Donaldson vs. United States Department of Treasury, et al.

Filing 40

ORDER denying as moot 29 Motion for Equitable Estoppel; denying as moot 38 Motion for Reconsideration ; denying as moot 14 Motion for Reconsideration ; denying as moot 14 Motion for Hearing; granting 21 Motion to Dismiss for Lack of Jurisdiction. Signed by District Judge Eric F. Melgren on 4/11/2018.Mailed to pro se party Joseph V. Donaldson by regular mail. (sz)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JOSEPH V. DONALDSON,
Plaintiff,

vs.

Case No. 17-01213-EFM-GEB

DEPARTMENT OF TREASURY,
INTERNAL REVENUE SERVICE, and
MARK BOSTON, IRS REVENUE
OFFICER,
Defendants.

ORDER
This matter comes before the Court on Defendant United States’ Motion to Dismiss (Doc.
21), Plaintiff Joseph Donaldson’s Motion to Vacate Denial Order for Preliminary Injunction or
Show Cause (Doc. 14), Donaldson’s Motion for Equitable Estoppel (Doc. 29), and Donaldson’s
Memorandum Objecting to Denial of Mandatory Judicial Notice (Doc. 38). The United States
moves to dismiss Donaldson’s claims arguing that they are barred by the doctrine of sovereign
immunity and that the Court therefore does not have subject matter jurisdiction over the claims.
The United States argues in the alternative that Donaldson failed to state a claim upon which relief
can be granted.

Courts lack subject matter jurisdiction over claims against the United States “for which
sovereign immunity has not been waived.”1 The doctrine of sovereign immunity extends to federal
agencies2 and their employees when sued in their official capacities.3 The burden of establishing
an “explicit waiver of sovereign immunity” rests on the plaintiff.4 Because Donaldson did not
assert an “explicit waiver of sovereign immunity” as required by Fostvedt, this Court does not
have jurisdiction over Donaldson’s claims. The United States’ Motion to Dismiss is therefore
granted and the Court need not address the government’s arguments under Fed. R. Civ. P. 12(b)(6).
IT IS THEREFORE ORDERED that the United States’ Motion to Dismiss (Doc. 21) is
GRANTED.
IT IS FURTHER ORDERED that Donaldson’s Motion to Vacate Denial Order for
Preliminary Injunction or Show Cause (Doc. 14) is DENIED as moot.
IT IS FURTHER ORDERED that Donaldson’s Motion for Equitable Estoppel (Doc. 29)
is DENIED as moot.
IT IS FURTHER ORDERED that Donaldson’s Memorandum Objecting to Denial of
Mandatory Judicial Notice (Doc. 38) is DENIED as moot.

1

Iowa Tribe v. Salazar, 607 F.3d 1225, 1232 (10th Cir. 2010).

2

FDIC v. Meyer, 510 U.S. 471, 475 (1994).

3

Atkinson v. O’Neill, 867 F.2d 589, 590 (10th Cir. 1989).

4

Fostvedt v. United States, 978 F.2d 1201, 1203 (10th Cir. 1992).

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The case is thereby dismissed without prejudice.
IT IS SO ORDERED.
Dated this 11th day of April, 2018.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

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