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).
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.
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.