Greene v. United States of America

Filing 14

OPINION AND ORDER by Judge John E Dowdell The United States' Motion to Dismiss Amended Complaint and Supporting Brief (Doc. 11) is granted. Greene's amended complaint (Doc. 8) is dismissed without prejudice. A separate judgment of dismissal will be entered herewith. ; striking/terminating deadline(s)/Hearing(s); dismissing/terminating case (terminates case) ; granting 11 Motion to Dismiss for Lack of Jurisdiction (Re: 8 Amended Complaint ) (SAS, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
MICHAEL DON GREENE,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF
JUSTICE FINANCIAL LITIGATION UNIT,
Defendant.

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Case No. 13-CV-40-JED-PJC

OPINION AND ORDER
The Court has for its consideration the United States’ Motion to Dismiss Amended
Complaint and Supporting Brief (Doc. 11). The United States, on behalf of its agency, the
United States Department of Justice, seeks dismissal of pro se plaintiff Michael Don Greene’s
amended complaint on the basis that this Court lacks jurisdiction because the United States has
not waived sovereign immunity for the claim asserted by Greene.
Background
On September 1, 2005, Green was convicted of evasion of the payment of taxes and
subscribing a false tax declaration (USA v. Greene, 04-CR-209-001-HDC (N.D. Okla.)). He was
sentenced on March 6, 2006, to a term of 70 months in prison and ordered to pay a fine in the
amount of $500,000. In 2011, Greene brought a lawsuit in Arizona seeking, among other things,
a refund of taxes he paid in 1995. The United States entered into a settlement with Greene
whereby he would be paid $437,423.50 as a refund of taxes paid. Subsequently, Greene’s refund
was received by the Department of Treasury Financial Management Services office. Shortly
thereafter, on or about September 13, 2011, the full amount of the tax refund was intercepted by
the Tulsa office of the Department of Justice Financial Litigation Unit (“DOJ”). DOJ then

applied the funds to the $500,000 fine imposed upon Greene in connection with his 2005
conviction.
On January 22, 2013, Greene filed this litigation, alleging that DOJ’s interception of the
funds was improper. Greene alleges that DOJ had no right to offset his tax refund without giving
60 days notice and allowing him to present evidence that his $500,000 fine was not past due.
The United States filed a motion to dismiss (Doc. 5), arguing that Greene had failed to effect
proper service and failed to allege a waiver of sovereign immunity by the United States. In
response, Greene sought leave to file an amended complaint (Doc. 7). The Court granted
Greene’s request for leave to amend (Doc. 10), and the United States then filed the instant
motion to dismiss as to Greene’s amended complaint, again arguing that Greene had failed to
allege a basis for waiver of sovereign immunity. Greene’s amended complaint and response to
the United States’ motion to dismiss both point to 26 U.S.C. § 6402, which does not preclude
suits against government agencies to challenge offsets such as the one at issue here, as the
applicable waiver of sovereign immunity. The United States argues that § 6402 does not contain
an express and unequivocal waiver of sovereign immunity and that § 6402 is therefore
inapposite.
Standard
The United States, its agencies, and its officers acting in their official capacity are
generally shielded from suit by the doctrine of sovereign immunity. Normandy Apartments, Ltd.
v. U.S. Dep't of Hous. & Urban Dev., 554 F.3d 1290, 1295-96 (10th Cir. 2009) (citing Wyoming
v. United States, 279 F.3d 1214, 1225 (10th Cir. 2002)). “The defense of sovereign immunity is
jurisdictional in nature, depriving courts of subject-matter jurisdiction where applicable.” Id.
(citing Robbins v. U.S. Bureau of Land Mgmt., 438 F.3d 1074, 1080 (10th Cir. 2006)). As the

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United States notes in this case, general jurisdictional statutes, such as 28 U.S.C. § 1331, do not
waive the Government's sovereign immunity, and thus “a party seeking to assert a claim against
the government under such a statute must also point to a specific waiver of immunity in order to
establish jurisdiction.” Id. (citing Lonsdale v. United States, 919 F.2d 1440, 1443-44 (10th Cir.
1990)). Such a waiver must be unequivocally expressed. United States v. Nordic Village, Inc.,
503 U.S. 30, 33 (1992). And the Government’s consent to be sued is strictly construed in its
favor. Id. at 34.
Discussion
As an initial matter, the Court notes that complaints filed by pro se plaintiffs are “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) (citations omitted) (internal quotations omitted). The Tenth Circuit has noted as
follows with respect to this general rule:
We believe that this rule means that if the court can reasonably read the pleadings
to state a valid claim on which the plaintiff could prevail, it should do so despite
the plaintiff's failure to cite proper legal authority, his confusion of various legal
theories, his poor syntax and sentence construction, or his unfamiliarity with
pleading requirements. At the same time, we do not believe it is the proper
function of the district court to assume the role of advocate for the pro se litigant.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).1
The United States seeks dismissal of Greene’s amended complaint on the sole basis that
he has failed to adequately allege an unequivocal waiver of sovereign immunity. Greene, who as
noted is proceeding pro se, responds by referencing 26 U.S.C. § 6402(g), which states that an

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The Court notes that within the sphere of pro se pleadings, Mr. Greene’s are well above the
norm that the Court has encountered.
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action against a federal agency receiving an offset out of money paid by the Treasury is not
precluded.
Section 6402 permits federal agencies to request an offset for “past-due legally
enforceable debt” when the Treasury would otherwise be issuing a refund to a taxpayer. 26
U.S.C. § 6402(d). Specifically, § 6402(d) states:
Upon receiving notice from any Federal agency that a named person owes a pastdue legally enforceable debt (other than past-due support subject to the provisions
of subsection (c)) to such agency, the Secretary shall—
(A) reduce the amount of any overpayment payable to such person by the
amount of such debt;
(B) pay the amount by which such overpayment is reduced under
subparagraph (A) to such agency; and
(C) notify the person making such overpayment that such overpayment has
been reduced by an amount necessary to satisfy such debt.
The statute also prevents citizens from bringing claims to restrain or review a reduction against
the Treasury. Id. at § 6402(g). But the statute “does not preclude any legal, equitable, or
administrative action against the Federal agency or State to which the amount of such reduction
was paid….” Id.
The United States correctly asserts that § 6402 does not constitute an unequivocal waiver
of sovereign immunity. See Nordic Village, Inc., 503 U.S. at 33. But it does not follow, as the
United States suggests, that there is simply no waiver of sovereign immunity that could
conceivably apply to the type of claim presented by Greene. Indeed, § 6402 itself strongly
suggests that such claims can be, and in fact are, made against federal agencies under some
circumstances. Greene’s amended complaint does not expressly articulate a basis for finding that
the United States has waived its sovereign immunity in this context. However, because Greene
seeks monetary damages for an alleged violation of federal law by a federal agency (see Doc. 8,
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at 6), the Court will liberally construe the amended complaint in favor of Greene, as asserting a
claim for an illegal exaction under the Tucker Act. See, e.g., Huff v. U.S. Dep't of Army, 508 F.
Supp. 2d 459, 462 (D. Md. 2007) aff'd, 390 F. App'x 208 (4th Cir. 2010) (liberally construing
pro se plaintiff’s contract claim as one made pursuant to the Tucker Act’s waiver of sovereign
immunity); see also Gerrard v. U.S. Office of Educ., 656 F. Supp. 570, 572 (N.D. Cal. 1987)
(construing pro se plaintiff’s § 6402 claim as one under the Tucker Act).
The Tucker Act constitutes an unequivocal waiver of the Government’s sovereign
immunity with respect to illegal exaction claims. See Ecco Plains, LLC v. United States, --- F.3d
---, 2013 WL 4735038 (10th Cir. Sept. 4, 2013). “An illegal exaction claim exists when ‘the
plaintiff has paid money over to the Government, directly or in effect, and seeks return of all or
part of that sum that was improperly paid, exacted, or taken from the claimant in contravention
of the Constitution, a statute, or a regulation.’” Id. (quoting Aerolineas Argentinas v. United
States, 77 F.3d 1564, 1572–73 (Fed. Cir. 1996)). With respect to jurisdiction for such claims, 28
U.S.C. § 1491, often referred to as the “Big Tucker Act,” provides jurisdiction in the Court of
Federal Claims for “any claim against the United States founded either upon the Constitution, or
any Act of Congress or any regulation of an executive department, or upon any express or
implied contract with the United States, or for liquidated or unliquidated damages in cases not
sounding in tort.” 28 U.S.C. § 1491(a)(1). The “Little Tucker Act,” 28 U.S.C. § 1346(a)(2),
provides concurrent jurisdiction to United States district courts and the Court of Federal Claims
over “[a]ny other civil action or claim against the United States, not exceeding $10,000 in
amount, founded either upon the Constitution, or any Act of Congress ... in cases not sounding in
tort....” 28 U.S.C. § 1346(a)(2) (italics added). “Thus, Tucker Act claims for more than $10,000
can be brought only in the United States Claims Court. Claims for less than $10,000 generally

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can be brought either in a federal district court or in the United States Claims Court.” United
States v. Hohri, 482 U.S. 64, 67 n. 1, (1987) (italics added); see also Normandy Apartments, 554
F.3d at 1295 (“The Tucker Act vests exclusive jurisdiction with the Court of Federal Claims for
claims against the United States founded upon the Constitution, Acts of Congress, executive
regulations, or contracts and seeking amounts greater than $10,000.”).
Mr. Greene’s amended complaint (Doc. 8) seeks well over $10,000 in damages.
Consistent with the Tucker Act and the above-noted authorities, this Court is without jurisdiction
to hear Greene’s § 6402 claim under the Tucker Act. Accordingly, jurisdiction over Greene’s
claim lies with the Court of Federal Claims.
IT IS THEREFORE ORDERED that the United States’ Motion to Dismiss Amended
Complaint and Supporting Brief (Doc. 11) is granted. Greene’s amended complaint (Doc. 8) is
dismissed without prejudice. A separate judgment of dismissal will be entered herewith.
SO ORDERED this 18th day of October, 2013.

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