UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
August 9, 2007
HERMAN ALPHONSE WESSELMAN, PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Herman Alphonse Wesselman filed a pro se complaint on March 26, 2007, seeking damages under 26 U.S.C. § 7431 based on "intentional, negligent, and/or grossly negligent disclosures of '[tax] return information'" by agents of the Internal Revenue Service ("IRS"). (Compl. ¶ 18.) The government has filed a motion to dismiss. For the reasons set forth herein, the motion will be granted.
Plaintiff's complaint closely resembles many of the other pro se tax complaints that have been filed in this Court. See, e.g., Glass v. United States, 480 F. Supp. 2d 162, 164 (D.D.C. 2007) (summarizing a similar complaint); Evans v. United States, 478 F. Supp. 2d 68, 69 (D.D.C. 2007) (same); Koerner v. United States, 471 F. Supp. 2d 125, 126 (D.D.C. 2007) (same). He alleges that, by filing notices of tax liens with the county clerk in Effingham County, Illinois, IRS agents wrongfully disclosed tax return information "in the absence of record evidence of existing assessments." (Compl. ¶ 4.) Arguing that the agents violated 26 U.S.C. § 6103, plaintiff seeks damages under 26 U.S.C. § 7431. (Id. ¶ 18.)
I. Standard of Review
"The Court will treat the government's motion to dismiss as one for failure to state a claim upon which relief can be granted." Glass, 480 F. Supp. 2d at 164; see Evans, 478 F. Supp. 2d at 70 (adopting this approach in a similar case, reasoning that "the deficiency alleged pertain[ed] to the boundaries of the right of action under 26 U.S.C. § 7431 in light of section 7433, in contrast to a statutory provision speaking to the jurisdiction of the district courts").Accordingly, dismissal is warranted if the complaint does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007).
II. 26 U.S.C. § 7433 Forecloses Plaintiff's Attempt to State a Claim under § 7431
Section 7431 provides a private right of action against the United States if "any officer or employee of the United States knowingly, or by reason of negligence, discloses any return or return information . . . in violation of any provision of section 6103." 26 U.S.C. § 7431(a)(1) (2006); see id. § 7431(c). Section 6103 provides that, subject to specific exceptions, tax returns and return information must be kept confidential. See id. § 6103.
Under 26 U.S.C. § 7433, there is a separate private right of action against the United States if "in connection with any collection of Federal tax . . . any officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence disregards any provision of [Title 26], or any regulation promulgated under [that] title." Id. § 7433(a). Congress has determined that, "[e]xcept as provided by section 7432 [dealing with damages for failure to release a lien], [a] civil action [under § 7433] shall be the exclusive remedy for recovering damages from such [tax collection activity]." Id.
Considering §§ 7431 and 7433 together, at least four judges of this Court have determined that the exclusivity provision of § 7433 bars claims for damages under § 7431 based on the disclosure of tax return information in notices of tax liens. See Miller v. United States, ---F. Supp. 2d ---, ---, 2007 WL 2172799, at *2 (D.D.C. 2007) (Urbina, J.); Glass, 480 F. Supp. 2d at 164--65 (Huvelle, J.); Powell v. United States, 478 F. Supp. 2d 66, 67--68 (D.D.C. 2007) (Leon, J.); Evans, 478 F. Supp. 2d at 71--72 (Bates, J.); see also Shwarz v. United States, 234 F.3d 428, 432--33 (9th Cir. 2000) (reaching the same conclusion with respect to seizure notices and allegedly "perjured" declarations by an IRS employee). Under the reasoning of the above-cited cases (which the Court adopts herein), it is clear that, even accepting all of plaintiff's allegations as true, he has no right of action under § 7431.*fn1
III. Plaintiff Has Also Failed to State a Claim under § 7433
The government has argued that, even if plaintiff's pro se complaint is liberally construed to raise a claim under § 7433, dismissal is warranted because plaintiff has failed to allege exhaustion of his administrative remedies as required under § 7433(d)(1). (See Mem. in Supp. at 10--12.) In plaintiff's response to the government's motion, he does not contest the government's assertion that he has failed to exhaust his administrative remedies. Instead, plaintiff relies upon the argument - - familiar from other pro se tax cases - - that, under Federal Rule of Civil Procedure 8(a) and Conley v. Gibson, 355 U.S. 41 (1957), a plaintiff who seeks damages under § 7433 need not allege exhaustion. (See Opp. at 3.) Contrary to plaintiff's arguments, it is now clear that, although exhaustion is not a jurisdictional requirement, failure to exhaust is nevertheless fatal under Federal Rule of Civil Procedure 12(b)(6). See Ross v. United States, 460 F. Supp. 2d 139, 145--47 (D.D.C. 2006); Lindsey v. United States, 448 F. Supp. 2d 37, 61 (D.D.C. 2006). Thus, even construing plaintiff's complaint as seeking damages under both §§ 7431 and 7433, he has failed to state a claim upon which relief can be granted.
For the foregoing reasons, the government's motion to dismiss [Dkt. 3] is GRANTED, and it is hereby ORDERED that this case be dismissed.*fn2 The dismissal of plaintiff's § 7431 claim is with prejudice, and the dismissal of his § 7433 claim is without prejudice.