GREGOLINE v. USA

Filing 20

Order of Dismissal denying as moot 7 Motion to Quash; 8 Motion to Quash; 16 Motion for contempt; 18 Motion to Quash; 19 Motion to Quash; and granting 9 motion to dismiss. The Clerk is directed to enter judgment. Signed by Judge Mary Ellen Coster Williams. (dls) Copy to parties.

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No. l4-7767
(Filed: December 30' 2014)

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JAMESALLENGREGOLINE, *
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Plaintiff,

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FILED
DEC 3

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2014

U.S. COURT OF
FEDERAL CLAIMS

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THE UNITED STATES,
Defendant.

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ORDER OF DISMISSAL

WILLIAMS,

Judge.

This matter comes before the Court on Defendant's motion to dismiss the complaint for
lack of subject-matter jurisdiction. Pro se Plaintiff James Allen Gregoline, identiffing himself as
a "counterclaimant," alleges a variety of claims arising from the Internal Revenue Service's
(,,IRS") and the State of Califomia's collection of taxes, including liens and levies against his
salary. Plaintiff names as Defendants the United States of America, the State of California,
Intemal Revenue Service, the Franchise Tax Board, the United
Department of the Treasury
States Tax Court, the California State Board of Equalization, Melba Acosto-Febo, John
Koskinen, Selvi Stanislaus, Stanley J. Goldberg, Bryan E. Sladek, Ms' Steel, Ms. Yee, Mr'
Horton, Mr. Runner, Ms. Mandel, Mr. Chiang, and Jess De Legarret''

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Plaintiff alleges that Ms. Acosto-Febo is the Secretary of the Department of Treasury for
Puerto Rico. Mr. Kosinen, the commissioner of the Intemal Revenue Service ("IRS"), Mr.
judge
Stanislaus, the "Principal agent ofthe Franchise Tax Board," Mr. Goldberg, "a special trial
of the U.S. Tax Court," Mr. Sladek, Chief Counsel for the IRS, Ms. Steel, Ms. Yee, Mr' Horton,
Mr. Runner, Ms. Mandel, and Mr. Chiang, Board members of the Califomia State Board of
Equalization, and Mr. De Legarrett, a revenue officer of the IRS. Compl' fl I .

'

Because this Court lacks subject-matter jurisdiction, Defendant's motion to dismtss is
GRANTED, and Plaintiff s motions to quash and "motion for contempt of affidavit" are
DENIED AS MOOT.

Background'
The genesis of Plaintiff s complaint is his belief, apparently starting in 2008, that he is a
"nontaxpayer at the source of his income" for past calendar years because the income from his
employment "is not salaries, wages or compensation for personal services that are to be included
in gross income . . . ."j Compl. fl 9. Plaintiff alleges that he had a "simple agreement with his
payer, withholding agent for the Secretary, to withhold from his receipts from labor a
consideration to deposit in trust for the United States of America and a promise to refund
executed considerations to [Plaintiffl upon filing a claim for refund." Id. 'lf 3. Plaintiff also
assefis that "[t]his simple agreement [Plaintiffl has with the United States of America is the
origin of the obligation owed to [Plaintiff] who is neither the subject nor the object of the
revenue laws." Id. Plaintiff thus disputes amounts withheld from his income as taxes for past
years.

Plaintiff alleges that he has filed claims for tax refunds for past years, but that these have
been wrongfully denied. Id. fl 9. Plaintiff also seeks relief based upon the IRS' and the
Califomia Franchise Tax Board's attempts to collect unpaid taxes from him. Plaintiff alleges
that the IRS and the Califomia Franchise Tax Board have wrongfully imposed tax liens against
him from 2010 through 2013, wrongfully gamished his wages, and that the Board members of
the Califomia State Board of Equalization have inconectly ordered him to pay these taxes in July
and october 2012. Id. fllT 13-17. Plaintiff also alleges misconduct by the judge and attomeys
during a case that he brought on May 27,2008, before the United States Tax Court. Id. tit{ 10-12.
Finally, Plaintiff alleges that on July 16, 2014, and August 12, 2014,Mr, De Leganett attempted
to coerce him to provide financial information that would make him subject to federal income
tax. Id. fl 18.

Ptaintiff alleges a variety of injuries from Defendant's alleged conduct, including
,,constructive imprisonment at his place of work," a lack of due process, unjust enrichment, a
denial of counsel of his choice, a deprivation of liberty, a ioss of physical health, defamation,
and trespass. Id. at'!fi!l 3,4,6,22,23. Plaintiff requests damages of $25,000 multiplied by the
"number of days in constructive imprisonment," $27 4,684.92 for loss of eamings, a declaratory

,

This case is not Plaintiffs first appearance before the United States Court of Federal
claims. on october 12,2010, Plaintiff filed a complaint in this court, which was dismissed on
May 11,2011, for lack of subject-matter jurisdiction. See Gregoline v. united states, 99 Fed.
Cl. 161 (2011). That opinion provides background on Plaintiffs ongoing disputes with the IRS
and the California Franchise Tax Board.

3

Plaintiffdoes not allege a specific claim period for the relief sought. Plaintiff alleges that
Defendants have not retumed specific amounts for each calendar year lor the years 2001 to 2013.
Comnl. lT 19.

judgment that Defendants have acted confary to law, and asks that Defendants be.enjoined from
interfering with Plaintiffs right to negotiate and enter into contracts. Id. flfl 37-50.'
Discussion

Subiect-Matter Jurisdiction
Subject-matter jurisdiction must be established before the Court may proceed to the
merits. Aerolineas Areentinas v. United States,77 F.3d 1564, 1572 (Fed. Cir. 1996). If the
Court determines that it does not have subject-matter jurisdiction over the claim, the Court must
dismiss the action. Adair v. United States, 497 F.3d 1244, l25l (Fed. Cir. 2007). When
deciding a motion to dismiss pursuant to Rule 12(b)(l), this Court must assume that all wellpleaded facts in the complaint are true and draw all reasonable inferences in the nonmovant's
favor. Pennington Seed. Inc. v. Produce Exchanee No. 299,457 F.3d 1334, 1338 (Fed. Cir.
2006).

While a plaintilT bears the burden of establishing jurisdiction by a preponderance of the
evidence, "complaints drafted by pro se litigants are held to 'less stringent standards than formal
pleadings drafted by lawyers."' Naskar v. United States, 82 Fed. Cl. 319,320 (2008) (citation
omitted). Nevertheless, a plq se litigant must establish the Court's subject-matter jurisdiction.
Tindle v. United States, 56 Fed. Cl. 337 , 341 (2003). Moreover, "the court has no duty to create
a claim where a pro se plaintiff s complaint is so vague or confusing that one cannot be
determined." Fullard v. United States,78 Fed. C|.294,299 (200'7).
The Tucker Act, 28 U.S.C. $ 1491, provides that this Court

shall have jurisdiction to render judgment upon any claim against the United
States founded either upon the Constitution, or any Act of Congress or any
regulation of an executive department, or upon any express or implied contract
with the United States, or for liquidated or unliquidated damages in cases not
sounding in tort.
28 U.S.C. g 1a91(a)(1). A plaintiff must demonstrate that the source of substantive law he relies
upon for his claim mandates compensation by the Federal Govemment for damages. United
States v. Mitchell,463 U.S. 206,216-17 (1983).

o

Plaintiff filed his complaint on August 25,2014. Defendant filed the instant motion on
october 10,2014. on october 27,2014, Plaintiff filed an "objection to motion," which does not
address any of the arguments raised by Defendant. on october 29,2014, Plaintiff frled an
',amended objection," which similarly does not address Defendant's arguments, asserts that
Plaintiff has decreed the rules of this Court to be the Federal Rules of Civil Procedure, and
attempts to issue a "writ of error quae coram nobis residant" in the name of the Court.
Defendant filed a reply on October 30, 2014.

Jurisdiction Over Specific Defendants
Plaintiff s claims against the State of Califomia, the Department of the Treasury Internal Revenue Service. the Franchise Tax Board, the Califomia State Board of Equalization,
the U.S. Tar Court, Melba Acosto-Febo, John Koskinen, Selvi Stanislaus, Stanley J. Goldberg,
Bryan E. Sladek, Ms. Steel. Ms. Yee, Mr. Horton, Mr. Runner, Ms. Mandel, Mr. Chiang, and
Jess De Legarret must be dismissed because this Court lacks jurisdiction over these entities and
individuals. The only proper Defendant before this Court is the United States. See. e'e.,
Stephenson v. United States, 58 Fed. Cl. 186, 190 (2003) ("[T]he only proper defendant for any
matter before this court is the United States, not its officers, nor any other individual.").
Tax Claims

This Court has concunent jurisdiction with United States District Cou(s and the Tax
Court over the recovery oftax alleged to have been erroneously or illegally assessed or collected
under intemal-revenue laws. 28 U.S.C. $ 1346(a)(1). This Court's jurisdiction under $
l3a6(a)(1) "requires full payment of the assessment before an income tax refund suit can be
maintained." Flora v. United States, 362 U.S. 145, 177 (1960). Thus, a taxpayer must pay the
amount the defendant contends is due before filing suit for a refund. Id. Because Plaintiff has
not alleged that he paid the taxes that he asks to be refunded, this Court lacks subject-matter
jurisdiction.
Due Process Claims

To the extent that Plaintiff alleges due process claims, they must also be dismissed. It is
well established that the Due Process clause of the Fifth Amendment is not money mandating.
Golder v. United States, 15 Cl. Ct. 513,517 (1988); Munay v. United States, 817 F.2d 1580,
1583 (Fed. Cir. 1987). Therefore, this Court does not have jurisdiction over such claims.

Tort Claims
This Court lacks jurisdiction over claims sounding in tort. Garrett v. United States, 15
cl. ct. 204, 208 (1988). Therefore, to the extent that Plaintiff alleges such ciaims, they are
dismissed for lack of subject-matter jurisdiction.

Iniunctive Relief

This Court has limited authority to enter injunctions. E.g.,28 U.S'C.

$

1491(b).

Plaintiffls general request that the Court enjoin the Govemment from interfering with his right to
enter into contracts is outside the scope of this Court's remedial authority.

Defendant requests that the Court issue an order directing the Clerk of Court to refuse
any further complaints from Plaintiff, except by leave of Court. Courts have the inherent
authority to sanction conduct that is abusive of the judicial process. Chambers v. NASCO. Inc.,

501 U.S. 32,42 (1991). A plaintiffs plq se status does not preclude a Court from issuing such
sanctions. Constant v. United States,929 F.2d 654, 658 (Fed. Cir. 1991). In Constant, the
Federal Circuit noted that the plaintiff had been explicitly wamed twice in prior opinions that
further attempts to raise issues that had already been litigated could result in sanctions. Id.
Although this Court does not now sanction Plaintiff, the Court wams Plaintiff that if he aftempts
to raise again the same issues that have been finally decided, he could be sanctioned. Id. at 656.

Conclusion
Defendant's motion to dismiss for lack of subject-matter jurisdiction is GRANTED. All
other pending motions are DENIED AS MOOT. The Clerk of Court is directed to dismiss the
Complaint.