Buczek v. O'Carroll et al

Filing 16

DECISION AND ORDER GRANTING the Government's 8 Motion to Dismiss; CERTIFYING pursuant to 28 U.S.C. § 1915 (a)(3) and Rule 24 (a)(3) of the Federal Rules of Appellate Procedure, that any appeal from this Decision and Order would not be tak en in good faith; DENYING leave to appeal as a poor person; DIRECTING the Clerk of Court to CLOSE this case. Signed by William M. Skretny, United States District Judge on 5/8/2018. (MEAL) - CLERK TO FOLLOW UP - Copy mailed to Plaintiff.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DEBORAH ANN BUCZEK,
Plaintiff,
v.

DECISION AND ORDER
15-CV-273S

UNITED STATES OF AMERICA,
Defendant.

I. INTRODUCTION
In this action, pro se plaintiff Deborah Ann Buczek alleges that the Internal
Revenue Service unlawfully levied her assets to collect income taxes. Defendant United
States of America (“the government”) moved to dismiss Buczek’s amended complaint
under Rules 12 (b)(1) and (6) of the Federal Rules of Civil Procedure for lack of subjectmatter jurisdiction and failure to state a claim upon which relief can be granted. (Docket
No. 8.) With briefing fully completed and oral argument deemed unnecessary, this Court
will grant the government’s motion and dismiss the amended complaint.
II. BACKGROUND
A.

Procedural History
Buczek initiated this action on March 30, 2015, when she filed a 5-inch-thick

complaint against a host of defendants, including the IRS, an IRS agent, a local
Congressman, an accountant, a bank, and a law firm, all of whom she alleged participated
in the unlawful levying of her assets. (Docket No. 1.) Upon screening under 28 U.S.C.
§ 1915 (e)(2)(B), this Court recognized Buczek’s claim as falling under 26 U.S.C. § 7433,

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which authorizes an action against only the government.

See 26 U.S.C. § 7433

(providing that a taxpayer may bring a civil action for damages related to the collection of
tax “against the United States”). This Court therefore dismissed all named defendants
and directed Buczek to file an amended complaint naming the government as the
defendant. (Docket No. 4.)
In compliance with this Court’s directive, Buczek filed an amended complaint on
September 25, 2015 (Docket No. 5), and a supplement to that complaint on October 13,
2015 (Docket No. 6), which in combination this Court has recognized as the operative
amended complaint (Docket No. 7). 1

This Court directed service of the amended

complaint by the United States Marshals Service on February 27, 2017. (Docket No. 7.)
On May 12, 2017, the government moved to dismiss the amended complaint for lack of
jurisdiction and failure to state a claim upon which relief can be granted. (Docket No. 8.)
Briefing on that motion concluded on July 24, 2017. (Docket No. 14.)
B.

Facts
The following facts, drawn from Buczek’s amended complaint, are assumed true

for purposes of assessing the government’s motion to dismiss. See Crupar-Weinmann
v. Paris Baguette Am., Inc., 861 F.3d 76, 79 (2d Cir. 2017); ATSI Commc=ns, Inc. v. Shaar
Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
Buczek alleges that IRS agent Gil Reyes placed unauthorized levies on her social
security benefits.

(Amended Complaint, ¶ 1.) She maintains that Reyes has been

“taking” her $914 monthly benefit since April of 2014. (Id. at ¶¶ 2, 6.) She further

1 Together, Buczek’s amended complaint and supplement run a needless 539 pages.

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alleges that the IRS twice took money from her bank account in March 2014 and April of
2015, totaling $946. (Id. at ¶ 2.) These levies, she claims, are unlawful because they
exceed 15% of her monthly benefits.

(Id.)

Buczek alleges that Reyes improperly

continued to levy her benefits even though she requested collection due process hearings
under 26 U.S.C. § 6330 for tax years 2003, 2005, 2006, 2007, which she claims should
have stopped his collection efforts. (Id. at ¶¶ 6, 7, 36.)
III. DISCUSSION
Cognizant of the distinct disadvantage that pro se litigants face, federal courts
routinely read their submissions liberally and interpret them to raise the strongest
arguments that they suggest. See Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594,
596, 30 L. Ed. 2d 652 (1972); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Since
Buczek is proceeding pro se, this Court has considered her amended complaint and other
submissions accordingly.
Buczek brings her causes of action under U.S.C. § 7433 (id at ¶ 1); the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq. (Supplement, Docket No.
6, passim); and various criminal statutes (id. at p. 94).

She seeks $1 million in

compensatory damages, $1 million in punitive damages, and various other forms of
statutory and injunctive relief. (Id.) The government moves to dismiss Buczek’s § 7433
claim for failure to state a claim upon which relief can be granted and Buczek’s remaining
claims for lack of subject-matter jurisdiction (sovereign immunity).
A.

Buczek’s § 7433 claim must be dismissed because she failed to exhaust her
administrative remedies.
Buczek alleges that the government wrongfully levied her social security benefits
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and that she is therefore entitled to damages under 26 U.S.C. § 7433. The government
seeks to dismiss Buczek’s § 7433 claim for failure to state a claim upon which relief can
be granted because she failed to exhaust her administrative remedies.
Rule 12 (b)(6) allows dismissal of a complaint for Afailure to state a claim upon
which relief can be granted.@ Fed. R. Civ. P. 12 (b)(6). Federal pleading standards are
generally not stringent: Rule 8 requires only a short and plain statement of a claim. Fed.
R. Civ. P. 8 (a)(2). But the plain statement must Apossess enough heft to show that the
pleader is entitled to relief.@ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S. Ct.
1955, 167 L. Ed. 2d 929 (2007).
When determining whether a complaint states a claim, the court must construe it
liberally, accept all factual allegations as true, and draw all reasonable inferences in the
plaintiff=s favor. ATSI Commc=ns, 493 F.3d at 98. Legal conclusions, however, are not
afforded the same presumption of truthfulness. See Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (Athe tenet that a court must accept as true
all of the allegations contained in a complaint is inapplicable to legal conclusions@).
ATo survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 570).

Labels, conclusions, or Aa formulaic

recitation of the elements of a cause of action will not do.@ Twombly, 550 U.S. at 555.
Facial plausibility exists when the facts alleged allow for a reasonable inference that the
defendant is liable for the misconduct charged. Iqbal, 556 U.S. at 678. The plausibility
standard is not, however, a probability requirement: the pleading must show, not merely
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allege, that the pleader is entitled to relief. Id. at 1950; Fed. R. Civ. P. 8 (a)(2). Wellpleaded allegations in the complaint must nudge the claim Aacross the line from
conceivable to plausible.@ Twombly, 550 U.S. at 570.
A two-pronged approach is thus used to examine the sufficiency of a complaint,
which includes Aany documents that are either incorporated into the complaint by
reference or attached to the complaint as exhibits.@ Blue Tree Hotels Inv. (Can.), Ltd. v.
Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004). This
examination is context specific and requires that the court draw on its judicial experience
and common sense. See Iqbal, 556 U.S. at 679. First, statements that are not entitled
to the presumption of truth, such as conclusory allegations, labels, and legal conclusions,
are identified and stripped away. See id. Second, well-pleaded, non-conclusory factual
allegations are presumed true and examined to determine whether they Aplausibly give
rise to an entitlement to relief.@ Id. AWhere the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct,@ the complaint fails to state a
claim. Id.
As discussed below, the United States, as sovereign, may be sued only to the
extent that it consents to be sued. United States v. Sherwood, 312 U.S. 584, 586, 61 S.
Ct. 767, 85 L. Ed. 1058 (1941). “When a statutory waiver of immunity exists, a plaintiff
must strictly comply with the conditions to suit outlined by the statute or corresponding
regulation.” Weisman v. Comm’r of IRS, 103 F. Supp. 2d 621, 626 (E.D.N.Y. 2000)
(citing Lane v. Pena, 518 U.S. 187, 192, 116 S. Ct. 2092, 135 L. Ed. 2d 486 (1996)).
In connection with the collection of any federal tax, the government has consented
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to be sued for claims that “any officer or employee of the Internal Revenue Service
recklessly or intentionally, or by reason of negligence, disregards any provision of [Title
26 of the United States Code].” 26 U.S.C. § 7433 (a). With one exception,2 § 7433
provides the exclusive remedy for recovering damages from the collection of federal
taxes. See id.
The government’s waiver of sovereign immunity under § 7433 is, however,
contingent on the exhaustion of administrative remedies: “A judgment for damages shall
not be awarded under subsection (b) unless the court determines that the plaintiff has
exhausted the administrative remedies available to such plaintiff within the Internal
Revenue Service.” 26 U.S.C. § 7433 (d)(1); see also Dourlain v. United States, No. 04CV-372 (NAM/DEP), 2005 WL 3021858, at *2 (N.D.N.Y. Sept. 19, 2005) (“As a condition
of waiver of sovereign immunity by the United States, an individual seeking to recover
civil damages for taxes erroneously or illegally assessed or collected must first file an
administrative claim for a refund with the IRS prior to filing suit in federal district court.”).
Mitigation of damages and assertion of the claim within two years of the date the right of
action accrued3 is also required. See 26 U.S.C. §§ 7433 (d)(2) and (3).
The Treasury regulations at § 301.7433-1 set forth the administrative remedies
that must be exhausted before filing suit under § 7433 in federal district court. See 26
C.F.R. § 301.7433-1. To properly exhaust, a taxpayer must send an administrative claim
2 The exception is cases brought under 26 U.S.C. § 7432, which allows for civil damages “[i]f any officer
or employee of the Internal Revenue Service knowingly, or by reason of negligence, fails to release a lien
under section 6325 on property of the taxpayer.” This exception is not applicable here.
3 A right of action accrues “when the taxpayer has had a reasonable opportunity to discovery all essential
elements of a possible cause of action.” 26 C.F.R. § 301.7433-1 (g)(2).

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in writing to the Area Director of the area in which the taxpayer resides in the form
specified in 26 C.F.R. § 301.7433-1 (e)(2).

See 26 C.F.R. § 301.7433-1 (e).

The

taxpayer may then file suit in federal district court when either the administrative claim is
adjudicated or six months after the administrative claim is filed, whichever is earlier. 4
See 26 C.F.R. § 301.7433-1 (d).
Here, Buczek fails to sufficiently allege exhaustion in her amended complaint.
Read broadly, the amended complaint includes only three allegations arguably related to
exhaustion: (1) Buczek sent several requests for collection due process hearings under
26 U.S.C. § 6330 (Amended Complaint, ¶¶ 6, 7); (2) “I wrote several letters to IRS offices
in this area” (id. at ¶ 7); and (3) “we checked with the IRS and there were no debts
outstanding at that time . . . Therefore I have satisfied the requirement of exhaustion of
administrative remedy for these” (id.).
Even assuming the truth of these allegations, Buczek nonetheless fails to allege
that she sent correspondence to the IRS that met the specific requirements of 26 C.F.R.
§ 301.7433-1 (e)(2), and no such correspondence is included among the 539 pages of
Buczek’s amended complaint. Rather, it is apparent from the amended complaint and
Buczek’s opposition papers that she failed to exhaust her administrative remedies. She
implicitly concedes as much by claiming that “no administrative remedies were available
prior to bringing the instant action.” (Docket No. 13, p. 5.) The provisions of 26 C.F.R.
§ 301.7433-1, however, were clearly applicable and available at all times relevant to

4 If a taxpayer files an administrative claim during the last six months of the statute of limitations period,
he or she may file an action in federal district court any time after the administrative claim is filed and
before expiration of the statute of limitations. See 26 C.F.R. § 301.7433-1 (d)(2).

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Buczek’s amended complaint. See 26 C.F.R. § 301.7433 (i). Accordingly, this Court
finds that Buczek failed to exhaust her administrative remedies.

See Doe No. 1 v.

Knights of Columbus, 930 F. Supp. 2d 337, 350 (D. Conn. 2013) (noting that a complaint
is subject to dismissal under Rule 12 (b)(6) when an affirmative defense appears on the
face of the complaint) (citing Staehr v. Hartford Fin. Servs. Group, Inc., 547 F.3d 406, 425
(2d Cir. 2008)).
Consequently, because Buczek failed to exhaust her administrative remedies, her
§ 7433 claim must be dismissed.5 See Rae v. United States, 530 F. Supp. 2d 127, 12931 (D.D.C. 2008) (dismissing § 7433 claim under Rule 12 (b)(6) for failure to properly
exhaust the administrative remedies set forth in 26 C.F.R. § 301.7433-1); see also Music
Deli & Groceries, Inc. v. I.R.S., Dist. of Manhattan, 781 F. Supp. 992, 997 (S.D.N.Y. 1991)
(same).
B.

Buczek’s FDCPA claims must be dismissed under the sovereign immunity
doctrine.
Buczek purports to assert FDCPA claims, which the government moves to dismiss

for lack of subject-matter jurisdiction.
Buczek, as the party seeking to invoke the court’s jurisdiction, bears the burden of
demonstrating proper subject-matter jurisdiction. McNutt v. Gen. Motors Acceptance
Corp., 298 U.S. 178, 189, 56 S. Ct. 780, 785, 80 L. Ed. 1135 (1936); Scelsa v. City Univ.
of N.Y., 76 F.3d 37, 40 (2d Cir. 1996). In turn, a defendant may assert lack of subjectmatter jurisdiction as a defense under Rule 12 (b)(1), which permits dismissal of an action

5 It must be noted that this Court specifically advised Buczek of the exhaustion requirements before and
in contemplation of the filing of her amended complaint. (Docket No. 4, pp. 7-8 and n. 3.)

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if the “district court lacks the statutory or constitutional power to adjudicate it.” Makarova
v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
The United States, as sovereign, may be sued only to the extent that it consents
to be sued. See Sherwood, 312 U.S. at 586. Only Congress can waive this sovereign
immunity defense, and it must do so expressly. United States v. Nordic Vill., 503 U.S.
30, 33-34, 112 S. Ct. 1011, 117 L. Ed. 2d 181 (1992). If sovereign immunity is not
waived, the court lacks jurisdiction to hear the case. See F.D.I.C. v. Meyer, 510 U.S.
471, 475, 114 S. Ct. 1627, 118 L. Ed. 2d 255 (1992).
Here, Congress has not waived sovereign immunity or consented to be sued under
the FDCPA. See Wagstaff v. United States Dep’t of Educ., 509 F.3d 661, 664 (5th Cir.
2007) (“the FDCPA does not contain an unequivocal and express waiver of sovereign
immunity”); Perry v. Wright, No. 12 Civ. 0721 (CM), 2013 WL 950921, at *5 (S.D.N.Y.
Mar. 8, 2013); Allen v. U.S. Dep’t of Educ., 755 F. Supp. 2d 122, 124 (D.D.C. 2010). And
in any event, officers and employees of the United States collecting or attempting to
collect a debt as part of their official duties are expressly excluded as “debt collectors”
under the FDCPA.

See 15 U.S.C. § 1692a (6)(C).

Buczek’s FDCPA claims must

therefore be dismissed for lack of subject-matter jurisdiction.
C.

Buczek’s remaining claims must be dismissed because she cannot assert
claims under federal criminal statutes.
Buczek’s remaining claims are brought under several criminal statutes.

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(Supplement, p. 94.) It is well settled, however, that there are no private rights of action

6 Buczek purports to bring claims under 18 U.S.C. § 1341 (frauds and swindles) and 18 U.S.C. §§ 1961,
1962, and 1964 (all relating to racketeering). (Supplement, p. 94.)

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under the federal criminal statutes. See Connecticut Action Now, Inc. v. Roberts Plating
Co., 457 F.2d 81, 86-87 (2d Cir. 1972) (“It is a truism, and has been for many decades,
that in our federal system crimes are always prosecuted by the Federal Government, not
. . . by private complaints.”); see also Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir.
2009) (“federal criminal statutes do not provide private causes of action”); DeSouza v.
Taiman, No. 3:16-CV-00490, 2017 WL 34444672, at *6 (D. Conn. Aug. 10, 2017).
Buczek’s claims arising out of federal criminal statutes must therefore be dismissed.
IV. CONCLUSION
For the reasons stated above, this Court finds that (1) Buczek’s § 7433 claim must
be dismissed for failure to exhaust administrative remedies, (2) Buczek’s FDCPA claims
must be dismissed under the sovereign immunity doctrine, and (3) Buczek’s remaining
claims must be dismissed because she cannot assert claims under federal criminal
statutes. The government’s motion to dismiss will therefore be granted.
V. ORDERS
IT HEREBY IS ORDERED, that the government’s Motion to Dismiss (Docket No.
8) is GRANTED.
FURTHER, that this Court hereby certifies, pursuant to 28 U.S.C. § 1915 (a)(3)
and Rule 24 (a)(3) of the Federal Rules of Appellate Procedure, that any appeal from this
Decision and Order would not be taken in good faith and therefore leave to appeal as a
poor person is DENIED. See Coppedge v. United States, 369 U.S. 438, 82 S. Ct. 917,
8 L. Ed. 2d 21 (1962).

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FURTHER, that the Clerk of Court is directed to CLOSE this case.
SO ORDERED.
Dated:

May 8, 2018
Buffalo, New York

/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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