Knittell v. United States Department Of Justice et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS AND DISMISSING CASE. Signed by Judge J. Daniel Breen on 2/9/2018. (skp)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EDWARD C. KNITTEL,
JEFF SESSIONS, Attorney General of the
United States, et al.,
ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING CASE
Background and Procedural History
On February 10, 2017, the pro se Plaintiff, Edward C. Knittel, filed a complaint against
the Defendants, the United States Attorney General and the Commissioner of the Internal
Revenue Service (“IRS”), and paid the case-initiation fee. (Docket Entry (“D.E.”) 2; D.E. 1.) In
light of the IRS’s levy on his social security benefits to satisfy his outstanding tax liability,
Plaintiff asserted that his constitutional rights under the Seventh Amendment and the Fifth
Amendment’s Due Process Clause were violated. (D.E. 1 at PageID 2-3.) Under “Relief
Requested,” Knittel sought for this Court to “direct Defendants to file [a] complaint for
forfeiture,” or “if Defendants should refuse or neglect to bring this matter forward timely to trial .
. . [t]hat this [C]ourt order the return of all funds seized by levy based on the underlying
notice(s) of lien” and “[t]hat upon [the] principal [sic] of estoppel, this [C]ourt order Defendants
to rescind all notices of levy to all parties served with such notices and rescind the underlying
notice(s) of lien.” (D.E. 1 at PageID 4.)
Pursuant to Administrative Order No. 2013-05, this action was referred to United States
Magistrate Judge Edward Bryant on February 13, 2017, for management of all pretrial matters.
(Admin. Order 2013-05, Apr. 29, 2013.) On April 24, 2017, Defendants filed a motion to
dismiss the complaint for lack of subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1). (D.E. 10.) Plaintiff responded on May 4, 2017, (D.E. 12; D.E. 11), and the
Government replied on May 17, 2017, (D.E. 13).
In the report and recommendation issued on January 5, 2018, the magistrate judge
“recommend[ed] that Defendants’ [m]otion to [d]ismiss be granted” and that “Plaintiff’s
[c]omplaint be dismissed for lack of subject matter jurisdiction with prejudice.” (D.E. 15 at
In reaching that conclusion, Judge Bryant noted the Government’s three primary
arguments: (1) “that Plaintiff’s complaint seeking mandamus relief should be dismissed for lack
of subject matter jurisdiction because mandamus is inappropriate in this case, as the [D]efendants
have no mandatory or ministerial duty to sue the [P]laintiff in district court”; (2) “that to the
extent that [P]laintiff seeks a tax refund, 26 U.S.C. § 7422 requires a taxpayer to pay in full the
tax owed before seeking a determination from this Court”; and (3) “that suits denominated as a
mandamus action that seek to restrain the assessment and collection of taxes are barred by the
Anti-Injunction Act, 26 U.S.C. § 7421.” (D.E. 15 at PageID 45.) Furthermore, the magistrate
judge summarized Knittel’s position as follows:
Plaintiff argues that the only relief he is seeking is a Court order “direct[ing] the
defendants to file a complaint for forfeiture without further delay.” [(D.E. 11 at
PageID 28.)] Plaintiff states that he has “no interest in being the moving party in
a refund suit.” [(D.E. 12 at PageID 33.)] Plaintiff makes the claim that this Court
has jurisdiction to issue the mandamus relief he seeks under 28 U.S.C. § 2463[,]
which provides that “[a]ll property taken or detained under any revenue law of the
United States shall not be repleviable, but shall be deemed to be in the custody of
the law and subject only to the orders and decrees of the courts of the United
States having jurisdiction thereof.” As Defendants point out in their [r]eply,
Plaintiff cites to no authority allowing the Court [to] issue an order of mandamus
under [S]ection 2463.
(D.E. 15 at PageID 45-46.)
On January 17, 2018, Knittel timely filed objections to the report and recommendation.
(D.E. 16.) Defendants did not respond to Plaintiff’s filing, and the time for doing so has expired.
Applicable Law for Reviewing the Magistrate Judge’s Report and Recommendation
When objections are filed with respect to a magistrate judge’s report and
recommendation, the district judge “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3). The judge “may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge,” 28 U.S.C. §
636(b)(1), but “cannot simply ‘concur’ in the magistrate’s findings,” Fharmacy Records v.
Nassar, 465 F. App’x. 448, 456 (6th Cir. 2012) (per curiam) (quoting McCombs v. Meijer, Inc.,
395 F.3d 346, 360 (6th Cir. 2005)). See also Fed. R. Civ. P. 72(b)(3). Instead, the district court
“must conduct its own review in order to adopt the recommendations.” Fharmacy Records, 465
F. App’x at 456 (quoting McCombs, 395 F.3d at 360).
Upon reviewing the report and recommendation, Plaintiff’s objections, and the entire
record, the Court finds that Knittel’s objections are meritless. (D.E. 16.) As an initial matter,
none of Plaintiff’s responsive submissions address Defendants’ arguments. (D.E. 16; D.E. 12;
In his objections, Plaintiff reiterates the arguments included in his previous
submissions before the magistrate judge. (D.E. 16; see D.E. 12; D.E. 11; D.E. 1.) Knittel
utilizes the same authorities asserted in his complaint: 28 U.S.C. § 1361, the Mandamus Act,
which vests district courts with original jurisdiction to provide mandamus relief; 28 U.S.C. §
2463, see supra pp. 2-3; 5 U.S.C. § 5512, which authorizes the federal government to withhold
the pay of its employees who are in debt to the government; and Slocum v. Mayberry, 15 U.S. 1,
9-10 (1817), which discussed a plaintiff’s ability to “file an equitable action seeking an order
compelling the filing of [a] forfeiture action or return of the seized property,” United States v.
Von Neumann, 474 U.S. 242, 244 n.3 (1986). (D.E. 16; D.E. 12; D.E. 11; D.E. 1.) Plaintiff’s
reliance on all of these authorities is misplaced, however, as none apply to the circumstances of
Knittel argues repeatedly that the aforementioned statues and case permit him to petition
this Court to compel Defendants to file a separate case in which he would receive his income that
was withheld due to the IRS’s levy. (Id.) While he appears to misunderstand that such a ruling
is termed as a writ of mandamus, Plaintiff insists that 28 U.S.C. § 2463 provides relief, but the
Sixth Circuit has explicitly stated “that section 2463 was not intended to confer jurisdiction on
the federal district courts over property levied upon and seized under the Internal Revenue laws.”
Lutz v. United States, 919 F.2d 738, 1990 WL 193066, at *3 (6th Cir. Dec. 6, 1990) (per curiam)
(citing Morris v. United States, 303 F.2d 533 (1st Cir. 1962), cert. denied, 371 U.S. 827 (1962));
(D.E. 16 at PageID 50-51, 53-54; D.E. 12; D.E. 1 at PageID 1, 3). As the magistrate judge
correctly reasoned, “contrary to Plaintiff’s urging, a writ of mandamus is inappropriate because
Defendants have no mandatory duty to sue a taxpayer in district court to recover a tax
deficiency.” (D.E. 15 at PageID 46 (citing Martin v. Comm’r, 584 F. Supp. 977, 979 (N.D. Ohio
1984), aff’d, 753 F.2d 1358 (6th Cir. 1985)).)
In contrast, the Sixth Circuit has explained how taxpayers may properly utilize courts to
recover from improper taxation:
A taxpayer may file suit in federal district court for disputed assessments
if he has followed the necessary steps established by Congress. Under 28 U.S.C.
§ 1346(a)(1)[,] the district court has jurisdiction in a civil action against the
United States to recover any internal revenue taxes alleged to have been
erroneously or illegally assessed. The claim for refund statute provides the
procedure necessary for a taxpayer to file suit in federal district court.
The Supreme Court has held that under 28 U.S.C. § 1346(a)(1), which
grants jurisdiction to district courts, and the claim for refund statute, 26 U.S.C. §
7422, a taxpayer must file a claim for refund and pay the full amount of the tax
deficiency before he may challenge the correctness by a suit for refund in district
court. Flora v. United States, 357 U.S. 63 . . . (1958). In Flora v. United States,
supra, the Court held that if a taxpayer cannot pay the full amount of the
deficiency he may litigate in the Tax Court of the United States.
. . . Mandamus is an extraordinary remedy that may be granted only when the
plaintiff’s right thereto is clear and indisputable.
Martin, 753 F.2d at 1360 (citing Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33 (1980))
(holding that such recovery procedures for “erroneously or illegally assessed” taxes provide due
process). Here, should the Court decline to grant mandamus relief, Knittel alternatively requests
that the Court order all levied funds to be returned to him. (D.E. 1 at PageID 4.) In accordance
with Judge Bryant’s findings, “Plaintiff’s constitutional claims must also fail. As noted by
Defendants, if [P]laintiff wishes to have his case determined by this Court, he must pay the full
amount of the tax deficiency and file a claim for refund before he may challenge the correctness
of the tax deficiency.” (D.E. 15 at Page ID 46 (citing 26 U.S.C. § 7422) (citing Flora, 357 U.S.
Relatedly, the Tax Anti-Injunction Act protects the Government from tax suits similar to
the matter at hand. 26 U.S.C. § 7421. A central purpose of the statute is to protect “the collector
from litigation pending a suit for refund.” Dickens v. United States, 671 F.2d 969, 971 (6th Cir.
1982) (quoting Enochs v. Williams Packing & Navigation Co., Inc., 370 U.S. 1, 7-8 (1962)).
Specifically, “the Anti-Injunction Act precludes relief in the nature of mandamus where
plaintiffs have characterized, what is in reality an action for an injunction against the collection
of taxes, as a mandamus action.” (D.E. 15 at PageID 46 (“Although the plaintiffs attempt to
cloak [their] lawsuit as an action in the nature of mandamus[,] the action is actually tantamount
to an action for an injunction to restrain . . . an assessment of taxes . . . and therefore falls within
the bar of [the Anti–Injunction Act].” (quoting Dickens, 671 F.2d at 972)).) Additionally, the
federal courts that have analyzed similar facts—plaintiffs contesting their taxes via requesting
mandamus relief—in light of the Tax Anti-Injunction Act have all ruled in favor of the
(See D.E. 15 at PageID 47 (citing Knuckles El-Bey v. United States, No.
1:08CV151, 2008 WL 3500282, at *4 and n.4 (M.D.N.C. Aug. 11, 2008))); see generally Gadd
v. I.R.S., No. C-1-97-553, 1998 WL 760904, at *2 (S.D. Ohio Feb. 23, 1998) (denying a pro se
plaintiff’s action for injunctive relief against the IRS because his petition for a writ of mandamus
was meritless and because his claim was barred by the Tax Anti-Injunction Act).
Overall, the magistrate judge’s report and recommendation adequately addressed and
rejected Knittel’s assertions and appropriately analyzed Defendants’ arguments. (D.E. 15 at
Knittel’s objections add no new support to counter Judge Bryant’s well-
reasoned analysis. (D.E. 16; D.E. 15.)
In light of the foregoing, the Court hereby ADOPTS the magistrate judge’s report and
recommendation. (D.E. 15.) Defendants’ motion to dismiss is GRANTED, and this matter is
DISMISSED with prejudice. (D.E. 10.)
IT IS SO ORDERED this 9th day of February 2018.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE
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