Kerven v. Government of The United States
Filing
23
MEMORANDUM-DECISION AND ORDER granting 22 Motion to Dismiss for Lack of Subject Matter Jurisdiction: The Court hereby ORDERS that Defendant's Motion to Dismiss (Dkt. No. 22) is GRANTED; and the Court further ORDERS that the Clerk of the C ourt shall enter judgment in Defendant's favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 2/12/19. (Copy served via regular and certified mail)(ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JAMES M. KERVEN,
Plaintiff,
vs.
5:18-CV-742
(MAD/ATB)
UNITED STATES OF AMERICA,
Defendant.
____________________________________________
APPEARANCES:
OF COUNSEL:
JAMES M. KERVEN
Plaintiff pro se
U.S. DEPARTMENT OF JUSTICE TAX DIVISION
P.O. Box 55
Ben Franklin Station
Washington, D.C. 20044
Attorney for Defendant
JAMES YU, ESQ.
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On June 25, 2018, Plaintiff commenced this action pro se against the United States of
America, challenging the constitutionality of the Tax Cuts and Jobs Act, Pub. L. No. 115-97, 131
Stat. 2054 (2017) (the "TCJA").1 See Dkt. No. 1 at 1. Plaintiff alleges that the TCJA violates the
Fourteenth Amendment because it creates "gross inequality" in taxation. See id. at 4.
Specifically, the Complaint brings two claims: (1) "'grossly unequal' treatment and lack of any
reasonable attempt to adjust the burden with a fair and reasonable degree of equality with regard
Plaintiff incorrectly named the "Government of the United States" as Defendant. The
Court directs the Clerk of the Court to amend the case caption as indicated above.
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to the 'repatriation' section of [the TCJA]" and (2) that the "U.S. 1.5 trillion dollar loan facilitating
the underpayment of taxes for current taxpayers . . . is an absurd violation of any intent to
distribute the burden with any reasonable degree of equality." See id. at 2. Additionally, the
Complaint criticizes the current tax policy, quotes various public figures, and attaches annotated
newspaper articles about the TCJA. See id. at 3-96.
On October 23, 2018, Defendant moved to dismiss the Complaint pursuant to 12(b)(1) for
lack of subject-matter jurisdiction. See Dkt. No. 22. Plaintiff has not filed an opposition, and the
Motion to Dismiss is presently before the Court.
II. DISCUSSION
A.
Legal Standard
"Article III, ยง 2, of the Constitution limits the jurisdiction of federal courts to 'Cases' and
'Controversies,' which restrict the authority of federal courts to resolving the legal rights of
litigants in actual controversies." Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 (2013)
(internal quotation omitted) (citing Valley Forge Christian Coll. v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464, 471 (1982)). "As an incident to the
elaboration of this bedrock requirement," a plaintiff seeking to maintain an action in federal court
is "always required" to have standing. Valley Forge Christian College, 454 U.S. at 471; see also
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Thus, standing is "the threshold
question in every federal case, determining the power of the court to entertain the suit." Kiryas
Joel Alliance v. Vill. of Kiryas Joel, 495 Fed. Appx. 183, 188 (2d Cir. 2012).
"To demonstrate standing, a plaintiff must have 'alleged such a personal stake in the
outcome of the controversy as to warrant his invocation of federal-court jurisdiction.'" Salazar v.
Buono, 559 U.S. 700, 711 (2010) (quoting Horne v. Flores, 557 U.S. 433, 445 (2009)) (emphasis
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omitted). As the Supreme Court established in Lujan, "the irreducible constitutional minimum of
standing contains three elements":
First, the plaintiff must have suffered an injury in fact - an invasion
of a legally protected interest which is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical. Second, there must be a causal connection between
the injury and the conduct complained of - the injury has to be
fairly traceable to the challenged action of the defendant, and not
the result of the independent action of some third party not before
the court. Third, it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.
Lujan, 504 U.S. at 560 (internal citations and quotation marks omitted). The "[s]tanding doctrine
functions to ensure, among other things, that the scarce resources of the federal courts are devoted
to those disputes in which the parties have a concrete stake." Friends of the Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 191 (2000); see also Genesis
Healthcare, 569 U.S. at 71 ("This requirement ensures that the Federal Judiciary confines itself to
its constitutionally limited role of adjudicating actual and concrete disputes, the resolutions of
which have direct consequences on the parties involved"). In accordance with this precept, a
plaintiff must establish standing for each claim and form of relief sought. See Carver v. City of
New York, 621 F.3d 221, 225 (2d Cir. 2010).
"[W]here a complaint is dismissed for lack of Article III standing, the dismissal must be
without prejudice, rather than with prejudice." Carter v. HealthPort Techs., LLC, 822 F.3d 47,
54-55 (2d Cir. 2016); see also Hernandez v. Conriv Realty Associates, 182 F.3d 121, 123 (2d Cir.
1999) (holding that a federal court cannot dismiss a case with prejudice where there is no Article
III standing). This is because "[s]uch a dismissal is one for lack of subject matter jurisdiction, and
without jurisdiction, the district court lacks the power to adjudicate the merits of the case." See
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id. (citing Davis v. Federal Election Commission, 554 U.S. 724, 732-33 (2008); Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 94-95 (1998)) (other citations omitted).
"[I]n a pro se case, the court must view the submissions by a more lenient standard than
that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d 289,
295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations
omitted). The Second Circuit has opined that the court is obligated to "'make reasonable
allowances to protect pro se litigants'" from inadvertently forfeiting legal rights merely because
they lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
B.
Application
Defendant brings a facial challenge to Plaintiff's standing based on the allegations in the
Complaint. Thus, for purposes of this motion, the Court must accept as true all material factual
allegations in the Complaint and draw all reasonable inferences in favor of Plaintiff. See Carter,
822 F.3d at 56 (holding that "[w]hen the Rule 12(b)(1) motion is facial, i.e., based solely on the
allegations of the complaint or the complaint and exhibits attached to it . . . [t]he task of the
district court is to determine whether the Pleading 'allege[s] facts that affirmatively and plausibly
suggest that [the plaintiff] has standing to sue'").
In the present case, the Court does not have subject matter jurisdiction because Plaintiff
does not have standing to sue. Plaintiff argues that he has standing "as an individual taxpayer and
. . . representative of the majority of American taxpayers injured by the [TCJA]." See Dkt. No. 1
at 1; see also id. at 2 (alleging standing based on Plaintiff's status as "a current and future
taxpayer"); id. at 4 (alleging standing because Plaintiff pays "personal taxes and business taxes
generated through his commerce"). However, as Defendant points out, Plaintiff has not alleged a
particularized or imminent injury. See Dkt. No. 22-1 at 4. Instead, Plaintiff makes broad
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statements about the unfairness of the TCJA, without ever stating how he has been harmed. See,
e.g., Dkt. No. 1 at 2 (alleging "grossly unequal" treatment from the "repatriation" section of the
TCJA); id. at 5 (alleging that "[w]e believe these deferred foreign income corporations and their
repatriation activity are in breach of any rational fairness in tax law"). Even reviewing the
Complaint under the more lenient standard afforded to pro se litigants, Plaintiff does not have
"such a personal stake in the outcome of the controversy as to warrant his invocation of
federal-court jurisdiction." Salazar, 559 U.S. at 711 (citation omitted).
Plaintiff's concern seems to be with the fiscal policy of the current administration. See,
e.g., Dkt. No. 1 at 2 ("Already running deficits with revenues running 20% short of spending, the
115th congress and the Trump Administration have borrowed the equivalent of two years of
current deficits to lower taxes for current selected taxpayers making the short fall 25%. THIS IS
NOT AND NEVER WAS A SPECULATIVE CLAIM"); id. at 7 ("[T]he 115th congress and the
Trump Administration have initiated tax cuts that burden future taxpayers with a 1.5 trillion dollar
loan to underwrite a reduction in taxes for current tax payers"). The Court may only adjudicate
"actual and concrete disputes, the resolutions of which have direct consequences on the parties
involved." See Genesis Healthcare, 569 U.S. at 71. Since Plaintiff has not alleged an actual and
concrete dispute, he has not met the irreducible constitutional minimum of standing. Lujan, 504
U.S. at 560. Accordingly, the Court must dismiss the Complaint without prejudice for lack of
subject matter jurisdiction.2
Because Plaintiff lacks Article III standing, the Court does not have subject matter
jurisdiction and will not address Defendant's other arguments. See Dkt. No. 22-1 at 2 (arguing
that the Court should dismiss the case for three reasons: lack of standing, the tax exemption bar to
the Declaratory Judgment Act, and because the case involves a nonjusticiable political question).
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III. CONCLUSION
After careful review of the record, the Motion to Dismiss, and the applicable law, the
Court hereby
ORDERS that Defendant's Motion to Dismiss (Dkt. No. 22) is GRANTED; and the Court
further
ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: February 12, 2019
Albany, New York
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