The opinion of the court was delivered by: Reggie B. Walton United States District Judge
This is a civil action in which the plaintiffs, Lester R. and Mary L. Ramer, allege that beginning in 1997 the United States Internal Revenue Service ("IRS") disregarded various provisions of the Internal Revenue Code (the "Code" or "IRC") resulting in unlawful tax collection activity being initiated against them and the illegal taking of their property. Complaint ("Compl.") at 2, 24, 28. Although the plaintiffs do not provide any specific factual details supporting the basis for their allegations, they nonetheless seek damages against the defendant, the United States of America (the "United States"), for alleged "wrongful collection" of federal taxes, "replevin of any and all property" taken from them by the defendant, and an order "enjoining [the] defendants' principals, officers, agents, and/or employees from further acting in disregard of the law or regulation." Id. at 27-28. The defendant has filed a motion to dismiss the complaint on the grounds that this Court lacks subject matter jurisdiction to entertain this action, or alternatively, that the plaintiffs have failed to state any actionable claims, Defendant's Memorandum in Support of Motion to Dismiss ("Def.'s Mem.") at 7, which the plaintiffs oppose, Response to United States' Motion to Dismiss Complaint ("Pls.' Resp.").
For the reasons set forth below, the Court must: (1) grant the defendant's motion to dismiss with regard to counts 1 through 12, 16 through 21, and 28 through 30 of the complaint; (2) deny the defendant's motion to dismiss based on either its theory that the Court lacks subject matter jurisdiction or that the plaintiffs have failed to state a claim with regard to counts 13 through 15, and 22 through 27 of the complaint; (3) deny without prejudice the defendant's motion to dismiss based on the plaintiffs' purported failure to request an acceptable form of relief under the Declaratory Judgment Act with respect to the remaining counts of the complaint; (4) deny the defendant's motion to dismiss for lack of personal jurisdiction with respect to the counts of the complaint that remain alive; and (5) grant in part the plaintiffs' request for leave to amend their complaint to the extent necessary to provide factual support for the surviving claims and the exceptions to the Anti-Injunction Act, 26 U.S.C. § 7421(a) (2006), raised by the plaintiffs, and deny in part the plaintiffs' request for leave to amend their complaint to the extent that they wish to convert their claims into claims under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). See generally Compl.
On July 17, 2006, plaintiffs Lester R. and Mary L. Ramer, who are proceeding pro se in this matter, brought this action alleging that the IRS, through its "principals, officers, agents, and/or employees of the IRS disregarded and continues to disregard provisions of [the IRC,] Title 26 [of] the United States Code[,] and the regulations promulgated [under the IRC] with intent to defeat the application thereof." Id. at 2. In particular, the plaintiffs allege in their complaint that "[b]eginning with 'tax year' 1997 through and including the present year [i.e., 2006]," the IRS: (1) failed to respond to correspondence submitted by the plaintiffs within ten days as required by 26 C.F.R. § 601.702(c) (2008) (Count 1); (2) refused to disclose the plaintiffs' income tax return information to them as required by 26 U.S.C. § 6103(e) (2006) (Count 2); (3) disclosed confidential tax return information to persons not statutorily authorized to receive such information in violation of 26 U.S.C. § 6103(a) (Count 3); (4) failed to make any assessments for the taxes and penalties that the plaintiffs allegedly owed as required by 26 U.S.C. § 6201(a) (2006) (Count 4); (5) failed to make assessments for taxes and penalties within the time and mode set forth by the Secretary of the Treasury as required by 26 U.S.C. § 6202 (2006) (Count 5); (6) neglected to assess taxes owed by the plaintiffs within three years as required by 26 U.S.C. § 6501(a) (2006) (Count 6); (7) failed to record the assessments of taxes and penalties as required by 26 U.S.C. § 6203 (2006) (Count 7); (8) failed to provide the plaintiffs with copies of the records concerning the assessments that were requested by the plaintiffs as required by 26 U.S.C. § 6203 (Count 8); (9) attempted as of 2006 to collect taxes and penalties in amounts greater than what appears on the records of the assessments in violation of 26 U.S.C. § 7214(a) (2006) (Count 9); (10) failed to return all unlawfully collected taxes to the plaintiffs as required by 26 U.S.C. § 6402 (2006) (Count 10); (11) failed to send the plaintiffs notices of their alleged tax deficiencies as required by 26 U.S.C. § 6212 (2006) (Count 11); (12) failed to advise the plaintiffs of the last date on which they could file petitions with the Tax Court as required by 26 U.S.C. § 6213(a) (2006) (Count 12); (13) failed to notify the plaintiffs of the filing of notices of lien as required by 26 U.S.C. § 6320 (2006) (Count 13); (14) filed invalid and unlawful notices of federal tax liens against the plaintiffs in violation of 26 U.S.C. § 6321 (2006) (Count 14); (15) failed to release the liens when it became obvious that said liens were invalid and unlawful as required by 26 U.S.C. § 6325 (2006) (Count 15); (16) improperly failed to suspend all tax-related interest and penalties because the defendant failed to specifically state the amount and the basis of plaintiffs' tax liabilities as required by 26 U.S.C. § 6404(g) (2006)
(Count 16); (17) failed to include in each notice imposing a penalty the name of the penalty, the Code section authorizing its assessment, and an actual computation of the penalty amount as required by 26 U.S.C. § 6751(a) (2006) (Count 17); (18) failed to verify that a supervisor had personally approved, in writing, each initial penalty determination as required by 26 U.S.C. § 6751(b)(1) (2006) (Count 18); (19) refused "to produce any evidence with respect to the imposition of each penalty and additions" imposed as required by 26 U.S.C. § 7491 (2006) (Count 19); (20) conducted "a presumed financial status audit" in violation of 26 U.S.C. § 7602(a) (2006) (Count 20); (21) refused to prove the validity of items of their purported income that were reconstructed solely through the use of statistical information of unrelated taxpayers as required by 26 U.S.C. § 7491(b) (Count 21); (22) failed to send to the plaintiffs ten-day demands for payments before issuing levies during the tax years at issue as required by 26 U.S.C. § 6331(a) (2006) (Count 22); (23) failed to send the plaintiffs thirty day notices of levies with respect to any unpaid tax as required by 26 U.S.C. § 6331(d)(1)(2) (2006) (Count 23); (24) filed invalid and unlawful notices of tax levies on the plaintiffs' wages, bank account, and similar monetary holdings in violation of 26 U.S.C. § 6321 (2006) (Count 24); (25) seized the plaintiffs' personal belongings, including their bank deposits, retirement income, investments, and similar items after the statutorily prescribed limitation period in violation of 26 U.S.C. § 6334 (2006) (Count 25); (26) refused to relax levies after making determinations that the total amount of taxes was not collectible as required by 26 U.S.C. § 6343(b) (2006) (Count 26); (27) failed to provide the plaintiffs with notices of their right to an impartial hearing before issuing notices of liens, levies, or other agency action as required by 26 U.S.C. § 6330(a) (2006) (Count 27); (28) failed to provide the plaintiffs with non-binding mediation before issuing notices liens, levies, or other agency action as required by 26 U.S.C. § 7123(b)(1) (2006) (Count 28); (29) deprived the plaintiffs of the guaranteed availability of installment payment agreements in violation of 26 U.S.C. § 6159 (2006) (Count 29); and (30) failed to provide reasonable notices to the plaintiffs that IRS employees were contacting third parties regarding taxes that the plaintiffs allegedly owed as required by 26 U.S.C. § 7602(c) (2006) (Count 30). Id. at 6-16.
Based on these alleged unlawful acts, the plaintiffs asks this Court to (1) direct the defendant to pay damages, pursuant to 26 U.S.C. § 7433 (2006), in an amount equal to the fine imposed by 26 U.S.C. § 7214(a) for each alleged violation committed by the defendant; (2) issue an order of replevin for any property taken from the plaintiffs as a result of the defendant's alleged violation of the law, or compensation at the current fair market value of the property taken from the plaintiff; (3) direct the defendant to pay any other damages that the Court deems just and proper; and (4) enjoin the defendant's principals, officers, agents, and employees from further acting in violation of the law. Id. at 27-28.
On September 18, 2006, the defendant moved to dismiss the plaintiffs' complaint on the grounds that the Court lacked subject matter jurisdiction or, in the alternative, based on the plaintiffs' failure to state claims upon which relief may be granted. Def.'s Mem. at 7. On April 10, 2007, this Court instructed the plaintiffs to respond to the defendant's motion to dismiss or the Court might grant the motion as conceded. Court Order of April 10, 2007. Upon the Court's belief that the plaintiffs had failed to respond to the motion, the Court dismissed the plaintiffs' complaint without prejudice. Court Order of May 30, 2007. On October 16, 2007, the plaintiffs moved to reinstate the case and demonstrated that they had timely filed their response to the defendant's motion to dismiss. Plaintiffs' Motion to Reinstate ("Pls.' Mot.") at 1-2; Pls' Mot. Exhibit ("Ex.") 1-6. In light of the evidence of the plaintiffs timely response, the Court reinstated the case. Court Minute Order of July 2, 2008.
On September 26, 2008, the defendant renewed its motion to dismiss the plaintiffs' complaint on the same grounds as advanced in its initial motion. United States's Reply ("Def.'s Reply") at 5-7. Finally, on December 8, 2008, the plaintiffs filed a motion for leave to file a sur-reply and to amend their complaint, Plaintiffs' Request for Leave to File Sur-Reply and Motion to Amend ("Pls.' Req.") at 1-2, along with the sur-reply itself, Plaintiffs' Supplement to Request for Leave to File Sur-Reply ("Pls.' Sur-Reply").*fn1 This opinion will address and resolve all of these motions.
A. Motion to Dismiss for Lack of Subject Matter Jurisdiction
In deciding a motion to dismiss based upon lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), a Court is not limited to the allegations set forth in the complaint, but "may consider materials outside of the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction[.]" Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). Under Rule 12(b)(1), "it is to be presumed that a cause lies outside [the federal courts'] limited jurisdiction," Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994), unless the plaintiff ...