United States District Court, D. Columbia
JOHN J. BOWMAN, Plaintiff
KIMBERLY IDDON, et al., Defendants
J. BOWMAN, JR., Plaintiff, Pro se, Pitsburgh, PA.
KIMBERLY IDDON, KAREN F. COPELAND, RITA C. BARNETT, PETER
GRECO, CONO NAMORATO, Defendants: Geoffrey John Klimas, LEAD
ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.
KOLLAR-KOTELLY, United States District Judge.
John J. Bowman, proceeding pro se, brings this
action against five current and former employees of the
Internal Revenue Service (" IRS" ), claiming that
those employees violated his Constitutional due process
rights in taking action to suspend him from practicing as an
" enrolled agent" before the IRS with defective
notice because the notice of the suspension proceedings was
not sent to the correct address. Bowman also claims that the
IRS had no jurisdiction over him as a result of prior
criminal proceedings in the United States District Court for
the Western District of Pennsylvania. Bowman seeks damages
from the Defendants in their individual capacities under the
doctrine of Bivens v. Six Unknown Agents of Federal
Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29
L.Ed.2d 619 (1971). Presently before this Court is
Defendants' [ 13] Motion to Dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(1) and 12(b)(6). Defendants
argue that Plaintiff has no standing to bring this action
because Plaintiff cannot show that Defendants caused the
injury that Plaintiff allegedly suffered. Defendants argue
that the Complaint fails to state a claim upon which relief
may be granted and must be dismissed pursuant to Rule
12(b)(6) because (a) the comprehensive remedial scheme
pertaining to the challenged conduct precludes a
Bivens remedy; (b) the claims are barred by absolute
immunity or qualified immunity; (c) the Complaint fails
to allege a Constitutional injury because Bowman was never
authorized to practice as an " enrolled agent" ;
and (d) the Complaint fails to allege facts sufficient to
state a plausible claim for relief against any of the
defendants. Upon consideration of the
pleadings, the relevant legal authorities, and
the record for purposes of this motion, the Court GRANTS
Defendants' motion. The Court concludes that, although
Plaintiff has standing to pursue this action, the Complaint
fails to state a claim because a Bivens remedy is
unavailable as a result of the comprehensive remediable
scheme regarding the actions that are the basis of this
action. The Court, therefore, need not resolve Defendants
other arguments for dismissal. This action is dismissed in
purposes of the motion before the Court, the Court accepts as
true the well-pleaded allegations in Plaintiff'
Complaint. The Court does " not accept as true, however,
the plaintiff's legal conclusions or inferences that are
unsupported by the facts alleged." Ralls Corp. v.
Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315, 411
U.S.App.D.C. 105 (D.C. Cir. 2014). The Court recites the
facts pertaining to the issues raised in the pending motion,
focusing on those facts relevant to the inquiries in which
the Court engages.
September 9, 2003, Plaintiff was indicted in the United
States District Court for the Western District of
Pennsylvania for multiple felonies, including mail fraud,
wire fraud, and money laundering. Compl., Facts ¶ 2. As
a result, Plaintiff was incarcerated between August 10, 2005,
and June 18, 2010. Id. ¶ 3. On January 9, 2006,
the IRS Officer of Professional Responsibility sent a notice
of proceeding, Complaint No. XP-2006-067, to Plaintiff's
business address (5031 Route 8 Gibsonia, PA 15044).
Id. ¶ 12. Defendant did not receive the notice.
See id. ¶ 13. On March 3, 2006, the IRS sent to
the same address notice of the suspension decision by
Defendant Cono Namorato, which stated that " effective
this date, you are suspended from eligibility to practice
before the Internal Revenue Service. Your suspension
prohibits you from engaging in practice before the Internal
Revenue Service as that term is defined in section 10.3(d) of
Circular 230." Id. ¶ 14. Defendant Karen
Copeland notified other IRS employees and affiliates of the
suspension by e-mail on March 15, 2006. Id. ¶
15. The suspension was announced publicly through the
Internal Revenue Bulletin 2006-18, dated May 1, 2006,
Announcement 2006-23, 2006-1 C.B. 861, 2006-18 I.R.B. 861,
which publicized disciplinary actions regarding attorneys,
certified public accountants, enrolled agents, and enrolled
actuaries. Id. ¶ 16. The Bulletin identified
Plaintiff as an " enrolled agent" and identified
the date of his suspension as " indefinite from March 9,
2006."  Id. ; see also
Internal Revenue Bulletin, 2006-18 I.R.B. 855, 859 (May 1,
2006), available at
http://www.irs.gov/pub/irs-irbs/irb06-18.pdf, last visited
October 2, 2015. Plaintiff did not learn of the suspension
until he was released from prison. Compl., Facts ¶
to Article III of the Constitution, Defendant moves to
dismiss this action on the basis that this Court has no
jurisdiction because Plaintiff lacks standing. " Article
III of the Constitution limits the jurisdiction of federal
courts to 'actual cases or controversies between proper
litigants.'" Mendoza v. Perez, 754 F.3d
1002, 1010, 410 U.S.App.D.C. 210 (D.C. Cir. 2014) (quoting
Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 661,
320 U.S.App.D.C. 324 (D.C. Cir. 1996)). Because standing is a
" threshold jurisdictional requirement," a court
may not assume that Plaintiff has standing in order to
proceed to evaluate a case on the merits. Bauer v.
Marmara, 774 F.3d 1026, 1031, 413 U.S.App.D.C. 338 (D.C.
Cir. 2014). A plaintiff " bears the burden of showing
that he has standing for each type of relief sought."
Summers v. Earth Island Inst., 555 U.S. 488, 493,
129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). " To establish
constitutional standing, plaintiffs 'must have suffered
or be imminently threatened with a concrete and
particularized injury in fact that is fairly traceable to the
challenged action of the defendant and likely to be redressed
by a favorable judicial decision.'"
Mendoza, 754 F.3d at 1010 (quoting Lexmark
Int'l, Inc. v. Static Control Components, Inc., 134
S.Ct. 1377, 1386, 188 L.Ed.2d 392 (2014); see also
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560,
112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
to Federal Rule of Civil Procedure 12(b)(6), a party may move
to dismiss a complaint on the grounds that it " fail[s]
to state a claim upon which relief can be granted."
Fed.R.Civ.P. 12(b)(6). " [A] complaint [does not]
suffice if it tenders 'naked assertion[s]' devoid of
'further factual enhancement.'" Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009) (quoting Bell A. Corp. v. Twombly, 550
U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Rather, a complaint must contain sufficient factual
allegations that, if accepted as true, " state a claim
to relief that is plausible on its face."
Twombly, 550 U.S. at 570. " A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678.
move to dismiss the Complaint because Plaintiffs lack
standing to pursue this action. Defendants also move to
dismiss the Complaint for failure to state a claim. The Court
considers first, as it must, the threshold jurisdictional
issue of standing.
The 'irreducible constitutional minimum of standing
contains three elements': injury in fact, causation, and
redressability." Arpaio v. Obama, 797 F.3d 11,
19 (D.C. Cir. 2015) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d
351 (1992)). " Injury in fact is the 'invasion of a
legally protected interest which is (a) concrete and
particularized ... and (b) actual or imminent, not
conjectural or hypothetical." Id. (quoting
Lujan, 504 U.S. at 560) (alterations in original).
" The 'causal connection between the injury and the
conduct complained of' must be 'fairly traceable to
the challenged action of the defendant, and not the result of
the independent action of some third party not before the
court.'" Id. (quoting Lujan, 504