ELLIS v. COMMISSIONER OF INTERNAL REVENUE SERVICE
MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 9/16/2014. (lcabj1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
COMMISSIONER OF INTERNAL
Office of Procedure and Administr., et al., )
Civil Action No. 14-0471 (ABJ)
Plaintiff Michael Ellis, proceeding pro se, filed this case against the Commissioner of the
Internal Revenue Service, the United States Attorney General, and the United States Department
of Justice (collectively, “defendants”), claiming that the Internal Revenue Service (“IRS”) is
committing criminal fraud by falsifying the tax records of United States citizens who do not file
income tax returns. 2d Am. Compl. [Dkt. # 11]. Specifically, the second amended complaint
alleges that the purported fraudulent scheme violates the Privacy Act of 1974, 5 U.S.C. § 552a
(2012) (Count I); plaintiff’s right against self-incrimination, as guaranteed by the Fifth
Amendment to the United States Constitution (Count II); and plaintiff’s right to due process of
law, which is also set forth in the Fifth Amendment (Count III). Id. ¶¶ 90–97. Plaintiff seeks
only injunctive relief. Id. ¶¶ 98–108.
Defendants moved to dismiss the second amended complaint for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that the complaint does
not establish that the federal government has waived its sovereign immunity and that the Anti-
Injunction Act (“AIA”), 26 U.S.C. § 7421(a) (2012), also creates a jurisdictional bar. Defs.’
Renewed Mot. to Dismiss for Lack of Jurisdiction (“Defs.’ Renewed Mot. to Dismiss”) [Dkt.
# 13]; Defs.’ Mem. in Supp. of Defs.’ Mot. to Dismiss for Lack of Jurisdiction (“Defs.’ Mem.”)
at 4–6 [Dkt. # 6-1].1 Moreover, defendants asserted that the second amended complaint should
be dismissed pursuant to Rule 12(b)(6) because it failed to state a claim upon which relief may
be granted, it is barred by the doctrine of res judicata, and it is frivolous on its face. Defs.’ Mem.
at 6–11. Plaintiff opposed that motion. Pl.’s Opp. to Mot. to Dismiss (“Pl.’s Opp.”) [Dkt. # 18].
Based on the points and authorities set forth in the motion to dismiss and plaintiff’s
opposition brief,2 the Court finds that the AIA bars plaintiff’s claims, and it also concludes that
plaintiff does not have Article III standing to bring this case. The Court must therefore grant
defendants’ motion to dismiss the second amended complaint for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1).
Plaintiff Michael Ellis is a concerned United States citizen. 2d Am. Compl. ¶ 10. He
filed this case against defendants Commissioner of the IRS, the United States Attorney General
(“USAG”), and the United States Department of Justice (“DOJ”) because he believes that he
Defendants incorporate the motion to dismiss the first amended complaint into their
renewed motion to dismiss the second amended complaint. Defs.’ Mem. in Supp. of Defs.’
Renewed Mot. to Dismiss for Lack of Jurisdiction at 3 [Dkt. # 13-1]. As a result, the Court will
cite to the original motion to dismiss when discussing defendants’ substantive points.
Although it was within the Court’s discretion in managing its docket to permit defendants
to file a reply to the opposition outside the time period set by the Federal Rules of Civil
Procedure, see In re Fannie Mae Sec. Litig., 552 F.3d 814, 822 (D.C. Cir. 2009); see also Berry
v. District of Columbia, 833 F.2d 1031, 1037 n.24 (D.C. Cir. 1987), the Court notes that its
decision is in no way predicated on that document. Moreover, to the extent that plaintiff is
concerned that it was unfair to allow the document to be filed, any purported unfairness was
remedied when the Court granted his motion to file a surreply. See Sept. 10, 2014 Minute Order.
“has discovered that in cases involving those whom the [IRS] labels ‘income tax non-filers’,
IRS,” USAG, and DOJ are engaged in a criminally fraudulent scheme to circumvent the Fifth
Amendment rights of Americans. Id. ¶ 1.
In the second amended complaint, plaintiff lists in great detail how the alleged scheme
works, starting with the generation by the IRS of a Substitute For Return (“SFR”) on behalf of an
individual who does not file an income tax return.3 Id. ¶¶ 18–53. Plaintiff asserts that the
creation of the SFR is unlawful because it is done without a request by or permission from the
taxpayer, and in some cases, he alleges that IRS falsifies its records to show that an SFR was
created when one was not. Id. ¶ 29. In either circumstance, plaintiff contends that the taxpayer’s
Individual Master File (“IMF”), which contains records kept by the IRS about an individual, is
falsified by the inclusion of an unlawful SFR or a notation to hide the fact that an SFR was never
created. Id. ¶ 34. He believes this violates the taxpayer’s Fifth Amendment right against selfincrimination (Count II), id. ¶ 95, as well as the Privacy Act’s requirement that federal agencies
maintain accurate records about individuals (Count I). Id. ¶¶ 91–93.
According to plaintiff, USAG and DOJ are complicit in the IRS’s fraudulent scheme. He
claims that after the IRS has falsified its records, USAG and DOJ engage in the practice of
creating “self-authenticating certifications” that allow DOJ to introduce fraudulent tax
documents during a tax prosecution without a live witness or custodian of the records to verify
their authenticity. Id. ¶¶ 53, 74. This practice violates the Due Process Clause of the Fifth
Amendment, plaintiff contends, because the self-authenticating certification “prevent[s] cross-
An SFR is a document that the IRS uses to determine a non-filer’s tax liability for a given
year, and it may be used during a subsequent tax prosecution. See 26 U.S.C. § 6020(b); see also
Defs.’ Mem. at 3.
examination of IRS experts regarding the underlying IMF fraud and imaginary SFR’s [sic]”
(Count III). Id. ¶¶ 53, 75, 97; see also 2d Am. Compl. at 1 n.1.
The second amended complaint also describes how plaintiff was personally a victim of
this fraudulent scheme and the injuries that he and other taxpayers have suffered as a result of it.4
2d Am. Compl. ¶¶ 37–69. Specifically, he asserts that both the IRS’s SFR scheme and DOJ’s
practice of self-authenticating tax records in prosecutions have harmed him and other citizens
because they result in the government obtaining tax liens and levies against taxpayers. See, e.g.,
id. ¶¶ 77, 86. But despite that harm, plaintiff does not challenge the collection and assessment of
taxes in general; he “seeks only to terminate the commission of criminal acts of which complaint
is made and for which no authorization can ever exist.” Id. ¶ 17. Put differently, plaintiff
explains that “correct resolution of this suit in Plaintiff’s favor would not prevent IRS from
performing all substitutes for return, assessment and collection activities authorized by law.” Id.
¶ 89. He claims that he simply seeks to stop the government from engaging in what he believes
to be criminally fraudulent conduct. Id. ¶ 17; see also Pl.’s Surreply at 4–5 [Dkt. # 24-1].
This is the second time that plaintiff has sought to expose what he believes are the
criminal acts of the IRS.5 He filed the first lawsuit on April 24, 2012, providing the Court with a
similar overview of the IRS’s allegedly fraudulent SFR scheme. See Compl., No. 12-cv-655
[Dkt. # 2]. Soon after the first case was filed, the Court noted that plaintiff’s claims were “nearly
Two motions for joinder have been filed by Robert McNeil and Louis Ronald Depolo.
Mot. for Joinder by Robert A. McNeil [Dkt. # 17]; Mot for Joinder by Louis Ronald Depolo
[Dkt. # 19]. The Court stayed consideration of both in light of the pending motion to dismiss the
case for lack of jurisdiction. July 10, 2014 Minute Order; July 14, 2014 Minute Order. The
motions will be denied as moot.
Plaintiff proceeded pro se in the first lawsuit as well.
identical [to] claims in Florance v. Commissioner Internal Revenue Service, 1:12-cv-933-RMC,
which another Court in this district [had] recently dismissed for lack of subject matter
jurisdiction,” and it ordered plaintiff to show cause why his “case should not be dismissed for
lack of subject matter jurisdiction in light of the court's order in Florance.” July 17, 2012
Minute Order, No. 12-cv-655. After considering plaintiff’s response to the order, the Court
dismissed plaintiff’s first lawsuit sua sponte on the grounds that plaintiff did not have Article III
standing. Nov. 7, 2012 Order, No. 12-cv-655 [Dkt. # 11]. Plaintiff moved for reconsideration,
Mot. to Amend/Correct, No. 12-cv-655 [Dkt. # 12], but the Court denied his motion. April 15,
2013 Mem. Op. & Order, No. 12-cv-655 [Dkt. # 13], Plaintiff then filed an appeal with the D.C.
Circuit, Notice of Appeal, No. 12-cv-655 [Dkt. # 15], which he later voluntarily withdrew.
On March 19, 2014, plaintiff filed the original complaint in this case against the
Commissioner of the IRS, raising almost the exact same issues that he alleged in his first lawsuit.
Compl. [Dkt. # 1]. Shortly thereafter, he filed the first amended complaint, 1st Am. Compl.
[Dkt. # 3], which the Commissioner moved to dismiss for lack of jurisdiction, [Dkt. # 6]. The
Court subsequently denied that motion as moot after it granted plaintiff’s motion for leave to file
the second amended complaint. See June 5, 2014 Order [Dkt. # 10]. The second amended
complaint added the USAG and DOJ as named defendants. See 2d Am. Compl.
On June 17, 2014, defendants renewed their motion to dismiss, arguing that the Court
does not have subject matter jurisdiction over the case and that the second amended complaint
fails to state a claim upon which relief may be granted. See Defs.’ Renewed Mot. to Dismiss;
Defs.’ Mem. Plaintiff responded by filing a motion for leave to file a third amended complaint.
See Mot. for Leave to File 3d Am. Compl. [Dkt. # 16]. The Court stayed consideration of
plaintiff’s motion pending resolution of the motion to dismiss the second amended complaint on
jurisdictional grounds,6 July 9, 2014 Minute Order, and plaintiff filed an opposition to the motion
to dismiss on July 10, 2014.7 See Pl.’s Opp.
STANDARD OF REVIEW
In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must
“treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all
inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216
F.3d 1111, 1113 (D.C. Cir. 2000), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir.
1979) (citations omitted); see also Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir.
2011). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those
inferences are unsupported by facts alleged in the complaint, nor must the Court accept
plaintiff’s legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
Subject Matter Jurisdiction
Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a
preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992);
Shekoyan v. Sibley Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts
of limited jurisdiction, and the law presumes that “a cause lies outside this limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors
Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin,
In light of the Court’s finding that it does not have subject matter jurisdiction over this
case, see infra sections I.A. and I.B., it will deny plaintiff’s motion for leave to file his third
Plaintiff filed two oppositions to the motion to dismiss: one on July 10 and one on July
11. After the Court informed plaintiff that he may only file one opposition to defendants’
motion, plaintiff withdrew the opposition filed on July 11, 2014. See Notice of Withdrawal of
Doc. Filed on July 11, 2014 [Dkt. # 21]. As a result, the Court has read and considered only the
July 10 opposition brief.
and end, with an examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an
Art[icle] III as well as a statutory requirement . . . no action of the parties can confer subjectmatter jurisdiction upon a federal court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971
(D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S.
694, 702 (1982).
When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a
motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the
complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other
grounds, 482 U.S. 64 (1987). Rather, “a court may consider such materials outside the pleadings
as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case.”
Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert
v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharm., Inc.
v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
Failure to State a Claim
“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); see also Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the pleaded factual
content “allows the court to draw the reasonable inference that the defendant is liable for the
Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the
pleader is entitled to relief.’” Id. at 679, quoting Fed. R. Civ. P. 8(a)(2). A pleading must offer
more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of
action,” id. at 678, quoting Twombly, 550 U.S. at 555, and “the tenet that a court must accept as
true all of the allegations contained in a complaint is inapplicable to legal conclusions,” id. In
ruling upon a motion to dismiss, a court may ordinarily consider only “the facts alleged in the
complaint, documents attached as exhibits or incorporated by reference in the complaint, and
matters about which the Court may take judicial notice.” Gustave-Schmidt v. Chao, 226 F. Supp.
2d 191, 196 (D.D.C. 2002), citing EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621,
624–25 (D.C. Cir. 1997).
The Court must grant the motion to dismiss because the Court does not have subject
matter jurisdiction over this case.
Plaintiff’s claims are barred by the Anti-Injunction Act.
Defendants primary argument for why the Court lacks subject matter jurisdiction over
this case is premised on the Anti-Injunction Act (“AIA”), which provides that “no suit for the
purpose of restraining the assessment or collection of any tax shall be maintained in any court by
any person, whether or not such person is the person against whom such tax was assessed.” 26
U.S.C. § 7421(a); see also Defs.’ Mem. at 5–6. Because plaintiff seeks to enjoin defendants
from using SFRs and self-authenticating certifications in tax prosecutions, defendants contend
that he is interfering with the assessment and collection of taxes. See Defs.’ Mem. at 5–6.
Plaintiff objects to that characterization of the second amended complaint, and he goes to
great lengths to assure the Court that a judgment in his favor will in no way impede the
government’s ability to collect his taxes. See Pl.’s Opp. at 2 (“This illusory stronghold has no
merit and should be torn down as exalting fraud against truth.”). Among other things, he stresses
that “[h]e has not identified nor sought relief from any specific assessment or collection activity
of the IRS authorized by Congress;” instead, the “primary purpose in filing this suit is simply to
enjoin criminal acts which Treasury employees hitherto have secretly performed.” 8 Id. at 4–5.
As a result, he claims the AIA is inapposite. The Court disagrees.
Section 7421(a) of the AIA bars claims that seek to enjoin the “prompt collection of [the
United States’] lawful revenue,” regardless of the plaintiff’s claimed purpose for bringing the
suit. Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7 (1962); see also Cohen v.
United States, 650 F.3d 717, 724 (D.C. Cir. 2011) (“The manifest purpose of § 7421(a) 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.”); We the People Found., Inc. v. United States, 485 F.3d 140 (D.C. Cir. 2007) (finding
the AIA barred a claim despite the plaintiffs framing the claim as a constitutional issue).
Although the AIA does not prohibit all claims against the IRS or related to the taxation scheme,
Cohen, 650 F.3d at 726, it does prohibit “those suits seeking to restrain the assessment or
collection of taxes.” Id. at 724, citing Bob Jones Univ. v. Simon, 416 U.S. 725, 737 (1974); see
Plaintiff also notes that, in his proposed third amended complaint – which he considers
properly filed even though the Court stayed consideration of his motion for leave to file it, Pl.’s
Opp. at 2 n.3 – he “is literally seeking the Court to compel IRS to perform assessments it
pretended to have performed, not to enjoin any assessment,” and he does not seek “any
protection whatsoever from the criminal use of falsified IRS records by Treasury/IRS
employees.” Id. at 4. But the Court has not granted plaintiff leave to file his third amended
complaint, and it therefore is not properly considered by this Court in resolving the motion to
dismiss. See Fed. R. Civ. P. 15(a)(1)–(2) (explaining that a party may amend a pleading once as
a matter of course and that any future attempt to file an amended pleading, such as a third
amended complaint, requires either the opponent’s consent or leave of court). But even if the
Court could consider the proposed amended complaint and even if the additional statements in
that document were sufficient to show that the AIA does not apply, plaintiff’s request that the
Court compel the government to perform the very conduct he alleges to be unlawful and his
abandonment of a request to enjoin the “criminal use of falsified IRS records” further
demonstrates that he does not have standing to bring this case. See infra section I.B.
also id. at 726, quoting Hibbs, 542 U.S. at 102 (noting that “assessment” of taxes refers to “the
trigger for levy and collection efforts,” and “collection” is “the actual imposition of a tax against
a plaintiff”). And circuit courts have adopted a broad interpretation of that prohibition, finding
that “it is applicable to not only the assessment and collection of taxes, but to ‘activities which
are intended to or may culminate in the assessment or collection of taxes’ as well.” Linn v.
Chivatero, 714 F.2d 1278, 1282 (5th Cir. 1983), quoting Kemlon Prods. & Dev. Co. v. United
States, 638 F.2d 1315, 1320 (5th Cir. Mar. 1981); see also United States v. Dema, 544 F.2d
1373, 1376 (7th Cir. 1976).
Applying that framework here, the Court finds that plaintiff’s claims are barred by the
AIA. At bottom, the goal of this action is to enjoin the IRS from creating SFRs without the
permission of the taxpayer and to enjoin DOJ from using those SFRs and their selfauthenticating certifications in tax prosecutions. So plaintiff is seeking to stop the IRS from
engaging in conduct that aids in the assessment and collection of taxes.9 It makes no difference
that plaintiff couches those goals in terms of stopping a criminal fraud: that “is a distinction
without a difference. The use of the ‘created’ return directly relates to the tax assessment and is
certainly an activity that resulted in the imposition of the tax liability.” Tecchio v. United States,
This distinguishes plaintiff’s case from other cases where courts have found that the AIA
does not bar the suit. For example, in Cohen v. United States, the D.C. Circuit found that a class
action challenging the IRS’s refund procedures was not barred by the AIA because the
challenged government conduct occurred after the assessment and collection of taxes was
completed and therefore could not interfere with that process. 650 F.3d at 725–26. Similarly, in
Foodservice & Lodging Institute, Inc. v. Regan, the D.C. Circuit held that part of the plaintiff’s
lawsuit challenging an IRS regulation that required food and beverage establishments to report
tips was not barred by the AIA because the purpose of the regulation was “to provide data useful
for assessing tip [reporting] compliance” by employees, which meant that success on the claim
would in no way interfere with the collection of taxes. 809 F.2d 842, 846–47 (D.C. Cir. 1987)
(per curiam). In contrast, plaintiff’s success on his claims would impose a hurdle that, although
likely not fatal, would at a minimum impede tax assessment and collection.
153 F. App’x 841, 843 (3d Cir. 2005) (rejecting the plaintiff’s argument that the AIA did not
apply because “he was not seeking relief based on the tax assessment but on the use of a
substitute return that was created without authorization”); see also Pollinger v. United States,
539 F. Supp. 2d 242, 255 (D.D.C. 2008) (“Despite Plaintiff’s semantics, the allegations of his
Complaint make clear that his claims of ‘illegal actions’ . . . are based upon the IRS’ assessment
and/or collection of taxes. Thus, insofar as Plaintiff seeks an order commanding Defendants to
‘cease and desist’ . . . , the relief he seeks is barred by the Anti-Injunction Act.”). As a result,
plaintiff’s claims are barred by the AIA, which deprives this Court of subject matter jurisdiction
and requires dismissal of the case.10
Plaintiff does not have Article III standing to bring this case.
“To state a case or controversy under Article III, a plaintiff must establish standing.”
Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1442 (2011); see also Lujan, 504 U.S.
at 560. Standing is a necessary predicate to any exercise of federal jurisdiction, and if it is
Plaintiff argues that, should this Court find that his claims relate to the assessment and
collection of taxation despite his many arguments to the contrary, the AIA still does not bar his
case because the Enochs v. Williams Packing & Navigation Co. exception to the AIA applies.
Pl.’s Opp. at 6–8. The Court finds no merit in that argument. The first requirement that must be
satisfied before the Enochs exception can apply is that, based on the facts available at the time of
the lawsuit, it must be “clear that under no circumstances could the Government ultimately
prevail” on its collection efforts. 370 U.S. at 7. Plaintiff argues that this prong is satisfied in this
case because, “even given the most liberal view of” the facts of the case, “the Government could
not prevail against Plaintiff in any case… EVER, using Treasury’s falsified IMF records.” Pl.’s
Opp. at 7. But that point is one step ahead of the analysis: it presumes that defendants’ creation
of SFRs and their use of self-authenticating certifications is in fact illegal, which has not yet been
established and seems to be contrary to both the plain language of section 6020(b), which
authorizes the Secretary of the IRS to create a tax return for “any person” who “fails to make any
return required by any internal revenue law,” 26 U.S.C. § 6020(b) (emphases added), as well as
an abundance of case law that has recognized the IRS’s authority to create SFRs when
individuals fail to file income tax returns. See, e.g., Byers v. Comm’r of Internal Revenue, 740
F.3d 668, 671 (D.C. Cir. 2014); Brenner v. Comm’r of Internal Revenue, 164 F. App’x 848, 850
(11th Cir. 2006); Moore v. Comm’r of Internal Revenue, 722 F.2d 193, 196 (5th Cir. 1984). As a
result, plaintiff cannot satisfy the first prong of Enochs, and the AIA bars his suit.
lacking, then the dispute is not a proper case or controversy under Article III, and federal courts
do not have subject matter jurisdiction to decide the case. Dominguez v. UAL Corp., 666 F.3d
1359, 1361 (D.C. Cir. 2012).
To establish constitutional standing, a plaintiff must demonstrate that (1) he has suffered
an “injury-in-fact”; (2) the injury is “fairly traceable” to the challenged action of the defendant;
and (3) it is “likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.” Lujan, 504 U.S. at 560–61 (internal quotation marks omitted); see also
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180–81 (2000).
The party invoking federal jurisdiction bears the burden of establishing standing. Lujan,
504 U.S. at 561. When reviewing the standing question, the Court must be “careful not to decide
the questions on the merits for or against the plaintiff, and must therefore assume that on the
merits the plaintiffs would be successful in their claims.” In re Navy Chaplaincy, 534 F.3d 756,
760 (D.C. Cir. 2008).
As a result, for the purposes of the standing analysis, the Court will assume that
defendants are engaging in an unlawful scheme to generate (or pretend to generate) SFRs, and
that DOJ is violating the constitutional rights of taxpayers by using self-authenticating
certifications during tax prosecutions. Even with that assumption, the Court finds that plaintiff
does not have standing.
In order for an injury to be cognizable for purposes of conferring Article III standing, the
harm must be concrete and particularized as well as either actual or imminent. Lujan, 504 U.S.
at 560; see also Allen v. Wright, 468 U.S. 737, 755 (1984). In this case, plaintiff alleges that he
has suffered both actual concrete and particularized injuries as well as imminent concrete and
Specifically, he recites the following alleged actual injuries he has
suffered based on defendants’ past conduct:
The “IRS convinced the company Plaintiff contracted with in 2009-2011 to convert to
IRS’ use approximately $45K in commissions due to him, despite the fact no actual levy
or court order compelled the conversion,” 2d Am. Compl. at 13 n.16;
“The company fired Plaintiff, and he has been unable to secure work in the specialized
career field in which he excels due to the still-unresolved issues created by the IMF
record falsification program,” id.; see also 2d Am. Compl. ¶¶ 60–61;
The “IRS maintains fraudulent liens in two Texas counties against Plaintiff based on its
falsified IMF records concerning Plaintiff,” 2d Am. Compl. at 13 n.16; see also 2d Am.
Compl. ¶¶ 13, 56, 62 (alleging that the IRS used the fraudulent documents to file liens
thereby injuring plaintiff and his reputation); and
The “IRS continues to harass Plaintiff by filing fraudulent liens and sending via United
State mails documents based on its falsified records in ongoing attempt to secure
Plaintiff’s property for IRS use.” 2d Am. Compl. at 13 n.16; see also 2d Am. Compl.
He then avers that he is likely to suffer future injuries of the same type because defendants renew
their fraudulent scheme annually to injure those who do not file income tax returns, see 2d Am.
Compl. ¶¶ 7, 11, 14, 18, 69, 88, 93; see also 2d Am. Compl. at 2 n.2, and plaintiff will never
waive what he believes to be his Fifth Amendment right to not file his taxes. 2d Am. Compl.
¶¶ 7, 14, 88; see also 2d Am. Compl. at 6 n.8. And finally, in his opposition, plaintiff explains
that he has suffered from broad societal harm that all citizens experience when their government
engages in allegedly fraudulent behavior: the “primary purpose in filing this suit is simply to
enjoin criminal acts which Treasury employees hitherto have secretly performed;” as a result,
“[t]here is no monetary value [he] can place on the two decades he lost and suffering caused to
his family, since he was forced to divert his life’s energy to uncovering and stopping the criminal
acts secretly performed inside the Treasury’s IRS Bureau.” Pl.’s Opp. at 5, 7.
Neither plaintiff’s past injuries nor the general harm he shares with all citizens can serve
as cognizable injuries-in-fact in this case. Plaintiff expressly disavows that this case is meant to
redress his past injuries, and the second amended complaint requests only forward-looking
injunctive relief. 2d Am. Compl. ¶¶ 17, 89, 98–108. As a result, past injuries cannot serve as a
basis on which he has standing to bring the claims that are meant to stop future injuries.
Moreover, the Supreme Court has “consistently held that a plaintiff raising only a
generally available grievance about government – claiming only harm to his and every citizen’s
interest in proper application of the Constitution and laws, and seeking relief that no more
directly and tangibly benefits him than it does the public at large – does not state an Article III
case or controversy.” Lujan, 504 U.S. at 573–74; see also Fairchild v. Hughes, 258 U.S. 126,
129–30 (1922) (“Plaintiff has [asserted] only the right, possessed by every citizen, to require that
the Government be administered according to law and that the public moneys be not wasted.
Obviously this general right does not entitle a private citizen to institute in the federal courts a
suit . . . .”). A “party who invokes the power [of judicial review] must be able to show not only
that the statute is invalid but that he has sustained or is immediately in danger of sustaining some
direct injury as the result of its enforcement, and not merely that he suffers in some indefinite
way in common with people generally.” Massachusetts v. Mellon, 262 U.S. 447, 488 (1923); see
also Warth v. Seldin, 422 U.S. 490, 508 (1975) (noting that a plaintiff “must allege specific
concrete facts demonstrating that the challenged practices harm him, and that he personally
would benefit in a tangible way from the court’s intervention”).
Thus, neither plaintiff’s
amorphous injury resulting from his decision to focus his efforts on uncovering defendants’
alleged fraud nor the general dissatisfaction that all citizens experience when their government
behaves in an allegedly corrupt manner provide a basis for standing.
But plaintiff’s future alleged injuries – such as additional tax liens and garnishments –
come closer to satisfying his burden to establish an injury-in-fact.11 The harm from tax liability
is concrete and particularized, and plaintiff alleges that those injuries are imminent when he
repeatedly avows that he will never voluntarily file an income tax return and claims that the
government frequently creates SFRs on behalf of such non-filers.12 2d Am. Compl. ¶¶ 4, 7, 13–
14, 88; 2d Am. Compl. at 6 n.8; see also Sierra Club v. Jewell, -- F.3d -- , No. 12-5383, 2014
WL 4193636, at *4 (D.C. Cir. Aug. 26, 2014). The Court will therefore go on to determine
whether these future injuries satisfy the second standing requirement: causation.
To satisfy the causation requirement, the plaintiff must allege an “injury that is ‘fairly
traceable to the defendant’s allegedly unlawful conduct.’” Grocery Mfrs. Ass’n v. EPA, 693 F.3d
169, 189 (D.C. Cir. 2012) (alteration in original), quoting Allen, 468 U.S. at 751; see also
Freedom Republicans, Inc. v. FEC, 13 F.3d 412, 418 (D.C. Cir. 1994) (stating that “fair
Plaintiff also alleged that a continuation of the government’s fraudulent conduct
endangers his constitutional right to be free from self-incrimination and to due process of the
law. 2d Am. Compl. ¶¶ 95, 97. But he has not suffered a cognizable injury related to either
claim for purposes of standing. With respect to the self-incrimination clause, plaintiff has
offered no facts from which the Court can conclude that any action of the government has
compelled him to provide incriminating evidence, see 2d Am. Compl., and as explained below,
there is no constitutional right to not file an income tax return. See infra note 13. Moreover,
plaintiff has not shown that the injury to his due process rights – assuming he is able to make one
out – is imminent. Sierra Club v. Jewell, -- F.3d -- , No. 12-5383, 2014 WL 4193636, at *4
(D.C. Cir. Aug. 26, 2014), quoting Chamber of Commerce v. EPA, 642 F.3d 192, 200 (D.C. Cir.
2011) (explaining that to establish that an injury is imminent, “[a] plaintiff must show a
‘substantial probability of injury’”). Just because DOJ has used self-authenticating certifications
before and it may use them in the future does not mean that there is a substantial probability that
they will use one against plaintiff, even if he continues to refuse to file a tax return.
The fact that plaintiffs’ only cognizable injuries for purposes of standing relate to his
future tax liability confirms that this Court does not have subject matter jurisdiction over this
case. Either plaintiff seeks to prevent those injuries, which runs afoul of the AIA, see supra
section I.A., or he does not try to block attachment of future liability, which prevents the Court
from finding that his injuries are redressable – a necessary predicate to standing. See infra
traceability turns on the causal nexus between the agency action and the asserted injury”). This
requires the plaintiff to show that there is “a substantial probability that the substantive agency
action” that plaintiff challenges “created a demonstrable risk, or caused a demonstrable increase
in an existing risk, of injury to the particularized interests of the plaintiff.” Fla. Audubon Soc’y
v. Bentsen, 94 F.3d 658, 669 (D.C. Cir. 1996).
The Court has doubts that plaintiff can satisfy the causation requirement in this case. The
conduct he complains about is defendants’ alleged falsification of its record systems through the
creation of unrequested SFRs and the subsequent use of those SFRs and their accompanying selfauthenticating certifications in tax proceedings. See 2d Am. Compl. ¶ 77 (“For example, in the
teeth of Plaintiff’s explicit allegations [is] that IRS annually falsifies master file records . . . .”);
see also id. ¶¶ 5–7. According to plaintiff, his alleged future injury is the tax liability that he will
owe as a result of the government’s reliance upon allegedly fraudulent documents. Thus, in a
sense, the injury seems fairly traceable to defendants’ challenged conduct.
But it is well-settled in this jurisdiction that self-inflicted injuries – injuries that are
substantially caused by the plaintiff’s own conduct – sever the causal nexus needed to establish
standing. See Grocery Mfrs. Ass’n, 693 F.3d at 177; Petro-Chem Processing, Inc. v. EPA, 866
F.2d 433, 438 (D.C. Cir. 1989). There is no question that plaintiff would be responsible for the
tax deficiencies that comprise his asserted injury regardless of whether the defendants used an
SFR or certification in his case. Plaintiff has consistently maintained that he has no intention of
filing an income tax return, which means he is taking a voluntary step to create the deficiencies
that lead inexorably to his complained of injuries. It is therefore hard to conclude that his future
injuries are not self-inflicted, which would eliminate causation. See Nat’l Family Planning &
Reprod. Health Ass’n, Inc. v. Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006) (“[E]ven if self-
inflicted harm qualified as an injury it would not be fairly traceable to the defendant’s challenged
conduct.”); Petro-Chem, 866 F.2d at 434 (alteration in original), quoting 13 Charles Alan Wright
et al., Federal Practice and Procedure § 3531.5 (2d ed. 1984) (finding no standing because the
alleged injury was “‘so completely due to the [complainant’s] own fault as to break the causal
But it is true that it has been observed that all injuries are in some sense self-inflicted,
Hazardous Waste Treatment Council v. Thomas, 885 F.2d 918, 935 (D.C. Cir. 1989) (Wald, J.
dissenting) (noting that, because all injuries are in some sense self-inflicted, this doctrine “should
be read quite narrowly” for standing purposes), so the Court will also consider whether plaintiff
has satisfied the last standing requirement: redressability.
To satisfy the redressability requirement, a plaintiff must demonstrate that it is “‘likely,’
as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’”
Lujan, 504 U.S. at 561. “Relief that does not remedy the injury suffered cannot bootstrap a
plaintiff into federal court; that is the very essence of the redressability requirement.” Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998). This is where the second amended
complaint falls short.
As noted above, the majority of plaintiff’s asserted injuries involve past harms, such as
the imposition of tax liens, the taking of his commission, his loss of employment, and his
inability to secure a new job. 2d Am. Compl. at 13 n.16. For the same reason these injuries
cannot serve as an injury-in-fact for purposes of the standing inquiry, they also fail under the
redressability prong: plaintiff seeks only forward looking relief in the form of injunctions, which
do not remedy past harms.
Moreover, to the extent that plaintiff seeks to prevent future tax liens or garnishments,
those injuries are not redressed by the injunctions he has requested.
So long as plaintiff
continues to refuse to file his tax returns, defendants may institute deficiency proceedings against
him, even without generating an SFR or using a self-authenticating certification. See Schiff v.
United States, 919 F.2d 830, 832 (2d Cir. 1990) (“There is no requirement that the IRS complete
a substitute return.”); see also Brenner v. Comm’r of Internal Revenue, 164 F. App’x 848, 850
(11th Cir. 2006) (“As the tax court observed correctly, section 6020(b) allows preparation of a
substitute return for a non-filing taxpayer; but a section 6211(a) deficiency can be determined in
the absence of a substitute return.”); United States v. Stafford, 983 F.2d 25, 27 (5th Cir. 1993)
(same). In fact, plaintiff seemed to recognize that his future injuries will not be redressed by the
relief he requests when he tried to explain why the AIA is not applicable to his case: “Resolution
of this case in Plaintiff’s favor will have zero arguable impact on any authorized pre-assessment,
assessment or collection activity of the of the IRS.” 2d Am. Compl. ¶ 89.
Finally, it is not enough that a favorable outcome in this case will give plaintiff the peace
of mind of knowing that he has stopped the government’s criminal activity:
By the mere bringing of his suit, every plaintiff demonstrates his belief
that a favorable judgment will make him happier. But although a suitor
may derive great comfort and joy from the fact that the United States
Treasury is not cheated, that a wrongdoer gets his just deserts, or that the
Nation’s laws are faithfully enforced, that psychic satisfaction is not an
acceptable Article III remedy because it does not redress a cognizable
Article III injury.
Steel Co., 523 U.S. at 107, citing Allen, 468 U.S. at 754–55; see also Valley Forge Christian
Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 482–83 (1982). As a
result, plaintiff’s injuries are not redressable, which means that he does not have Article III
standing. The Court will therefore dismiss the case for lack of subject matter jurisdiction.
For the reasons stated above, the Court finds that the claims plaintiff raises are barred by
the AIA and that plaintiff does not have Article III standing to bring this case. The Court must
therefore grant the motion to dismiss the second amended complaint pursuant to Rule 12(b)(1)
because it does not have subject matter jurisdiction.13 A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: September 16, 2014
Because the Court does not have jurisdiction over this case, it will not go on to consider
defendants’ merits-based arguments in support of the motion to dismiss. The Court does note,
though, that plaintiff’s claims are also problematic on the merits. For example, the sections of
the Privacy Act underlying plaintiff’s claims do not provide for equitable relief. See Doe v.
Stephens, 851 F.2d 1457, 1463 (D.C. Cir. 1988) (“The [Privacy] Act’s subsection on civil
remedies authorizes entry of injunctive relief in only two specific situations.”); see also Sussman
v. U.S. Marshals Serv., 494 F.3d 1106, 1122 (D.C. Cir. 2007) (“We have held that only monetary
damages, not declaratory or injunctive relief, are available to § 552a(g)(1)(D) plaintiffs . . . .”).
And the Supreme Court has consistently rejected the contention that an individual has a right
under the Fifth Amendment self-incrimination clause to not file his or her taxes. United States v.
Sullivan, 274 U.S. 259, 263 (1927) (noting that although an individual may have a right to
withhold certain incriminating information on tax forms, one can “not on that account refuse to
make any return at all”); see also Garner v. United States, 424 U.S. 648, 661 (1976) (“The
requirement that [income tax] returns be completed and filed simply does not involve the
compulsion to incriminate . . . .”).
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