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United States District Court, S.D. California

October 3, 2005.

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

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.

  B. Bivens

  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 (1988).

  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 statutory scheme.

  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 law."

  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.



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