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January 11, 1985


Oliver Gasch, United States District Judge.

The opinion of the court was delivered by: GASCH



 Plaintiff John W. Childress, III, filed this action against defendants Northrop Corporation ("Northrop") and Commissioner Roscoe L. Egger, Jr. of the Internal Revenue Service ("IRS") on August 15, 1984. The complaint asserts that jurisdiction is based upon the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b). The essence of Mr. Childress' claim against Northrop seems to be that Northrop issued fraudulent W-2 statements to plaintiff and to the IRS in February of 1978 that falsely claimed Mr. Childress had received $ 8,000 more in compensation than was in fact paid him. Mr. Childress' claim against the Government is that the actions of the IRS in pursuing assessment and/or collections activities against him were tortious and constitute a denial of his constitutional rights.

 The case is now before the Court on dispositive motions filed by each of the parties. Defendant Northrop has filed a motion to dismiss on statute of limitations grounds. The Government has filed a motion to dismiss or, in the alternative, for summary judgment. In addition to opposing these motions, plaintiff has filed his own motion for summary judgment. *fn1"


 Defendant Northrop's motion to dismiss is based on its assertion that plaintiff's claims against it are barred by the statute of limitations.

 Plaintiff filed his complaint on August 15, 1984. His complaint alleges that "on or about February 1978, Northrop Corporation, willfully and knowingly issued W-2 statements to plaintiff and to the other defendant, the Internal Revenue Service of the United States of America, which were false." Complaint para. 2. Northrop contends that the complaint alleges the commission of tortious acts more than six years before plaintiff filed his complaint and thus that the action is time barred whether the three year limitation period contained in the D.C. Code *fn2" or the two year period in the FTCA *fn3" controls.

 In opposing Northrop's motion to dismiss, Mr. Childress argues that Northrop's alleged tortious conduct was not committed on a date certain but is a continuing tort that continues to this date. Thus Mr. Childress contends that he could not have been aware of the tortious nature of Northrop's act in 1978 as he might well have presumed it to be a bookkeeping error. Instead, Mr. Childress maintains that the basis for the alleged tort is Northrop's subsequent refusal to correct the W-2. His opposition and complaint indicate that he initially sought such a correction in 1979 and that he did so most recently in June 1984.

 In making this argument, plaintiff appears to rely on the continuing tort exception to the operation of the statute of limitations. *fn4" For example, in Macklin v. Spector Freight Systems, Inc., 156 U.S. App. D.C. 69, 478 F.2d 979, 987 (D.C. Cir. 1973), the Court of Appeals for this Circuit held that a complaint of racial employment discrimination by an employer and a union constituted an allegation not merely of an early isolated refusal of employment (that would have been barred under the applicable statute of limitations) but a continued discriminatory hiring system which denied appellant the right of hiring opportunity on a nondiscriminatory basis. The Court viewed the initial refusal of employment as merely a single episode in the maintenance of that continuing conspiracy and noted that plaintiff had alleged that "a discriminatory hiring system continues to exist and continues to deny [minority applicants] jobs." Id.

 Defendant Northrop challenges the applicability of the continuing tort exception to this case. In doing so, defendant relies principally on Fitzgerald v. Seamans, 180 U.S. App. D.C. 75, 553 F.2d 220, 230 (D.C. Cir. 1977), where the Court of Appeals declared that "the mere failure to right a wrong and make plaintiff whole cannot be a continuing wrong which tolls the statute of limitations, for that is the purpose of any lawsuit and the exception would obliterate the rule." In that case plaintiff *fn5" alleged that the Air Force's decision to discharge him and its response to administrative proceedings requiring his reinstatement constituted a single continuing conspiracy. However, the Court rejected the claim of a continuing wrong as "general and conclusory." Id. For example, the Court rejected plaintiff's claim that the Defense Department's tortious conduct had continued when a private employer refused to hire plaintiff as a result of the Department's hostile attitude toward plaintiff as the Court found plaintiff had failed to allege any "active steps to blackball him." Id.

 The Court finds defendant Northrop's reliance on Fitzgerald and its argument that the continuing tort theory is not applicable to be persuasive. Even assuming, as plaintiff contends, that plaintiff might have thought that Northrop had only committed a bookkeeping error in 1978 and that Northrop's actions first became tortious "in 1979" *fn6" when Northrop refused to correct the W-2 form by issuing an amended form, the 1979 activities would have occurred three and one-half to four and one-half years before suit was filed. The only action the complaint alleges since that time is a failure to "issue amended returns despite requests." This seems to represent the kind of "failure to right a wrong" that the Fitzgerald court recognized is not an exception to the statute rather than a case, as in Macklin, where specific acts occurred in furtherance of the original wrongdoing. See also Page v. United States, 234 U.S. App. D.C. 332, 729 F.2d 818, 821 n.23 (D.C. Cir. 1984) ("continuing-tort doctrine, which becomes relevant only when the tortious conduct is ongoing, is to be distinguished from the rule applicable when the plaintiff's injury continues or is manifested after the tortious conduct has ceased" (emphasis supplied)); Collins v. United Air Lines, Inc., 514 F.2d 594, 595-96 (9th Cir. 1975) (fact that employer refused discharged employee's application for reinstatement does not render the initial discharge a continuing act since request for reinstatement merely seeks to redress original termination). This reasoning appears to be consistent with the basis for application of the continuing tort theory: that "no single incident in a continuous chain of tortious activity can 'fairly or realistically be identified as the cause of significant harm.'" Page, 729 F.2d at 821-22 (quoting Fowkes v. Pennsylvania R.R., 264 F.2d 397, 399 (3d Cir. 1959)).


 Plaintiff's complaint also includes allegations challenging actions of the Internal Revenue Service. Plaintiff alleges that the IRS "refused to verify that the W-2 submitted by Northrop Corporation was in error" and that it "confiscated the plaintiff's IRA [Individual Retirement Account] and checking accounts, filed liens against the plaintiff and confiscated tax refunds . . . ." Complaint paras. 7, 9. He alleges that the Government's actions were "tortious" and "designed to deprive plaintiff of his civil rights, due process of law, emotional stability and economic freedom." Id. at para. 8.

 The Government has filed a motion to dismiss or, in the alternative, for summary judgment. In seeking dismissal, the Government maintains: a) that plaintiff has failed to name the proper defendant for the Government; b) that the Court lacks subject matter jurisdiction over plaintiff's complaint since the FTCA excludes any claim "arising in respect of the assessment or the collection of any tax or customs duty . . ."; and c) that the claim is barred as plaintiff failed to file a timely administrative claim.

 A. Failure to Name Proper Party

 As the first ground for its motion to dismiss, the Government asserts that plaintiff failed to name the proper defendant for the Government. The caption of plaintiff's complaint identifies "Hon. Roscoe L. Eggers, [sic] Jr., Internal Revenue Service" as the defendant. The text of the complaint repeatedly identifies the Internal Revenue Service as a defendant and does not refer to "Eggers." See Complaint paras. 7-13, 17. Paragraph one of the complaint states that it is filed pursuant to the Federal Tort Claims Act.

 As the Government points out, a federal agency is not a proper defendant in a suit brought pursuant to the FTCA. Instead, such actions should be filed against the United States itself. See, e.g., Sprecher v. Graber, 716 F.2d 968 (2d Cir. 1983) (FTCA authorizes suits only against the United States itself and not against its individual agencies). *fn7" However, given the well established judicial policy of holding pro se complaints to less stringent standards in pleading, see, e.g., Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), Alley v. Dodge Hotel, 163 U.S. App. D.C. 320, 501 F.2d 880, 883 (D.C. Cir. 1974), it would seem harsh to dismiss the action on this basis. Were this the only defect in plaintiff's action against the Government, the Court would allow plaintiff to seek leave to substitute the United States as a defendant. However, plaintiff's claim must be dismissed on other grounds.

 B. Exclusion of Claim from FTCA

 As its next basis for dismissal, the Government relies on the exclusion from the FTCA contained in 28 U.S.C. § 2680(c) of claims "arising in respect of the assessment or collection of any tax . . . ." Plaintiff claims that this provision is not applicable as his allegations of fraud, discrimination, and violation of the Fourth, Eighth, and Fourteenth Amendments are not part of efforts in respect of collection of tax.

 It is well settled that the Federal Tort Claims Act is only a limited waiver of sovereign immunity and that the United States can be sued only to the extent that it has waived its immunity. See United States v. Orleans, 425 U.S. 807, 814-15, 48 L. Ed. 2d 390, 96 S. Ct. 1971 (1976); Dalehite v. United States, 346 U.S. 15, 30-31, 97 L. Ed. 1427, 73 S. Ct. 956 (1953) ("interpretation of the Act . . . starts from the accepted jurisprudential principle that no action lies against the United States unless the legislature has authorized it" (footnote omitted)). If one of the Act's exceptions applies to a claim for relief against the Government, that claim cannot be maintained under the FTCA. Garbarino v. United States, 666 F.2d 1061, 1065 (6th Cir. 1981).

  Notwithstanding the broad sweep of plaintiff's claims, the case law construing Section 2680 is clear that this retention of the Government's sovereign immunity encompasses such tort and constitutional claims. As the Fifth Circuit stated in Capozzoli v. Tracey, 663 F.2d 654, 658 (5th Cir. 1981), "Congress retained the United States' sovereign immunity for any claim in respect of the assessment or collection of taxes. This language is broad enough to encompass any activities of an IRS agent even remotely related to his or her official duties" (emphasis in original). Thus in Capozzoli, the Fifth Circuit held that a complaint claiming trespass and invasion of privacy by an IRS agent alleged to have "prowl[ed] about" and photographed a taxpayer in her nightclothes while on the taxpayer's land without consent was barred by Section 2680. See also Heritage Hills Fellowship v. Plouff, 555 F. Supp. 1290, 1294 (E.D. Mich. 1983) (Section 2680(c) "broad enough" to encompass allegation that United States libeled plaintiff regarding tax liability). Similarly in Mack v. Alexander, 575 F.2d 488, 489 (5th Cir. 1978), a challenge to Internal Revenue Service action in levying on a bank account was held to be within the scope of this exclusion notwithstanding the claim that the levy violated plaintiff's constitutional rights. See also Akers v. United States, 539 F. Supp. 831, 832-33 (D. Conn. 1982) (in action against Government, claim that Internal Revenue Service levy violative of Fourth and Fifth Amendments barred by Section 2680(c)), aff'd, 718 F.2d 1084 (2d Cir. 1983).

 In light of the above, it is clear that the Court lacks subject matter jurisdiction over this case. Accordingly, the Court will grant the Government's motion to dismiss all claims against the Government. *fn8"

 ORDER - January 15, 1985, Filed

 Upon consideration of defendant Northrop Corporation's motion to dismiss and plaintiff's opposition thereto, the Government's motion to dismiss or, in the alternative for summary judgment and plaintiff's opposition thereto, plaintiff's motion for summary judgment and defendants' opposition thereto, plaintiff's application for temporary restraining order and motion for preliminary injunction and the Government's opposition thereto, and the arguments of plaintiff and counsel for defendants heard in open Court, and for the reasons stated in the accompanying memorandum, it is by the Court this 11th day of January, 1985,

 ORDERED that plaintiff's motion for summary judgment, application for temporary restraining order, and motion for preliminary injunction be, and hereby are, denied; and it is further

 ORDERED that defendant Northrop Corporation's motion to dismiss be, and hereby is, granted; and it is further

 ORDERED that the Government's motion to dismiss be, and hereby is, granted.

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