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Bowman v. Iddon

United States District Court, D. Columbia

October 13, 2015

JOHN J. BOWMAN, Plaintiff
v.
KIMBERLY IDDON, et al., Defendants

          JOHN J. BOWMAN, JR., Plaintiff, Pro se, Pitsburgh, PA.

         For 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.

         MEMORANDUM OPINION

         COLLEEN KOLLAR-KOTELLY, United States District Judge.

         Plaintiff 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).[1] 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[2]; (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,[3] 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 its entirety.

         I. BACKGROUND

         For the 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.

         On 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." [4] 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 ¶ ¶ 18-19.

         II. LEGAL STANDARD

         Pursuant 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).

         Pursuant 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.

         III. DISCUSSION

         Defendants 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.

         A. 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 U.S. ...


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