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