Opinion
Civil Action No. 01-Z-2409(CBS)
June 4, 2002
RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE
THIS MATTER comes before the court on: (1) Brasfield's Motion for Temporary Restraining Order (filed April 17, 2002); and (2) the United States' Motion to Dismiss (filed March 21, 2002). Pursuant to the March 26, 2002 Order of Reference, this civil action was referred to the Magistrate Judge to, inter alia, "[h]ear and determine pretrial matters" and to "submit proposed findings of fact and recommendations for rulings on dispositive motions." The court has reviewed the pending matters, Brasfield's "Answer to United States Motion to Dismiss" (filed April 17, 2002), the pleadings, the entire case file, and the applicable law and is sufficiently advised in the premises.
I. Background
Brasfield, pro se, initiated this civil action on December 12, 2001 seeking a court order to prevent the levy on his wages by the Internal Revenue Service ("IRS"). (See December 12, 2001 Notice and Request for Temporary Restraining Order). Brasfield has alleged that the "United States government, by its agency, the Internal Revenue Service and its delegates, has stolen $1,698.78 from the Plaintiff . . . by illegal garnishment of Plaintiffs wages. . . ." (February 19, 2002 Amended Notice and Request for Temporary Restraining Order ¶ 4). Brasfield asks the court to, inter alia, "grant an injunction and command the return of the property taken." (February 19, 2002 Amended Notice and Request for Temporary Restraining Order p. 6).
II. The United States' Motion to Dismiss
The United States moves to dismiss this civil action pursuant to Fed.R.Civ.P. 12(b) for lack of subject matter jurisdiction because (1) the United States is the sole proper Defendant; and (2) the action is barred by the Anti-Injunction Act, 26 U.S.C. § 7421(a).
A. Standard of Review
First, pro se pleadings are to be construed liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
empowers a court to dismiss a complaint for "lack of jurisdiction over the subject matter." As courts of limited jurisdiction, federal courts may only adjudicate cases that the Constitution and Congress have granted them authority to hear. See U.S. CONST. art. III, § 2; Morris v. City of Hobart, 39 F.3d 1105, 1110 (10th Cir. 1994). Statutes conferring jurisdiction on federal courts are to be strictly construed. F S Construction Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). If a Rule 12(b)(1) motion to dismiss merely challenges the sufficiency of the allegations in the complaint, the court must accept those allegations as true, see Holt v. United States, 46 F.3d 1000, 1002-1003 (10th Cir. 1995), but "without regard to mere conclusionary allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). A party may attack the factual assertions regarding subject matter jurisdiction through affidavits and other documents. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Although the district court may consider evidence outside the pleadings, generally the motion is not converted to one for summary judgment pursuant to Rule 56. Id. The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction.
Basso v. Utah Power and Light Co., 495 F.2d 906, 909 (10th Cir. 1974). American Fair Credit Ass'n v. United Credit Nat. Bank, 132 F. Supp.2d 1304, 1308-09 (D.Colo. 2001).
B. The United States is the Proper Defendant
Brasfield does not state whether he is suing the Defendants in their official capacities, their individual capacities, or both. Brasfield concedes that the United States "should be added as proper party with the existing Defendants." (Brasfield's Answer to Motion to Dismiss p. 2). Brasfield also states that IRS employees "may have been directed by the United States. . . ." (Brasfield's Answer to Motion to Dismiss p. 3).
First, the IRS is not an entity against which suit may be brought. Lopez v. United States, 129 F. Supp.2d 1284, 1292 (D.N.M. 2000) (citations omitted). Second, Brasfield seeks injunctive relief, the return of property, and the cessation of collection efforts. His allegations clearly are based on actions taken by IRS employees in the scope of their official duties. See Houston v. Reich, 932 F.2d 883, 885 (10th Cir. 1991) (the court should review the "course of the proceedings" to determine in what capacity a public official defendant is being sued) (quoting Kentucky v. Graham, 473 U.S. 159, 167 (1985)) (internal quotation omitted). Brasfield's allegations against the named Defendants are properly construed as allegations against the United States. Atkinson v. O'Neill, 867 F.2d 589, 590 (10th Cir. 1989). Therefore, Defendants the "Internal Revenue Service, Commissioner of Theirs, District Director, and all Other Delegated" are properly dismissed from this civil action.
C. Availability of Injunctive Relief
To the extent that Brasfield seeks injunctive relief restraining the IRS from levying his wages to collect tax deficiencies, Brasfield's claim is barred by the Anti-Injunction Act, 26 U.S.C. § 7421. The Anti-Injunction Act provides that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed." 26 U.S.C. § 7421(a). The purpose of the Anti-Injunction Act is to allow the government to conduct its business expeditiously in the assessment and collection of taxes without judicial intervention and to require that a taxpayer challenging the assessment and collection of taxes against him must first file a claim for a refund with the IRS. Wyoming Trucking Association, Inc. v. Bentsen 82 F.3d 930, 933 (10th Cir. 1996) (citing Enochs v. Williams Packing Navigation Co., 370 U.S. 1, 7 (1962)). If the taxpayer does not prevail in the administrative proceeding, he may then file a suit for a refund in federal district court. See 26 U.S.C. § 7422; 28 U.S.C. § 1346(a)(1).
Brasfield "does not believe that the Anti-Injunction Act applies" to this case. (Brasfield's Answer to Motion to Dismiss p. 6). However, the relief he seeks is an injunction prohibiting the government from collecting its tax, and the purpose of his suit is to restrain the collection of taxes. Therefore, the Anti-Injunction Act applies, and this action is properly dismissed for lack of subject matter jurisdiction. See Bob Jones Univ. v. Simon, 416 U.S. 725, 738-39 (1974); Williams Packing, 370 U.S. at 5; Overton v. United States, 925 F.2d 1282, 1284-85 (10th Cir. 1991); Lonsdale v. United States, 919 F.2d 1440, 1442-43 (10th Cir. 1990).
In addition to certain statutory exceptions neither pled nor applicable here, the Supreme Court has created a "judicial exception" to the Anti-Injunction Act which allows a taxpayer to seek injunctive relief "if the taxpayer demonstrates that: (1) under no circumstances could the government establish its claim to the asserted tax; and (2) irreparable injury would otherwise occur.'" Lonsdale, 919 F.2d at 1442 (quoting Souther v. Mihlbachler, 701 F.2d 131, 132 (10th Cir. 1983) (citations omitted).
See 26 U.S.C. § 6212(a) (c); 6213(a); 6672(b); 6694(c); 7426(a) (b)(1); and 7429(b) (providing for actions related to redeterminations, stays, levies, and refunds in specified circumstances).
Brasfield attempts to avoid the Anti-Injunction Act by alleging "constitutional claims." (See Amended Complaint for Temporary Restraining Order p. 1 ¶ 3). However, to have subject matter jurisdiction to order such relief, the court must find that Brasfield's claim falls within an exception to the Anti-Injunction Act. James v. United States, 970 F.2d 750, 756-57 (10th Cir. 1992). In addition, Brasfield's allegations of financial difficulties stemming from the levy on his wages are not a basis for equity jurisdiction when the levy was created to collect a tax deficiency. See Lucia v. United States, 474 F.2d 565, 577 (5th Cir. 1973) (en banc) ("hardship alone is insufficient to justify injunctive relief against the collection of taxes").
Brasfield does not allege that his claim falls within the judicial exception to the Anti-Injunction Act found in Williams Packing, 370 U.S. at 7. Nor does Brasfield satisfy either prong of the Williams Packing exception to the Anti-Injunction Act. Brasfield cannot demonstrate that under no circumstances could the government establish its claim to the asserted tax. Brasfield has not indicated that he has filed a claim for refund with the IRS, nor has he shown that such a remedy is inadequate to redress any asserted injuries. Accordingly, this court may not exercise its equity jurisdiction over Brasfield's claim. See Wyoming Trucking Assn., Inc., 82 F.3d at 935 (citing Bob Jones Univ., 416 U.S. at 746); C.I.R. v. Shapiro, 424 U.S. 614, 629 (1976) (noting that taxpayer seeking injunction must plead and prove facts establishing that his remedy in a refund suit is inadequate to repair any injury that might be caused by an erroneous assessment or collection of taxes).
Thus, Brasfield fails to show that his case falls within any exception to the Anti-Injunction Act, and, consequently, pursuant to the Act, the court does not have jurisdiction to rule on his request for injunctive relief.
III. Brasfield's Motion for Temporary Restraining Order
Also before the court is Brasfield's seventh request for a temporary restraining order against the IRS. (See December 12, 2001 Notice and Request for Temporary Restraining Order (denied December 17, 2001); December 19, 2001 Amended Complaint for Temporary Restraining Order . . . (denied December 21, 2001); December 24, 2001 Notice and Request for Temporary Restraining Order (denied March 26, 2002); February 19, 2002 Notice and Request for Temporary Restraining Order (denied March 26, 2002); February 19, 2002 Amended Notice and Request for Temporary Restraining Order (denied March 26, 2002); and February 26, 2002 Motion to Amend Complaint and tendered Amended Complaint for Temporary Restraining Order (denied March 26, 2002)). Brasfield seeks "a permanent injunction," "a Temporary Restraining order," and "requests the Court to stop the garnishment. . . ." (Brasfield's Motion p. 2).
A temporary restraining order may be granted only if "it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will result to the applicant." Fed.R.Civ.P. 65(b). Furthermore, to be entitled to temporary or preliminary injunctive relief, a moving party must establish: (1) a substantial likelihood of success on the merits of the case; (2) irreparable injury to the movant unless injunctive relief is provided; (3) the threatened injury to the movant outweighs the injury that the proposed injunction may cause the opposing party; and (4) the injunction, if issued, would not be adverse to the public interest. Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001) (citation omitted).
As the District Judge has ruled several times (see Orders dated December 17, 2001, December 21, 2001, and March 26, 2002), Brasfield's request for a temporary restraining order is barred by the Anti-Injunction Act. Further, Brasfield has failed to make the requisite showing for a temporary restraining order.
Accordingly, IT IS ORDERED that Plaintiff's Motion for Temporary Restraining Order (filed April 17, 2002) is DENIED.
Further, IT IS RECOMMENDED that the United States' Motion to Dismiss (filed March 21, 2002) be GRANTED and that this civil action be DISMISSED with prejudice.
Advisement to the Parties
Within ten days after service of a copy of the Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1). Objections to a magistrate judge's recommendation must be made within ten days of service of the Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995).
The district judge shall make a de novo determination of those specific portions of the proposed findings or recommendations to which specific objection is made. 28 U.S.C. § 636(b)(1). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review by the district court. See In re Griego, 64 F.3d at 583; United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir.), cert. denied, 519 U.S. 909 (1996). The district judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1). The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
"[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." One Parcel of Real Property Known As 2121 East 30th Street, 73 F.3d at 1060. Failure to make timely objections to the magistrate judge's proposed findings and recommendations will bar de novo review by the district judge of the magistrate judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. In re Key Energy Resources, Inc. 230 F.3d 1197, 1199-1201 (10th Cir. 2000); Theede v. United States Department of Labor, 172 F.3d 1262, 1267-68 (10th Cir. 1999); One Parcel of Real Property Known As 2121 East 30th Street, 73 F.3d at 1059-60.