The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
On August 26, 2009, Defendant Timothy Geithner filed a motion to dismiss Plaintiff's complaint. (Doc. No. 5.) Under Local Civil Rule 7.1(e)(2), Plaintiff's opposition or notice of non-opposition was due no later than September 21, 2009. Plaintiff has filed no opposition. The Court concluded that this matter is appropriate for resolution without oral argument and submitted Defendant's motion to dismiss on the papers under Local Civil Rule 7.1(d)(1). (Doc. No. 6.) For the following reasons, the Court grants Defendant's motion and dismisses Plaintiff's Complaint. Plaintiff may file an amended complaint curing the noted deficiencies no later than November 9, 2009 and may properly serve Defendant by no later than December 7, 2009.
On June 19, 2009, pro se Plaintiff Alvin Ruiz filed his Complaint titled "Libel of Review - common law counterclaim in admiralty - notice lis pendens and - verified statement of right - Re: God-given unalienable rights in the original estate - Article III; Constitution." (Doc. No. 1.) The Complaint names Timothy Geithner, apparently in his official capacity as Secretary of the Treasury, as Defendant. While the relief sought by Plaintiff is not entirely clear, it appears that the Complaint seeks to enjoin the IRS from assessing and collecting the tax liability of his wife, Sandra Pates, and further requests the arrest of Timothy Geithner if the IRS continues its attempts to assess and collect Ms. Pates' tax liabilities. Id.
The United States, on behalf of Defendant, has filed this motion for dismissal based upon a lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), insufficiency of service of process under Fed. R. Civ. P. 12(b)(5), and failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). (Doc. No. 5.)
I. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) provides that a defendant may move to dismiss an action for lack of subject matter jurisdiction. Subject matter jurisdiction is required because federal courts have limited jurisdiction and can adjudicate only those cases authorized by the Constitution and Congress. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). Upon a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of establishing that jurisdiction exists. Id.; Thornhill Pub. Co. v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). "'A plaintiff suing in a federal court must show in his pleading, affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction, and, if he does not do so, the court, on having the defect called to its attention or on discovering the same, must dismiss the case, unless the defect can be corrected by an amendment.'" Tosco Corp. v. Cmtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001) (quoting Smith v. McCullough, 270 U.S. 456, 459 (1926)).
Defendant argues that this court lacks jurisdiction because (1) the United States has not waived its sovereign immunity, (2) the suit is barred by the Anti-Injunction Act, 26 U.S.C. § 7421, and (3) Plaintiff lacks standing. (Doc. No. 5.)
The United States is a sovereign and is therefore immune from suit unless it has expressly waived its immunity and consented to be sued. See United States v. Mitchell, 445 U.S. 535, 538 (1980); United States v. Sherwood, 312 U.S. 584, 586 (1941); Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). "The question of whether the United States has waived its sovereign immunity against suits for damages is, in the first instance, a question of subject matter jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). In a suit against the federal government, the plaintiff bears the burden of showing an unequivocal waiver of immunity. Baker v. United States, 817 F.2d 560, 562 (9th Cir. 1987); Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983). If sovereign immunity has not been waived, the court must dismiss the suit. See Gilbert, 756 F.2d at 1458; Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir. 1982).
The fact that Plaintiff named Timothy Geithner as defendant does not keep the action from being a suit against the United States. The doctrine of sovereign immunity extends to agents and officers of the United States when they are sued in their official capacities and the relief would affect the public fisc. Spalding v. Vilas, 161 U.S. 483, 498-99 (1896). "It has long been the rule that the bar of sovereign immunity cannot be avoided by naming officers and employees of the United States as defendants." Gilbert, 756 F.2d at 1458 (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688 (1949)). Thus, this suit against Timothy Geithner in his official capacity is essentially a suit against the United States and is barred by the doctrine of sovereign immunity unless Plaintiff can show unequivocal waiver.
Plaintiff has not met his burden of showing that the United States has waived its immunity. The Complaint cites Article III, § 3 of the U.S. Constitution, several Rules of Civil Procedure with respect to admiralty, and the following federal statutes: 18 U.S.C. §§ 661, 1201 & 2381; 22 U.S.C. § 611; 26 U.S.C. § 6323(F)(3); 28 U.S.C. §§ 1603, 1331 & 1333. (Doc. No. 1.)
None of these provisions expressly provide for suits against the United States under the circumstances presented in this action. Article III, §3 of the U.S. Constitution concerns treason against the United States and is therefore unrelated to jurisdiction in this case. The cited admiralty procedural rules and 28 U.S.C. § 1333 are also unrelated to jurisdiction in this action because Plaintiff has not pled any claims in admiralty. The cited sections of Title 18 cannot waive immunity because they are criminal statutes that must be enforced by the United States Attorney. Plaintiff also cites 28 U.S.C. § 1603, which addresses the immunity of foreign states to the jurisdiction of the United States' courts, and 22 U.S.C. § 611, which addresses registration of foreign propagandists. This action does not involve foreign states or propagandists, and these statutes do not relate to waiver of sovereign immunity in the circumstances presented here. Plaintiff further cites 26 U.S.C. § 6323, which relates to the priority of federal tax liens with respect to other liens. Plaintiff has not, however, pled any ...