Fealy v. Department of the Treasury et al

Filing 25

ORDER Denying Plaintiff's 18 Motion to Set Aside, 19 Motion for Reconsideration, and 24 Motion for preliminary injunction. Fealy is cautioned that any motions asking for further relief in this case will be summarily denied. Signed by Judge Jennifer A. Dorsey on 1/18/2017. (Copies have been distributed pursuant to the NEF - SLD)

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1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 5 Cheryl Fealy, 6 2:15-cv-2124-JAD-CWH Plaintiff Order Denying Plaintiff’s Motions 7 v. 8 Department of the Treasury and Internal Revenue Service, et. al., [ECF Nos. 18, 19, 24] 9 Defendants 10 11 The Internal Revenue Service garnished plaintiff Cheryl Fealy’s social security checks 12 because she didn’t pay her taxes. Feely brought this action to stop the garnishment on the basis 13 that—because she is not a federal employee—she is immune from having to pay taxes. In a prior 14 order, I dismissed Fealy’s complaint with prejudice because she both failed to exhaust her 15 administrative remedies and, even if she had not, her allegations did not give rise to a plausible 16 claim.1 Since that order, Fealy continues to zealously advocate on her own behalf—filing three 17 motions asking that I set aside my prior decision. 18 A motion to reconsider must set forth “some valid reason why the court should reconsider its 19 prior decision” by presenting “facts or law of a strongly convincing nature.”2 Reconsideration is 20 appropriate if the court “is presented with newly discovered evidence, (2) committed clear error or 21 the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.”3 22 “A motion for reconsideration is not an avenue to re-litigate the same issues and arguments upon 23 24 25 26 1 I find this motion suitable for disposition without oral argument. Nev. L.R. 78-1. 27 2 Frasure v. United States, 256 F. Supp. 2d 1180, 1183 (D. Nev. 2003). 28 3 Sch. Dist. No. 1J v. Acands, Inc., 5 F.3d 1244, 1263 (9th Cir. 1993). Page 1 of 3 1 which the court has already ruled.”4 2 I am sympathetic to the challenges that Fealy faces in representing herself, but her latest 3 motions rehash the same arguments that she made before.5 She contends that she exhausted her 4 administrative remedies because she made “efforts . . . to resolve the issue” with the IRS.6 To be 5 clear: I do not doubt that she made some effort to resolve this case with the IRS. But as I explained 6 before, that is not legally enough. To exhaust an agency’s administrative remedies, a party must not 7 merely make some effort to resolve the issue—she must follow that agency’s procedures in doing 8 so.7 The IRS’s procedures are laid out in 26 C.F.R. § 301.7433. Fealy has never alleged facts 9 showing that she properly complied with these requirements and thus properly exhausted her 10 remedies with the agency.8 Navigating an agency’s administrative process can be daunting, but that 11 does not excuse Fealy’s failure to comply with the IRS’s requirements. 12 But even if Fealy had exhausted her remedies, I still must dismiss her case (and thus deny her 13 newest round of motions). Above all, Fealy’s claims are predicated on the theory that only 14 employees of “Government regulated Compan[ies]” can be taxed.9 But she provides no cases or 15 statutes supporting her theory, and that is because there are none. Indeed, courts have sanctioned 16 plaintiffs with heavy monetary fines for maintaining frivolous arguments that they are immune from 17 18 4 Brown v. Kinross Gold, U.S.A., 378 F. Supp. 2d 1280, 1288 (D. Nev. 2005). 19 5 20 21 Fealy suggests in her briefing that I have refused to consider her arguments by unfairly labeling her as a “tax protester.” But I ruled against Fealy because her claims have no basis in the law, and for no other reason. 6 ECF No. 18 at 7. 23 7 Conforte v. United States, 979 F.2d 1375, 1377 (9th Cir. 1992). 24 8 22 25 26 27 28 Fealy alleges that she requested a hearing and filed a document request with the IRS, but neither of those acts stand in for the agency’s procedural process. 9 ECF No. 18 at 8. Most of the facts Fealy recites in her motion are nowhere to be found in her complaint. The facts Fealy does provide are of little help. She repeatedly says that the government cannot impose “excise taxes” on her, but there is no evidence that the IRS ever imposed excise (sales) taxes on her. Fealy says that she was misled into thinking that she had to fill out a W-4 form, but she fails to explain how this fact would impact her claims. Page 2 of 3 1 taxes.10 2 Conclusion 3 Accordingly, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Fealy’s 4 motions for reconsideration, to set aside, and for preliminary injunction [ECF Nos. 18, 19, 24] 5 are DENIED. 6 7 Fealy is cautioned that any motions asking for further relief in this case will be summarily denied. 8 Dated this 18th day of January, 2017 9 10 11 _________________________________ ________________________ _ ____________ _ __ ___ Jennifer A. Dorsey nnifer A. Dorsey fe ey y United States District Judge ited States tate Judge g 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 See Taliaferro v. Freeman, 595 F. App’x 961, 962 (11th Cir. 2014) (rejecting as frivolous the argument that only federal employees must pay taxes). Fealy’s constitutional claims are equally frivolous because, among other things, she provides no legal support for them, and her complaint contains no facts making them plausible. Page 3 of 3

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