United States District Court, S.D. California
October 3, 2005.
STEPHEN W. BOURGEOIS, JR., Plaintiff,
SUSAN MEREDITH and ANY AND ALL DOES, each in their Individual Capacity, Defendants.
The opinion of the court was delivered by: JEFFREY MILLER, District Judge
ORDER DISMISSING PLAINTIFF'S MOTION TO VACATE AND STRIKE UNITED
STATES' PLEADINGS/MOTIONS FOR LACK OF STANDING AND GRANTING
FEDERAL DEFENDANTS' MOTION TO DISMISS FOR LACK OF SUBJECT MATTER
JURISDICTION, FAILURE TO STATE A CLAIM, AND INSUFFICIENT SERVICE
The Internal Revenue Service ("IRS") assessed income tax
liabilities against Plaintiff for unpaid federal taxes. To
collect those unpaid liabilities, the IRS issued a Notice of Levy
Order upon Plaintiff's bank account with the Navy Federal Credit
Union on January 28, 2005. Shortly thereafter, the Navy Federal
Credit Union complied with the Notice of Levy Order and paid
$1,748.29 to the Treasury. The IRS also issued a notice of levy
on Plaintiff's payroll wages.
Plaintiff, proceeding pro se, filed suit against IRS agent
Susan Meredith alleging that Meredith fraudulently authorized the
levies against his bank account and wages and caused a loss of
his personal property in the amount of $3,557.32. Plaintiff seeks
relief pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971), and claims that his rights were violated under the
Fourth, Fifth, and Fourteenth Amendments. Plaintiff alleges that Meredith was not authorized to to seize his private property
and that she did so with "malice to commit fraud and conspiracy
to commit fraud."
On June 15, 2005, the United States moved to dismiss
Plaintiff's complaint for failure to state a claim, lack of
jurisdiction, and insufficient service of process. Plaintiff
responded a few weeks later with a Motion to Vacate and Strike
United States' Pleadings/Motions for Lack of Standing.
Motion to Dismiss
A. Section 1983
To sustain an action under 42 U.S.C. § 1983, the plaintiff must
show (1) that a right secured by the Constitution or laws of the
United States was violated, and (2) that the violation was by a
person acting under color of state law. The United States argues
that Section 1983 is inapplicable because the defendant IRS
employees were not acting under color of state law, but rather
federal law pursuant to IRC § 6331(a). Plaintiff makes no
distinction in his complaint between state and federal authority
in this respect.
A taxpayer cannot bring an action under § 1983 against the IRS
"because the IRS is a federal agency and its agents perform? no
acts under color of state law." Stonecipher v. Bray,
653 F.2d 398, 401 (9th Cir. 1981). Accordingly, Plaintiff's claim under
42 U.S.C. § 1983 is dismissed.
When a plaintiff brings an action against a federal official
for a violation of his or her constitutional rights it is
construed as arising under Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics, 403 U.S. 388 (1971), rather
than 42 U.S.C. § 1983. A Bivens action must be brought against
the federal agent or official in his or her individual capacity.
Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987).
However, Bivens provides a remedy in limited circumstances.
"When the design of a Government program suggests that Congress
has provided what it considers adequate remedial mechanisms for
constitutional violations that may occur in the course of its
administration," courts have declined to create additional
Bivens remedies. Schweiker v. Chilicky, 487 U.S. 412, 423
The United States argues that Plaintiff cannot seek relief
under Bivens in this case because Congress has provided for a
comprehensive statutory scheme for tax-related disputes.
According to the United States, Plaintiff has not sought to challenge the levy
by requesting a refund pursuant to 26 U.S.C. § 6511 or through
the mechanisms provided for in IRC § 6330. Plaintiff has not
explained whether he has, in fact, sought relief through these or
other channels, nor explained his reasons for not following the
The Ninth Circuit recently addressed directly whether a
Bivens remedy would be available in cases challenging the
constitutionality of actions by federal tax officials in Adams
v. Johnson, 355 F.3d 1179 (9th Cir. 2004). There, the plaintiffs
sought relief under Bivens for the assessment and collection of
partnership taxes in violation of their procedural and
substantive due process rights. Noting the exceptionally
comprehensive nature of the Internal Revenue Code, the Ninth
Circuit joined several other circuits in holding that Bivens
relief is unavailable for suits against IRS auditors and
officials. Id. at 1186. The decision in Adams controls the
case here and, thus, Plaintiff's Bivens claim is dismissed.
C. Service of Process
Pursuant to Federal Rule of Civil Procedure 4(i), to serve an
officer or employee of the United States sued in an individual or
official capacity, the plaintiff must serve a copy of the summons
and complaint upon the Attorney General of the United States and
the local United States Attorney, as well as the officer or
employee. Fed.R.Civ.P. 4(i). Plaintiff has not served the
Attorney General or the local United States Attorney.
Motion to Vacate and Strike United States' Pleadings/Motions
for Lack of Standing
Plaintiff has asked the Court to strike the motion to dismiss
filed by the United States. Plaintiff is insistent in his moving
papers that his action is against Meredith in her individual
capacity. In his Memorandum of Points and Authorities, Plaintiff
argues that the United States is not a proper party to this
action because there has not been a delegation of authority from
the Secretary of the Treasury to the Commissioner of the IRS to
administer and enforce the internal revenue code "within the
several 50 states", nor has Congress authorized the Department of
Justice to "represent individuals in their individual capacity
when they act outside their scope of authority under color of
The United States argues that it should be substituted as a
defendant and the case dismissed for lack of jurisdiction.
Specifically, the United States argues that the actions of the
IRS employees were taken in their official capacities and, therefore, Plaintiff
is essentially suing the United States.*fn1
It is a well-established principle that "a suit is against the
sovereign if `the judgment sought would expend itself on the
public treasury or domain, or interfere with the public
administration,' or if the effect of the judgment would be `to
restrain the Government from acting, or to compel it to act.'"
Dugan v. Rank, 372 U.S. 609, 620 (1963) (citations omitted);
Demery v. Kupperman, 735 F.2d 1139, 1146 (9th Cir. 1984). A
suit filed against an individual IRS agent is construed as
against the United States where the suit complains of an actions
the individual agent took in his or her official capacity. See
Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985);
English v. Krubsack, 371 F.Supp.2d 1198 (C.D.Cal. 2005)
(ordering the United States substituted as respondent).
Plaintiff insists that he is suing Meredith in her individual
capacity. However, as discussed above, Plaintiff cannot maintain
a suit against Meredith under Section 1983 or under Bivens and,
therefore, this Court lacks jurisdiction over claims alleged
against Meredith in her individual capacity. See Dain v.
Taira, 2001 U.S. Dist. LEXIS 16950, at *8-9 (C.D.Cal. Sept. 17,
2001). An examination of Plaintiff's complaint reveals that he is
suing for acts Meredith performed in her official capacity,
namely, issuing a Notice of Levy Order. See 26 U.S.C. § 6331
(authorizing the issuance of a notice of levy to collect unpaid
taxes). Accordingly, "plaintiff essentially was suing the United
States, even though the United States was not actually named as a
party." Atkinson v. O'Neill, 867 F.2d 589 (10th Cir. 1989). The
United States has not consented to be sued; therefore,
Plaintiff's suit is barred by sovereign immunity. United States
v. Shaw, 309 U.S. 495, 500-01 (1940). Given the above well-established authority, the Court DENIES
Plaintiff's motion to vacate the United States' pleadings,
ORDERS the United States substituted as a defendant in this
suit, and GRANTS the United States' motion to dismiss for lack
of subject matter jurisdiction, failure to state a claim, and
insufficient service of process.
IT IS SO ORDERED.
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