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Romashko v. United States

September 30, 2007

RONALD N. ROMASHKO, PLAINTIFF,
v.
UNITED STATES, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Pro Se Plaintiff Ronald N. Romashko brings this action against Defendant, the United States, seeking damages for alleged misconduct by the Internal Revenue Service ("IRS") in the collection of taxes. Plaintiff also seeks replevin of property that the IRS has allegedly taken from him and an injunction against further IRS actions in disregard of the law. Am. Compl. at 19-20.*fn1

Plaintiff primarily seeks relief pursuant to the damages cause of action included in the Taxpayer Bill of Rights, 26 U.S.C. § 7433 ("TBOR"). See generally Am. Compl. In addition, Plaintiff invokes a variety of other statutory authorities in support of his claims for relief: the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 704-06; the All Writs Act, 28 U.S.C. § 1651; the Mandamus Act, 28 U.S.C. § 1361; and unspecified provisions of the Freedom of Information Act ("FOIA"), the Privacy Act, the Federal Records Act, and the National Archives Act. Id. at 2-4.

Presently pending before the Court is Defendant's [17] Motion to Dismiss, which argues that this case should be dismissed because (1) Plaintiff has failed to exhaust his administrative remedies as required by 26 U.S.C. § 7433(d); and (2) the Court does not have subject matter jurisdiction over Plaintiffs' claims for damages pursuant to the APA, the All Writs Act, the Mandamus Act, 28 U.S.C. § 1331, the FOIA, or the Privacy Act. See generally Def.'s Mem. in Support of United States' Mot. to Dismiss Am. Compl. (hereinafter "Def.'s Mem."). In addition, Plaintiff has filed a [20] Motion to Reinstate Entry of Default, as well as a [23] Motion to Supplement Plaintiff's Response to Docket Entry #21. Upon a searching examination of the filings submitted by each party, the attached exhibits, the relevant case law, and the entire record herein, the Court shall grant-in-part and deny-in-part Plaintiff's Motion to Supplement, deny Plaintiff's Motion to Reinstate Entry of Default, grant Defendant's Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and dismiss this action in its entirety.

I. BACKGROUND

A. Procedural History

Plaintiff filed his initial Complaint in this action on November 10, 2005. On March 15, 2006, Defendant was declared to be in default in the instant action. Thereafter, the Court issued an [8] Order directing Defendant to show cause as to why a response to the Complaint had not been filed, to which Defendant responded by filing a [9] Motion to Vacate Entry of Default. The Court granted Defendant's Motion to Vacate on April 12, 2006, finding that Defendant had not been properly served in this action. Also on April 12, 2006, the Court issued an [12] Order directing Plaintiff to show cause as to why the Court had subject matter jurisdiction over Plaintiff's claims for damages and, in particular, to explain how he had exhausted all administrative remedies as required by 26 U.S.C. § 7433(d)(1) and 26 C.F.R. § 301.7433-1(a), (e). Plaintiff filed a [13] Response to that Show Cause Order on April 20, 2006, in which he argued that he was excepted from exhausting administrative remedies since the IRS had "'articulated a very clear position on the issue which it has demonstrated it would be unwilling to reconsider.'" Pl.'s Resp. to Order to Show Cause at 3 (quoting Randolph Sheppard Vendors of Am. v. Weinberger, 795 F.2d 90, 105 (D.C. Cir. 1986)). Thus, rather than demonstrating that he had filed any claim for administrative relief prior to filing his initial Complaint in this action, Plaintiff instead chose to attack the merits of the IRS's administrative process. See id. at 3--18 (providing a history of the TBOR, and arguing, in part, that the regulations in question are illegal and present a futile avenue for relief).

Before the Court issued any ruling regarding Plaintiff's exhaustion of administrative remedies, on September 5, 2006, Plaintiff filed his Amended Verified Complaint, in which he alleges that he "filed a Verified Administrative Claim for Damages with the Internal Revenue Service, Area 4, Area Director, Baltimore, 31 Hopkins Plaza, Baltimore, MD 21202." Am. Compl. at 5. Plaintiff's Amended Complaint represents one of dozens of virtually identical lawsuits brought in this jurisdiction by tax protestors--allegedly proceeding pro se--asserting a variety of forms of misconduct by the IRS.*fn2 Plaintiff's Amended Complaint presents his claims in a slightly different format than his original Complaint (which appears to be the verbatim complaint used in many of the lawsuits brought in this jurisdiction). Nevertheless, Plaintiffs' Amended Complaint appears to be identical to at least one other complaint filed in this jurisdiction, see Ross v. United States, 460 F. Supp. 2d 139, 142-43 (D.D.C. 2006) (Bates, J.), and continues to suffer from a deficiency seen in most of these cases--namely, it provides no particularized facts specifically pertaining to Plaintiff Ronald N. Romashko. See generally Am. Compl.

Defendant filed its Motion to Dismiss Plaintiff's Amended Complaint on October 27, 2006. On November 6, 2006, Plaintiff filed a Response to Motion to Dismiss and Motion to Reinstate Entry of Default. Defendant filed its combined Reply in Support of its Motion to Dismiss and Opposition to Plaintiff's Motion to Reinstate Entry of Default on November 9, 2006. In turn, on November 27, 2006, Plaintiff filed a "Response to Docket Entry #21," which appears to be his reply in support of his Motion to Reinstate Entry of Default. Thereafter, on February 22, 2007, Plaintiff filed a Motion to Supplement Plaintiff's Response to Docket Entry #21 (hereinafter "Pl.'s Mot. to Supp.").*fn3

B. Allegations Contained In Plaintiff's Amended Verified Complaint

Plaintiff alleges that Defendant, the United States, through the IRS and its employees, "engaged in and continue[s] to engage in alleged ongoing collection activities through the United States Mail by sending plaintiff(s) a multitude of letters demanding various sums of money for a multitude of years and threatening to seize plaintiff's assets if plaintiff(s) does not send the demanded money." Am. Compl. at 4. Plaintiff further alleges that Defendant, through the IRS, "unlawfully made public return information." Id. Plaintiff's Amended Complaint then continues to enumerate 41 "counts" of alleged misconduct on the part of Defendant, which amount to a litany of regulations and statutory provisions with few underlying factual allegations.*fn4 Specifically, Plaintiff alleges that the IRS:

* Failed to notify Plaintiff of the imposition of a requirement to keep records, make statements, or file returns with respect to any federal tax, in disregard of 26 U.S.C. § 6001 and 26 C.F.R. § 1.6001-1 (Counts 1-2);

* Failed to prepare, execute, and/or disclose a substitute return in Plaintiff's name, in disregard of 26 C.F.R. §§ 6103 and 6020, 26 C.F.R. § 301.6020-1, and 27 C.F.R. parts 53 and 70 (Counts 3-9);

* Unlawfully forced Plaintiff to use a social security account number that is assignable by the Commissioner of Social Security only to aliens and applicants for/recipients of federal benefits, in disregard of 26 U.S.C. § 6109 (Count 10);

* Failed to limit assessments to taxes shown on a tax return and "unpaid taxes payable by stamp," and otherwise made improper tax assessments, in disregard of 26 U.S.C. §§ 6201-02 and 27 C.F.R. part 70 (Counts 11-13);

* Failed to record, execute, and provide Plaintiff with records of assessments, in disregard of 26 U.S.C. ยง 6203 and 26 ...


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