United States District Court, Northern District of Illinois, E.D
April 29, 1983
ESTHERLENE HOLMES, PETITIONER,
JOHN STARK, RESPONDENT.
The opinion of the court was delivered by: William T. Hart, District Judge.
MEMORANDUM OPINION AND ORDER
Petitioner Estherlene Holmes brings this petition for a writ
of mandamus against the respondent John Stark, an employee of
the Internal Revenue Service. Ms. Holmes complains that Mr.
Stark, acting in his capacity as an agent of the United States,
has failed to perform certain duties required of him by law.
Since it is evident that it is the United States rather than
Mr. Stark individually against whom Ms. Holmes seeks relief,
this Court will treat the United States as the respondent in
this action. Cf. Reed Marketing Corp. v. Diversified Marketing,
Inc., 419 F. Supp. 125 (N.D.Ill. 1976) (in garnishment action,
clerk of court named as garnishee-defendant stands in shoes of
United States). The respondent has moved to dismiss this
action, and for the reasons given below the motion is granted.
The essence of petitioner's claim is that the respondent has
assessed and is attempting to collect a penalty of $500
to 26 U.S.C. § 6682, but that the respondent has failed
to perform certain ministerial duties which will result in the
deprivation of petitioner's property without due process of
law. In brief, petitioner filed an Employee's Withholding
Allowance Certificate (Form W-4) in which she claimed to be
exempt from federal tax withholding. Pursuant to Section 6682,
the United States determined that the petitioner's statement
resulted in a decrease in the amounts deducted and withheld,
and that at the time the W-4 form was filed the petitioner had
no reasonable basis for her claim of exemption. Therefore, the
United States assessed the statutory penalty of $500 against
the petitioner. In her petition for writ of mandamus, filed
pro se, Ms. Holmes claims that Section 6682 is not applicable,
and that under 28 U.S.C. §§ 6212 and 6213, she had a
right to litigate any liability prior to any deprivation of her
At the outset, the Court recognizes that pro se complaints
are to be liberally construed. Caruth v. Pinkney,
683 F.2d 1044, 1050 (7th Cir. 1982) (per curiam). In this connection,
the Court notes that in her brief filed in response to the
motion to dismiss, Ms. Holmes has demonstrated more than a
basic understanding of statutory construction and the
application of case law. Of course, a motion to dismiss may not
be granted unless "it is beyond doubt that there is no set of
facts under which [the complainant] could obtain relief."
Shango v. Jurich, 681 F.2d 1091, 1103 (7th Cir. 1982).
Second, there are three recognized standards which must be
met for the Court to invoke its mandamus jurisdiction:
Mandamus may properly issue only when three
elements are present:
(1) a clear right in the plaintiff to the relief
(2) a plainly defined and peremptory duty on the
part of the defendant to do the act in question;
(3) no other adequate remedy available.
American Healthcare Corp. v. Schweiker, 688 F.2d 1072, 1084
(7th Cir. 1982), citing and quoting Lovallo v. Froehlke,
468 F.2d 340, 343 (2d Cir. 1972), and Cervoni v. Secretary of
Health, Education and Welfare, 581 F.2d 1010, 1019 (1st Cir.
The motion to dismiss must be granted for two reasons. First,
the doctrine of sovereign immunity bars a suit against the
United States unless the government has consented to such an
action. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct.
1349, 1351, 63 L.Ed.2d 607 (1980). The petitioner has not
alleged any consent by the United States to this kind of
mandamus action, and the Court cannot find that the government
has consented to it. Therefore, the action is barred.
Second, the petitioner cannot state a mandamus action here.
Essentially, the petitioner claims that she had the statutory
right to be informed of this liability and to contest it prior
to the government assessing the penalty against her. In support
of her position, the petitioner invokes the deficiency sections
of the Internal Revenue Code, 26 U.S.C. §§ 6212 and 6213.
However, Section 6682(c) states that "Subchapter B of chapter
63 (relating to deficiency procedures for income, estate, gift,
and certain excise taxes) shall not apply in respect to the
assessment or collection of any penalty imposed by subsection
(a)." Subchapter B of chapter 63 includes Sections 6212 and
6213. Therefore, the statute is clear that the petitioner has
no right to expect the government to comply with Sections 6212
and 6213, since the applicable statute explicitly exempts such
application. Therefore, the petitioner cannot show a clear
right to the relief she seeks; further, there is no duty
imposed on the United States by the applicable law to "do the
act in question." Instead, the opposite is clearly the case.
Finally, the petitioner clearly has a remedy apart from this
mandamus action which is entirely adequate. She may file a
refund suit, since under 26 U.S.C. § 6671(a) the penalty
imposed here under
Section 6682(a) is considered to be a "tax". Such a refund suit
meets the constitutional requirements of due process. See Lewin
v. Commissioner of Int. Rev., 569 F.2d 444, 445 (7th Cir.
In her Answer to the motion to dismiss, the petitioner seems
to urge this Court to find that her actions are protected by
the First Amendment guarantee providing that "Congress shall
make no law . . . abridging . . . the right of the
people . . . to petition the Government for a redress of
grievances." The Court does not understand how the assessment
of this $500 penalty by the United States abridges the
petitioner's freedom to ask the government for relief from the
requirements imposed by the Internal Revenue Code, or for its
abolition altogether (if this is what petitioner desires).
THEREFORE IT IS ORDERED that
1. Respondent's motion to dismiss is granted.
2. The petition for writ of mandamus is dismissed.
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