For the reasons discussed below, the Court will grant the Motion to Dismiss.

I.

BACKGROUND
Plaintiff Gary E. Curl ("Plaintiff'), who proceeds pro se, filed this lawsuit against the

Internal Revenue Service ("IRS") pursuant to 26 U.S.C. § 7426 seeking damages and an
injunction for wrongful levy oftaxes. (D.1. 3, 5) On March 30,2010, the United States of
America ("United States") was substituted for the IRS as Defendant. (D.l. 9)
The United States moves to dismiss on the grounds that Plaintiff failed to state a claim
upon which relief can be granted and that the Court lacks subject matter jurisdiction over this
case due to the doctrine of sovereign immunity.1 (D.l. 15) Plaintiff opposes this motion. (D.l.

lBecause the Court has determined that it lacks subject matter jurisdiction, it will not
address the United States' additional argument that Plaintiff failed to state a claim upon which
relief can be granted.

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II.

LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal ofa complaint for lack of

jurisdiction over the subject matter. See Samsung Electronics Co., Ltd. v. ON Semiconductor

Corp., 541 F. Supp.2d 645,648 (D. Del. 2008). Motions brought under Rule 12(b)(1) may
present either facial or factual challenges to the Court's subject matter jurisdiction. See

Mortensen v. First Fed. Sav. & Loan, 549 F.2d 884, 891 (3d Cir. 1977).

In reviewing a facial challenge under Rule 12(b)(1), the standards relevant
to Rule 12(b)(6) apply. In this regard, the Court must accept all factual
allegations in the Complaint as true, and the Court may only consider the
complaint and documents referenced in or attached to the complaint.
Gould Electronics, Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).
[In contrast, however,] [i]n reviewing a factual challenge to the Court's
subject matter jurisdiction, the Court is not confined to the allegations of
the complaint, and the presumption of truthfulness does not attach to the
allegations in the complaint. Mortensen v. First Fed. Sav. & Loan, 549
F.2d 884, 891 (3d Cir. 1977). Instead, the Court may consider evidence
outside the pleadings, including affidavits, depositions and testimony, to
resolve any factual issues bearing on jurisdiction. Gotha v. United States,
115 F.3d 176, 179 (3d Cir. 1997).

Samsung, 541 F. Supp.2d at 648.
Once the Court's subject matter jurisdiction over a complaint is challenged, Plaintiff
bears the burden of proving that jurisdiction exists. See Mortensen, 549 F .2d at 891.

III.

DISCUSSION
An action against the United States cannot be maintained unless the United States waives

its sovereign immunity. See United States v. Mitchell (I), 445 U.S. 535,538 (1980). A waiver of
sovereign immunity cannot be implied but must be "unequivocally expressed." Id. Moreover,

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"[i]t is axiomatic that the United States may not be sued without its consent and that the
existence of the consent is a prerequisite for jurisdiction." United States v. Mitchell (II), 463
U.S. 206, 212 (1983).
Here, the United States has not waived its immunity. Although § 7426 permits lawsuits
against the United States for wrongful levy of taxes in certain instances, § 7426 expressly
precludes "the person against whom is assessed the tax out of which the levy arose" from filing
suit against the United States. 26 U.S.C. § 7426(a)(1); see also McGinness v. United States, 90
F.3d 143, 145 (6th Cir. 1996) (noting that first prerequisite to establishing § 7426 waiver of
sovereign immunity is that "the person asserting the wrongful levy claim must not be one against
whom the tax is assessed"). The § 7426(a)(1) waiver of sovereign immunity is inapplicable here
because Plaintiff is the taxpayer; thus, the United States has not waived its sovereign immunity
with respect to the instant suit.

IV.

CONCLUSION

For the above reasons, IT IS HEREBY ORDERED THAT the United States' Motion to
Dismiss for Lack of Subject Matter Jurisdiction (D.1. 15) is GRANTED.

UNITED STATES DISTRICT JUDGE

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