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Simeon Washa Amen RA ex rel. Lewis v. Internal Revenue Service

United States District Court, N.D. Illinois, Eastern Division

December 12, 2016



          John Z. Lee, Judge

         Plaintiff Simeon Washa Amen Ra, ex rel. Simeon Lewis (Amen Ra), filed this suit pro se against the “Internal Revenue Service, United States”[1] (IRS), alleging that the IRS has unlawfully garnished his wages and wrongfully imposed liens on his property to collect federal income tax. In his amended complaint [35], Amen Ra claims that the IRS has deprived him of property without due process of law in violation of the Fifth Amendment to the U.S. Constitution (Count I); seized his property in violation of the Fourth Amendment to the U.S. Constitution (Count II); unlawfully collected income tax (Count III); and committed four counts of “constructive fraud, ” two related to notices of tax levy sent to his employer (Counts IV and VII), and two related to notices of lien sent to the Recorder of Deeds in Washington, D.C. (Count VI) and the Cook County Recorder of Deeds in Chicago, IL (Count VIII).[2] The United States has moved to dismiss the amended complaint in its entirety [36]. For the reasons that follow, the motion is granted.


         Amen Ra brought this suit in response to a series of allegedly unlawful actions taken by the IRS to collect income tax from him. The challenged actions are as follows. First, beginning in 2010, the IRS instructed Amen Ra's employer, BNSF Railroad Company (BNSF), to increase the tax withholding on his paychecks. Am. Compl. ¶¶ 8, 11, ECF No. 35. Second, in September 2012, the IRS issued BNSF a notice of levy under which it sought to garnish Amen Ra's wages in order to collect unpaid back taxes. Id. ¶ 16. BNSF complied with this levy through June 2014, at which point Amen Ra acknowledges that the levy ended. Id. ¶ 29. Amen Ra alleges, however, that a new notice of levy was sent to BNSF in April 2015, pursuant to which the IRS has resumed garnishing his wages. Id. ¶ 31. Third, in October 2012, the IRS sent a notice of federal tax lien form identifying Amen Ra to the Recorder of Deeds in Washington, D.C. Id. ¶ 20. Finally, in March 2015, the IRS sent notice of federal tax lien forms to the Cook County Recorder of Deeds in Chicago, Illinois. Id. ¶ 30.

         Amen Ra filed his initial complaint on October 22, 2014.[3] The complaint raised various counts, including violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.; the Federal Debt Collection Procedures Act, 28 U.S.C. § 3001 et seq.; the Fourth and Fifth Amendments to the U.S. Constitution; the Uniform Lien Registration Act, 770 Ill. Comp. Stat. § 110; the Internal Revenue Code, 26 U.S.C. § 7422; and three federal criminal statutes, 18 U.S.C. §§ 241, 242, and 1346. Compl. 9-20, ECF No. 1. On July 27, 2015, this Court granted the United States's motion to dismiss all counts except those based on the Fourth and Fifth Amendments and 26 U.S.C. § 7422, under which Amen Ra seeks a tax refund. See generally Amen Ra ex rel. Lewis v. I.R.S., No. 1:14-cv-08295, 2015 WL 5011454 (N.D. Ill. July 27, 2015).

         Following the Court's order, Amen Ra filed an amended complaint on April 22, 2016. Amen Ra's amended complaint reincorporates his claims under the Fourth and Fifth Amendments and 26 U.S.C. § 7422. Am. Compl. ¶¶ 36-46, ECF No. 35. It also adds four new allegations of “constructive fraud, ” two of which pertain to the notices of levy sent to BNSF, and two that relate to the notices of lien forms sent to the recorders of deeds in Washington, D.C., and Chicago, Illinois. Id. ¶¶ 59-79. The complaint seeks $621, 675.99 in damages and “all other relief deemed proper by the court.” Id. at 18. On May 19, 2016, the United States moved to dismiss Amen Ra's amended complaint under Federal Rules of Procedure 12(b)(1) and 12(b)(6).[4]

         Legal Standard

         A motion to dismiss pursuant to Rule 12(b)(1) tests the jurisdictional sufficiency of the complaint. “When ruling on a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the district court must accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff.” Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995). But “[t]he district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993) (quoting Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir. 1979)). “[I]f the complaint is formally sufficient but the contention is that there is in fact no subject matter jurisdiction, the movant may use affidavits and other material to support the motion.” United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003), overruled on other grounds by Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845, 848 (7th Cir. 2012). “The burden of proof on a 12(b)(1) issue is on the party asserting jurisdiction.” Id.

         To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Additionally, when considering motions to dismiss, the Court accepts “all well-pleaded factual allegations as true and view[s] them in the light most favorable to the plaintiff.” Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013) (citing Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir. 2013)). At the same time, “allegations in the form of legal conclusions are insufficient to survive a Rule 12(b)(6) motion.” McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 885 (7th Cir. 2012) (citing Iqbal, 556 U.S. at 678). As such, “[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

         The Court is mindful that “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, while the Court gives liberal construction to a pro se plaintiff's complaint, “it is also well established that pro se litigants are not excused from compliance with procedural rules.” Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir. 2008)

         With these standards in mind, the Court turns to the allegations in Amen Ra's amended complaint.


         I. Counts I and II: Fourth and Fifth Amendment Claims

         Counts I and II of Amen Ra's amended complaint allege that the IRS's actions deprived him of property without due process of law in violation of the Fifth Amendment (Count I) and constituted an unreasonable seizure in violation of the Fourth Amendment (Count II). The United States moves to dismiss these claims under Rule 12(b)(1), arguing that the Court lacks subject matter jurisdiction. In support of its jurisdictional motion, the United States argues primarily that Amen Ra's constitutional claims are barred by the doctrine of sovereign immunity.

         As an initial matter, the Court recognizes that it previously denied the United States's motion to dismiss these claims. Amen Ra ex rel. Lewis v. I.R.S., 2015 WL 5011454, at *3-4. At that time, however, the Court rejected the United States's argument that Amen Ra had not exhausted his administrative remedies. Id. The Court did not address the issue of whether sovereign immunity bars the claims outright.

         Sovereign immunity is a jurisdictional bar that shields the United States government and its agencies from suit. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). Unless the United States consents to suit by waiving immunity, a court does not have jurisdiction to hear a suit against it. Id. To that end, while an implied waiver permits individual federal officers to be sued for damages in their individual capacities for violations of the Fourth and Fifth Amendments, Bush v. Lucas, 462 U.S. 367, 374-78 (1983) (citing Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 395-96 (1971)), the United States has not waived its immunity as to so- called “constitutional torts.” Meyer, 510 U.S. at 486. Indeed, the Supreme Court has expressly declined to imply a cause of action under the Constitution for damages against federal agencies. Id. Rather, the exclusive remedy for taxpayers in Amen Ra's position is a suit against the United States under 26 U.S.C. § 7433. See Cameron v. I.R.S., 773 F.2d 126, 129 (7th Cir. 1985); Godbout v. Parizek, No. 03 C 2879, 2004 WL 3021393, at *4 (N.D. Ill.Dec. 29, 2004).

         Pursuant to § 7433, the United States has waived its sovereign immunity where, “in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence, disregards any provision of this title, or any regulation promulgated under this title.” 26 U.S.C. § 7433(a). A suit brought pursuant to the waiver in § 7433 is the “exclusive remedy for recovering damages resulting from such actions.” Id. This waiver, however, has been construed narrowly, and it does not waive immunity for the constitutional claims Amen Ra brings in this case. Hudson Valley Black Press v. I.R.S., 409 F.3d 106, 111-114 (2d Cir. 2005) (citing Cameron, 773 F.2d at ...

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