BUDIKE et al v. UNITED STATES OF AMERICA
Filing
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MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE RONALD L. BUCKWALTER ON 11/30/2011. 12/1/2011 ENTERED AND COPIES E-MAILED.(sg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LOTHAR E.S. BUDIKE, SR., ALEXANDRA
BUDIKE, & A-VALEY ENGINEERS, INC.
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.
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CIVIL ACTION
NO. 11-4639
MEMORANDUM
BUCKWALTER, S.J.
November 30, 2011
Currently pending before the Court is the Motion of Defendant United States of America to
Dismiss Plaintiffs’ Complaint for lack of subject-matter jurisdiction. For the following reasons, the
Motion is granted.
I.
FACTUAL AND PROCEDURAL HISTORY
According to the facts set forth in the Complaint, Plaintiffs Lothar E.S. Budike, Sr. and
Alexandra Budike are husband and wife. (Compl. ¶¶ 9-10.) Mr. Budike is President of Plaintiff AValey Engineers, Inc. (“A-Valey”), a multi-discipline engineering and consulting firm, while Mrs.
Budike is the Secretary of A-Valey. (Id.) In April 2000, the Budikes were notified by the IRS,
located in Media, Pennsylvania, that their company A-Valey was going to be audited for the fiscal
year 1999. (Id. ¶ 13.) Shortly thereafter, they received a follow-up correspondence stating that IRS
agent John L. Vastardis would be performing the audit. (Id. ¶ 14.) From the onset of the audit, Mr.
Budike sought a conference meeting with an IRS supervisor to request that Agent Vastardis be
removed from the process due to a conflict of interest. (Id. ¶¶ 16-17.) Specifically, Mr. Budike
noted that Agent Vastardis, the Budikes, and the Budikes’ accountant for the past forty-five years
(Lazarus P. Kirfides), were all members of the same Greek Church and community and had been so
for many years. (Id. ¶ 18.) Moreover, Mr. Budike, as a professional engineer and owner of AValey, worked and performed as the engineer of record on numerous construction projects in which
Agent Vastardis’s father was employed as a contractor. (Id. ¶ 19.) Finally, Agent Vastardis’s father
and Mr. Budike were investors/business partners on a failed housing development project in
Pleasantville, NJ, in which Mr. Budike and Agent Vastardis’s father both lost a substantial amount
of money. (Id. ¶ 20.) Mr. Budike was blamed by the Vastardis family for their financial loss. (Id.).
Despite Mr. Budike’s request, however, he was never afforded a conference with a supervisor. (Id.
¶ 16.)
In June 2000, Mr. Budike received a follow-up correspondence from the IRS outlining the
procedures for the upcoming audit and requesting certain documents. (Id. ¶ 21.) Mr. Budike
complied and turned over all personal and corporate bank statements, including a special bank
account for long-term projects and the U.S. Department of Commerce Overseas Balkan States
Project. (Id. ¶ 22.) Due to the sensitive nature of the latter operation, which was gathering criminal
information against certain Greek citizens who were covertly operating within Greek communities
in the United States, Mr. Budike’s attorney, Kirk Karaszkiewicz, decided that the audit should be
performed at his Philadelphia, Pennsylvania office. (Id. ¶¶ 23-24.) Mr. Karaskiewicz also decided
to bar accountant Lazarus Kirfides from the audit process because of his relationship with certain
Greek companies that were the target of the criminal investigation. (Id. ¶ 25.)
During the course of the audit process, Agent Vastardis called Mr. Budike and requested a
private meeting at his Media, PA office. (Id. ¶ 27.) At that time, Agent Vastardis indicated that he
needed to come to A-Valey’s New Jersey Corporate Office facility to inspect company trucks and
equipment, and that it was unnecessary for Mr. Budike’s attorney or accountant to be present. (Id.)
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Mr. Budike again requested a conference meeting with Agent Vastardis’s supervisor, but was again
denied. (Id. ¶ 28.) During the subsequent audit process at the New Jersey facility, Agent Vastardis
searched all the vehicles, as well as the storage bins in the shop and the kitchen cabinet areas, and
confiscated paperwork. (Id. ¶¶ 29-31.) He also asked several employees personal questions
regarding the Budike family, none of which had anything to do with their business affairs. (Id. ¶
32.)
Thereafter, Agent Vastardis stated to Mr. Budike that he needed to audit the books of his
daughter’s company, named General Contracting, Inc., and his son’s company, named Powerweb
Technologies, Inc. (“Powerweb”), in order to complete his audit. (Id. ¶ 33.) Both the son and
daughter maintained an office at the New Jersey Corporate Office facility. (Id.) Mr. Budike’s
daughter immediately turned over her corporate books, while Mr. Budike’s son issued an opinion
letter through his Accountant refusing to turn over his books and income tax returns. (Id. ¶¶ 34-35.)
He further wrote that the IRS had no legal rights to Powerweb’s books because it was not the
subject of the audit. (Id. ¶ 35.) At the insistence of Agent Vastardis, however, Powerweb’s books,
which included a confidential listing of Powerweb’s stockholders and their social security numbers,
were physically taken without the authorization of either Mr. Budike or his son. (Id. ¶ 37.)
On September 16, 2007, Agent Vastardis and Mr. Budike’s son were invited to an intimate
dinner engagement by a mutual friend. (Id. ¶ 38.) During this dinner, Agent Vastardis told Mr.
Budike’s son that if he ever encountered a problem with the IRS that he could intervene on his
behalf and have the problem corrected. (Id. ¶ 39.) The son informed his father of this encounter
and Mr. Budike, in turn, viewed this as either extortion or an attempt to entrap the Budikes in a
bribery/sting operation. (Id. ¶ 40.) As such, Mr. Budike reported this incident to the proper
authorities within the IRS. (Id. ¶ 41.) Subsequently, Mr. Budike’s son was served with an official
IRS letter that he was going to be audited. (Id. ¶ 42.)
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As a purported result of the pressure from the audits, Mr. Budike lapsed into a long-term
illness and battle with depression, where he was admitted to a mental hospital. (Id. ¶ 43.) The
inspection and audit was postponed for several months as Mr. Budike was not able to fulfill his
personal and business obligations. (Id.) Prior to his full recovery, Agent Vastardis contacted him to
state that he was being pressured by his supervisor to conclude his audit. (Id. ¶ 44.) While still
under his doctor’s care and heavy medication, Mr. Budike returned to the office to complete the
audit. (Id.)
At the completion of the audit, Agent Vastardis personally contacted Mr. Budike via
telephone so he could go over the outcome. Shortly thereafter, a letter from the IRS arrived
indicating that the Budikes were deficient in their reported income and that the Budikes and AValey were levied additional taxes, penalties, and interest in excess of $3 million dollars. (Id. ¶ 47).
Mr. Budike believes that Agent Vastardis had made false, misleading, and ambiguous statements
during the course of the audit and purposefully retaliated against the Budikes for the failed
investment of Agent Vastardis’s father. (Id. ¶ 48.) The case has been in dispute since its inception
in 2001, and, to date, remains unresolved. (Id. ¶ 50.)
In 2008, the Budike family was finally afforded an opportunity to meet with IRS Appeals
Officer David Rollins concerning the audit. (Id. ¶ 51.) Plaintiffs allege that Mr. Rollins and IRS
Counsel Tom Rath’s inability to remember stipulations, understandings, and agreements prevented
the matter from being amicably and timely resolved. (Id. ¶ 53.) Ultimately, the Budikes agreed to
settle the matter for $300,000 in order to proceed to federal court for a proper determination. (Id. ¶
54.) The IRS, however, assessed them additional penalties and interest in the amount of $300,000,
bringing the total assessed liability and obligation to $600,000. (Id. ¶ 55.)
On February 2, 2009, IRS Revenue Officer Henry Kline arrived unannounced at the
Budikes’ home office in Wallingford, Pennsylvania. (Id. ¶ 56.) Mr. Kline spoke with Mrs. Budike
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and threatened her by stating that they owed the IRS in excess of $400,0000 and had five days to
make the required payment or face seizure of their assets. (Id. ¶ 56.) Mr. Budikes’ personal
representative, Reverend Duane A. Quamina, then called Mr. Kline to find out the purpose of his
visit. (Id. ¶ 57.) Rev. Quamina explained that the Budikes were in the process of appealing the
interest and penalties, and Mr. Kline responded that the Budikes needed to file a “Reasonable Cause
Letter” sent to his attention instead of the IRS form 843 “Claim for Refund and Request for
Abatement,” which the Budikes had already prepared. (Id.)
On February 9, 2009, Mr. Budike met with Mr. Kline at his office, at which time Mr. Kline
told Mr. Budike that they had no right to appeal and admonished him not to file IRS Form 433-B,
apply for installment payments, or file IRS Form 843. (Id. ¶ 58.) He further told Mr. Budike that he
must pay the assessed penalties before the IRS would consider his abatement request, but that, in his
thirty years with the IRS, he had never seen the IRS abate anyone’s interest or penalty. (Id. ¶ 58.)
Subsequently, on February 17, 2009, Mr. Kline told Mr. Budike to come to his office and bring
three separate checks in the amounts of $14,741, $4,242, and $2,422. (Id. ¶ 59.) Moreover, Mr.
Kline stated that if Mr. Budike complied, he would ask his boss to give Mr. Budike an additional
five to ten days to make payment in full, but if he did not comply, he would immediately file a levy
and lien against the Budikes and seize their assets. (Id. ¶ 59). Then, on February 17, 2009, Mr.
Kline wrote to the Budikes stating that he had conferred with IRS District Counsel and was advised
that they had availed themselves of all appeal rights and “waived the restrictions contained in I.R.C.
6213(a) prohibiting assessment and collection of the deficiencies and penalty (plus statutory
interest).” (Id. ¶ 60.) On February 23, 2009 and March 11, 2009, Mr. Budike wrote back to Mr.
Kline outlining his complete dissatisfaction with the IRS and asking him to provide the name of the
District Counsel Attorney. (Id. ¶¶ 61-62.) Mr. Kline never responded. (Id. ¶ 63)
In April 2009, the Budikes filed with the IRS a timely request for a Collection Due Process
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Hearing for the taxable years 1998, 1999, and 2000, in order to appeal the penalties and interest
assessed against them. (Id. ¶ 64.) IRS Appeals Officer Darryl Lee received Plaintiffs’ first offer-incompromise on April 30, 2009, reflecting an offer of $27,000. (Id. ¶ 65.) On July 10, 2009, a
collection due process hearing was held with the IRS Office of Appeals, but Officer Lee refused to
consider Plaintiffs’ claim for interest and penalty abatement. (Id. ¶ 67.) Officer Lee further
determined that the Budikes did not submit a reasonable offer because A-Valey’s 2007 income tax
return reported loans to shareholders in the amount of $443,000, which would pay in full the
liability owed to the IRS. (Id.) By way of Notice of Determination issued on July 10, 2009, the IRS
Office of Appeals rejected the first offer-in-compromise. (Id. ¶ 70). Prior to receiving this rejection
notice, however, the Budikes had already paid $10,950 under the provisions of the first-offer-incompromise, but immediately ceased paying the $1,800 required monthly obligation upon receipt of
the notice. (Id.)
On July 27, 2009, the Budikes filed a Petition with the U.S. Tax Court for Lien or Levy
Action under Code Section 6320(c) or 6330(d), alleging that: (1) the IRS erred because IRS Appeals
Officer Darryl Lee did not abate the penalties; (2) the IRS erred because Mr. Lee did not abate the
interest; and (3) Mr. Lee abused his discretion in handling the first offer-in-compromise. (Id. ¶ 71.)
The U.S. Tax Court agreed in part and, on November 16, 2009, remanded the case back to the IRS
Office of Appeals for due consideration of the interest and penalty abatement. (Id. ¶ 73.)
The IRS Office in Holtsville, New York received a second offer-in-compromise from the
Budikes in the amount of $18,000, on December 12, 2009. (Id. ¶ 75.) This offer-in-compromise
allowed for a 20% down payment and called for the balance to be paid out over twelve months.
(Id.) The Budikes were told by the IRS that a decision on that offer-in-compromise would be
forthcoming by January 26, 2010. (Id. ¶ 76.) Thereafter, on March 3, 2010, IRS Appeals Officer
Darryl Lee met with Mr. Budike to consider the interest and penalty abatement issue as directed by
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the U.S. Tax Court. (Id. ¶ 77.) During that meeting, Mr. Lee ignored the second offer-incompromise. (Id.) When the Budike’s representative called the IRS office on March 9, 2010 to find
out the status of the second offer-in-compromise, a Ms. Belinda Gonzalas-Allen informed him that
it had not been processed because it was pulled from consideration by Darryl Lee. (Id. ¶ 78.) On
March 10, 2010, the IRS Office of Appeals issued a Supplemental Notice of Determination
Concerning Collection Action denying the Budike’s request for interest and penalties abatement
with no mention of the second offer-in-compromise. (Id.) On October 1, 2010, the Budikes
completed paying their entire obligation under the provisions of the second offer-in-compromise —
a total of $18,150 — to the IRS. (Id. ¶ 80.) At that juncture, they had paid a grand total of $29,100
under the two offers-in-compromise. (Id.)
Mr. Budike and his attorney, Shelley C. Dugan, met with IRS Counsel Harry Negro, on
December 22, 2010, to discuss the upcoming Tax Court case. (Id. ¶ 81.) When pressed about the
second offer-in-compromise, Mr. Negro indicated that he did not know about it, but would try to
contact the responsible person to inquire about its status. (Id. ¶¶ 81-82.) Mr. Negro also remarked
that if the OIC Office reviewed and accepted the second offer-in-compromise, there would be no
need to continue with the IRS Tax Court case. (Id. ¶ 83.)
In January 2011, Mr. Negro called Attorney Dugan to explain that IRS Appeals Officer
Darryl Lee refused to consider the second offer-in-compromise or to release the offer so that it could
be reviewed and processed by someone in the OIC Office. (Id. ¶ 84.) The Budikes’ representative
followed up and learned that the second offer-in-compromise was not logged into the official OIC
computer database and was still missing. (Id.)
On January 18, 2011, Ms. Dugan received from Mr. Negro the IRS’s stipulation of facts, in
which Mr. Negro objected to the admission of the second offer-in-compromise and the “amended
federal income tax return” for the taxable year ending September 30, 2008, on the grounds that these
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documents were not part of the IRS administrative record. (Id. ¶ 86.) Ms. Dugan contacted Mr.
Negro the same day to apprise him of Mr. Budike’s objection to his objection, especially since the
circumstances had been fully explained to Mr. Negro by both Mr. Budike and Ms. Dugan at the
December 22, 2010 meeting. (Id. ¶ 87.) The U.S. Tax Court granted Mr. Budike’s motion on
January 25, 2011, and remanded the case back to the IRS Office of Appeals to consider the second
offer-in-compromise. (Id. ¶ 89.)
On April 4, 2011, IRS Appeals Officer, Ms. Florence Mathis — located in the same office as
Darryl Lee — contacted Mr. Budike and requested that he resubmit entirely new information. (Id. ¶
90.) Attorney Dugan responded to this letter and asked that Ms. Mathis refrain from personally
contacting Mr. Budike. (Id. ¶ 91.) She also stated that the IRS had in its files the information that
the IRS Tax Court remanded for review and processing. (Id.) Mr. Budike and Attorney Dugan had
a telephone conference call with Ms. Mathis on April 14, 2011, to discuss the second offer-incompromise. (Id. ¶ 92.) Nonetheless, in May 2011, the IRS Office of Appeals issued the Budikes a
Notice of Determination Concerning Collection Action(s) under Section 6320 and/or 6330 rejecting
the second offer-in-compromise. (Id. ¶ 93.)
Plaintiffs initiated the present litigation in this Court against Defendant United States of
America on July 22, 2011. The Complaint alleged a Federal Tort Claims Act violation, as well as
abuse of discretion actions with respect to IRS employees John Vastardis, Henry Kline, Darryl Lee,
David Rollins, and Florence Mathis. (Id. ¶¶ 106-122.) On September 26, 2011, Defendant filed the
present Motion to Dismiss and Plaintiffs responded on October 12, 2011, making the Motion ripe
for judicial review.
II.
STANDARD OF REVIEW
A motion to dismiss under Fed. R. Civ. P. 12(b)(1) challenges the power of a federal court to
hear a claim or a case. Gould Elecs., Inc. v. United States, 200 F.3d 169, 178 (3d Cir. 2000). When
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presented with a Rule 12(b)(1) motion, the plaintiff “will have the burden of proof that jurisdiction
does in fact exist.” Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006), cert. denied, 127
S. Ct. 2098 (2007). There are two types of Rule 12(b)(1) motions. A “facial” attack assumes that
the allegations of the complaint are true, but contends that the pleadings fail to present an action
within the court’s jurisdiction. Mortenson v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d
Cir. 1977). If the complaint is deficient as pled, the court should grant leave to amend before
dismissing it with prejudice. Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). The motion
should only be granted if it appears with certainty that assertion of jurisdiction would be improper.
Carpet Grp. Int’l v. Oriental Rug Imps. Ass’n, Inc., 227 F.3d 62, 69 (3d Cir. 2000).
The second form of a Rule 12(b)(1) motion is a “factual” attack, which argues that, while the
pleadings themselves facially establish jurisdiction, one or more of the factual allegations is untrue
thereby causing the case to fall outside the court’s jurisdiction. Mortenson, 549 F.2d at 891. In
such a case, the court must evaluate the merits of the disputed allegations because “the trial court’s .
. . very power to hear the case” is at issue. Id.; Carpet Grp., 227 F.3d at 69.
In the present matter, the Defendant’s style their challenge to the Complaint as a “facial
attack” on subject matter jurisdiction. As such, the Court applies the first of the two aforementioned
standards.
III.
DISCUSSION
Defendant argues that the Court has no subject-matter jurisdiction over this case under the
doctrine of sovereign immunity. It asserts that because the claims at issue fall precisely within the
exception at Section 2680(c) of the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., the entire
Complaint must be dismissed.
It remains well settled that the United States enjoys sovereign immunity from suits and,
accordingly, may be sued only if it has waived that immunity. Beneficial Consumer Disc. Co. v.
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Poltonowicz, 47 F.3d 91, 93-94 (3d Cir. 1995). “The IRS, as an agency of the United States, is thus
shielded from private actions unless sovereign immunity has been waived.” Id. (citing United States
v. Mitchell, 463 U.S. 206, 212 (1983)). “[W]aivers of federal sovereign immunity must be
‘unequivocally expressed’ ” in the statutory text and “‘[a]ny such waiver must be strictly construed
in favor of the United States.’” United States v. Idaho ex rel. Director, Idaho Dep’t. of Water Res.,
508 U.S. 1, 7 (1993) (quotations omitted).
One type of waiver is found within the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §
2671, et seq. Matsko v. United States, 372 F.3d 556, 558 (3d Cir. 2004). The Act “waives
sovereign immunity as to claims against the United States for money damages for injury caused by
the negligent or wrongful act or omission of a government employee acting within the scope of his
employment ‘under circumstances where the United States, if a private person, would be liable to
the claimant in accordance with the law of the place where the act or omission occurred.’”
Beneficial, 47 F.3d at 95-96 (citing 28 U.S.C. § 1346(b)). “The FTCA does not, however, provide a
blanket license to sue the Government. This waiver of sovereign immunity is conditional and
limited and depends upon compliance with certain procedural limitations and exceptions.”
Abuhouran v. United States, 595 F. Supp. 2d 588, 592 (E.D. Pa. 2009), aff’d, 389 Fed. Appx. 179
(3d Cir. 2010). Section 2680 of the FTCA enumerates a series of such exceptions. More
specifically, § 2680(c) states that the United States does not waive sovereign immunity with respect
to:
Any claim arising in respect of the assessment or collection of any tax or customs duty,
or the detention of any goods, merchandise, or other property by any officer of customs
or excise or any other law enforcement officer, except that the provisions of this chapter
and section 1346(b) of this title apply to any claim based on injury or loss of goods,
merchandise, or other property, while in the possession of any officer of customs or
excise or any other law enforcement officer, if –
(1) the property was seized for the purpose of forfeiture under any
provision of Federal law providing for the forfeiture of property other
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than as a sentence imposed upon conviction of a criminal offense;
(2) the interest of the claimant was not forfeited;
(3) the interest of the claimant was not remitted or mitigated (if the
property was subject to forfeiture); and
(4) the claimant was not convicted of a crime for which the interest of
the claimant in the property was subject to forfeiture under a Federal
criminal forfeiture law.
28 U.S.C. § 2680(c). Pursuant to this provision, “[i]t is well established that the United States
cannot be sued in tort for actions relating to the assessment and collection of taxes because it has not
waived its sovereign immunity.” Barnard v. Pavlish, No. Civ.A.97-236, 1998 WL 247768, at *6
(M.D. Pa. Mar. 30, 1998) (citations omitted), aff’d, 187 F.3d 625 (3d Cir. 1999); see also Lichtman
v. United States, 316 Fed. Appx. 116, 120 (3d Cir. 2008) (finding that claims against the United
States arising in respect to the assessment or collection of any tax are barred from suit); Asemani v.
I.R.S., 163 Fed. Appx. 102, 105 (3d Cir. 2006) (holding that action against United States regarding
an alleged improper rejection of an offer-in-compromise fell within Federal Tort Claims Act and,
thus, was barred by sovereign immunity); Hart v. United States, No. Civ.A.96-5639, 1997 WL
732466, at *2 (E.D. Pa. Nov. 21, 1997) (holding that to the extent wrongful tax assessment or
collection is at issue, there is a lack of subject matter jurisdiction since § 2680(c) expressly bars
such claims against the government), aff’d, 178 F.3d 1279 (3d Cir. 1999); Goldberg v. Comm’r of
Internal Revenue, No. Civ.A.05-4777, 2006 WL 1767321, at *4 (D.N.J. May 3, 2006) (“While the
United States has waived its sovereign immunity for certain tort claims under the Federal Tort
Claims Act . . . it has not waived its sovereign immunity for common law torts allegedly committed
by the IRS concerning the assessment and collection of taxes.”).
The entirety of Plaintiffs’ claims, in the present case, are grounded in the alleged tortious
conduct of IRS employees engaged in the assessment and/or collection of taxes. The Federal Tort
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Claims Act explicitly declines to waive the sovereign immunity of the United States with respect to
such actions. As such, this Court does not maintain subject matter jurisdiction over the present
Complaint.
Plaintiffs’ Response Brief fails to directly address this argument, but instead contends that
the claims are specifically allowed under Section 2680(a) of the Federal Tort Claims Act. This
Section states that the United States does not waive its sovereign immunity with respect to:
Any claim based upon an act or omission of an employee of the Government, exercising
due care, in the execution of a statute or regulation, whether or not such statute or
regulation be valid, or based upon the exercise or performance or the failure to exercise
or perform a discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be abused.
28 U.S.C. § 2680(a). “The purpose of the discretionary function exception is to avoid ‘judicial
second-guessing of legislative and administrative decisions that are grounded in social, economic,
and political policies.’” Abuhouran, 595 F. Supp. 2d at 592 (internal quotations omitted). Plaintiffs
assert that because, under 5 C.F.R. § 2635.501, the IRS agent involved had a prescribed regulatory
course of action to follow, the discretionary function exception does not apply. (Pls.’ Resp. Mot.
Dismiss 6.)
Assuming, without deciding, that Plaintiffs’ argument is correct and that their claims do not
fall within the discretionary function exception to the FTCA, however, Plaintiffs still fail to explain
how their claims escape the clear exception under Section 2680(c). In other words, if any one of the
exceptions of Section 2680 applies, then the bar of sovereign immunity remains. Perez v. United
States, No. Civ.A.06-1508, 2007 WL 1489816, at *1 (D.N.J. May 21, 2007). While the allegations
of the Complaint suggest that Plaintiffs may have been the target of some arbitrary agency action,
Congress has simply not authorized an action against the United States on such grounds. Moreover,
the Court cannot conceive of — and Plaintiffs have not suggested — any amendment to the
Complaint that would cure this deficiency. Accordingly, the Court grants Defendant’s Motion and
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dismisses the Complaint in its entirety.1
1
Defendant also argues that Plaintiffs’ claims are time-barred. Absent subject-matter
jurisdiction over this case, the Court cannot and need not rule on this argument.
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