Bufkin v. Scottrade, Incorporated et al
Filing
58
OPINION AND ORDER granting 26 Motion to dismiss and dismissing 1 Complaint with prejudice as to all defendants except Scottrade, Incorporated. The Clerk shall enter judgment, terminate all pending deadlines, and administratively close the case pending arbitration with Scottrade Incorporated. Signed by Judge John E. Steele on 12/21/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL EDWARD BUFKIN,
Plaintiff,
v.
Case No:
2:17-cv-281-FtM-29CM
SCOTTRADE,
INCORPORATED,
JACOB J. LEW, Secretary, the
Department of the Treasury,
TIMOTHY
F.
GEITHNER,
Secretary, the Department of
the Treasury, JOHN KOSKINEN,
Commr,
Internal
Revenue
Service, DOUGLAS SHULMAN,
Commr,
Internal
Revenue
Service, STEVEN T. MILLER,
Acting
Commr,
Internal
Revenue
Service,
DANIEL
WERFEL,
Acting
Commr,
Internal Revenue Service,
WILLIAM J. WILKINS, Chief
Counsel, Internal Revenue
Service,
C.D.
BAILEY,
Revenue Officer, Internal
Revenue
Service,
CALVIN
BYRD,
Revenue
Officer,
Internal Revenue Service,
and
UNITED
STATES
OF
AMERICA,
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of defendant
United States of America’s Motion to Dismiss (Doc. #26) 1 filed on
1
The motion was filed on behalf of the individuals sued in
their official capacity only.
October 11, 2017.
Plaintiff filed a “Preliminary Response to
United States’ Motion(s) to Dismissal” (Doc. #53) on November 27,
2017.
The United States seeks to dismiss the Complaint pursuant
to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
I.
Rule
12(b)(1)
motions
challenging
the
subject
matter
jurisdiction of the court come in two forms, a “facial” attack
motion and a “factual” attack motion.
Morrison v. Amway Corp.,
323 F.3d 920, 924 n.5 (11th Cir. 2003).
A facial attack challenges
subject
matter
jurisdiction
based
on
the
allegations
in
the
complaint, and the court takes the allegations in the complaint as
true in deciding the motion.
Id. at 924 n.5.
The complaint may
be dismissed for a facial lack of standing only “if it is clear
that no relief could be granted under any set of facts that could
be proved consistent with the allegations.”
Jackson v. Okaloosa
County, 21 F.3d 1531, 1536 n.5 (11th Cir. 1994) (citation omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
2
II.
On May 22, 2017, plaintiff Michael Edward Bufkin (Bufkin)
filed his Original Complaint (Doc. #1) asserting that he is not a
taxpayer and remains a non-taxpayer, and that the Internal Revenue
Service has no documentation to support the assertion that Bufkin
“volunteered” to be a taxpayer.
(Id., ¶ 25.)
Plaintiff alleges
that defendants Jacob J. Lew, Timothy F. Geithner, John Koskinen,
Douglas Shulman, Steven T. Miller, Daniel Werfel, William J.
Wilkins, and C.D. Bailey, acting jointly and severally, conspired
to obtain possession of Bufkin’s funds from his Scottrade accounts.
Bufkin alleges that he made a demand for the return of the
property.
(Id., ¶ 31.)
Bufkin seeks $50,000 for “Administrative sanctions” against
the IRS-related actors.
Bufkin asserts a Bivens claim against
defendants.
Bufkin argues that defendants must have
(Id., ¶ 37.)
evidence of plaintiff having volunteered to be a taxpayer before
taking property under the guise of tax collection.
(Id., ¶ 39.)
Plaintiff alleges that he confirmed through a FOIA request that
the IRS has no documents to support a finding that plaintiff
volunteered to be a taxpayer.
Plaintiff argues that he has the
right not to contract with the IRS, and has renewed this right
every year.
(Id., ¶ 40.)
Plaintiff also asserts a conspiracy to violate plaintiff’s
“right not to contract”, the failure to prevent the conspiracy,
3
and the deliberate indifference of Wilkins for failing to train
Bailey, Lew, Geitner, Koskinen, Shulman, Miller, and Werfel for
each of the identified years between 2002 and 2007.
(Id., ¶¶ 47,
56-57, 65-76.)
Bufkin states that Calvin Byrd asserted that taxes were due
for 2004 and 2005, and that plaintiff had a duty to file a return
for 2012, 2013, 2014, and 2015, or be subject to an audit.
¶83.)
(Id.,
Plaintiff also seeks administrative sanctions in the amount
of $50,000 against Byrd because his position is substantially
unjustified.
(Id. ¶¶ 84-85.)
Bufkin alleges a Bivens claim
against Byrd, and a conspiracy with Koskinen, Wilkins, with Byrd.
(Id., ¶¶ 87, 97.)
For each year at issue, 2002 through 2007, plaintiff seeks $1
million in actual damages, and $1 million in punitive damages for
the
confiscation
Alternatively,
of
his
plaintiff
property
tax
claims.
injunctive/mandamus
seeks
based
on
relief
regarding his status as a non-taxpayer.
Attached
plaintiff’s
to
the
Freedom
February 12, 2014.
of
Complaint
is
Information
a
Act
(Doc. #1-1, Exh. P-3.)
responsive
(FOIA)
letter
request
to
dated
Also attached to the
Complaint are plaintiff’s “demand” letters dated May 19, 2015, and
February 11, 2016 as his “administrative process” compliance.
(Doc. #1-1, p. 3.)
Wilkins,
and
The first letter is addressed to Lew, Koekinen,
Bailey
to
“address
4
all
matters
of
immunity
and
administrative
process”
and
presents
incorporated into the Complaint.
many
of
the
claims
(Doc. #1-1, Exh. DL-1.)
The
second letter is addressed to Koskinen, Assistant Attorney General
Ciraolo, Wilkins, and Byrd in response to the “demands” of Byrd in
a
letter
dated
May
14,
2015,
and
disagreement with the label of taxpayer.
focuses
on
plaintiff’s
(Doc. #1-1, Exh. DL-2.)
III.
As a preliminary matter, plaintiff’s arguments that he is not
a taxpayer, that it has not been proven that he is a taxpayer, and
that he did not volunteer to pay taxes are patently frivolous and
have been rejected “by courts at all levels of the judiciary, and,
therefore, warrant no further discussion.”
769 F.2d 707, 708 (11th Cir. 1985).
Biermann v. C.I.R.,
Any request for injunctive or
declaratory relief regarding plaintiff’s status as a taxpayer will
be dismissed without further discussion. See also Stubbs v. Comm'r
of I.R.S., 797 F.2d 936, 938 (11th Cir. 1986) (argument that wages
were not taxable income rejected as patently frivolous); Herriman
v. C.I.R., 521 F. App'x 912, 913 (11th Cir. 2013) (rejecting as
without merit argument that withholding of taxes from wages is an
unconstitutional direct income tax without apportionment).
IV.
Sovereign immunity protects the federal government and its
agencies
from
civil
consents to suit.
liability
unless
the
federal
government
JBP Acquisitions, LP v. U.S. ex rel. F.D.I.C.,
5
224 F.3d 1260, 1263 (11th Cir. 2000); Zajac v. Clark, No. 2:13CV-714-FTM-29, 2015 WL 179333, at *3 (M.D. Fla. Jan. 14, 2015).
The waiver must be “unequivocally expressed” to be effective.
United States v. Nordic Vill. Inc., 503 U.S. 30, 33 (1992).
Absent
some waiver, the Court does not have subject-matter jurisdiction.
The Federal Tort Claims Act (FTCA) provides a limited waiver
of sovereign immunity for tort claims, Dalrymple v. United States,
460 F.3d 1318, 1324 (11th Cir. 2006), however an administrative
claim with the agency remains a prerequisite to filing a tort
action, Motta ex rel. A.M. v. United States, 717 F.3d 840, 843
(11th Cir. 2013).
The Court will consider the various bases to
exercise jurisdiction over plaintiff’s claims.
A. Recovery Action
The district courts have original jurisdiction over civil
actions
against
the
United
States
“for
the
recovery
of
any
internal-revenue tax alleged to have been erroneously or illegally
assessed
collected
or
collected,
without
or
authority
any
claimed
to
have
been
any
or
penalty
alleged
to
have
been
sum
excessive or in any manner wrongfully collected under the internalrevenue laws.”
28 U.S.C. § 1346(a)(1).
However, “[n]o suit or
proceeding shall be maintained in any court for the recovery of
any internal revenue tax alleged to have been erroneously or
illegally assessed or collected, or of any penalty claimed to have
been collected without authority, or of any sum alleged to have
6
been excessive or in any manner wrongfully collected, until a claim
for refund or credit has been duly filed with the Secretary.”
26
U.S.C. § 7422(a).
Other than making a FOIA request regarding his taxpayer
status, and sending two letters that did not actually assert a
claim, plaintiff does not allege that he filed a formal claim for
refund or recovery of the Scottrade account funds.
Further, the
plaintiff explicitly rejects the argument that he is seeking a
refund under Section 1346.
(Doc. #1, ¶¶ W & 11.)
Therefore, to
the extent plaintiff is seeking recovery of those funds, the motion
to dismiss will be granted.
B. Collection Action
If plaintiff is seeking to bring suit against an officer or
employee of the IRS regarding the collection of taxes, a “taxpayer
may bring a civil action for damages against the United States in
a district court of the United States” if any officer or employee
of
the
IRS
negligence,
“recklessly
disregards
or
any
intentionally,
provision
of
regulation promulgated under this title.”
or
this
by
reason
title,
or
of
any
26 U.S.C. § 7433(a).
To obtain damages, a plaintiff must still exhaust administrative
remedies available within the IRS.
Again, there is no indication that plaintiff has taken any
effort to exhaust, and any action must be brought within 2 years
after
the
date
the
right
of
action
7
accrued.
26
U.S.C.
§
7433(d)(3).
The Scottrade funds were sold and transferred to the
IRS on or about May 2013, and the Complaint (Doc. #1) was filed on
May 22, 2017.
Even if plaintiff’s letter dated May 19, 2015
threatening suit was considered as the date the right of action
accrued, there are no facts in the Complaint supporting a claim of
reckless or intentional disregard of IRS regulations.
The motion
to dismiss will be granted.
C. Anti-Injunction Act & Declaratory Judgment Act
The Court notes that this is not plaintiff’s first suit
regarding his taxes.
The previous suit was dismissed because the
Anti-Injunction Act and Declaratory Judgment Act preclude the
suit, and therefore plaintiff could not state a claim.
Bufkin v.
United States, No. 2:11-CV-553-FTM-29, 2012 WL 5381970, at *2 (M.D.
Fla. Nov. 1, 2012).
The dismissal with prejudice was affirmed on
appeal because Bufkin had failed to demonstrate that the United
States had waived its sovereign immunity. Bufkin v. United States,
522 F. App'x 530, 532 (11th Cir. 2013).
Plaintiff’s
claims
for
injunctive
or
This remains the case.
declaratory
relief
are
precluded because he has not shown that sovereign immunity has
been waived.
The motion to dismiss will be granted.
D. Conspiracy Claims
Plaintiff asserts a conspiracy by all defendants without
making any factual allegations of how each defendant participated
to collude with one another.
Plaintiff’s theory of conspiracy
8
stems from the collection or method of collecting levied funds
from the Scottrade accounts.
Even if adequately pled, plaintiff’s
claims
also
of
conspiracy
are
immunity has not been waived.
foreclosed
because
sovereign
Ishler v. Internal Revenue, 237 F.
App'x 394, 398 (11th Cir. 2007).
The motion to dismiss will be
granted as to the conspiracy claims.
E. Individual Capacity
Plaintiff filed several “Proofs of Service” wherein plaintiff
indicates that he personally served Jeff Sessions as United States
Attorney General, Jacob J. Lew, Timothy F. Geithner, John Koskinen,
Douglas Shulman, Steven T. Miller, Daniel Werfel, W. Stephen
Muldrow as United States Attorney for the Middle District of
Florida, and Channing D. Phillips, as United States Attorney for
the District of Columbia by certified mail.
(Docs. ## 30-40.)
None of the individuals were personally served with process in
their individual capacity.
Plaintiff filed Status Reports (Docs.
## 41, 42) as to Calvin Byrd and C.D. Bailey that they may no
longer be employed by the IRS.
of Service for both.
Plaintiff later filed his Proofs
(Docs. ## 45, 46.)
The United States does not represent the various defendants
in their individual capacity, only in their official capacities,
however a Response to Plaintiff’s Proofs of Service (Doc. #47) was
filed to “counter Bufkin’s representation to the Court that he
served
the
individual
defendants.”
9
(Doc.
#47,
p.
1
n.1.)
Plaintiff responded to this Response at length, treating it as an
Objection, arguing why service was in compliance with “restricted
delivery”, and that the Department of Justice bears the burden to
demonstrate
service.
that
the
signor
was
not
an
authorized
agent
for
It remains the case that the individuals were not
personally served with process, and therefore the claims against
the individuals are due to be dismissed.
Even assuming service of process was proper, the claims
against the individuals personally are due to be dismissed as
without merit.
Under Bivens 2, a plaintiff may sue federal officers
in their individual capacity for constitutional violations.
This
does not include liability for conduct of subordinates under a
theory of respondeat superior.
676 (2009).
Ashcroft v. Iqbal, 556 U.S. 662,
Plaintiff vaguely alludes to a failure to train,
deliberate indifference, and a conspiracy but no personal action
by most of the individual defendants.
As to Byrd, who sought
documents from plaintiff, plaintiff’s Bivens claim is precluded
because plaintiff had an alternative remedy to obtain redress
through the Tax Court.
Topping v. U.S. Dep't of Educ., 510 F.
App'x 816, 819 (11th Cir. 2013).
2
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388, 397 (1971).
10
“Due to the comprehensiveness of the Internal Revenue Code,
courts are nearly unanimous in holding that Bivens relief is not
available for alleged constitutional violations by IRS officials
involved in the process of assessing and collecting taxes.”
Zajac
v. Clark, No. 2:13-CV-714-FTM-29, 2015 WL 179333, at *5 (M.D. Fla.
Jan.
14,
2015)
(collecting
cases).
The
claims
against
the
individuals in their individual capacity will be dismissed for
this additional basis.
Accordingly, it is now
ORDERED:
1.
Defendant’s Motion to Dismiss (Doc. #26) is GRANTED and
the Complaint is dismissed with prejudice as to all defendants
except Scottrade, Incorporated.
2.
The Clerk shall enter judgment accordingly, terminate all
pending motions and deadlines as moot, and administratively close
the file pending arbitration with Scottrade Incorporated.
DONE AND ORDERED at Fort Myers, Florida, this
December, 2017.
Copies:
Plaintiff
Counsel of record
11
21st
day of
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