The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Pro se plaintiff Camille F. Zinda brings suit against Richard R. Johnson, acting as an employee of the U.S. Department of Agriculture "through the implied authority of the Internal Revenue Service," and "4 or 5 John Does." Plaintiff's primary contention is that, because she is not a "taxpayer," defendants violated the Fifth Amendment by sending her letters "inviting her to volunteer payment of Federal taxes" and, after she failed to pay, filing a "Notice of Levy" and garnishing her wages. Plaintiff seeks compensatory and punitive damages, an order enjoining the Internal Revenue Service (IRS) from further collection activities, a declaratory judgment that she is not a taxpayer, and reasonable costs and attorney's fees. Defendants move to substitute the United States as the proper party defendant, and for dismissal of plaintiff's action pursuant to Federal Rule of Civil Procedure 12 ("Rule 12") for, inter alia, lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.*fn1 For the reasons stated herein, defendant's motion will be granted.
Plaintiff is a resident of Woodbury, Minnesota. According to her complaint, she "received a series of letters, ostensibly from the Internal Revenue Service, over a period of years, inviting her to volunteer payment of Federal taxes." (Cmpl. ¶ 11.)Plaintiff appears to concede that she never paid the taxes demanded. (See, e.g., id. ¶¶ 11, 12, 14(alleging that paying income tax is voluntary and that plaintiff is not a taxpayer); see also id. Ex. 1 at 1 ("Although we [the IRS] have told you to pay the amount you owe, it is still not paid.").) In July 2005, the IRS issued a Notice of Levy stating that plaintiff owed $14,837.39. (Id.) The Notice of Levy was signed by defendant Robert Johnson, "Operations Manager, Collection." (Id.) Pursuant to the Notice of Levy, plaintiff's wages were garnished. (Id. ¶ 13.)
Plaintiff brought suit in this Court on July 28, 2006. Defendants filed their motion to dismiss on October 18, 2006. Pursuant to Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988), the Court advised plaintiff of the consequences of failing to respond to defendants' motion and ordered a response by November 19, 2006. On a subsequent motion from plaintiff, the Court extended the response deadline through November 27, 2006. Nonetheless, plaintiff has failed to respond.*fn2
I. The United States Is the Proper Party Defendant
The caption to plaintiff's complaint states that defendant Johnson is being sued "in his individual capacity while acting as an employee of the U.S. Agriculture Department." Given the ambiguous caption, it might seem at first blush that plaintiff sues Johnson in his individual capacity. But the remainder of plaintiff's complaint makes clear that she is suing defendants in their official capacities. (See, e.g., Cmpl. ¶ 1 ("Each defendant party is brought in his/its capacity in relation to THE DEPARTMENT OF AGRICULTURE and the UNITED STATES."); Cmpl. ¶ 4 ("This suit is brought against [Johnson] and the as yet unnamed John Does in their capacity of Federal employee or agent thereof . . . .").) For this reason and because 26 U.S.C. §§ 7422(f) and 7433(a) provide that, with an exception inapplicable here, suits for tax refunds or for damages should be brought against the United States, the Court will grant defendants' motion to substitute the United States as the proper party defendant.
II. This Court Lacks Subject Matter Jurisdiction over All But One of Plaintiff's Claims
When, as here, the government attacks the existence of subject matter jurisdiction on the face of a complaint, "the Court considers the factual allegations of the complaint in the light most favorable to the non-moving party." Loughlin v. United States, 230 F. Supp. 2d 26, 35--36 (D.D.C. 2002).
Plaintiff's complaint expressly advances only two legal arguments: (1) that the government's efforts at tax collection violated the Takings Clause and the Due Process Clause of the Fifth Amendment, thus entitling her to damages and injunctive relief; and (2) that she is not a "taxpayer" and that the Court should issue a declaratory judgment to that effect. According to the government, plaintiff may also be understood to seek a tax refund pursuant to 26 U.S.C. § 7422 and damages for unlawful collection activity pursuant to 26 U.S.C. § 7433. Because the pleadings of pro se plaintiffs must be ...