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DUEVER v. JACKSON

October 11, 2005.

JOHN W. DUEVER, Plaintiff,
v.
B. JACKSON, Revenue Officer, MARK W. EVERSON, Commissioner of the Internal Revenue Service, and JOHN SNOW, Secretary of the Treasury, Defendants.



The opinion of the court was delivered by: AMY ST. EVE, District Judge

MEMORANDUM OPINION AND ORDER

On March 8, 2005, pro se Plaintiff John W. Duever filed a Complaint against Defendants B. Jackson, an Internal Revenue Service ("IRS") Revenue Officer, Mark W. Emerson, Commissioner of the IRS, and John Snow, Secretary of the Treasury. Construing Duever's pro se Complaint liberally, see Perruquet v. Briley, 390 F.3d 505, 512 (7th Cir. 2004), he alleges that: (1) the IRS exceeded its authority by issuing, without authorization, a prejudgment lien and levy on his property and (2) the IRS violated the Freedom of Information Act ("FOIA"). Defendants move to dismiss Duever's claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons stated herein, the Court grants Defendants' motion to dismiss.

BACKGROUND

  For the purposes of this motion to dismiss, the Court accepts Duever's facts alleged in his pro se Complaint as true. On December 9, 2004, the IRS issued Duever a letter claiming he owed more than $500,000 in taxes. (R. 1-1; Compl., Ex. G.) Subsequently, on December 15, 2004, Duever sent the IRS correspondence requesting the following information under FOIA: (1) Form 23C, Summary Record of Assessment; (2) Form 2666, Certification of Transcript; (3) photocopies and the forms relevant to Internal Revenue Code sections that define proper assessment and filing procedures; (4) the supporting records the IRS relied upon in determining its assessments; (5) the character of the tax liability that the IRS based its assessment upon; and (6) a request to send updated forms. (Id. ¶¶ 2-7, Ex. L.)*fn1 Duever also claimed that he did not owe the IRS the amount it was demanding and that the IRS could not file a notice of lien or levy without validating the claims. (Id., Ex. L.) Duever alleges that he never received the information he requested in his December 15, 2004 correspondence to the IRS. (Id. ¶ 92.)

  On January 6, 2005, the IRS issued four "Notice of Levy" forms. (Id., Ex. C, D, E, F.) In response to the IRS issuing the "Notice of Levy" forms, Duever submitted a letter to the IRS stating that they did not have authority under 26 U.S.C. § 6331 to enforce the levies because he was not an "officer," that is, a federal employee, under 26 U.S.C. § 6331(a). (Id., Ex. L.) Additionally, Duever claimed that continuance with the levies would result in a violation of his Fourth, Fifth, Thirteenth, and Fourteenth Amendment rights. (Id., Compl. at 1.)

  LEGAL STANDARDS

  Defendants bring the present motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6). The standard of review for a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction depends on the purpose of the motion. See United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003) (en banc). If a defendant is challenging the sufficiency of the allegations regarding subject matter jurisdiction, the Court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in favor of the plaintiff. See id. If, however, the defendant denies or controverts the truth of the jurisdictional allegations, the Court may look beyond the pleadings and view any evidence submitted to determine if subject matter jurisdiction exists. See id.; see also Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993). The party asserting jurisdiction bears the burden of proof on a Rule 12(b)(1) motion. Sprint Spectrum L.P. v. City of Carmel, Indiana, 361 F.3d 998, 1001 (7th Cir. 2004).

  The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of a complaint — not the merits of the case. Triad Assoc., Inc. v. Chicago Housing Auth., 892 F.2d 583, 586 (7th Cir. 1989). The Court will only grant a motion to dismiss if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Centers v. Mortgage, Inc., 398 F.3d 930, 933 (7th Cir. 2005) (quoting Coney v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed.2d 80 (1957)). When determining a motion to dismiss under Rule 12(b)(6), the Court is restricted to reviewing the pleadings, which consist of the complaint, any attached exhibits, and the supporting briefs. See Thompson v. Illinois Dept. of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). In making its determination, the Court must assume the truth of the facts alleged in the pleadings, construe the allegations liberally, and view them in the light most favorable to the plaintiff. Centers, 398 F.3d at 333.

  ANALYSIS

  I. IRS as Proper Defendant

  Although Duever has styled his Complaint against the named Defendants, it is apparent that Duever is suing the named Defendants in their official capacities, and thus he is actually suing the IRS. See Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (official capacity claim is lawsuit against governmental entity). In fact, throughout his Complaint, Duever never refers to the named Defendants or their actions, but instead refers to the IRS' actions.

  II. Sovereign Immunity

  Because the IRS is an agency of the United States government, the Court's jurisdiction is contingent on whether the government has waived its sovereign immunity. LaBonte v. United States, 233 F.3d 1049, 1052 (7th Cir. 2000) ("United States government may be sued only where Congress has waived its sovereign immunity and the existence of such waiver is a `prerequisite for jurisdiction.'") "Absent a waiver, sovereign immunity shields the federal government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). To bring an action against the United States in federal court, a plaintiff must identify the statute conferring subject matter jurisdiction and a federal law waiving the sovereign immunity of the United States. Clark v. United States, 326 F.3d 911, 912 (7th Cir. 2003) (per curiam); see also Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 261, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999) (plaintiff must show waiver unequivocally expressed in statutory text). Courts strictly construe the scope of the waiver in favor of the government. Orff v. United States, ___ U.S. ___, 125 S.Ct. 2606, 2610, ___ L.Ed.2d ___ (2005).

  Here, Duever has failed in his burden of identifying any statutes conferring subject matter jurisdiction on the Court or federal laws waiving the sovereign immunity of the United States or its agency, the IRS, under the circumstances. In addition, the IRS informs the Court that it knows of no such waiver under which this action could proceed. ...


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