UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
August 27, 2008
ROBERT WELZEL AND LISA WELZEL, PLAINTIFFS,
UNITED STATES, DEFENDANT.
The opinion of the court was delivered by: Reggie B. Walton United States District Judge
On May 5, 2006, the plaintiffs, Robert and Lisa Welzel, brought this action alleging that the United States Internal Revenue Service ("IRS") "recklessly, intentionally or by reason of negligence[,] disregarded and continue to disregard provisions of [the Internal Revenue Code ("IRC"),] Title 26 of the United States Code[,] and the regulations promulgated thereunder." Complaint ("Compl.") ¶ 1. Subsequently, on March 30, 2007, the Court vacated the Clerk of Court's entry of default against the defendant that was entered on July 13, 2006. The defendant requested that the entry of default be vacated because the plaintiffs failed to properly serve the United States by having a party personally execute the service. Motion to Vacate Entry of Default and Motion to Dismiss at 4. The Court determined that, "[s]ince [it]is left with doubt as to who conducted service of process, it [must] resolve such dispute in favor of the government." Order of March 30, 2007 at 3. The Court further found that (1) "the plaintiffs would not be prejudiced if the default is set aside," id. and (2) "the government's alleged defenses in this matter are meritorious, [because] '[t]he movant is not required to prove a defense, but only to assert a defense that it may prove at trial,'" id. In addition, the Court held that "as it was in Lindsey [v. United States, 448 F.Supp.2d 37 (D.D.C. 2006)*fn1 ], that (1) the plaintiffs' request for declaratory relief*fn2 is barred by the Declaratory Judgment Act, 28 U.S.C. § 2201 (2000); see Lindsey, 448 F. Supp. 2d. at 49, 57-58, and (2) the plaintiffs failed to exhaust their administrative remedies with respect to their claims alleging a tax refund, 26 U.S.C. § 7422 (2000), and for damages, 26 U.S.C. § 7433 (2000); see Lindsey, 448 F. Supp. 2d at 60-61, before they initiated this action."*fn3 Order of March 30, 2007 at 4-5. Accordingly, the Court dismissed the plaintiffs' claims for declaratory relief, a tax refund, and damages for the reasons stated in Lindsey, 448 F.Supp. 2d 37. Order of March 30, 2007.
Currently before the Court is the plaintiffs' Amended Motion for Relief From Order of Dismissal Under Federal Rule of Civil Procedure 60(b)(3) and (6).*fn4 The plaintiffs seek relief from the Court's Order of March 30, 2007 dismissing the plaintiffs' actions on the grounds that as a result of the "Supreme Court's change in the interpretation of non-jurisdictional exhaustion requirement [in Jones v. Block, --- U.S. ---, 127 S.Ct. 910 (2007)] . . . [the] [p]laintiffs were not required to 'demonstrate that they filed an administrative claim for damages . . . . '"Amended Memorandum in Support of Motion for Relief from Order of Dismissal Under Federal Rules of Civil Procedure 60(b)(3) and (6) ("Amended Mem. for Relief") at 4. Specifically, the plaintiffs assert that relief is warranted under Rule 60(b)(6) because the Court erred in concluding that it lacked jurisdiction over their claims, Amended Mem. for Relief. at 2. They further assert that relief is warranted under Rule 60(b)(3) because the defendant "perpetrated a fraud upon the Court[ ] through [its] misrepresentation of fact, law, and legal precedent to obtain" a favorable ruling from the Court. Amended Mem. for Relief at 1. The defendant has not filed a timely response to the plaintiffs' motion. For the reasons set forth below, the plaintiffs' motion must be denied in part and granted in part.
"Rule 60(b) provides that '[o]n motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding' " for one or more of six discrete reasons set out in separate sub-parts of the rule. Murray v. District of Columbia, 52 F.3d 353, 355 (D.C.Cir.1995) (quoting Fed.R.Civ.P. 60(b)). The plaintiffs invoke two of these sub-provisions as support for the relief that they are seeking: Rule 60(b)(3), which "permits a court to relieve a party from a final judgment because of 'fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party,' " Summers v. Howard Univ., 374 F.3d 1188, 1192 (D.C. Cir. 2004) (quoting Fed.R.Civ.P. 60(b)(3)), and Rule 60(b)(6), under which a court "may grant relief from a judgment for 'any . . . reason justifying [such] relief.' " Sieverding v. Am. Bar Ass'n, 466 F.Supp.2d 224, 227 (D.D.C. 2006) (quoting Fed.R.Civ.P. 60(b)(6)).
The plaintiffs' Rule 60(b)(3) challenge is easily rejected. By their own admission, the plaintiffs' assertions of "fraud" are based solely on the allegedly erroneous legal arguments for dismissal articulated by the defendant in its motion to dismiss. See Amended Mem. for Relief at 5, 12-13, 16. But "the assertion[s] of . . . legal position [s] . . . are not what Rule 60(b)(3) means by 'fraud . . . or misstatement.' " Roger Edwards, LLC v. Fiddes & Son Ltd., 427 F.3d 129, 137 (1st Cir. 2005) (quoting Fed.R.Civ.P. 60(b)(3)). Moreover, because the plaintiffs were always "free to consult the law books and . . . assert the contrary" proposition to the defendant's allegedly fraudulent legal arguments, id., they cannot show that the defendant's alleged misrepresentations of precedent "prevented [them] from fully and fairly presenting [their] case," one of the usual requirements for relief under Rule 60(b)(3). Sieverding, 466 F.Supp.2d at 227 (internal quotation and citation omitted); see alsoBrown v. Samper, Civil Action No. 05-1086(RMU), slip op. at 4, 2008 WL 116403, at *2 (D.D.C. Jan. 14, 2008) (same), Richardson v. Nat'l R.R. Passenger Corp., 150 F.R.D. 1, 7 (D.D.C.1993) (same).
The plaintiffs' assertions of error in the Court's memorandum opinion with regard to the availability of declaratory or injunctive relief against the defendant are also baseless. As the Court explained in its prior memorandum opinion while relying on Lindsey, "the plaintiffs' request for declaratory relief is barred by the Declaratory Judgment Act, 28 U.S.C. § 2201 (2000)." Order of March 30, 2007 at 5. Relying on Lindsey, the Court reached this conclusion because "[w]hile [the Declaratory Judgment Act] empowers a federal court '[i]n a case of actual controversy within its jurisdiction . . . [to] declare the rights and other legal relations of any interested party seeking such declaration,' . . . that section expressly excludes from its scope '[f]ederal taxes other than actions brought under section 7428 of the [IRC].'" 448 F.Supp.2d at 49, 57-58. Further, "the Court lacks the power to grant the injunctive relief [that] the plaintiffs seek" because "[n]one of the statutory exceptions delineated in [the Anti-Injunction Act] is applicable here," id. at 58, and the plaintiffs have not "me[t] their burden of showing that [the equitable exception to the Anti-Injunction Act set forth in Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962),] applies," id. at 59. Although the plaintiffs do address these conclusions in their Amended Motion For Relief From Order Of Dismissal under federal rules of civil procedure 60(b)(3) and (6), the plaintiffs appear to misunderstand the Court's ruling with respect to their request for injunctive relief, as their sole argument in favor of reconsideration is that "[a]t least three of the Anti-Injunction Act's exceptions apply to allegations contained [within their c]omplaint." Amended Mem. for Relief. at 16. Relying on its holding in Lindsey, the Court recognize that "the plaintiffs' complaint does make reference to three of the statutes" excepted from the Anti-Injunction Act's reach, but finds that the plaintiffs' request was properly dismissed because the plaintiffs have not offered, in either their complaint or in their responses to the defendant's motion to dismiss, any factual basis whatsoever to support these conclusory statements. See Lindsey, 448 F.Supp.2d at 58 n. 13. The plaintiffs do nothing to remedy this defect in their motion for relief.
However, the Court does find the plaintiffs' arguments for reconsideration persuasive in one respect. As the plaintiffs correctly note, the Supreme Court recently held in Jones, --- U.S. ----, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), that the "failure to exhaust [administrative] remedies is no basis for dismissal [under Federal Rule of Civil Procedure 12(b)(6) ], but is, rather, an affirmative defense." Amended Mem. for Relief at 2-4; see also Jones, --- U.S. at ----, 127 S.Ct. at 920-21 (holding that an exhaustion defense cannot be "subsumed" within the larger rubric of the defense of "failure to state a claim" under Rule 12(b)(6) because "[w]hether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim depends on whether the allegations in the complaint suffice to establish that ground, not on the nature of the ground in the abstract"). Indeed, this Court reached this precise conclusion in a recent memorandum opinion involving the defendant's motion to dismiss a taxpayer's suit for damages under § 7433. SeeShane v. United States, Civil Action No. 07-577(RBW), slip op. at 12-14, 2008 WL 101739, at **6-7 (D.D.C. Jan. 9, 2008) (Walton, J.) (holding that under Jones, "exhaustion of administrative remedies is not an element of the plaintiff's claim under § 7433," but rather is an affirmative defense that the plaintiff need not plead around in his complaint).
In reaching its conclusion in Shane that a plaintiff's complaint could not be dismissed under Rule 12(b)(6) for failure to plead exhaustion of administrative remedies, the Court explicitly rejected its earlier holding in this case that the plaintiffs' claims under § 7433 had to be dismissed for failure to state a claim because the plaintiffs "'d[id] not contest that they did not exhaust the administrative remedies promulgated in 26 C.F.R. § 301.7433-1.' " Shane, slip op. at 13-14, 2008 WL 101739, at *7 (quoting Lindsey, 448 F.Supp.2d at 61). Instead, the Court held that "a plaintiff's complaint [could not] be dismissed under Rule 12(b)(6) merely because that plaintiff failed to allege that he exhausted his administrative remedies in his opposition to a motion to dismiss any more than it could be dismissed because the plaintiff failed to make those allegations in the complaint itself." Id. at *14, 2008 WL 101739, at *7. The Court therefore denied the defendant's request for dismissal of the plaintiff's amended complaint for failure to plead exhaustion of administrative remedies. Id., 2008 WL 101739, at *7.
In light of the Supreme Court's ruling in Jones, which brought about this Court's rejection of its ruling in Shane, the plaintiffs' motion for reconsideration must be granted with respect to the Court's dismissal of the plaintiffs' claim for damages under § 7433. As the Court noted in Shane, the defendant may renew its exhaustion defense by filing a motion for summary judgment under Federal Rule of Civil Procedure 56. Id., 2008 WL 101739, at *7. Alternatively, the defendant may wish to file a motion to dismiss for failure to state a claim based on the absence of sufficient factual specificity in the plaintiffs' complaint. SeeOrder of March 30, 2007 at 4, (noting that the plaintiffs' complaint "provides no particularized facts pertaining specifically to the plaintiffs in this case," but instead consists "predominately of argument and restatement of putatively pertinent legal standards"). As for this member of the Court, at least, dismissal of a plaintiff's complaint for damages under § 7433 for failure to plead around applicable statutory exhaustion requirements, whether requested under Rule 12(b)(1) or Rule 12(b)(6), is simply not a viable option in light of the Supreme Court's ruling in Jones.
For the reasons set forth above, the plaintiffs' Motion for Leave to Amend Motion for Relief from Order of Dismissal Under Federal Rules of Civil Procedure 60(b)(3), 60(b)(6) is granted, their Amended Motion for Relief from Order of Dismissal Under Federal Rules of Civil Procedure 60(b)(3), 60(b)(6) and Amended Memorandum in Support of Motion for Relief from Order of Dismissal Under Federal Rules of Civil Procedure 60(b)(3), 60(b)(6) are deemed filed, their Motion for Relief from Order of Dismissal Under Federal Rules of Civil Procedure 60(b)(6) is denied as moot, their Amended Motion for Relief from Order of Dismissal Under Federal Rules of Civil Procedure 60(b)(3), 60(b)(6) is granted in part and denied in part, the Court's order entered on March 30, 2007, is vacated in part, and that the plaintiffs' claims for damages pursuant to 26 U.S.C. § 7433 (2000) are reinstated.