WADE v. USA

Filing 10

ORDER granting 7 Motion to Dismiss - Rule 12(b)(1). The Clerk is directed to enter judgment. Signed by Judge Mary Ellen Coster Williams. (dls) Service on parties made. (Plaintiff served via certified mail; Article No. 7017 1450 0000 1346 4995)

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No. l7-14047
(Filed: May 29,2018)

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LARRY C. WADE,

FILED
MAY 3 0 2018
U.S. COURT OF

Plaintiff,

FEDERAL CIAIMS

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. For the reasons
stated below, Defendant's motion to dismiss is granted.
Backgroundr

Plaintiff p1q se Larry C. Wade is a resident of the state of Michigan, and has been
employed by Ford Motor Company since April 29,1994. Compl. fl 1. Plaintiff, who is a Vehicle
Inspcctor for Ford, alleges that the Intemal Revenue Service ("lRS") improperly gamished his
wages, causing him to suffer a "traumatic injury," hypertension, and a flare-up of high blood
pressure. Id. at flfl VII, XI-XII.
On July 12,2016, the IRS notified Plainliff that due to his failure to pay tax for the tax
periods 2002 through 2007, Plaintiff would be subject to enforced collection, which could include
placing a levy on his "bank account, wages, receivables, commissions, etc." or could involve
seizing and selling property such as real estate, vehicles, or business assets. Compl. Ex. A.
Plaintilf owed $135,832.19 in unpaid ta,res, penalties, and interest for this time period. Id. On
September 8,2016, Plaintiff received a letter lrom the Gamishee Representative at Ford, which
included form 668W(c), 'Notice of Levy on Wages, Salary, and Other Income" from the IRS,

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This backsround is derived from Plaintiffs complaint and the attached exhibits.

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dated August 31,2016. Compl. Ex. B. Plaintiff was instructed to fill out the "Statement of
Exemptions and Filing Status" section ofthe form and retum it to the payroll office immediately.
Id. Plaintiff was notified that failure to complete the form would not prcvent deductions from his
check. Id. Plaintiffwas toldto contact the IRS to apply foraRelease of Lelry. Id. Plaintiffsigned
the Notice of Levy on September 28,2016, and the first paymenl of $565.62 was taken out in the
pay period ending September25,2016. Compl.Ex.C. As of February4,20l8, Plaintiff still owes
$94,933.47 in unpaid tares, penalties, and interesl. Resp. Ex. F.

Plaintiff seeks $969,000,000 in damages, a "refund for Compensation of monetary relief,"
and an injunction against further collection ofthe levy.
Discussion

Plaintiff has the burden of establishing subject-matter jurisdiction in this Court. See
Rcynolds v. Army & Air Force Exch. Serv., 846 F.2d 746,748 (|ed. Cir. 1988). The Court must
dismiss the action if it finds subjeclmatter jurisdiction to be lacking. Adair v. United States, 497
F.3d 1244, 1251 (Fed. Cir.2007). The court assumes all factual allegations as true, and will
construe the complaint in a manner most favorable to Plaintiff when ruling on a motion to dismiss
pursuant to Rule l2(b)(1). Pennington Sced. Inc. v. Produce Exch. No. 299,457 F.3d 1334, 1338
(Fed. Cir. 2006).
"'less stringent standards than formal pleadings
drafted by lawyers."' Naskar v. United States, 82 Fed. Cl. 319, 320 (2008) (quoting Haines v.
Kerner,404 U.S. 519, 520 (1972)). However, p1q se plaintiffs still bear the burden ofestablishing
the Court's jurisdiction and must do so by a preponderance ofthe evidence. See Revnolds, 846
F.2d at748; Tindle v. United States, 56 Fcd. Cl. 337, 341 (2003).
The filings

ofplq

se litigants arc held to

Although this Court has jurisdiction over actions for tax refunds, this Court lacks
jurisdiction over Plaintiff s claim. In order to invoke this Court's jurisdiction in a tax refund suit,
a plaintiff must have paid all ta-xes, penalties, and interest in full and have filed a refund claim with
the IRS for the amount of ta.x at issue. 26 U.S.C. $ 7 422(a) (2012); Ledford v. United States, 297
F.3d 1378, 1382 (Fed. Cir. 2002); see also Flora v. United States' 357 U.S. 63' 72-'73 (1958)'
Because Plaintiff has not paid the taxes he owes and does not seek a refund, this Court lacks
jurisdiction over Plaintiff s refund claim.

The gravamen of Plaintiff s complaint is that thc IRS wrongfully imposed a levy and is
improperly gamishing his wages. Plaintiff invokes 26 U.S.C. $$ 7 a26@)(l) and 7 433 as bases for
this Court's jurisdiction. Llowever, jurisdiction over claims of wrongful levies brought pursuant
to $ 7 426 is vested exclusively in the district courts, and claims under this statute must be brought
by a third party, not by the party against whom the tax was assessed. 26 U S'C i 7 426@)(1)
(i012); Simmons v. United States, 127 Fed. Cl. 153, 161 (2016). Similarly, jurisdiction under
Section 7433, which permits a taxpayer to recover damages resulting from reckless, intentional, or
negligent actions ofany officer or employee ofthe IRS, is vested exclusively in the district courts.
261J.S.C. g 7433(a) (2012); Ledford,297 F.3d at 1382. Therefore, this Court lacks jurisdiction
over Plaintilf s claims alleging a wrongful levy'

Plaintiff also alleges various Constitutional and civil rights violations, citing the Fourth
Amendment's search and seizure clause, the Fifth Amendment's Due Process clause, and 42
LJ.S.C. $$ 1983, 1985, and 1988. The'fucker Act provides that this Court:
shall have jurisdiction to renderjudgment upon any claim against the United States
founded either upon the Constitution, or any Act of Congress or any regulation of
an cxecutive 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. $ la9l(a)(l) (2012). The Tucker Act is not money-mandating, but rather is a
jurisdictional statute. United States v. Testan,424LJ.5.392,398 (1976). To establish jurisdiction,
a plaintiff must seek money damages under a source of substantive law. "[T]he claimant must
demonstrate that thc source of substantive law he relies upon 'can fairly be intcrpreted as
mandating compensation by the Federal Government for the damages sustained. "' United States
v. Mitchell, 463 U.S. 206,216-17 (1983) (quoting Testan,424 U.S. at 400); see Jan's Helicopter
Serv.. Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008) ("[A] plaintiff must
identifu a separate source of substantive law that creates the right 10 money damages." (intemal
citation and quotation marks omitted)).
This Court lacks jurisdiction over Plaintiffs Constitutional and civil rights claims, as
neither the search and seizure clause nor the Due Process clause is money-mandating, and
jurisdiction over civil rights violations is vested exclusively in the district courts. LeBlanc v.
United States, 50 F'.3d 1025, 1028 (Fed. Cir. 1995); LaChance v. United States,15 Cl. Ct. 127,
130 (1938); Del Rio v. United States,87 Fed. Cl.536,540 (2009). Plaintiff also alleges negligent
behavior by the IRS, resulting in "loss ofreputation" and emotional distress. However, this Court
does not have jurisdiction over claims sounding in tort. Rick's Mushroom serv.. Inc. v. united
States,52l F.3d 1338, 1343 (Fed. Cir.2008).
damages, Plaintiff requests "other relief, such as an injunction
against thc Collection of similar Tax in the future ." Compl. !l XII. However, this Court lacks the
authority to grant such equitable relief.

In addition to monetary

Conclusion
Defendant's motion to dismiss is GRANTED. The Clerk is directed to dismiss this action.