Savoy v. United States , 962 F. Supp. 2d 1 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUN 2 5 2013
, U.S Uistr'\ct_& Bankruptf‘-Y
Gregory Scott Savoy, ) for the D\strnct 01 Coluf\'\b‘@
)
Plaintiff, )
)
v. ) Civ. Action No. l ,
, > 3 ~' 971
Urnted States, )
)
Defendant. )
MEl\/IORANDUM OPINION
This matter is before the Court on plaintiffs pro se complaint and application to proceed
fnforma pauperfs. The Court will grant plaintiffs informer pauperis application and will
dismiss the case for lack of subject matter jurisdiction. See Fed. R. Civ. P. l2(h)(3) (requiring
dismissal “at any time" jurisdiction is found wanting).
Plaintiff is a resident of Front Royal, Virginia, suing the United States purportedly under
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Compl. at 2. An examination
of the complaint’s disjointed allegations reveals that plaintiff is challenging the internal Revenue
Service’s garnishment of his salary to satisfy his tax bill. Plaintiff alleges that he has "sought in
futility the full arrestment of a coercive action . . . initiated by the IRS [in] June 2011 and []
perpetuated into the U.S. Tax Court and then further upheld by all parties until the filing of this
complaint." Id. The "untenable coercion" allegedly occurred when "this mentally disabled
." Id.plaintiff was commanded to assemble within thirty days a full ten years of tax forms . . .
at 2-3. Allegedly, plaintiffs "income from the National Press Club, which [was] hard won . . .
after a thirty year step-by-step climb from institutionalization," was garnished in March and June
of 2011. Id. at 3. Plaintiff seeks monetary damages of $27,000 for lost income and a writ of
l
mandamus so that he may be "safely extracted for a short period of time from the U.S. Tax
Court, the IRS Appeals Department, and the IRS ChiefCourisel’s Offtce . . . ." Id. at 6.
Plaintiff adds that "[o]nce life health is restored, contact can begin anew." Id.'l``he United States is immune from suit absent a waiver by Congress, and such immunity
is jurisdictional. Unz``!ed Stales v. Mil'chell, 463 U.S. 206', 212 (1983) ("It is axiomatic that the
United States may not be sued without its consent and that the existence of consent is a
prerequisite for jurisdiction."). Save exceptions not applicable here, "no suit for the purpose of
restraining the assessment or collection of any tax shall be maintained in any court by any person
. ." 26 U.S.C. § 742]. I~Ience, the Court lacks authority to consider plaintiff’ s claim for
mandamus relief
With regard to plaintiff’ s claim for damages, the United States’ immunity is waived only
"[i]f, 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 [the Internal Revenue Code] or any regulation promulgated
[thereunder]." 26 U.S.C. § 7433(a). Plaintiff does not claim that an IRS official or employee
disregarded the internal Revenue Code or the Code’s regulations Hence, the Court lacks
authority to consider this clairn.
Finally, the pleaded facts fail to state a claim upon which relief can be granted under the
Rebabilitation Act. The Rehabilitation Act states in relevant part that "[n]o otherwise qualified
handicapped individual in the United States . . . shall, solely by reason of his handicap, be excluded
from the participation in, be denied the benefits of, or be subjected to discrimination . . . under any
program or activity conducted by any Executive agency . . . ." 29 U.S.C. § 794; see Taylor v. Snrall,
350 F.3d §286, 1291 (D.C. Cir. 2003) (distinguishing Rehabilitation Act claims under section 504
[§ 794] from claims under section 501 [§ 79]] applicable only to federal employees). Plaintiff
mentions discrimination but he has neither alleged any acts of discrimination nor stated any facts
suggesting that the IRS’ garnishing of his wages was “solely" - or even probably ~ due to his
alleged mental disability. Even if plaintiff properly alleged facts that raised a claim for relief
under the Rehabilitation Act, jurisdiction still would be wanting because plaintiff has not stated
that he exhausted his administrative remedies under that Act, and "[a] failure to exhaust
administrative remedies for Rehabilitation Act claims is a jurisdictional defect . . . ." Mahoney v.
Donovan, 824 F. Supp. 2d 49, 58 (D.D.C. 2011) (emphasis in original) (citing Spinellz`` v. Goss, 446
F.3d 159, 162 (D.C. Cir. 2006)). See Taylor, 350 F.3d at 1292 ("doubt[ing] the district court
would have had jurisdiction to entertain [a federal employee’s Rehabilitation Act claim] because
she failed to exhaust her administrative appeal rights") (citations omitted); Prewz'tl v. U.S. Postal
Serv., 662 F.2d 292, 304 (5“' Cir. 1981) (reading "the exhaustion of administrative remedies
requirement of section 501 into the private remedy recognized by both section 501 and section 504
for federal government handicap discrimination"). A separate Order of dismissal accompanies
this l\/Iemorandum Opinion.
DATE: June %013