BEEMAN v. U.S.A. et al

Filing 14

MEMORANDUM OPINION AND ORDER granting 9 Motion to Dismiss. Signed by Judge Sean J. McLaughlin on 3/28/2013. (rlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LILLIAN BEEMAN,
Plaintiff,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.

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Civil Action No. 11-228 Erie

MEMORANDUM OPINION
McLAUGHLIN, SEAN J., District Judge.
Plaintiff, Lillian Beeman, proceeding pro se, filed this action on October 4, 2011 against
the United States of America (“Defendant”) and John M. Kenney (“Kenney”), one of its Property
Appraisal and Liquidation Specialists. Presently pending before the Court is the Defendant’s
Motion to Dismiss the Complaint pursuant to Rule 12(b)(1) [ECF No. 9].1 For the reasons that
follow, this action will be dismissed.
I.

BACKGROUND

On July 22, 2011, this Court authorized the United States to sell four real properties
owned by Ebert Beeman in order to satisfy a $2.1 million tax liability. See United States v.
Beeman, C.A. No. 1:10-cv-237 [ECF No. 49]. One of the four properties was known as 777 Old
State Road, Waterford, Pennsylvania. Id. According to the allegations in the Complaint,
Plaintiff claims that Kenney trespassed on the property located at 781 Old State Road,
Waterford, Pennsylvania, in his efforts to sell the property of Ebert Beeman. See [ECF No. 2].
She does not seek any form of relief in her Complaint, but on the civil cover sheet she seeks $7
million based on an alleged trespass. See [ECF No. 1-2]. Defendant subsequently filed a Motion

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On May 25, 2012, the United States was substituted as the real party in interest since Defendant Kenney was
operating within the scope of his federal employment. [ECF No. 8] and [ECF No. 11].

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to Dismiss on May 24, 2012 [ECF No. 9] and Plaintiff filed a Response on January 14, 2013.
See [ECF No. 13]. This matter is now ripe for disposition.
II.

STANDARD OF REVIEW

Defendant has moved for dismissal pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure for lack of subject matter jurisdiction. “At issue in a Rule 12(b)(1) motion is the
court’s ‘very power to hear the case.’” Petruska v. Gannon University, 462 F.3d 294, 302 (3d
Cir. 2006) (quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.
1977)). When jurisdiction is challenged under Rule 12(b)(1), the plaintiff bears the burden of
proving that the court has jurisdiction. See Hedges v. United States, 404 F.3d 744, 750 (3d Cir.
2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)). If the
court concludes that it does not have subject matter jurisdiction over the case, it must dismiss the
action. Fed.R.Civ.P. 12(h)(3). Finally, because Plaintiff is proceeding pro se, her Complaint
must be “‘liberally construed’” and “‘held to less stringent standards than formal pleadings
drafted by lawyers[.]’” Brown v. City of Long Branch, 380 Fed. Appx. 235, 238 (3d Cir. 2010)
(quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
III.

DISCUSSION

Defendant moves for dismissal on the basis that Plaintiff has failed to establish that it has
waived its sovereign immunity. See ECF No. 10] pp. 2-3. As this Court recently stated:
… It is well-established that, as a sovereign entity, the United States government
“is immune from suit save as it consents to be sued.” United States v. Sherwood,
312 U.S. 584, 586 (1941). Thus, a court lacks subject matter jurisdiction over an
action against the United States unless the United States has waived its sovereign
immunity by way of a clear, express and unambiguous waiver. United States v.
Nordic Village, 503 U.S. 30 (1992); see also United States v. Mitchell, 463 U.S.
206, 212 (1983) (noting that the United States= consent to be sued is a prerequisite
for subject matter jurisdiction). The sovereign immunity doctrine applies equally
to agencies of the United States government. FDIC v. Meyer, 510 U.S. 471, 475
(1994) (AAbsent a waiver, sovereign immunity shields the Federal government
and its agencies from suit.@). …
It is a plaintiff=s burden to establish that “an unequivocal waiver of
sovereign immunity exists” by pointing to an act of Congress that specifically
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authorizes a court to entertain a specific claim against the Federal government.
Welch v. United States, 409 F.3d 646 (4th Cir. 2005); Alnor Check Cashing v.
Katz, 821 F.Supp. 307, 311 (E.D. Pa. 1993) (“Any party attempting to sue the
United States bears the burden of proving that Congress has waived sovereign
immunity.”) (citing Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983)).
Dickson v. U.S. Postal Service, 2010 WL 4614561 at *2-3 (W.D.Pa. 2010); see also United
States v. Bein, 214 F.3d 408, 412 (3d Cir. 2000) (“It is a fundamental principle of sovereign
immunity that federal courts do not have jurisdiction over suits against the United States unless
Congress, via a statute, expressly and unequivocally waives the United States’ immunity to
suit.”).
The Federal Tort Claims Act (“FTCA”) waives the United States’ sovereign immunity
with respect to claims based on “the negligent or wrongful act or omission” of a government
employee, see 28 U.S.C. § 1346(b), which generally includes certain claims for trespass. See
e.g. Levin v. United States, __ U.S. __, 133 S.Ct. 1224, 1228 n.1 (2013) (noting that the
“intentional tort exception” did not remove from the FTCA’s waiver “all intentional torts”
including trespass); Holmes Herefords, Inc. v. United States, 753 F. Supp. 901, 912 (D.Wyo.
1990) (“The United States may be sued, pursuant to the FTCA, for trespass.”). The United
States has not, however, waived its sovereign immunity for “[a]ny claims arising out of the
assessment or collection of any tax.” 28 U.S.C. § 2680(c); see also Lichtman v. United States,
316 Fed. Appx. 116, 120 (3d Cir. 2008) (“The FTCA does not apply to any ‘claim arising in
respect of the assessment or collection of any tax.’”) (quoting 28 U.S.C. § 2680(c)); Minuti v.
Internal Revenue Service, 2012 WL 5177386 at *2 n.1 (3d Cir. 2012) (“the government has not
waived its sovereign immunity for claims arising out of the assessment and collection of taxes”);
Barnard v. Pavlish, 1998 WL 247768 at *6 (M.D.Pa. 1998) (“It 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.”), aff’d, 187 F.3d 625 (3d Cir. 1999).
The exemption set forth in 28 U.S.C. § 2680(c) encompasses the conduct of an IRS agent
“even remotely related to his or her official duties.” Capozzoli v. Tracey, 663 F.2d 654, 658 (5th
Cir. 1981) (holding that a complaint alleging trespass and invasion of privacy by an IRS agent
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who “prowled about” and took pictures of taxpayer in her nightgown was sufficiently related to
the agents assessment of her taxes and thus barred by § 2680(c)); Perkins v. United States, 55
F.3d 910, 915 (4th Cir. 1995) (“In cases in which a specific tax debt of a specific taxpayer is at
issue, the exemption immunizes the IRS from suit for activities that are even remotely related to
the tax assessment or collection.”). Moreover, the exemption applies “not only to actions by
persons against whom the tax collection efforts are directed, but also to actions by third parties
injured by tax collection efforts.” Perkins, 55 F.3d at 913; Murray v. United States, 686 F.2d
1320, 1324 (8th Cir. 1982), (same), cert. denied, 459 U.S. 1147, 103S.Ct.788. 74 L.Ed.2d 994
(1983).
Here, Plaintiff’s allegations that IRS agent Kenney trespassed on her property in his
attempt to sell the property of Ebert Beeman relate entirely to his efforts in collecting the tax
liability owed by Mr. Beeman. As such, Kenney’s alleged conduct falls squarely within the
purview of the exemption set forth in § 2680(c) and Plaintiff’s action against the United States is
barred. Acordingly, Plaintiff’s Complaint will be dismissed for lack of subject matter
jurisdiction.
Generally, “a district court must permit a curative amendment unless such an amendment
would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 237 (3d Cir.
2008). An amendment is futile if the amended complaint cannot withstand a renewed motion to
dismiss. See Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). “[T]hese principles apply
equally to pro se plaintiffs and those represented by experienced counsel.” Alston v. Parker, 363
F.3d 229, 236 (3d Cir. 2004). Due to the deficiencies identified above, any amendment would be
futile and Plaintiff’s Complaint for trespass will be dismissed with prejudice. Alston, 363 F.3d at
35-36; Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
IV.

CONCLUSION

An appropriate Order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LILLIAN BEEMAN,
Plaintiff,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.

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Civil Action No. 11-228 Erie

ORDER
AND NOW, this 28th day of March, 2012, IT IS HEREBY ORDERED that the
Defendant’s Motion to Dismiss the Amended Complaint pursuant to Rule 12(b)(1) [ECF No. 9]
is GRANTED and Plaintiff’s claims against Defendant are hereby DISMISSED with prejudice.

s/ Sean J. McLaughlin
United States District Judge

cm:

All parties of record

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