United States District Court, District of Columbia
EURICH Z. GRIFFIN, et al., Plaintiffs,
UNITED STATES OF AMERICA, et al., Defendants.
CHRISTOPHER R. COOPER, United States District Judge.
enjoys paying taxes, but they are a price of citizenship. For
that reason, the law erects substantive barriers to
challenging their imposition. This is a case in point.
are forty-one individual tax objectors who have sued the
United States, the Treasury Department, forty-five named
individual federal employees, and various unknown federal
employees. Compl. ¶¶ 15-108. Principally,
plaintiffs allege that the IRS lacks jurisdiction to assess
taxes and penalties against them. Id. ¶¶
113-15. Because the Tax Court dismissed plaintiffs’
past petitions against the IRS for lack of jurisdiction,
plaintiffs argue that the IRS therefore lacks jurisdiction
over them entirely and may not subject them to federal
taxation. Id. ¶¶ 113-15. Plaintiffs also
allege that the defendants trespassed on and tortiously
interfered with their property, id. ¶¶
203-13; intentionally inflicted emotional distress,
id. ¶¶ 270-79; perpetrated “Abuse of
Process, ” id. ¶¶ 238; engaged in
defamation, libel, and slander, id. ¶¶
280-86; ran afoul of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692, id.
¶ 136; violated 42 U.S.C. § 1983, id.
¶¶ 192-202; trampled their rights under 4th, 5th,
and 14th Amendments to the U.S. Constitution, id.
¶¶ 214-37; carried out mail fraud in violation of
18 U.S.C. §§ 1961–1964, id.
¶¶ 253-63; and illegally filed tax lien notices or
levies against them, id. ¶¶ 126-31.
Plaintiffs each seek a declaratory judgment and millions of
dollars. Id. at 116-22.
government moved to dismiss plaintiffs’ pro se
complaint under Rules 12(b)(1) and (6) of the Federal Rules
of Civil Procedure for lack of subject matter jurisdiction
and failure to state a claim. See Mem. Supp. Mot.
Dismiss (“MTD”), ECF No. 20-1 at 2-3. The Court
responded with a standard
“Fox/Neal” Order, advising
plaintiffs that if they did not respond to the motion to
dismiss by June 24, 2019, the Court may deem the motion
conceded. See Order, ECF No. 21 at 1. Plaintiffs did
not file an opposition. Instead, on June 20, 2019, they filed
a Motion to Amend the Complaint, which attached a new
complaint but failed to indicate the proposed amendments.
See Pls. Mot. to Amend, ECF No. 23-1. On August 23,
2019, the Court issued a minute order instructing plaintiffs
to show cause in writing, by September 13, 2019, why the
government’s motion to dismiss should not be granted as
conceded under Local Civil Rule 7(b) or granted on the
merits. On September 13, 2019, plaintiffs filed a response to
the Court’s order, objecting to the government’s
motion to dismiss. ECF No. 34. Additionally, several
individual plaintiffs filed “motions to claim and
exercise constitutionally secured rights and to compel the
Court to rule on their motions.” ECF Nos. 24, 25, 26,
31 & 32. For the reasons that follow, the Court will
grant the government’s motion to dismiss and deny
plaintiffs’ motion to amend the complaint.
the Court will consider whether it has subject matter
jurisdiction over plaintiffs’ claims. Absent a waiver
of sovereign immunity, the United States is immune from suit.
Block v. North Dakota, 461 U.S. 273, 287 (1983).
Similarly, because an action against federal officers in
their official capacities “generally represent[s] only
another way of pleading an action against an entity of which
an officer is an agent, ” such suits are also barred by
sovereign immunity. Kentucky v. Graham, 473 U.S.
159, 165-66 (1985) (quoting Monell v. New York City Dept.
of Social Services, 436 U.S. 658, 690 n.55 (1978)).
Plaintiffs bear the burden of demonstrating waiver for each
claim that they bring. United States v. Mitchell,
463 U.S. 206, 212 (1983). If plaintiffs fail to identify a
statute expressly waiving immunity, the Court lacks subject
matter jurisdiction to adjudicate a claim against the United
these principles, the Court lacks subject matter jurisdiction
to consider plaintiffs’ trespass, tortious interference
with property, and intentional infliction of emotional
distress claims because plaintiffs have not identified a
waiver of sovereign immunity. Nor could they. While the
Federal Tort Claims Act (FTCA) waives the United
States’ sovereign immunity with respect to claims based
on “the negligent or wrongful act or omission” of
a government employee, see 28 U.S.C. § 1346(b),
which generally includes claims for intentional torts,
see, e.g., Levin v. United States, 568 U.S.
503, 507 n.1 (2013), the United States has not waived its
sovereign immunity for “[a]ny claims arising out of the
assessment or collection of any tax, ” 28 U.S.C. §
2680(c). Because plaintiffs’ trespass, tortious
interference with property, and intentional infliction of
emotional distress claims arise out of the government’s
assessment and collection of taxes, Compl. ¶¶
203-13, sovereign immunity precludes their claims.
the Court lacks jurisdiction to consider plaintiffs’
abuse of process, defamation, libel, and slander claims
because the FTCA explicitly bars such claims. By its terms,
the FTCA retains immunity for “[a]ny claim arising out
of . . . abuse of process, libel, slander, misrepresentation,
deceit, or interference with contract rights.” See
id. §§ 2680(h), 1346(b)(1). To the extent
plaintiffs seek to raise other claims of fraud, the federal
government also retains sovereign immunity for such claims.
Budik v. Ashley, 36 F.Supp.3d 132, 140 (D.D.C.
2014), aff'd sub nom. Budik v. United States,
No. 14-5102, 2014 WL 6725743 (D.C. Cir. Nov. 12, 2014).
FDCPA claims fare no better. Sovereign immunity bars
plaintiffs’ FDCPA claims because the FDCPA defines the
term “debt collector” as excluding “any
officer or employee of the United States or any State to the
extent that collecting or attempting to collect any debt is
in the performance of his official duties.” 15 U.S.C.
to the extent that plaintiffs request a declaratory judgment
that would have the effect of restraining the
government’s collection of taxes, this Court lacks
subject matter jurisdiction. The Anti-Injunction Act (AIA)
provides that “no suit for the purpose of restraining
the assessment or collection of any tax shall be maintained
in any court by any person.” 26 U.S.C. § 7421(a).
Similarly, the Declaratory Judgment Act (DJA) expressly bars
claims for declaratory relief “with respect to Federal
taxes.” 28 U.S.C. § 2201. These two Acts are
coterminous, Cohen v. United States, 650 F.3d 717 at
727-31 (D.C. Cir. 2011) (en banc), so where a plaintiff seeks
declaratory judgment to restrain the collection of taxes, the
claim must be dismissed for lack of subject matter
jurisdiction, Gardner v. United States, 211 F.3d
1305, 1310-11 (D.C. Cir. 2000). Accordingly, the Court lacks
jurisdiction to consider plaintiffs’ requests for
remaining claims, the Court will consider whether plaintiffs
have stated claims upon which relief can be granted.
seek relief pursuant to 42 U.S.C. § 1983, Compl.
¶¶ 192-202, which permits civil recovery for
constitutional violations occurring under color of state law.
Because the actions of the federal government “are
exempt from the proscriptions of § 1983, ”
District of Columbia v. Carter, 409 U.S. 418, 242-25
(1973), plaintiffs have failed to state a claim.
also allege violations of their Constitutional rights under
the 4th, 5th, and 14th Amendments and seek damages pursuant
to Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971). Compl. ¶¶
214-37. To the extent plaintiffs assert a Bivens
claim for damages against the United States or the individual
defendants in their official capacities, their claims must
dismissed because “[i]t is well established that
Bivens remedies do not exist against officials sued
in their official capacities.” Kim v. United
States, 632 F.3d 713, 715 (D.C. Cir. 2011). To the
extent plaintiffs attempt to bring Bivens claims
against the named government employees in their individual
capacities, their claims must also be dismissed because the
“lower courts in this jurisdiction have . . . declined
to create a Bivens remedy to redress injuries
alleged by . . . tax protesters . . . who allege due process
violations stemming from” tax collection. Kim v.
United States, 618 F.Supp.2d 31, 37–38 (D.D.C.
2009), rev’d on other grounds, 632 F.3d 713,
717 (D.C. Cir. 2011) (citations omitted). Indeed,
Bivens remedies are “precluded by the
‘comprehensive statutory remedial scheme’ that
Congress established through the Internal Revenue
Code.” Id. (citation omitted); see also
Esposito v. Dep’t of Treasury, No. 1:10-CV-980
RLW, 2012 WL 1076155, at *3 (D.D.C. Mar. 30, 2012).
plaintiffs allege that the defendants have committed mail
fraud in violation of 18 U.S.C. §§ 1961-1964 and
have illegally filed tax lien notices or levies. Compl.
¶¶ 126-31, 253-63. Because individuals
“cannot bring suits as private attorneys general in an
effort to right potential violations of criminal statutes,
” Chrysler Corp. v. Brown, 441 U.S. 281, 316
(1979), plaintiffs have failed to state a claim.
have moved to amend their complaint. Despite the lack of a
redline version of their complaint, the Court dutifully waded
through the proposed amended complaint and finds that it
merely repackages the same unsuccessful claims raised in the
initial complaint. Thus, accepting plaintiffs’ proposed
amended complaint would be futile, as it too fails on all
counts to either establish subject matter jurisdiction or
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