As Close To FrivPen As You Can Get...

[The Observer]

but I don't know if a Court of Claims can or ever has handed out a frivpen.

WILLIAM H. DOURLAIN,
Plaintiff,
v.
THE UNITED STATES,
Defendant.

Release Date: JUNE 16, 2011

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

Filed: June 16, 2011

(Not for Publication)

ORDER OF DISMISSAL

WILLIAMS, Judge.

This matter comes before the Court on Defendant's motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims ("RCFC"). Plaintiff pro se, William Dourlain, alleges that the IRS "withheld and seized . . . some $ 50,000" via an improper levy and tax lien. Compl. at 10. 1 Because Plaintiff's statutory claims are not based on money-mandating statutes and he has not satisfied the jurisdictional prerequisites for bringing a tax refund claim, Defendant's motion to dismiss is granted.

BACKGROUND 2

Plaintiff filed the instant action on November 8, 2010, alleging that the IRS unlawfully levied funds and imposed a lien to satisfy tax liabilities. 3 According to a Notice of Levy on Wages, Salary and Other Income ("Notice of Levy") dated February 11, 2010, the IRS requested that Plaintiff's employer transfer to the IRS from Plaintiff's wages and salary $ 40,026.69 to satisfy a civil penalty and tax liabilities for the periods ending on December 31, 1999, December 31, 2001, and December, 31, 2002. A Notice of Federal Tax Lien dated February 23, 2010, informed Plaintiff of a lien on Plaintiff's property in the amount of $ 26,717.20, resulting from unpaid taxes for periods ending on December 31, 1999, December 31, 2001, and December 31, 2002. Plaintiff alleges that beginning on or about March 8, 2010, his wages were garnished without a court order or his consent.

Plaintiff does not appear to contest the underlying tax liabilities. Rather, he avers that in garnishing his wages to satisfy those liabilities, the IRS violated the Freedom of Information Act ("FOIA"), 5 U.S.C. section 552, and 44 U.S.C. section 1505 "by not having regulations dealing with assessment and penalties currently published in the Federal Register and adversely affecting the plaintiff['s] rights." Compl. at 7. Plaintiff further alleges that because 26 C.F.R Part 1 does not include the requisite regulations for "assessment, liens, levy and penalties," the IRS lacks "authority to issue a lawful Lien or Notice of levy." Id. at 10. Plaintiff asks this Court to order a refund of the amount "withheld and seized" as a result of the levy and lien. Id. On February 7, 2011, Defendant moved to dismiss the complaint for lack of subject-matter jurisdiction. On April 26, 2010, Plaintiff opposed the motion, attaching a document entitled "Claim For Refund" to his reply.

DISCUSSION

Before the Court proceeds to the merits of the action, Plaintiff bears the burden of establishing subject-matter jurisdiction by a preponderance of the evidence. See, e.g., Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988); Naskar v. United States, 82 Fed. Cl. 319, 320 (2008); see also Fullard, 78 Fed. Cl. at 299. "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." RCFC 12(h)(3). When deciding a motion to dismiss for lack of subject-matter jurisdiction, the Court must assume as true all undisputed allegations of fact made by the nonmovant and draw all reasonable inferences from those facts in the nonmovant's favor. See Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995); Naskar, 82 Fed. Cl. at 320. "[C]omplaints drafted by pro se litigants are held to 'less stringent standards than formal pleadings drafted by lawyers,' but, '[t]his latitude . . . does not relieve a pro se plaintiff from meeting jurisdictional requirements.'" Naskar, 82 Fed. Cl. at 320 (citation omitted).

The Court Lacks Subject-Matter Jurisdiction over Plaintiff's Statutory Claims

"The Court of Federal Claims is a court of limited jurisdiction." Fullard, 78 Fed. Cl. at 299. According to the Tucker Act, this Court:

shall have jurisdiction to render judgment upon any
claim against the United States founded either upon
the Constitution, or any Act of Congress or any regulation
of an executive department, or upon any express or
implied contract with the United States, or for liquidated
or unliquidated damages in cases not sounding in
tort.

28 U.S.C. section 1491(a)(1).

To be cognizable under the Tucker Act, the claim must be one for money damages against the United States, and the plaintiff must demonstrate that the source of substantive law he or she relies upon is a money-mandating source. Fullard, 78 Fed. Cl. at 299-300. However, the Tucker Act does not, by itself, create a substantive right enforceable against the United States for monetary relief. Ferreiro v. United States, 501 F.3d 1349, 1351 (Fed. Cir. 2007). A plaintiff must identify a separate contract, regulation, statute, or Constitutional provision, which, if violated, provides for a claim for money damages against the United States. Jan's Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008).

Here, Plaintiff claims that Defendant violated 5 U.S.C. section 552 and 44 U.S.C. section 1505 by not "having regulations dealing with assessment and penalties" in the Federal Register. Compl. at 7. 4 Section 1505 enumerates three categories of documents to be published in the Federal Register: (1) Proclamations and Executive Orders, (2) Documents having general applicability and legal effect; (3) Documents required to be published by Congress; (4) and Documents authorized to be published by regulations, excluding comments and news items. 44 U.S.C. section 1505. However, the plain language of section 1505 does not provide for money damages against the United States as a result of noncompliance. Furthermore, to the extent Plaintiff alleges a violation of FOIA, it is well settled that this Court lacks jurisdiction to hear this claim. See Leitner v. United States, 92 Fed. Cl. 220, 224 (2010) (holding that the Court of Federal Claims "does not have jurisdiction over FOIA claims.").

The Court Lacks Subject-Matter Jurisdiction over Plaintiff's Allegations Regarding Tax Collection Efforts

26 U.S.C. section 7433(a) vests exclusive jurisdiction to hear claims regarding purportedly illegal or unauthorized IRS collection activities in federal district courts. Section 7433(a) states in pertinent part:

If, 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, such taxpayer may bring a civil action
for damages against the United States in a district
court of the United States. Except as provided in
section 7432, such civil action shall be the exclusive
remedy for recovering damages resulting from such
actions.

26 U.S.C. section 7433(a).

In Ledford v. United States, the Federal Circuit affirmed this Court's dismissal of a claim regarding purportedly unlawful IRS tax collection activities. 297 F.3d 1378, 1382 (Fed. Cir. 2002) (per curiam). As the Federal Circuit explained:

Congress has provided that claims for damages such
as those alleged by Mr. Ledford must be brought exclusively
before a district court of the United States. The
Court of Federal Claims is not a district court of
the United States, and therefore it lacks subject
matter jurisdiction over Mr. Ledford's damages claims.

Id.; see also Leitner, 92 Fed. Cl. at 224 ("[F]ederal district courts have exclusive jurisdiction over claims for damages flowing from the allegedly unlawful collection activities of the IRS, and [the Court of Federal Claims] is not a federal district court."). 5 As such, the Court lacks jurisdiction over Plaintiff's allegations regarding the IRS's tax collection efforts.

CONCLUSION

Defendant's motion to dismiss is GRANTED .

Mary Ellen Coster Williams
Judge

FOOTNOTES:


/1/ Plaintiff names the Internal Revenue Service ("IRS") as a defendant. Compl. at 1. However, "t is 'well established that the jurisdiction of this court extends only to claims against the United States.'" Fullard v. United States, 78 Fed. Cl. 294, 300 (2007) (quoting Nat'l City Bank v. United States, 143 Ct. Cl. 154, 164 (1958)).

/2/ This background is derived from the complaint, motion papers, and their accompanying exhibits.

/3/ Plaintiff attached the Notice of Levy and Notice of Federal Tax Lien to the complaint.

/4/ Plaintiff further alleges that the Government "violated the Administrative Procedure Act under Title 5 of the USC" by "sending the Notice of Levy . . . and filing a Notice of Federal Tax Lien." Compl. at 2. The Court lacks jurisdiction to hear this claim. See Reilly v. United States, 93 Fed. Cl. 643, 650 (2010) ("This court also lacks, for that matter, jurisdiction over these claims under the [APA] as jurisdiction over claims relying upon that statute lies solely in the district courts.").

/5/ According to 28 U.S.C. section 1631, when "a civil action is filed in a court . . . [which] finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action . . . to any other such court in which the action . . . could have been brought at the time it was filed." Here, transfer is not warranted in the interest of justice given the nature of Plaintiff's claim and his numerous prior lawsuits challenging the IRS's tax collection activities. See Vlahakis v. United States, 215 Ct. Cl. 1018, 1019 (1978).

[fortinbras]

I do not recall the Federal Claims Court imposing a fine for wasting its time.

The Claims Court has kicked out a LOT of tax cases brought by pro se litigants because, as here, tax cases are not within its limited jurisdiction. I do not know if a court without jurisdiction can fine a litigant. However, in tax cases such as this, the litigant's lateness penalties and interest on his taxes keep mounting while he spins his wheels in Claims Court, and the IRS might tag on its own frivolous penalties for his refusal to give up his bogus arguments, so there will be a pricetag on this folly.

[LPC]

The power of the Court of Federal Claims to impose sanctions lies in Rule 11 of the Rules of the Court of Federal Claims, which is similar to Rule 11 of the Rules of Civil Procedure, and provides in relevant part:

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

(c) Sanctions.

(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that RCFC 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.

(2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates RCFC 11(b). The motion must be served under RCFC 5, but it must not be filed or presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.

(3) On the Court’s Initiative. On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated RCFC 11(b).

(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to
the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.

(5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction:

(A) against a represented party for violating RCFC 11(b)(2); or

(B) on its own, unless it issued the show-cause order under RCFC 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.

(6) Requirements for an Order. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.

I haven't yet looked to see if the court has ever imposed sanctions against a tax denier for frivolous claims, but if they ever have, it would have been against Joseph Saladino.

[LPC]

After filing 14 separate suits in the Court of Federal Claims, all of which were dismissed, Saladino was finally sanctioned in Joseph O. Saladino v. United States, 63 Fed. Cl. 754, 2005 TNT 18-16, Nos. 03-2871T & 04-1367T (Ct. Fed. Cl. 1/14/2005) (sanctions of $2,190 and ordered to file no additional claims for 10 years).

See http://tpgurus.wikidot.com/joseph-saladino for more information about Saladino, including his criminal conviction (currently serving 5 years in prison for conspiring to defraud the US).