Lawrence v. Halker

Filing 11

ORDER granting 7 Motion to dismiss to the extent that this case is dismissed with prejudice for failure to state a claim; the Clerk shall close the file. Signed by Judge Timothy J. Corrigan on 9/22/2015.(SRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

WALTER J. LAWRENCE,
Plaintiff,
vs.

Case No. 3:14-cv-1314-J-32JRK

STEPHEN D. HALKER, acting in his
individual and personal capacity,
Defendant.

ORDER
Pro se plaintiff Walter J. Lawrence filed this suit for damages against Stephen D.
Halker, an employee of the Internal Revenue Service, claiming that Halker acted outside the
scope of his delegated authority when he sent Lawrence a letter dated October 9, 2014
which reviewed assessed penalties and taxes for 2004, 2005, 2006 and 2007 and advised
that a penalty assessed against Lawrence with regard to his 2005 taxes could not be
removed. See Doc. 1. Lawrence claims Halker violated Lawrence’s rights under the Fourth,
Fifth and Fourteenth Amendments when Halker allegedly imposed and assessed taxes for
2004, 2005, 2006 and 2007 that the IRS had not assessed, thus giving rise to a Bivens1
action. Doc. 1.2 The United States filed a motion to dismiss based on lack of subject matter
1

Under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388, 389 (1971), a federal agent’s unconstitutional conduct may give rise to a cause of action
for damages.
2

Lawrence also cites a number of statutes which have no application to this case. See
Doc. 1 at ¶ 1 (citing criminal statutes regarding pretrial release and detention of defendants
and witnesses; statutes about declaratory judgment statutes; civil rights conspiracy statutes;
and a statute about the jurisdiction of the United States Court of Federal Claims). Lawrence,

jurisdiction (Doc. 7); Lawrence filed a response in opposition (Doc. 10).
A Bivens action may be brought against a federal employee in his individual capacity
for violations of constitutional rights if “the plaintiff has no alternative means of obtaining
redress” and “no special factors counseling hesitation are present.” Hardison v. Cohen, 375
F.3d 1262, 1264 (11th Cir. 2004). Congress has provided a means of redress with regard
to the recovery of damages against IRS employees for wrongful collection activities. See AlSharif v. United States, 296 F. App’x 740, 741-42 (11th Cir. 2008) (citing 26 U.S.C. § 7433(a)
as the “exclusive remedy” for recovering damages against an IRS employee for wrongful
collection activities and 28 U.S.C. § 1346(a)(1) as the remedy to recover from the United
States erroneously or illegally assessed or collected internal revenue taxes3). Thus, the
availability of statutory relief “forecloses a Bivens action against individual IRS agents for
alleged constitutional violations with respect to the collection and assessment of taxes.” Id.
at 742.

See also Zajac v. Clark, 2015 WL 179333, *5 (M.D. Fla. Jan. 14, 2015) (citing

numerous cases for the proposition that a Bivens action may not be maintained against IRS

who is a resident of Hernando, a town in Citrus County (which is in the Ocala Division)
alleges that “[v]enue is proper in the District of Idaho because a substantial part of the events
complained of and giving rise to Plaintiff’s claims occurred in this District.” Doc. 1 at ¶ 3
(emphasis supplied). The Court takes the Idaho reference to be a typographical error and
it appears that while the Department of Justice is representing Halker, the address at which
Halker was served (and his address according to the documents attached to the complaint)
is in Jacksonville. See Doc. 1 at Ex. A at 2 and Doc. 5. The United States did not raise
improper venue as an issue and the Court is satisfied that venue is proper here.
3

Lawrence has previously availed himself of that avenue of redress, having sued the
United States under 28 U.S.C. § 1346(a)(1) to challenge taxes levied for the years 19801983 and 1988-1994. That suit was dismissed and affirmed on appeal. See Lawrence v.
United States, 597 F. App’x 599, 600 (11th Cir. 2015).
2

officials for alleged constitutional violations related to the assessing and collecting of taxes);
Lawrence v. United States, 229 F.3d 1152, 2000 WL 1182452, *2 (6th Cir. 2000) (holding
that Lawrence (the same plaintiff as here) could not maintain a Bivens action against
individual IRS officials for conduct related to IRS collection activities).4 Lawrence, therefore,
cannot bring a Bivens action against Halker and his complaint is therefore due to be
dismissed for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).5 See
Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014) (while the Court

4

In that decision, the Sixth Circuit also sanctioned Lawrence for filing a frivolous appeal,
citing Lawrence’s “long history of filing frivolous suits and appeals” and his failed attempt to
“outfox” the IRS. 229 F.3d 1152, 2000 WL 1182452, *3-4.
5

The United States (as opposed to defendant Halker) filed the motion to dismiss,
operating under the impression that Lawrence was suing Halker in his official capacity and
claiming, therefore, that sovereign immunity deprived the Court of subject matter jurisdiction
(and that Bivens did not provide a cause of action against Halker). Because Lawrence is
suing Halker in his individual capacity, the Court does not reach the sovereign immunity
issue. Although it is not clear whether the United States is contending that lack of a viable
Bivens claim also implicates subject matter jurisdiction, the Eleventh Circuit has held that an
unsustainable Bivens claim warrants dismissal for failure to state a claim, not for lack of
subject matter jurisdiction, so that is what the Court has done here. See Lee v. Hughes, 145
F.3d 1272, 1277, n.6 (11th Cir. 1998) (affirming dismissal of Bivens action but holding district
court should have dismissed for failure to state a claim, not for lack of subject matter
jurisdiction). But see, Smith v. Sec’y of U.S. Dep’t of Commerce, 495 F. App’x 10, 12 (11th
Cir. 2012) (holding district court properly dismissed Bivens claim for lack of subject matter
jurisdiction); Zajac, 2015 WL 179333, *5 (holding court did not have jurisdiction to consider
Bivens claim).
In ruling on this motion, the Court has assumed that the facts as pled are true. Glover
v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006). Nonetheless, the Court notes
that Halker’s October 9, 2014 letter which allegedly gives rise to Lawrence’s allegations was
sent to Lawrence in response to an inquiry Lawrence made with Senator Bill Nelson
regarding a penalty for the 2005 tax year. It is a stretch to construe Halker’s letter as itself
assessing penalties (as Lawrence alleges in his complaint) as opposed to responding to
Lawrence’s inquiry. The Court also notes that Halker provided Lawrence with information
about how to seek further recourse.
3

construes the filings of pro se parties more liberally than those filed by lawyers, this does not
mean that the Court can rewrite plaintiff’s filings to create a cause of action where one does
not exist). Because there are no circumstances in which Lawrence’s complaint could be
cured by amendment, the case is due to be dismissed with prejudice. See Brewer v.
Commissioner, Internal Revenue, 435 F.Supp.2d 1174, 1176-78 (S.D. Ala. 2006) (denying
leave to amend complaint to bring Bivens action against individual IRS employees because
the effort would be futile).
Accordingly, it is hereby
ORDERED:
The United States’ Motion to Dismiss (Doc. 7) is granted to the extent that this case
is dismissed with prejudice for failure to state a claim. The Clerk shall close the file.
DONE AND ORDERED at Jacksonville, Florida this 22nd day of September, 2015.

s.
Copies:
counsel of record
pro se plaintiff

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