Hinds v. United States Government

Filing 93

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the motion to dismiss of Defendant United States [ECF No. 82 ] is GRANTED, and the case is dismissed without prejudice. IT IS FURTHER ORDERED that all pending motions are DENIED as moot. Signed by District Judge Audrey G. Fleissig on 12/11/2017. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TERRY LEE HINDS,
Plaintiff,
v.
UNITED STATES GOVERNMENT,
Defendant,

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No. 4:17-CV-00750 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion to dismiss filed by Defendant,
United States. ECF No. 82. Plaintiff filed a response in opposition to the motion, and the
United States filed a reply. On November 22, 2017, Plaintiff filed a sur-reply. For the
reasons set forth below, the motion to dismiss of the United States will be granted.
BACKGROUND
This case has a lengthy procedural history. 1 On February 16, 2017, Plaintiff filed
a 548-page pro se complaint, in which Plaintiff contends that by virtue of the Tax Code,
the Government has established an institutionalized faith and religion of taxism. Compl.
at ¶ 305. Plaintiff contends that this institutionalized religion has the effect of endorsing,
favoring, and promoting organized religions, which Plaintiff believes violates the
Establishment and Free Exercise clauses of the Constitution. He seeks declaratory and

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Since filing his lawsuit, Plaintiff has filed 34 “Notices” and “Declarations” with
the Court constituting numerous pages and exhibits.

injunctive relief, including a permanent injunction enjoining the tax code from having
any legal effect, as well as nominal damages.
On February 23, 2017, the Court ordered Plaintiff to file an amended complaint in
conformity with the requirements of Federal Rule of Civil Procedure 8 (ECF No. 7),
which provides that a pleading must contain a short and plain statement of the grounds
for the Court’s jurisdiction, a short plain statement of the claim showing that the pleader
is entitled to relief, and a demand for the relief sought. 2 The Court again ordered
Plaintiff to file an amended complaint on March 10, 2017 (ECF No. 18), April 11, 2017
(ECF No. 29), and May 12, 2017 (ECF No. 36). Plaintiff filed a Petition for Writ of
Mandamus and Prohibition challenging the Court’s May 12, 2017 Order that Plaintiff file
an amended complaint. The Eighth Circuit Court of Appeals denied Plaintiff’s Petition.
ECF No. 47.
On June 14, 2017, Plaintiff filed a “Hybrid Pleading Making a Conscientious
Effort to Comply with the Court’s Orders Manifesting an Amended Complaint” (“Hybrid
Pleading”). ECF No. 44. There, Plaintiff contends that requiring citizens to file an
individual tax return establishes a religion centered on the Internal Revenue Service
(“IRS”), which has burdened Plaintiff’s First Amendment rights to free speech and free
exercise of religion. Plaintiff further alleges that the challenged government conduct and
activities have no legitimate, compelling interest or clear secular purpose, but have the
purpose of endorsing religion with the primary effect of advancing it.

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This matter was initially assigned to a magistrate judge, and then to a district
judge, before it was reassigned to the undersigned on May 5, 2017. ECF No. 32.
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Although Plaintiff’s Hybrid Pleading still did not comply with the Court’s prior
orders, because Plaintiff was proceeding pro se, the Court elected to construe Plaintiff’s
pleading very liberally and to not require further pleading. Thus, on July 11, 2017, the
Court construed Plaintiff’s Hybrid Pleading as an amended complaint. ECF No. 55. On
July 24, 2017, Plaintiff filed a motion to reconsider the Court’s ruling construing the
Hybrid Pleading as an amended complaint (ECF No. 56), which the Court denied (ECF
No. 66).
On September 11, 2017, the United States filed a motion to dismiss. ECF No. 82.
In its motion, the United States argues that sovereign immunity bars Plaintiff’s claims,
that the declaratory and injunctive relief sought is precluded by statute, and that Plaintiff
failed to exhaust administrative remedies. The United States further argues that if the
Court finds that it has subject matter jurisdiction over Plaintiff’s case, Plaintiff failed to
state a claim for the violation of his right to free exercise of religion.
In his response in opposition and sur-reply, Plaintiff first attempts to re-litigate his
complaints with regard to the Court’s interpretation of his Hybrid Pleading as an
amended complaint. He then contends that this Court has subject matter jurisdiction
because the lawsuit seeks declarations of Plaintiff’s and the Government’s rights with
regard to First Amendment challenges and free exercise clause violations. Specifically,
Plaintiff challenges the Government’s “new priesthood for [the] religious doctrine of
legalism.” ECF No. 85 at 15. Plaintiff contends that the Government waived sovereign
immunity when Congress passed the First Amendment and that the federal courts always
have the power to adjudicate issues of federal law. ECF No. 85 at 9, 15. He also
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contends that the sovereign immunity doctrine is a legal fiction and conflicts with the
Constitution. ECF No. 92.
DISCUSSION
a. Sovereign Immunity
“[T]he United States, as sovereign, is immune from suit save as it consents to be
sued.” Lehman v. Nakshian, 453 U.S. 156, 160 (1981). Federal courts generally lack
jurisdiction to hear claims against the United States because of sovereign immunity.
Barnes v. U.S., 448 F.3d 1065, 1066 (8th Cir. 2006). This immunity can be waived, but
the waiver must be clear and unmistakable. U.S. v. Mitchell, 445 U.S. 535, 538 (1980).
Courts narrowly construe such waivers. U.S. v. Sherwood, 312 U.S. 584, 587–88 (1941);
see also Ginter v. U.S., 815 F. Supp. 1289, 1293 (W.D. Mo. 1993) (such a waiver “must
be strictly construed, unequivocally expressed, and cannot be implied”).
Here, the Court has not found, nor has Plaintiff pointed the Court to, any case law
indicating that the First Amendment is strictly construed to waive sovereign immunity.
While the United States has, for instance, waived sovereign immunity for claims in suits
for a tax refund, that waiver is conditioned upon the taxpayer first exhausting
administrative remedies. Olson v. Soc. Sec. Admin., 243 F. Supp. 3d 1037, 1054 (D.N.D.
2017). As discussed more fully below, Plaintiff has not done so here.
Plaintiff argues that 28 U.S.C. § 1331 confers jurisdiction. However, federal
courts have consistently held that this statute does not waive sovereign immunity. See
Whittle v. U.S., 7 F.3d 1259, 1262 (6th Cir. 1993) (“The federal question jurisdictional
statute is not a general waiver of sovereign immunity; it merely establishes a subject
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matter that is within the competence of federal courts to entertain.”); Toledo v. Jackson,
485 F.3d 836, 838 (6th Cir. 2007) (holding that § 1331 did not independently waive the
government's sovereign immunity and plaintiffs had to go further than merely invoking
the general jurisdiction statute).
Plaintiff also claims that the Court has jurisdiction pursuant to 28 U.S.C. § 1367.
However, before invoking supplemental jurisdiction under 28 U.S.C. § 1367, Plaintiff
must first establish this Court’s original jurisdiction over a claim upon which others, not
within the Court’s original jurisdiction, may be supplemented. Plaintiff has not done so.
Lastly, to the extent Plaintiff challenges the constitutionality of the doctrine of
sovereign immunity itself, the doctrine pre-dates the Constitution and has been
consistently upheld by the United States Supreme Court. See, e.g., U.S. v. Thompson, 98
U.S. 486, 489 (1878); U.S. v. Lee, 106 U.S. 196, 204 (1882); State of Kan. v. U.S., 204
U.S. 331, 341 (1907).
b. Declaratory Judgment Act
The Declaratory Judgment Act, 28 U.S.C. § 2201(a), provides the courts with the
authority to enter declaratory judgments in favor of “any interested party,” regardless of
whether further relief could be sought, “except with respect to Federal taxes other than
actions brought under section 7428 of the Internal Revenue Code of 1986.” 3 This action
“pertains to taxes” and was not brought under 26 U.S.C. § 7428. Therefore, the
Declaratory Judgment Act does not grant this Court jurisdiction to enter declaratory

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Section 7428 of the Internal Revenue Code provides for declaratory judgments
relating to 501(c)(3) status.
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judgment on the constitutionality of assessing and collecting taxes from Plaintiff. Ginter,
815 F. Supp. at 1293; Davis v. U.S., No. 07-3039 CV-SRED, 2007 WL 1847190, at *1
(W.D. Mo. June 25, 2007); Vaughn v. I.R.S., 2013 WL 3898890, at *5; see also E.J.
Friedman Co. v. U.S., 6 F.3d 1355, 1358 (9th Cir. 1993). The alleged constitutional
nature of Plaintiff’s claims does not affect this conclusion. Wyo. Trucking Ass’n v.
Bentsen, 82 F.3d 930, 933-34 (10th Cir. 1996).
c. Anti-Injunction Act
The Anti-Injunction Act provides, in relevant part, that “no suit for the purpose of
restraining the assessment or collection of any tax shall be maintained in any court.” 26
U.S.C. § 7421(a). The Anti-Injunction Act was intended to protect “the Government’s
need to assess and collect taxes as expeditiously as possible with a minimum of
reinforcement judicial interference.” Bob Jones Univ. v. Simon, 416 U.S. 725, 736
(1974). Although the taxpayer cannot bring a pre-enforcement challenge, a taxpayer may
raise a dispute after the assessment of taxes in a suit for refund or by petitioning the Tax
Court to review a notice of deficiency. Id. at 730-31.
The Anti-Injunction Act provides a narrow exception that allows for the courts to
enter injunctive relief in a tax suit if two elements are met. Id. at 725, 737. First,
injunctive relief is only authorized if “it is clear that under no circumstances could the
Government ultimately prevail,” based on the information available to the Government at
the time of the lawsuit. Id. at 737. Second, injunctive relief is only authorized “if equity
jurisdiction otherwise exists,” or, in other words, the plaintiff has shown an irreparable
injury for which there is no adequate remedy at law. Id. at 725, 737; see also id. at 744 n.
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19, 745 (illustrating the meaning of the requirement that equity jurisdiction exist);
McGraw, 782 F. Supp. at 1334. If the plaintiff fails to make a showing pursuant to this
standard, the court should dismiss the case. Bob Jones, 416 U.S. at 737; see also Porter
v. Fox, 99 F.3d at 274 (granting motion to dismiss where the plaintiff made no allegations
his claim “fell within the limited judicial exception” to the Anti-Injunction Act).
The exception to the Anti-Injunction Act does not apply in this case. The Court
cannot say that the United States is certain to lose on the merits. Courts have long held
that religious beliefs in conflict with the payment of taxes are no basis for challenging the
collection of a tax. See, e.g., U.S. v. Lee, 455 U.S. 252, 260 (1982). Courts have likewise
found the federal tax system constitutional under the Establishment Clause. See, e.g.,
Jimmy Swaggart Ministries v. Bd. of Equalization of Cal., 493 U.S. 378, 394 (1990).
Additionally, “[c]ourts are properly hesitant to declare legislative enactments
unconstitutional,” meaning a constitutional challenge to the federal tax system is not
certain to prevail. McGraw, 782 F. Supp. at 1334. Lastly, Plaintiff cannot show
irreparable harm because he has an adequate remedy at law. For instance, he may “pay
the tax, file a claim for refund with the IRS, and sue for refund” once he has exhausted
his administrative remedies, as discussed below. See McGraw, 782 F. Supp. at 1334. As
a result, the Anti-Injunction Act bars Plaintiff’s claim.
d. Exhaustion of Administrative Remedies
Congress has created a number of “specific and meaningful remedies for
taxpayers” who wish to challenge the assessment and collection of taxes, including
challenges grounded in the constitutionality of assessment and collection. Vennes v. An
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Unknown No. of Unidentified Agents of U.S., 26 F.3d 1448, 1454 (8th Cir. 1994).
Taxpayers wishing to challenge the assessment or collection of taxes may bring a suit for
refund under 26 U.S.C. § 7422(a). The statute provides that filing a claim for refund with
the IRS is a jurisdictional prerequisite that cannot be waived. Bruno v. U.S., 547 F.2d 71,
74 (8th Cir. 1976). Further, exhaustion is a jurisdictional prerequisite that must be pled.
Bellecourt v. U.S., 994 F.2d 427, 430 (8th Cir. 1993). To the extent Plaintiff seeks to
bring his cause of action under § 7422, his cause of action is barred for failure to exhaust
administrative remedies.
e. Bivens claim
The United States Government is the only Defendant named in Plaintiff’s
Complaint. However, “[a] document filed pro se is to be liberally construed, and a pro se
complaint, however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(internal citations and quotations omitted). Therefore, the Court will analyze Plaintiff’s
claims to the extent they can be construed as making a claim against IRS agents.
A plaintiff may bring a cause of action for damages caused by individual federal
official’s violations of the plaintiff’s constitutional rights. Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 396-97 (1971); Servs. Corp. v.
Malesko, 534 U.S. 61, 72 (2001) (cited by Defendant). 4 If Plaintiff is asserting a Bivens

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A Bivens cause of action is the federal counterpart of a § 1983 claim; 42 U.S.C. §
1983 provides a cause of action against state officials who act outside of their official
capacity to violate a person’s constitutional rights, and Bivens created a like claim as
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cause of action, sovereign immunity is no bar because a Bivens claim is not made against
the federal government, but rather against an individual official for conduct outside of
their official capacities. See Shah v. Samuels, 121 F. Supp. 3d 843, 845 (E.D. Ark. 2015).
However, the courts have long dismissed Bivens actions against IRS agents for
assessment and collection of taxes. Vennes, 26 F.3d at 1454 (collecting cases). Where
Congress has provided “adequate remedial mechanisms for constitutional violations,” the
courts refrain from creating Bivens remedies. Id. (quoting Schweiker v. Chilicky, 487
U.S. 412, 423 (1988)). Congress has refused to “permit unrestricted damage actions by
taxpayers,” instead providing specific remedies to challenge the collection and
assessment of taxes administratively. Id.
To the extent Plaintiff seeks monetary damages relating to the assessment of taxes,
his claim is again barred by sovereign immunity because the United States has not
waived its sovereign immunity for Bivens-type constitutional tort claims alleging
damages caused by the government’s violation of the plaintiff’s constitutional rights.
Phelps v. U.S., 15 F.3d 735, 739 (8th Cir. 1994); Olson v. Soc. Sec. Admin., 243 F. Supp.
3d 1037, 1053-54 (D.N.D. 2017).
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the motion to dismiss of Defendant United
States [ECF No. 82] is GRANTED, and the case is dismissed without prejudice.

against federal officials. Vennes, 26 F.3d at 1452; Piciulo v. Brown, 2005 WL 1926688,
at *2-3.
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IT IS FURTHER ORDERED that all pending motions are DENIED as moot.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 11th day of December, 2017.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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