Opinion
Civil Action No. 05-0008-CG-L.
April 12, 2005
ORDER
This matter is before the court on defendant's motion to dismiss (Doc. 9), plaintiff's motion to quash defendant's motion to dismiss and to remand (Doc. 11), and defendant's opposition to defendant's motion to quash and remand (Doc. 14). The court finds no merit to plaintiff's arguments to quash and remand. The court further finds that plaintiff did not effect proper service on defendant and that the court lacks subject matter jurisdiction over this matter. Therefore, plaintiff's motions to quash and remand are due to be DENIED and defendant's motion to dismiss is due to be GRANTED.
BACKGROUND
Plaintiff originally filed this action against Janet Oates, a revenue officer employed by the Internal Revenue Service, in the Circuit Court of Mobile, Alabama. Plaintiff alleges that Oates acted fraudulently and with the intent of extorting money from plaintiff when she attempted to collect unpaid taxes from plaintiff.
On January 6, 2005, defendant removed this action to this court pursuant to 28 U.S.C. § 1442(a)(1) as defendant was being sued for actions under color of her office as a Revenue Officer of the United States Internal Revenue Service in the collection of revenue. (Doc. 1). This court denied plaintiff's previous motion to remand, finding no merit in plaintiff's arguments (Doc. 13). Specifically, the court found as follows:
the United States is entitled to remove this case pursuant to 28 U.S.C. § 1442 because the defendant is an officer of the IRS "sued in an official or individual capacity for [an] act under color of such office or on account of any right, title or authority claimed under [an] Act of Congress for the . . . collection of the revenue." 28 U.S.C. § 1442(a)(1). The United States is authorized to represent its agents and officers through the Department of Justice under 28 U.S.C. § 516. [FN1 28 U.S.C.A. § 516 states the following: Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.] Claims that individuals are not citizens of the United States, but are solely citizens of a sovereign state and not subject to federal taxation, have been uniformly rejected by the courts. See e.g. United States v. Ward, 833 F.2d 1538, 1539 (11th Cir. 1987), cert. denied, 485 U.S. 1022 (1988) (finding contention that Ward was not an individual located within the jurisdiction of the United States to be utterly without merit); United States v. Sloan, 939 F.2d 499, 500 (7th Cir. 1991), cert. denied, 502 U.S. 1060, reh'g denied, 503 U.S. 953 (1992) (rejecting Sloan's argument that the federal tax laws did not apply to him because he was a freeborn, natural individual, a citizen of the State of Indiana, and a master not servant of his government.); United States v. Gerads, 999 F.2d 1255, 1256 (8th Cir. 1993) (rejecting Gerads' contention that they were not citizens of the United States, but rather Free Citizens of the Republic of Minnesota and, consequently, not subject to taxation). Further, the court finds no distinction between the "district court of the United States" and "the United States District Court."
(Doc. 13, pp 2-3).
DISMISSAL STANDARD
A motion to dismiss should not be granted "unless the plaintiff can prove no set of facts which would entitle him to relief."Martinez v. American Airlines, Inc., 74 F.3d 247, 248 (11th Cir. 1996) (quoting Peterson v. Atlanta Housing Authority, 998 F.2d 904, 912 (11th Cir. 1993)). The court must accept all well pled factual allegations as true. U.S. v. Gaubert, 499 U.S. 315 (1991). However, "conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal." Oxford Asset Management, Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002) (quoting South Fla. Water Management Dist. v. Montalvo, 84 F.3d 402, 408 n. 10 (11th Cir. 1996) and Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993)); see also Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974) ("Conclusory allegations and unwarranted deductions of fact are not admitted as true." citation omitted); Finklea v. U.S., 2001 WL 103005, *2 (S.D. Ala. Jan 30, 2001) ("conclusory allegations and unwarranted factual deductions are not accepted as true." citing Assoc. Builders, Inc.).
DISCUSSION
Defendant moves to dismiss this case because (1) plaintiff has failed to properly serve process pursuant to Federal Rule of Civil Procedure 4; (2) plaintiff has failed to allege facts sufficient to establish a waiver of sovereign immunity; and (3) this court lacks jurisdiction over the subject matter. Plaintiff moves to quash the motion to dismiss asserting that defendant is not entitled to sovereign immunity because she was acting outside her statutory authority and that the case should be remanded to state court.
The actions asserted in plaintiff's complaint all relate to Revenue Officer Oates' attempt to collect unpaid federal income taxes from plaintiff. Although plaintiff contends otherwise, clearly Oates was acting in her official capacity in attempting to collect unpaid taxes. See Doc. 17, Notice of Substitution and accompanying Certification. Service of process upon an official who is sued in her official capacity must be effected by sending a copy of the summons and complaint by registered or certified mail to the official and also by serving the United States Attorney and the Attorney General as provided by Federal Rule of Civil Procedure 4(I)(1). Plaintiff failed to serve the United States Attorney and the Attorney General. In fact, defendant contends that even service on Janet Oates individually was not proper.
Even if service were proper, the court finds that defendant is entitled to sovereign immunity. Although plaintiff asserts that Oates acted beyond her statutory authority, the court finds plaintiff's arguments lack merit. Plaintiff essentially makes the same tax protest arguments previously asserted in his first motion to remand. The court found those arguments lacked merit and is not persuaded otherwise from the assertions contained in plaintiff's motion to quash and remand. The United States may be sued for monetary damages only to the extent that it has expressly and unambiguously consented to being sued. United States v. Dalm, 494 U.S. 596, 608 (1990); Preserve Endangered Areas of Cobb's History, Inc. v. United States Army Corps of Engineers, 87 F.3d 1242, 1249(11th Cir. 1996). As this court has previously stated:
It is axiomatic that the United States, as a sovereign, may not be sued without its consent. See Stoecklin v. United States, 943 F.2d 42, 43 (11th Cir. 1991). When a lack of consent to suit by the Government is shown, dismissal of the claim for lack of subject matter jurisdiction is appropriate
Moreover, a plaintiff bears the burden of asserting specific provisions waiving the sovereign immunity of the United States. See Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983), cert. denied, 466 U.S. 958 (1984). Additionally, the terms of the consent define a federal court's jurisdiction, and "any waiver of sovereignty immunity must be explicit and will be strictly construed." See Raulerson v. United States, 786 F.2d 1090, 1091 (11th Cir. 1986). Any doubts as to a possible waiver of sovereign immunity of the Government must be resolved in favor of the government. See United States v. Dalm, 494 U.S. 596, 608 (1990).Finklea, 2001 WL 103005, at *3. Here, plaintiff has not shown, and this court has not found, a statutory waiver of sovereign immunity for plaintiff's claims. Thus, dismissal is warranted because this court lacks subject matter jurisdiction.
CONCLUSION
For the reasons stated above, plaintiff's motions to quash and remand (Doc. 11) are DENIED and defendant's motion to dismiss (Doc. 9) is GRANTED. This case is hereby DISMISSED.