United States District Court, N.D. Illinois, Eastern Division
SIMEON WASHA AMEN RA ex rel. SIMEON LEWIS, Plaintiff,
INTERNAL REVENUE SERVICE, UNITED STATES, Defendant.
MEMORANDUM OPINION AND ORDER
Z. Lee, Judge
Simeon Washa Amen Ra, ex rel. Simeon Lewis (Amen Ra), filed
this suit pro se against the “Internal Revenue Service,
United States” (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 , 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). The United States has moved to dismiss the
amended complaint in its entirety . For the reasons that
follow, the motion is granted.
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.
filed his initial complaint on October 22,
2014. 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).
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
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.
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.
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)
these standards in mind, the Court turns to the allegations
in Amen Ra's amended complaint.
Counts I and II: Fourth and Fifth Amendment Claims
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.
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.
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).
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 ...