Dunlap v. Lew et al
ORDER granting 11 Motion to Dismiss for Lack of Jurisdiction; finding as moot 17 Motion for Preliminary Injunction. Signed by Judge George C. Smith on 5/19/16. (lvw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
ANN ELLEN DUNLAP,
Case No.: 2:15-CV-2675
Magistrate Judge Kemp
JACOB LEW, et al.,
OPINION AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss Plaintiff’s Amended
Complaint (Doc. 11). Plaintiff, proceeding pro se, has responded in opposition and Defendants
have replied. This matter is ripe for review. For the reasons that follow, Defendants’ Motion to
Dismiss is GRANTED.
Plaintiff Ann Dunlap initiated this case against Defendants the United States, Jacob Lew,
Layne Carver, Alicia Hagen, Patricia Weese, and “John Doe: ID 100000099691” on July 31,
2015, and subsequently filed an Amended Complaint on September 25, 2015. (Doc. Nos. 2 and
5). In her Amended Complaint, Plaintiff alleges a variety of constitutional violations, seeks a
refund of taxes collected through levies, demands that the IRS Case: be enjoined from further
collection, and seeks punitive damages “for the harm caused by the Defendants.” (Doc. 5, Am.
Compl. ¶ 20). Plaintiff contends that the federal system of taxation is a voluntary one, she chose
not to volunteer when she did not to file a Form 1040, U.S. Individual Income Tax Return, and
the IRS acted without authority and violated Plaintiff’s constitutional rights when it created
substitutes for returns and assessed and collected taxes for tax years in which Plaintiff did not
file a return. Based on those alleged constitutional violations, Plaintiff seeks a refund of
garnished funds and punitive damages. Plaintiff further requests that the substitutes for returns
be removed from her record and that her employers “be notified that NO further action is
forth-coming [sic] and the need for withholding is over.” (Doc. 5, Am. Compl. ¶ 20). The
Amended Complaint does not allege that Plaintiff filed a timely and proper administrative claim
for refund or damages.
Defendants move to dismiss Plaintiff’s Amended Complaint under Rules 12(b)(1) and (6)
of the Federal Rules of Civil Procedure on the grounds that the Court lacks jurisdiction over the
Amended Complaint because Plaintiff’s claims are barred by the sovereign immunity of the
United States, Plaintiff’s complaint fails to state a claim upon which relief can be granted, and
Plaintiff’s requested relief is barred by the Anti-Injunction and Declaratory Judgment Acts. In
addition, the individually named defendants must be dismissed because the United States is the
only proper defendant.
STANDARDS OF REVIEW
Rule 12(b)(1) provides that an action may be dismissed for lack of subject matter
jurisdiction. Under the Federal Rules of Civil Procedure, “[p]laintiffs have the burden of proving
jurisdiction in order to survive a Rule 12(b)(1) motion . . . .” Weaver v. Univ. of Cincinnati, 758
F. Supp. 446, 448 (S.D. Ohio 1991) (Rubin, J.) (citing Moir v. Greater Cleveland Reg’ Transit
Auth., 895 F.2d 266, 269 (6th Cir. 1990)). See also Rapier v. Union City Non-Ferrous, Inc., 197
F. Supp. 2d 1008, 1012 (S.D. Ohio 2002) (Rice, C.J.) (citing McNutt v. Gen. Motors Acceptance
Corp. of Indiana, Inc., 298 U.S. 178, 189 (1936); Rogers v. Stratton Indus., Inc., 798 F.2d 913,
915 (6th Cir. 1986)) (“The plaintiff bears the burden of establishing, by a preponderance of the
evidence, the existence of federal subject matter jurisdiction”).
Motions under Rule 12(b)(1) generally come in two varieties, either facial or factual
attacks on the complaint. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A facial
attack on the subject matter jurisdiction alleged by a complaint merely questions the sufficiency
of the pleading. Id. In reviewing such a facial attack, a trial court takes the allegations in the
complaint as true, a similar safeguard employed under Rule 12(b)(6) motions to dismiss. Id. On
the other hand, when a court reviews a complaint under a factual attack, no presumptive
truthfulness applies to the factual allegations. Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d
320, 325 (6th Cir. 1990); see also Nat’l Ass’n of Minority Contractors v. Martinez, 248 F. Supp.
2d 679, 681 (S.D. Ohio 2002) (Rice, C.J.). As a result, this Court may weigh the evidence and
resolve any factual disputes when adjudicating such a jurisdictional challenge. United States v.
Ritchie, 15 F.3d 592, 598 (6th Cir. 1994) (citing Moir, 895 F.2d at 269).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a lawsuit for “failure to
state a claim upon which relief can be granted.” A Rule 12(b)(6) motion to dismiss is directed
solely to the complaint and any exhibits attached to it. Roth Steel Prods. v. Sharon Steel Corp.,
705 F.2d 134, 155 (6th Cir. 1983). The merits of the claims set forth in the complaint are not at
issue on a motion to dismiss for failure to state a claim. Consequently, a complaint will be
dismissed pursuant to Rule 12(b)(6) only if there is no law to support the claims made, or if the
facts alleged are insufficient to state a claim, or if on the face of the complaint there is an
insurmountable bar to relief. See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir.
1978). Rule 12(b)(6) must be read in conjunction with Rule 8(a) of the Federal Rules of Civil
Procedure, which requires the complaint to contain a “short and plain statement of the claim
showing that the pleader is entitled to relief[.]”
A court, in considering a 12(b)(6) motion to dismiss, must “construe the complaint in the
light most favorable to the plaintiff,” accepting as true all the plaintiff’s factual allegations.
Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). Although in this context all of the
factual allegations in the complaint are taken as true, a court is “not bound to accept as true a
legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). Consequently, “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Furthermore, to survive dismissal pursuant to Rule 12(b)(6), a claim must contain
sufficient factual matter to “state a claim to relief that is plausible on its face.” Twombly, at 570.
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, at
678. While a complaint need not contain “detailed factual allegations,” its “factual allegations
must be enough to raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true.” Twombly, at 555. “[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint has alleged
– but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’ ” Iqbal, at 679 (quoting Fed. R.
Civ. P. 8(a)(2)). In the final analysis, the task of determining plausibility is “context-specific
[and] requires the reviewing court to draw on its judicial experience and common sense.” Id.
Defendants have moved to dismiss Plaintiff’s claims against them asserting that they are
barred by sovereign immunity, that the Amended Complaint fails to state a claim upon which relief
can be granted and that Plaintiff’s requested relief is barred by the Anti-Injunction and Declaratory
Judgment Act. Further, the individual defendants asserts that they must be dismissed because the
United States is the only proper party. The Court will address these arguments in turn.
Defendant, the United States, asserts that it is immune from suit on the basis of sovereign
immunity. The United States is immune from suit under the doctrine of sovereign immunity with
the exception of cases where the United States has expressed waived sovereign immunity. “A
waiver of sovereign immunity cannot be implied but must unequivocally expressed.” United States
v. Mitchell, 445 U.S. 535, 538 (1980). Waivers of sovereign immunity are “strictly construed” in
favor of the government. See United States v. Idaho, 508 U.S. 1, 6–7 (1993); United States v.
Nordic Village, Inc., 503 U.S. 30, 34 (1992); United States v. King, 395 U.S. 1, 4 (1969). Without
a waiver of sovereign immunity, an action against the United States must be dismissed.
Plaintiff fails to site any basis for waiver of sovereign immunity in her Amended Complaint,
but does reference the Federal Torts Claims Act (“FTCA”) in her response to Defendants’ Motion
to Dismiss (Doc. 12). Although the FTCA, 28 U.S.C. § 2671, et seq., waives to some extent the
government’s immunity, § 2680(c) of that Act provides an exception for a claim for relief arising
from the assessment and collection of taxes and precludes suit therefore. Specifically, the FTCA
contains an exception to waiver of sovereign immunity for “[a]ny claim arising in respect of the
assessment or collection of any tax.” 28 U.S.C. § 2680(c). Therefore, Plaintiff’s claims against
Defendants involving the IRS assessments and collection through levies and garnishments are barred
from proceeding in this Court.
Further, a taxpayer who seeks a refund of taxes paid to the federal government, “must first
file an administrative claim for refund with the Secretary of Treasury prior to bringing an action
against the United States for a tax refund.” McDonnell v. United States, 180 F.3d 721, 722 (6th Cir.
1999); see also Berera v. Mesa Med. Group, PLLC, 779 F.3d 352, 359 (6th Cir. 2015) (“The
exhaustion-of-remedies requirement in § 7422(a) is mandatory.”). Plaintiff has not alleged that she
filed an administrative claim with the IRS and “[p]rior presentation of an administrative claim is a
jurisdictional prerequisite to a tort action against the United States.” N. Shore Strapping Co. v.
United States, No. 92-3730, 1993 U.S. App. LEXIS 10539, at *11–12 (6th Cir. 1993); see also Ex.
Jet Aviation, Inc. v. United States, 507 F.2d 508, 514 (6th Cir. 1974) (“As the Government points
out, the administrative claim procedure prescribed in [28 U.S.C.] § 2675 is jurisdictional.”).
Accordingly, because the United States has not waived sovereign immunity with respect to
Plaintiff’s claims against it and because Plaintiff has failed to file any type of refund claim (formal
or informal)1 with the IRS, Plaintiff’s claims against the United States must be dismissed.
Title 26, Section 7421 (the Anti-injunction and Declaratory Judgment Act) of the Internal
Revenue Code, provides that “no suit for the purpose of restraining the assessment or collection of
any tax shall be maintained in any court by any person, whether or not such person is the person
against whom such tax was assessed.” 26 U.S.C. § 7421. Rather, the Internal Revenue code
None of Plaintiff’s correspondence to the IRS (attached to her Amended Complaint) requests a
refund, identifies any tax year for which payment was made, discusses payment or collection of any tax,
or in any way notifies the IRS of an intent to seek a refund.
provides individuals who wish to challenge tax assessments with the option to: (1) file in Tax Court
under 26 U.S.C. § 6213, before the deficiency is paid; or (2) pay the deficiency, file a claim for a
refund, and then proceed in federal district court under 26 U.S.C. § 7422. The effect of the AntiInjunction Act is “to withdraw jurisdiction from the state and federal courts to entertain suits seeking
injunctions prohibiting the collection of federal taxes . . . , permit the United States to assess and
collect taxes alleged to be due without judicial intervention, and to require that legal right to the
disputed sums be determined in a suit for refund.” Enochs v. Williams Packing & Nav. Co., 370
U.S. 1, 5–6 (1962). Therefore, to the extent Plaintiff seeks injunctive relief regarding the future
withholding of taxes from her wage, such request is an attempt to restrain the collection of taxes and
is barred by the Anti-Injunction Act. See Beerbower v. United States, No. 85-1034, 1986 U.S. App.
LEXIS 19515, at *8 (6th Cir. 1986).
The Individual Defendants
Defendants argue, and the Court agrees that the individually named defendants must be
dismissed because they are not the proper defendants in this action; the United States is the only
proper defendant. The allegations contained in Plaintiff’s Amended Complaint concern the
individual defendants’ conduct in their official capacity only; therefore, the requested relief is
against the United States. See Hawaii v. Gordon, 373 U.S. 56, 58 (1963) (relief sought nominally
against an officer is actually against the sovereign if the decree would operate against the sovereign).
The Sixth Circuit has explicitly held that a claim for damages under 26 U.S.C. § 7433 is an exclusive
remedy and bars claims against individual revenue agents. Fishburn v. Brown, 125 F.3d 979,
982–83 (6th Cir. 1997). Similarly, Congress provided in 26 U.S.C. § 7422(f)(1) that a refund suit
“may be maintained only against the United States and not against any officer or employee of the
United States . . . .” Therefore, the only proper party in this action is the United States, and the
individual defendants must be dismissed.
As set forth above, Plaintiff’s claims against the individual defendants are not proper, the
only proper party is the United States. And, Plaintiff’s claims against the United States are barred
based on sovereign immunity and for failure to exhaust her administrative remedies. Accordingly,
Plaintiff’s Amended Complaint is hereby DISMISSED.
Plaintiff has also filed a Motion for Preliminary Injunction to which Defendants have
responded in opposition. Having already found that Plaintiff’s Amended Complaint should be
dismissed, Plaintiff’s Motion for Preliminary Injunction is hereby DENIED AS MOOT.
The Clerk shall REMOVE Documents 11 and 17 from the Court’s pending motions list.
The Clerk shall DISMISS this case.
IT IS SO ORDERED.
/s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT
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