Pomerenke v. Bird
Filing
42
ORDER denying 19 Motion for Default Judgment; granting 31 Motion to Dismiss for Lack of Jurisdiction (Written Opinion). Signed by Senior Judge David S. Doty on 1/3/2014. (PJM) (cc: Kevin David Pomerenkie) Modified on 1/3/2014 (jz).
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 12-1757(DSD/JJG)
Kevin David Pomerenke,
Plaintiff,
ORDER
v.
Cheryl Bird c/o IRS,
United States of America,
Defendants.
Kevin David Pomerenke, 3817 Heather Drive, Eagan, MN
55122, pro se.
Harris J. Phillips, U.S. Department of Justice, Tax
Division, P.O. Box 7238, Washington, D.C. 20044, counsel
for defendants.
This matter is before the court upon the pro se motion for
default judgment by plaintiff Kevin David Pomerenke and the motion
to dismiss by defendant United States of America (United States).
Based on a review of the file, record, and proceedings herein, and
for the following reasons, the court grants the motion to dismiss
and denies the motion for default judgment.
BACKGROUND
This tax-liability dispute arises out of the garnishment of
Pomerenke’s wages by the Internal Revenue Service (IRS).
The
background of this action is fully set out in prior orders and the
court recites only those facts necessary for disposition of the
instant motion.
On July 20, 2012, Pomerenke filed suit against IRS agent
Cheryl Bird,1 alleging violations of the Bankruptcy Act, the Fair
Debt Collection Practices Act and “Title 18 Color of Law.”
Compl.
¶ 4. Specifically, Pomerenke alleged that garnishment was improper
because
his
tax
liabilities
bankruptcy proceeding.
were
Id. ¶ 7.
discharged
in
a
Chapter
7
On August 17, 2012, prior to
service, the court dismissed the action sua sponte pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii). ECF No. 4. Pomerenke appealed, and on
November 7, 2012, the Eighth Circuit vacated in part and remanded
the case for proceedings “with respect to Pomerenke’s claim related
to the Bankruptcy Act.”
Pomerenke v. Bird, 491 F. App’x 778, 780
(8th Cir. 2012) (per curiam).
On March 27, 2013, Pomerenke served Bird.
See ECF No. 17.
On
May 31, 2013, Pomerenke requested entry of default against Bird and
1
Pomerenke named Bird as the sole defendant in this case, in
her official capacity as an IRS agent. A suit for the recovery of
internal revenue tax alleged to have been erroneously or illegally
collected, however, “may be maintained only against the United
States and not against any officer or employee of the United
States.” 26 U.S.C. § 7422(f)(1). On July 22, 2013, the United
States moved to substitute itself as the proper defendant and to
dismiss the claims against Bird. ECF No. 31.
“When a federal
employee has been impermissibly named as defendant, the Court must
substitute the United States as the proper-named defendant and
dismiss the erroneously named employee.” May v. United States, No.
12-1659, 2012 WL 5497878, at *3 (D. Minn. Oct 15, 2012) (Boylan,
C.M.J.) (citation omitted), adopted by 2012 WL 5504884 (Nov. 13,
2012); see 26 U.S.C. § 7422(f)(2).
As a result, dismissal is
warranted as to Bird, and the court substitutes the United States
as the proper defendant.
2
moved for default judgment.2
the
United
States
moved
ECF Nos. 18, 19.
to
substitute
On July 22, 2013,
itself
as
the
proper
defendant and to dismiss the complaint.
DISCUSSION
I.
Standard of Review
A court must dismiss an action over which it lacks subject-
matter jurisdiction.
Fed. R. Civ. P. 12(h)(3).
In a facial
challenge under Rule 12(b)(1), the court accepts the factual
allegations in the pleadings as true and views the facts in the
light most favorable to the nonmoving party.
See Hastings v.
Wilson, 516 F.3d 1055, 1058 (8th Cir. 2008); Osborn v. United
States, 918 F.2d 724, 729 n.6 (8th Cir. 1990) (“[T]he nonmoving
party receives the same protections [for facial attacks under Rule
12(b)(1)] as it would defending against a motion brought under Rule
12(b)(6).” (citation omitted)).
As a result, the court limits its
inquiry to the pleadings, matters of public record, and materials
necessarily embraced by the pleadings.
See Porous Media Corp. v.
Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (listing materials
2
The Clerk denied Pomerenke’s request for entry of default
against Bird on June 24, 2013. ECF No. 29. Pomerenke has made no
showing that a copy of the summons and complaint was delivered to
either the United States Attorney for the District of Minnesota or
the Attorney General of the United States, as required by Federal
Rule of Civil Procedure 4(i), and therefore fails to establish
grounds for default judgment. As a result, the motion for default
judgment is denied.
3
court may consider in a 12(b)(6) challenge); Osborn, 918 F.2d at
729 n.6.
II.
Subject-matter Jurisdiction
In his prayer for relief, Pomerenke requests “full restitution
of all monies taken since the bankruptcy ..., [t]he clearing of all
... tax liens associated with the IRS ... [and] [f]ull release sent
to employer so no further action on my paychecks can be taken.”
Compl. 4-5.
The court construes the request as seeking (1) an
injunction against future IRS tax collection related to his 2009
bankruptcy, (2) a refund of all wages garnished by the IRS since
his 2009 bankruptcy and (3) a release of the tax lien against his
wages.3
The United States argues that Pomerenke has failed to meet
his burden to establish subject-matter jurisdiction over any of
these claims.
See Great Rivers Habitat Alliance v. Fed. Emergency
Mgmt. Agency, 615 F.3d 985, 988 (8th Cir. 2010) (“The burden of
proving federal
jurisdiction
...
is
establish it.” (citation omitted)).
on
the party
seeking
to
Specifically, the United
States argues that the claim for injunctive relief is barred by the
Anti-Injunction Act (AIA) and that Pomerenke has not exhausted his
administrative remedies for the remaining claims.
3
To the extent that Pomerenke alleges a violation of the
bankruptcy discharge order, such a claim would need to be brought
before a federal bankruptcy court. See 26 U.S.C. § 7433(e)(1).
4
A.
Injunctive Relief
The AIA provides that, generally, “no suit for the purpose of
restraining the assessment or collection of any tax shall be
maintained in any court by any person.”
26 U.S.C. § 7421(a).
A
plaintiff may nevertheless bring suit for injunctive relief if he
can demonstrate (1) a certainty of success on the merits and
(2) irreparable injury.
See Pagonis v. United States, 575 F.3d
809, 814 (8th Cir. 2009).
The plaintiff has the burden of
establishing that this exception applies.
May v. United States,
No. 12-1659, 2012 WL 5497878, at *4 (D. Minn. Oct. 15, 2012)
(Boylan, C.M.J.), adopted by 2012 WL 5504884 (Nov. 13, 2012).
Here, Pomerenke has alleged no facts to suggest that he faces
irreparable
injury.
Indeed,
Pomerenke
has
specific
remedies
available to him to petition for a refund of any wrongfullycollected taxes, to request damages for failure to release a lien
or to claim damages for unauthorized collection actions.
e.g., 26 U.S.C. §§ 7422, 7432, 7433.
See,
As a result, the court lacks
subject-matter jurisdiction over any claim for injunctive relief,
and dismissal is warranted.
B.
Sovereign Immunity
The
United
subject-matter
States
next
argues
jurisdiction over
the
that
the
remaining
court
claims
lacks
because
Pomerenke has not exhausted his administrative remedies.
“A
district court lacks jurisdiction to hear a case against the United
5
States unless its sovereign immunity has been waived, and the
court’s jurisdiction is limited by the scope of the waiver.”
Kaffenberger v. United States, 314 F.3d 944, 950 (8th Cir. 2003).
A waiver of sovereign immunity “cannot be implied but must be
unequivocally expressed.”
Murray v. United States, 686 F.2d 1320,
1325 (8th Cir. 1982) (citations omitted).
Where Congress has provided for a specific waiver of sovereign
immunity, however, the scope will be strictly construed in favor of
the government.
Kaffenberger, 314 F.3d at 950 (citation omitted).
In the context of IRS refunds, Congress has waived sovereign
immunity under certain circumstances.
Specifically, suits for tax
refunds require that a plaintiff first file “a claim for refund or
credit ... with the Secretary, according to the provisions of law
in that regard, and the regulations of the Secretary established in
pursuance thereof.”
26 U.S.C. § 7422(a).
In other words, in order to maintain a suit for a tax refund,
the taxpayer must first exhaust all administrative remedies.
See
26 U.S.C. § 7422(a) (“No suit ... shall be maintained in any court
for the recovery of any internal revenue tax alleged to have been
erroneously or illegally assessed ... until a claim for refund or
credit has been duly filed with the Secretary....”); see also 26
C.F.R. §
301.7432-1(e)
(requiring
administrative
claim
before
filing action for failure to release a lien), 26 C.F.R. § 301.74331(d) (requiring administrative claim before filing action for
6
certain unauthorized collection actions).
Here, Pomerenke has not
alleged that he exhausted administrative remedies for any of his
claims, and there is no indication that he has followed the
available administrative procedures.
As a result, the United
States has not waived its sovereign immunity, and the court does
not have subject-matter jurisdiction over Pomerenke’s remaining
claims.
Therefore, dismissal is warranted.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.
Plaintiff’s motion for default judgment [ECF No. 19] is
denied; and
2.
Defendant’s motion to dismiss [ECF No. 31] is granted.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:
January 3, 2014
s/David S. Doty
David S. Doty, Judge
United States District Court
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