The opinion of the court was delivered by: Marovitz, Senior District Judge.
Plaintiffs Charles D. Schaut, Albert Reich, John Cheek,
Norman Krah and Michael H. Smith bring this action pro se
against the United States of America and the Commissioner of
the Internal Revenue Service alleging that the withholding of
taxes from their wages and the payment of these taxes is in
violation of the authority granted under the Sixteenth
Amendment to the United States Constitution. Plaintiffs seek
injunctive and declaratory relief. The Court's jurisdiction is
allegedly invoked pursuant to the Declaratory Judgment Act,
28 U.S.C. § 2201. Presently pending before the Court is
defendants' motion to dismiss for lack of subject matter
jurisdiction. After full review of the memoranda on file, as
well as the relevant case law, for the reasons that follow,
defendants' motion is granted.
According to the complaint, plaintiffs are all wage earners
who are employed within this judicial district and have been
subject to both the payment of income taxes and the
withholding of taxes from their wages. Plaintiffs claim that
wages are not taxable under the Sixteenth Amendment and thus
the withholding from and the payment of taxes from their wages
violates their Fifth Amendment due process rights. Plaintiffs
request that the Court declare that they are not subject to
being taxed by the Internal Revenue Code because they are wage
earners and thus not subject to income tax provisions.
Plaintiffs also request that the Court enjoin defendants from
subjecting plaintiffs to withholding taxes.
The defendants have moved to dismiss the complaint on the
1. The Doctrine of Sovereign Immunity bars this
2. The Court lacks subject matter jurisdiction;
3. The Anti-Injunction Act bars plaintiffs'
claim for injunctive relief; and
4. The Declaratory Judgment Act bars plaintiffs'
claim for declaratory relief.
"It is elementary that `[t]he United States, as a sovereign,
is immune from suit save as it consents to be sued . . ., and
the terms of its consent to be sued in any court define that
court's jurisdiction to entertain the suit.'" United States v.
Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d
607 (1980) quoting United States v. Sherwood, 312 U.S. 584,
586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). A waiver of
sovereign immunity "cannot be implied but must be unequivocally
In the instant action, plaintiffs have failed to assert any
statutory provision sufficient to waive sovereign immunity and
provide a valid jurisdictional basis. Indeed, plaintiffs'
complaint is silent as to a jurisdictional base, except to
state that the action is brought pursuant to the Declaratory
Judgment Act, 28 U.S.C. § 2201. Ofcourse, the Declaratory
Judgment Act does not create an independent ground for
jurisdiction, but rather permits the award of declaratory
relief only when other bases for jurisdiction are present.
Jones v. Alexander, 609 F.2d 778 (5th Cir. 1980), cert. denied,
449 U.S. 832, 101 S.Ct. 100, 66 L.Ed.2d 37; Skelly Oil Co. v.
Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 878,
94 L.Ed. 1194 (1950). Nor does the general federal question
jurisdictional statute, 28 U.S.C. § 1331, waive sovereign
immunity. Shaffer v. Commissioner of Internal Revenue,
515 F. Supp. 748 (E.D.La. 1981). Additionally, as will be made clear
below, both the Anti-Injunction Act and the Declaratory
Judgment Act expressly preclude the relief sought by
Plaintiffs ask the Court to enter an injunction restraining
defendants from subjecting their wages to withholding taxes.
26 U.S.C. § 7421(a), commonly known as ...