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Brian and Kathleen Kenner v. Eric Holder

December 19, 2012

BRIAN AND KATHLEEN KENNER,
PLAINTIFFS,
v.
ERIC HOLDER, IN HIS OFFICIAL CAPACITY AS THE ATTORNEY GENERAL FOR THE UNITED STATES DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [Doc. No. 4]

Plaintiffs Brian and Kathleen Kenner, proceeding pro se, have filed suit against Defendants Eric Holder, in his official capacity as the United States Attorney General, Tim Geithner, in his official capacity as the Secretary of the United States Treasury, and the United States, alleging the unconstitutionality of two sections of the Internal Revenue Code, the Federal Tort Claims Act, and the doctrine of judicial immunity. Defendants move to dismiss Plaintiffs' claims pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a plausible claim for relief. Plaintiffs filed an opposition to the motion, to which Defendants replied. See Doc. Nos. 7, 8. The Court took the motion under submission on the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1. For the reasons set forth below, the Court GRANTS Defendants' motion.

BACKGROUND

The underlying facts of this case arise out of Plaintiffs' interactions with the Internal Revenue Service. Claims relating directly to those events have been litigated in prior actions.*fn1

According to Plaintiffs, "Defendants' agents engaged in a 'pattern of racketeering' . . . to confiscate our property during an 'offer in compromise' negotiation with the IRS. Defendants' agents do not possess personal immunity for a pattern of racketeering. The resulting KENNER RICO lawsuit consequently exposed a more substantial veiled benefit presently enjoyed by the federal government: federal employees' freedom from personal consequence for isolated intentional violations of the laws so long as they are committed for the benefit of the government." Complaint ¶ 6.

Plaintiffs' claims in this case implicate the constitutionality of the various statutory and common law principles relied upon by the Court to dismiss their prior actions. Specifically, Plaintiffs allege that two provisions in the Internal Revenue Code, 26 U.S.C. §§ 7432,*fn2 7433,*fn3 the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq., and the doctrine of absolute judicial immunity violate their Fifth Amendment due process rights because of the immunities these laws provide to federal employees and members of the judiciary from being sued in their personal capacities for the performance of official duties. Plaintiffs further allege that these laws are unconstitutional under the First Amendment because the laws impede their efforts to petition the government for redress. Id. ¶¶ 22-35. Plaintiffs seek injunctive and declaratory relief only.*fn4

LEGAL STANDARD

Dismissal of a claim is appropriate under Federal Rule of Civil Procedure 12(b)(1) when the Court lacks subject matter jurisdiction over the claim. Standing is jurisdictional, cannot be waived, and is properly addressed under Rule 12(b)(1). See United States v. Hays, 515 U.S. 737, 742 (1995); Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). When ruling on a motion to dismiss for lack of standing, the Court "must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Graham v. FEMA, 149 F.3d 997, 1001 (9th Cir.1998), quoting Warth v. Seldin, 422 U.S. 490, 501 (1975).

A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633 (1999). "The old formula -- that the complaint must not be dismissed unless it is beyond doubt without merit -- was discarded by the Bell Atlantic decision [Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007)]." Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th Cir. 2008).

A complaint must be dismissed if it does not contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp., 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009). The Court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004), citing Karam v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003). In addition, where a plaintiff appears pro se, the Court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988).

DISCUSSION

Defendants assert that Plaintiffs' claims must be dismissed as barred by the doctrine of sovereign immunity. In addition, Defendants move for dismissal on the grounds that Plaintiffs lack standing, and fail to state a claim upon which relief can be granted.*fn5

1. Subject Matter ...


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