United States of America v. Harvey et al

Filing 28

ORDER substituting United States as sole counterclaim defendant. Signed by U.S. District Judge Karen E. Schreier on 6/2/2014. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
COLLEEN M. HARVEY;
PURE FREEDOM FOUNDATION;
HARVEY SPECIAL TRUST U/D/T;
and THE HARVEY FAMILY LIVING
TRUST,

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CIV. 13-4023-KES

ORDER SUBSTITUTING
UNITED STATES FOR ALL
COUNTERCLAIM DEFENDANTS

Defendants.
Plaintiff, the United States of America, brought this action against defendants
Colleen M. Harvey, the Pure Freedom Foundation, the Harvey Special Trust u/d/t, and
the Harvey Family Living Trust, to collect on allegedly unpaid income tax debts. Harvey
subsequently brought counterclaims1 against the “United States of America, United
States (all 11+ of them), Internal Revenue Service (and its Altern Egoist [sic], James
Daugherty and Omaha, Nebraska Office), Kathryn Keneally, Assistant Attorney

A counterclaim, brought pursuant to Rule 13, is any claim “the pleader has
against an opposing party . . . .” Fed. R. Civ. P. 13(a)(1) (emphasis added). Rule 14 covers
when and how a party may assert a third-party claim against a nonparty. See Fed. R. Civ.
P. 14. Because the court is substituting the United States as the proper defendant for all
of the other parties named in Harvey’s counterclaims, and because those counterclaims
are properly brought only against the United States, the court will construe and refer to
those claims as counterclaims under Rule 13. See Estelle v. Gamble, 429 U.S. 97, 106
(1976) (holding that pro se pleadings are construed liberally).
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General, and [Department of Justice counsel in this matter] Erin Lindgren . . . .” Docket
13 at 3.
The United States, as part of its motion to dismiss, requests that the court
substitute the United States as the proper party for all the other named counterclaim
defendants. Docket 18 at 3-4. As support, the United States contends that the IRS
cannot be sued in its own name absent congressional consent, and that the proper party
is the United States. Id. Additionally, the United States argues that the counterclaims
against Daugherty, Keneally, and Lindgren relate to actions taken in their official
capacities, and that the United States should be substituted as a defendant for those
individuals. Id. at 4 (quoting Atkinson v. O’Neill, 867 F.2d 589, 590 (10th Cir. 1989)).
Harvey fails to put forth a nonfrivolous argument to oppose the substitution of
parties. See Docket 20 at 6-7. Some of Harvey’s arguments here are similar to those she
previously made in her motion to dismiss. There, the court cautioned Harvey that her
argument about different definitions of “United States” has been consistently rejected
and is without merit. See Docket 11 at 11 (citing United States v. Kuyper, No 4:11CV4170,
2012 WL 1932111, at *4 n.7 (D.S.D. May 29, 2012)). Harvey’s reiteration of that
argument does not alter the law on that issue, and the court will not address it further.
Harvey’s other arguments, such as a failure to identify what is meant by “income tax
debt,” are equally repetitive and have no bearing on the issue of substitution of parties
in this matter.
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The United States, rather than the IRS, is the proper party in this matter. See, e.g.,
Deleeuw v. I.R.S., 681 F. Supp. 402, 403-04 (E.D. Mich. 1987) (“The I.R.S. and agents
Raby and Moore are not proper parties.”); Peterson v. United States, No. 4:12CV3078,
2012 WL 5412849, at *1 n.1 (D. Neb. Nov. 6, 2012) (“However, relief sought against
the Internal Revenue Service and [Revenue Agent] Haws is actually relief sought against
the United States of America.”); Hopmann v. I.R.S., No. PB-C-85-421, 1986 WL 9815, at
*1 (E.D. Ark. June 16, 1986) (holding, in an action by a taxpayer to void the sale of real
property in connection with nonpayment of taxes, that the United States, and not the
IRS, was the proper party). Furthermore, it is clear that the actions taken by Daugherty,
Keneally, and Lindgren are all in their official capacities, and the United States is the
proper party for any claims against those parties as well. See Atkinson, 867 F.2d at 590.
Accordingly, it is
ORDERED that the United States of America is substituted as the sole
counterclaim defendant for (1) the United States, all 11+ of them; (2) the Internal
Revenue Service and its Altern Egoist, James Daugherty and Omaha, Nebraska Office;
(3) Kathryn Keneally, Assistant Attorney General; and (4) Erin Lindgren.
Dated June 2, 2014.
BY THE COURT:

/s/ Karen E.

Schreier

KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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