Griffin v. United States ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EURICH Z. GRIFFIN, et al.,
Plaintiffs,
v. Case No. 19-cv-762 (CRC)
UNITED STATES OF AMERICA, et al.,
Defendants.
MEMORANDUM OPINION
No one enjoys paying taxes, but they are a price of citizenship. For that reason, the law
erects substantive barriers to challenging their imposition. This is a case in point.
Plaintiffs are forty-one individual tax objectors who have sued the United States, the
Treasury Department, forty-five named individual federal employees, and various unknown
federal employees. Compl. ¶¶ 15-108. Principally, plaintiffs allege that the IRS lacks
jurisdiction to assess taxes and penalties against them. Id. ¶¶ 113-15. Because the Tax Court
dismissed plaintiffs’ past petitions against the IRS for lack of jurisdiction, plaintiffs argue that
the IRS therefore lacks jurisdiction over them entirely and may not subject them to federal
taxation. Id. ¶¶ 113-15. Plaintiffs also allege that the defendants trespassed on and tortiously
interfered with their property, id. ¶¶ 203-13; intentionally inflicted emotional distress, id. ¶¶ 270-
79; perpetrated “Abuse of Process,” id. ¶¶ 238; engaged in defamation, libel, and slander, id. ¶¶
280-86; ran afoul of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, id. ¶
136; violated 42 U.S.C. § 1983, id. ¶¶ 192-202; trampled their rights under 4th, 5th, and 14th
Amendments to the U.S. Constitution, id. ¶¶ 214-37; carried out mail fraud in violation of 18
U.S.C. §§ 1961–1964, id. ¶¶ 253-63; and illegally filed tax lien notices or levies against them, id.
¶¶ 126-31. Plaintiffs each seek a declaratory judgment and millions of dollars. Id. at 116-22.
The government moved to dismiss plaintiffs’ pro se complaint under Rules 12(b)(1) and
(6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and failure to
state a claim. See Mem. Supp. Mot. Dismiss (“MTD”), ECF No. 20-1 at 2-3. The Court
responded with a standard “Fox/Neal” Order 1, advising plaintiffs that if they did not respond to
the motion to dismiss by June 24, 2019, the Court may deem the motion conceded. See Order,
ECF No. 21 at 1. Plaintiffs did not file an opposition. Instead, on June 20, 2019, they filed a
Motion to Amend the Complaint, which attached a new complaint but failed to indicate the
proposed amendments. See Pls. Mot. to Amend, ECF No. 23-1. On August 23, 2019, the Court
issued a minute order instructing plaintiffs to show cause in writing, by September 13, 2019, why
the government’s motion to dismiss should not be granted as conceded under Local Civil Rule
7(b) or granted on the merits. On September 13, 2019, plaintiffs filed a response to the Court’s
order, objecting to the government’s motion to dismiss. ECF No. 34. Additionally, several
individual plaintiffs filed “motions to claim and exercise constitutionally secured rights and to
compel the Court to rule on their motions.” ECF Nos. 24, 25, 26, 31 & 32. For the reasons that
follow, the Court will grant the government’s motion to dismiss and deny plaintiffs’ motion to
amend the complaint.
First, the Court will consider whether it has subject matter jurisdiction over plaintiffs’
claims. Absent a waiver of sovereign immunity, the United States is immune from suit. Block
v. North Dakota, 461 U.S. 273, 287 (1983). Similarly, because an action against federal officers
1
See Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988); Neal v. Kelly, 963 F.2d 453,
456 (D.C. Cir. 1992).
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in their official capacities “generally represent[s] only another way of pleading an action against
an entity of which an officer is an agent,” such suits are also barred by sovereign immunity.
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (quoting Monell v. New York City Dept. of
Social Services, 436 U.S. 658, 690 n.55 (1978)). Plaintiffs bear the burden of demonstrating
waiver for each claim that they bring. United States v. Mitchell, 463 U.S. 206, 212 (1983). If
plaintiffs fail to identify a statute expressly waiving immunity, the Court lacks subject matter
jurisdiction to adjudicate a claim against the United States.
Applying these principles, the Court lacks subject matter jurisdiction to consider
plaintiffs’ trespass, tortious interference with property, and intentional infliction of emotional
distress claims because plaintiffs have not identified a waiver of sovereign immunity. Nor could
they. While the Federal Tort Claims Act (FTCA) waives the United States’ sovereign immunity
with respect to claims based on “the negligent or wrongful act or omission” of a government
employee, see 28 U.S.C. § 1346(b), which generally includes claims for intentional torts, see,
e.g., Levin v. United States, 568 U.S. 503, 507 n.1 (2013), the United States has not waived its
sovereign immunity for “[a]ny claims arising out of the assessment or collection of any tax,” 28
U.S.C. § 2680(c). Because plaintiffs’ trespass, tortious interference with property, and
intentional infliction of emotional distress claims arise out of the government’s assessment and
collection of taxes, Compl. ¶¶ 203-13, sovereign immunity precludes their claims.
Similarly, the Court lacks jurisdiction to consider plaintiffs’ abuse of process,
defamation, libel, and slander claims because the FTCA explicitly bars such claims. By its
terms, the FTCA retains immunity for “[a]ny claim arising out of . . . abuse of process, libel,
slander, misrepresentation, deceit, or interference with contract rights.” See id. §§ 2680(h),
1346(b)(1). To the extent plaintiffs seek to raise other claims of fraud, the federal government
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also retains sovereign immunity for such claims. Budik v. Ashley, 36 F. Supp. 3d 132, 140
(D.D.C. 2014), aff'd sub nom. Budik v. United States, No. 14-5102, 2014 WL 6725743 (D.C.
Cir. Nov. 12, 2014).
Plaintiffs’ FDCPA claims fare no better. Sovereign immunity bars plaintiffs’ FDCPA
claims because the FDCPA defines the term “debt collector” as excluding “any officer or
employee of the United States or any State to the extent that collecting or attempting to collect
any debt is in the performance of his official duties.” 15 U.S.C. § 1692a(6)(C).
Moreover, to the extent that plaintiffs request a declaratory judgment that would have the
effect of restraining the government’s collection of taxes, this Court lacks subject matter
jurisdiction. The Anti-Injunction Act (AIA) provides that “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. § 7421(a). Similarly, the Declaratory Judgment Act (DJA) expressly bars claims for
declaratory relief “with respect to Federal taxes.” 28 U.S.C. § 2201. These two Acts are
coterminous, Cohen v. United States, 650 F.3d 717 at 727-31 (D.C. Cir. 2011) (en banc), so
where a plaintiff seeks declaratory judgment to restrain the collection of taxes, the claim must be
dismissed for lack of subject matter jurisdiction, Gardner v. United States, 211 F.3d 1305, 1310-
11 (D.C. Cir. 2000). Accordingly, the Court lacks jurisdiction to consider plaintiffs’ requests for
declaratory judgment.
For the remaining claims, the Court will consider whether plaintiffs have stated claims
upon which relief can be granted.
Plaintiffs seek relief pursuant to 42 U.S.C. § 1983, Compl. ¶¶ 192-202, which permits
civil recovery for constitutional violations occurring under color of state law. Because the
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actions of the federal government “are exempt from the proscriptions of § 1983,” District of
Columbia v. Carter, 409 U.S. 418, 242-25 (1973), plaintiffs have failed to state a claim.
Plaintiffs also allege violations of their Constitutional rights under the 4th, 5th, and 14th
Amendments and seek damages pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). Compl. ¶¶ 214-37. To the extent plaintiffs assert a
Bivens claim for damages against the United States or the individual defendants in their official
capacities, their claims must dismissed because “[i]t is well established that Bivens remedies do
not exist against officials sued in their official capacities.” Kim v. United States, 632 F.3d 713,
715 (D.C. Cir. 2011). To the extent plaintiffs attempt to bring Bivens claims against the named
government employees in their individual capacities, their claims must also be dismissed because
the “lower courts in this jurisdiction have . . . declined to create a Bivens remedy to redress
injuries alleged by . . . tax protesters . . . who allege due process violations stemming from” tax
collection. Kim v. United States, 618 F. Supp. 2d 31, 37–38 (D.D.C. 2009), rev’d on other
grounds, 632 F.3d 713, 717 (D.C. Cir. 2011) (citations omitted). Indeed, Bivens remedies are
“precluded by the ‘comprehensive statutory remedial scheme’ that Congress established through
the Internal Revenue Code.” Id. (citation omitted); see also Esposito v. Dep’t of Treasury, No.
1:10-CV-980 RLW, 2012 WL 1076155, at *3 (D.D.C. Mar. 30, 2012).
Lastly, plaintiffs allege that the defendants have committed mail fraud in violation of 18
U.S.C. §§ 1961-1964 and have illegally filed tax lien notices or levies. Compl. ¶¶ 126-31, 253-
63. Because individuals “cannot bring suits as private attorneys general in an effort to right
potential violations of criminal statutes,” Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979),
plaintiffs have failed to state a claim.
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Plaintiffs have moved to amend their complaint. Despite the lack of a redline version of
their complaint, the Court dutifully waded through the proposed amended complaint and finds
that it merely repackages the same unsuccessful claims raised in the initial complaint. Thus,
accepting plaintiffs’ proposed amended complaint would be futile, as it too fails on all counts to
either establish subject matter jurisdiction or state a claim. James Madison Ltd. by Hecht v.
Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996). The Court therefore denies plaintiffs’ motion
to amend the complaint.
For the foregoing reasons, the Court will grant defendants’ motion to dismiss and deny
plaintiffs’ motion to file an amended complaint and their various “motions to claim and exercise
constitutionally secured rights and require the presiding Judge to rule upon these motions.” A
separate Order shall accompany this memorandum opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: September 24, 2019
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