UNITED STATES OF AMERICA v. TREVITT et al
Filing
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ORDER denying 27 Motion to Strike ; denying 29 Motion to Strike ; denying 30 Motion for Hearing; granting 13 Motion to Dismiss Counterclaims; denying 20 Motion for Summary Judgment. Ordered by U.S. District Judge C ASHLEY ROYAL on 2/11/14 (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
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:
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v.
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CARMEN D. TREVITT, JR.,
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BARBARA B. TREVITT, et al.,
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Defendants.
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___________________________________ :
CARMEN D. TREVITT, JR. and
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BARBARA B. TREVITT,
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Counter‐Claimants,
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v.
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UNITED STATES OF AMERICA,
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Counter‐Defendant.
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___________________________________ :
BRANCH BANKING AND TRUST :
COMPANY,
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Cross‐Claimant,
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v.
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CARMEN D. TREVITT, JR. and
BARBARA B. TREVITT,
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Cross‐Defendants.
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____________________________________:
No. 5:13‐CV‐174 (CAR)
ORDER GRANTING THE GOVERNMENT’S MOTION TO DISMISS BUT
DENYING THE TREVITTS’ MOTION FOR SUMMARY JUDGMENT AND
MOTIONS TO STRIKE
Before the Court are the Government’s Motion to Dismiss [Doc. 13] the
Counterclaims of pro se Defendants Carmen and Barbara Trevitt as well as Defendants
Carmen and Barbara Trevitt’s Motion for Summary Judgment [Doc. 20], Motion to Set a
Hearing on the Motion for Summary Judgment [Doc. 30], and Motions to Strike [Docs.
27 & 29]. Having reviewed the Motions, the Parties’ arguments, and the applicable law,
the Government’s Motion to Dismiss [Doc. 13] is hereby GRANTED, and the
Counterclaims [Docs. 9 & 10] are DISMISSED for lack of subject matter jurisdiction.
Defendants Carmen and Barbara Trevitt’s Motion for Summary Judgment [Doc. 20],
Motion to Set a Hearing on the Motion for Summary Judgment [Doc. 30], and Motions
to Strike [Docs. 27 & 29] are DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
The Government filed the present action pursuant to 26 U.S.C. §§ 7401, 7402, and
7403, seeking to reduce the federal income tax liabilities of Defendants Carmen and
Barbara Trevitt (hereinafter the “Trevitts”) to judgment and to foreclose federal tax liens
against certain real property. On July 23, 2013, the Trevitts, proceeding pro se, filed
separate but nearly identical Counterclaims. Although the Trevitts’ allegations are
unclear and virtually indecipherable, it appears the Trevitts allege (1) the liens filed by
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the Government are procedurally deficient, (2) the tax assessments on which the liens
are based are inaccurate, and (3) the Government and its agents committed various
common law and constitutional torts by filing “fraudulent liens,” initiating this action
to foreclose on those liens, and serving the Trevitts with process.1 The Trevitts request
the Court dismiss the complaint and award monetary damages against the Government
in the amount of $644,389.69. Additionally, the Trevitts seek the Court to declare that
(1) the Government and its counsel acted outside the scope of their authority and
committed fraud by commencing this action, and (2) the Government violated their
constitutional rights guaranteed by the First, Fourth, Fifth, and Fourteenth
Amendments in the prosecution of this case.
On August 6, 2013, the Government filed the instant Motion to Dismiss the
Counterclaims pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). Thereafter,
on September 25, 2013, the Trevitts filed a Motion for Summary Judgment on the
ground that the Government “defaulted” by failing to file a timely responsive pleading
to their Counterclaims. After the Government responded to the Motion for Summary
Judgment, the Trevitts filed a Motion to Strike that response. When the Government
responded to the Motion to Strike, the Trevitts again moved to strike the Government’s
response. These motions are now ripe for review.
Construed liberally, the common law tort claims include fraud, trespass in effectuating service, and
breach of fiduciary duty. The constitutional tort claims against the Government and its agents include
alleged violations of the rights guaranteed by the First, Fourth, Fifth, and Fourteenth Amendments.
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THE TREVITTS’ MOTION FOR SUMMARY JUDGMENT
In their Motion for Summary Judgment, the Trevitts contend they are entitled to
judgment as a matter of law because the Government failed to file a timely responsive
pleading to their respective Counterclaims. However, the law clearly states that the
filing of a motion under Rule 12, including a motion to dismiss, tolls the applicable
period for filing a responsive pleading until the Court has had an opportunity to rule on
the motion.2
The Government timely filed its Motion to Dismiss pursuant to Rule 12, therefore
an answer to the Counterclaims is not required until the Court rules on the Motion to
Dismiss. Accordingly, the Trevitts’ Motion for Summary Judgment is DENIED.3
THE GOVERNMENT’S MOTION TO DISMISS
The Government maintains the Trevitts’ Counterclaims must be dismissed
pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction or, alternatively,
pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted.
Because the Court finds that it lacks subject matter jurisdiction to consider the merits of
Fed. R. Civ. P. 12(a)(4)(A) (“Unless the court sets a different time, serving a motion under this rule alters
these periods as follows: (A) if the court denies the motion or postpones its disposition until trial, the
responsive pleading must be served within 14 days after notice of the courtʹs action[.]”); Marquez v. Cable
One, Inc., 463 F.3d 1118, 1120 (10th Cir. 2006) (“[Defendant] filed its motion as a Rule 12(b)(6) dismissal
motion, . . . which clearly does toll the time to answer.”); Eidson v. Arenas, 837 F. Supp. 1158, 1160 (M.D.
Fla. 1993) (“Defendants’ Rule 12 Motion tolled Defendants’ time to file an answer until issuance of an
Order by this Court.”).
3 A hearing on the Motion for Summary Judgment is unnecessary to the Court’s analysis. Thus, the
Trevitts’ Motion to Set a Hearing on the Motion for Summary Judgment [Doc. 30] is DENIED.
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the Counterclaims, the Government’s Motion to Dismiss must be granted, and the
Court need not consider the 12(b)(6) grounds for dismissal.
A motion to dismiss for lack of subject matter jurisdiction can take the form of
either a facial or factual attack on the Court’s exercise of jurisdiction.4 The Government
in this case asserts a facial attack, arguing that the facts as alleged in the Counterclaims
fail to demonstrate the Court has jurisdiction. On a facial challenge, the Court accepts
all allegations as true in order to determine if the claimant alleged sufficient facts to
support the exercise of subject matter jurisdiction.5 In so doing, the Court remains
mindful that “[p]ro se pleadings are held to a less stringent standard than pleadings
drafted by attorneys, and will, therefore, be liberally construed.”6 However, “[e]ven
with pro se litigants, ‘conclusory allegations, unwarranted deductions of facts or legal
conclusions masquerading as facts will not prevent dismissal.’”7
The Government argues that because the Trevitts’ Counterclaims fail to cite to an
applicable waiver of sovereign immunity, this Court lacks jurisdiction to consider the
Counterclaims on the merits. The Court agrees, and the Counterclaims must be
dismissed.
Lawrence v. Dunbar, 919 F.2d 1525, 1528‐29 (11th Cir. 1990).
Id. at 1529.
6 Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
7 United States v. Korman, 07‐80998‐CIV, 2008 WL 5662165, at *3 (S.D. Fla. Nov. 5, 2008) (quoting Aldana v.
Del Monte Fresh Produce, N.A., 416 F.3d 1242, 1246 (11th Cir. 2005)).
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“It is axiomatic that the United States may not be sued without its consent and
that the existence of consent is a prerequisite for jurisdiction.”8 “A waiver of sovereign
immunity ‘cannot be implied but must be unequivocally expressed.’”9 “[A] party who
sues the United States has the burden of identifying specific statutes waiving the
governmentʹs sovereign immunity and showing that the requirements of such statutes
have been met.”10 Moreover, any proposed waiver “must be construed strictly in favor
of the sovereign.”11
In the case sub judice, the Trevitts’ arguments purporting to show the
Government has effectively waived sovereign immunity are without merit. First, the
Trevitts argue that by initiating this action to collect overdue taxes, the Government is
engaging in a private or commercial enterprise and has, therefore, waived immunity.
Indeed, courts have recognized that the Government may waive its immunity by
partaking in private sector ventures.12 However, the collection of tax revenue is a
United States v. Mitchell, 463 U.S. 206, 212 (1983).
Bufkin v. United States, 522 F. App’x 530, 531 (11th Cir. 2013) (quoting United States v. King, 395 U.S. 1, 4
(1969)).
10 MacElvain v. United States, 02‐A‐0102‐N, 2002 WL 31409568, at *3 (M.D. Ala. Sept. 5, 2002) (citing Cole v.
United States, 657 F.2d 107, 109 (7th Cir. 1981)).
11 United States v. Nordic Village, 503 U.S. 30, 34 (1992) (internal quotation marks and citation omitted).
12 See, e.g., Loeffler v. Frank, 486 U.S. 549, 555 (1988) (quoting Fed. Hous. Admin., Region No. 4 v. Burr, 309
U.S. 242, 245 (1940)) (“[W]hen Congress launche[s] a governmental agency into the commercial world
and endow[s] it with authority to ‘sue or be sued,’ that agency is not less amenable to judicial process
than a private enterprise under like circumstances would be.”); see also Honduras Aircraft Registry, Ltd. v.
Gov’t of Honduras, 129 F.3d 543, 548 (11th Cir. 1997) (“A foreign state loses its immunity if it engages in
commercial activity . . . because then it is exercising the same powers that a private citizen might
exercise.”).
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traditional government activity, not a private enterprise.13 Thus, the Government has
not waived immunity under this theory.
Second, the Trevitts seem to argue that the Government has waived its immunity
under the Federal Tort Claims Act (the “FTCA”) with respect to their common law tort
claims and under the Federal Employees Liability Reform and Tort Compensation Act
(a.k.a. the “Westfall Act”) with respect to their constitutional tort claims.14 As to the
common law tort claims, the FTCA provides a limited waiver of sovereign immunity
for civil actions stemming from “injury or loss of property . . . caused by the negligent
or wrongful act or omission of any employee of the Government while acting within the
scope of his office or employment.”15 However, “the [FTCA] expressly provides that it
does not apply to ‘[a]ny claim arising in respect of the assessment or collection of any
tax[.]’”16 Thus, the FTCA does not provide a basis for the Court to consider the merits
of the Trevitts’ common law tort claims.17
“The power to tax ‘is an incident of sovereignty[.]’” Intʹl Harvester Co. v. Wisconsin Depʹt of Taxation, 322
U.S. 435, 444 (1944) (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 429 (1819)).
14 Although the Trevitts do not directly reference the FTCA in their second argument, the FTCA is
directly implicated by their reference to the Westfall Act because “[t]he Westfall Act amended the FTCA
to make an action against the United States the exclusive remedy for money damages for any injury
arising from the ‘negligent or wrongful act or omission of any employee of the Government while acting
within the scope of his office or employment.’” Operation Rescue Nat’l v. United States, 975 F. Supp. 92, 100
(D. Mass. 1997) (citing 28 U.S.C. § 2679(b)(1)), aff’d, 147 F.3d 68 (1st Cir. 1998).
15 28 U.S.C. § 1346(b)(1).
16 Al‐Sharif v. United States, 296 F. Appʹx 740, 742 (11th Cir. 2008) (citing 28 U.S.C. § 2680(c)).
17 Even if the FTCA provided an applicable waiver of sovereign immunity, the Trevitts’ claims would be
barred because they have failed to allege or argue that they exhausted their administrative remedies, as
required to raise FTCA claims. McNeil v. United States, 508 U.S. 106, 112‐13 (1993) (citing 28 U.S.C. §
2675(a)).
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As to their constitutional tort claims, the Trevitts argue that, by enacting the
Westfall Act, Congress intended to preserve judicial review of constitutional tort claims
against federal government employees through Bivens actions.18 While the Court does
not disagree with this general proposition, as explained below, binding precedent in
this Circuit precludes the exercise of jurisdiction over the specific constitutional tort
claims raised in this case.
To the extent the Trevitts attempt to raise Bivens claims against the Government,
the law is clear that Bivens actions cannot be maintained directly against the United
States or its agencies.19 Bivens actions may only be maintained against individual
federal agents or employees in their individual capacities.20 In this case, the Trevitts
refer to Plaintiff’s counsel as well as other unnamed “agents” who allegedly violated
their constitutional rights by filing these tax liens and initiating this action. Despite
referencing these individuals in their Counterclaims, the Trevitts neither added them as
parties nor properly served them. Even if the Trevitts had added these individuals as
parties, however, a Bivens action could not stand against them. The Eleventh Circuit
has explicitly held that a Bivens action cannot be maintained against agents of the
“Under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29
L.Ed.2d 619 (1971), an individual may bring a cause of action ‘against a federal agent who, while acting
under the color of federal law, has violated the constitutional rights of [the] individual.’” Al‐Sharif, 296 F.
Appʹx at 741 (quoting Hardison v. Cohen, 375 F.3d 1262, 1264 (11th Cir. 2004)).
19 FDIC v. Meyer, 510 U.S. 471, 486 (1994); Nalls v. Coleman Low Fed. Inst., 307 F. Appʹx 296, 298 (11th Cir.
2009).
20 Nalls, 307 F. Appʹx at 297.
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Internal Revenue Service for their conduct in assessing and collecting taxes, given that
other Code provisions provide “adequate statutory avenues for relief.”21 Specifically,
taxpayers may challenge tax assessments under 28 U.S.C. § 1346(a)(1) and wrongful
collection activities under 26 U.S.C. § 7433(a).22 The Trevitts have not pursued either of
these statutory remedies.23 Since the Trevitts raise Bivens claims arising from tax
assessment and collection activities for which other statutory provisions provide an
adequate remedy, the Court does not have jurisdiction to consider the merits of their
Bivens claims.
Finally, the Trevitts argue that the Government has waived its sovereign
immunity with respect to their Counterclaims for declaratory relief because the
Government has failed to follow the rules and regulations of the Internal Revenue
Service. The Trevitts fail to cite to any statutory authority supporting their third and
final argument. Moreover, the Declaratory Judgment Act specifically precludes
Al‐Sharif, 296 F. App’x at 742.
Id.
23 To the extent the Counterclaims can be liberally construed to include claims under these statutes, their
claims fail because the Trevitts have not fulfilled the procedural requirements of either statute. To
challenge the tax assessment under 28 U.S.C. § 1346(a)(1), the taxpayer must first pay the amount of the
contested tax liability. Ishler v. Internal Revenue, 237 F. App’x 394, 398 (11th Cir. 2007). To challenge
wrongful collection activities under 26 U.S.C. § 7433(a), the taxpayer must first exhaust his or her
administrative remedies within the Internal Revenue Service. 26 U.S.C. § 7433(d). The Trevitts have not
alleged payment or exhaustion of their administrative remedies.
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declaratory relief “with respect to Federal taxes[.]”24 In light of this specific prohibition
and no statutory authority providing a separate basis for the exercise of jurisdiction, the
Trevitts’ third argument fails.
Having liberally construed the allegations raised in the Counterclaims and the
Parties’ arguments, the Court finds no statutory authority that would allow the
Counterclaims to proceed. As such, the Counterclaims must be dismissed for lack of
subject matter jurisdiction. Accordingly, Plaintiff’s Motion to Dismiss is hereby
GRANTED, and the Counterclaims [Docs. 9 & 10] are DISMISSED.
THE TREVITTS’ MOTIONS TO STRIKE
The Trevitts also move the Court to strike certain statements in the Government’s
responses to their Motion for Summary Judgment and Motion to Strike pursuant to
Rule 12(f). In support of their Motions to Strike, the Trevitts argue certain statements in
Plaintiff’s briefs should be struck from the record because these statements contain
inappropriate characterizations of the Trevitts’ arguments as “discredited tax protest
arguments” and impermissible testimony of the Government’s counsel.
Rule 12(f) allows a court to “strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” A “pleading” within the
28 U.S.C. § 2201(a). The Declaratory Judgment Act contains a limited exception to this declaratory relief
prohibition for actions brought pursuant to Section 7428 of the Internal Revenue Code. However, Section
7428 deals with the classification of organizations for tax purposes and is not applicable to the case at bar.
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meaning of the Federal Rules of Civil Procedure is limited to “(1) a complaint; (2) an
answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4)
an answer to a crossclaim; (5) a third‐party complaint; (6) an answer to a third‐party
complaint; and (7) if the court orders one, a reply to an answer.”25 Briefs submitted in
opposition to or in support of motions do not constitute pleadings within the definition
so provided. Therefore, the Trevitts’ reliance on Rule 12(f) as a procedural vehicle to
strike the Government’s briefs is misplaced.26 Accordingly, their Motions to Strike
[Docs. 27 & 29] are DENIED.
CONCLUSION
In sum, the Government’s Motion to Dismiss [Doc. 13] is GRANTED, and the
Trevitts’ Counterclaims [Docs. 9 & 10] are DISMISSED for lack of subject matter
jurisdiction. Furthermore, the Trevitts’ Motion for Summary Judgment [Doc. 20],
Motion to Set a Hearing on the Motion for Summary Judgment [Doc. 30], and Motions
to Strike [Docs. 27 & 29] are DENIED.
Fed. R. Civ. P. 7(a) (emphasis added).
Chavez v. Credit Nation Auto Sales, Inc., ‐‐ F. Supp. 2d ‐‐ , 1:13‐CV‐312‐WSD‐JCF, 2013 WL 4482519, at *7
(N.D. Ga. Aug. 19, 2013) (citing Circle Group, LLC v. Se. Carpenters Reg’l Council, 836 F. Supp. 2d 1327, 1349
(N.D. Ga. 2011)).
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SO ORDERED, this 11th day of February, 2014.
S/ C. Ashley Royal
C. ASHLEY ROYAL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
ADP/ssh/bbp
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