Opinion
Civ. No. S-00-0359 FCD GGH PS
January 12, 2001
ORDER AND FINDINGS AND RECOMMENDATIONS
Presently pending before the undersigned is defendants' motion filed October 18, 2000, to dismiss plaintiff's amended complaint. When plaintiffs failed timely to file opposition, the court entered on November 30, 2000, its order to show cause. On December, 4, 2000, plaintiffs filed a document styled "Notice of Motion and Motion for Reconsideration," which the court interprets as the return to the order to show cause.
Good cause appearing, IT IS ORDERED that the order to show cause is DISCHARGED. In ruling on the pending motion to dismiss, the court has considered plaintiffs' opposition filed November 28, 2000.
Plaintiffs also filed on December 1, 2000, a motion for leave to file a second amended complaint, together with a proposed second amended complaint. Plaintiffs seek to add as a defendant yet another IRS employee who allegedly made improper statements in a November 27, 2000, telephone call. Construed as a motion to file a supplemental complaint, that motion is DENIED.
Introduction And Summary
This is one of three related cases filed by pro se plaintiffs Olsens stemming primarily from tax court litigation concerning their 1995 income tax liability. Displeased with the tax court proceedings, the Olsens have sued the Commissioner, IRS tax attorneys, and tax court personnel who participated in the tax court case. By order filed August 25, 2000, the Olsens were advised of deficiencies in their original complaint containing thirty-five citations of IRS misconduct, including failure to follow established rules and the Federal Rules of Evidence, and violations of taxpayer privacy. For the reasons that follow, the court recommends defendants' motion, filed October 18, 2000, to dismiss the amended complaint be granted and this action be dismissed without leave to further amend.
Jurisdiction over the amended complaint is predicated upon several bases. It invokes: civil rights jurisdiction — 28 U.S.C. § 1343; jurisdiction pursuant to 28 U.S.C. § 1340, granting to district court original jurisdiction of any civil action arising under any act of Congress providing for internal revenue; 26 U.S.C. § 7433, providing civil damages for certain unauthorized collection actions; 28 U.S.C. § 1346, providing jurisdiction over tax refunds; and, as a separate basis, the United States constitution. As relief, the Olsens seek civil damages "for certain unauthorized collection actions" pursuant to 26 U.S.C. § 7433. Accordingly, it appears that, notwithstanding the variety of jurisdictional bases cited, the appropriate jurisdictional basis of the amended complaint is 26 U.S.C. § 7433, providing jurisdiction over complaints seeking damages for unauthorized collection actions.
The complaint, apparently erroneously, refers to "26 U.S.C. 1343."
Tax Court Proceedings .
Like the original complaint, the amended complaint focuses primarily on alleged irregularities in the tax court proceedings. Notwithstanding the amended complaint's interpretational challenges and construing it liberally, one thing is clear. Plaintiffs did not obey the prior court order. Plaintiffs were given leave to amend to delete any claims that they assert arose because of the conduct of the IRS individual personnel in the Tax Court proceeding, which presently is on appeal at the Ninth Circuit. Notwithstanding the court's previous explanation that plaintiffs' complaints about conduct in the tax court proceedings are not properly before this court, the amended complaint's main focus is, again, on the tax court proceedings. The original complaint named as defendants IRS attorneys Parent and Abrams, but defendants specifically named in the body of the amended complaint are identified as Norman H. Wolfe, Judge of the Tax Court, and Tax Court Clerk Casacca. Plaintiffs were advised by findings and recommendations in related case No. Civ. S-00-499 that claims against the tax court judge and clerk were not viable claims. That case has been dismissed. Plaintiffs may not resurrect those claims by amending this complaint to name those same defendants. Possibly plaintiffs have confused their cases. Notwithstanding that the amended complaint names Judge Wolfe and Clerk Casacca as defendants, it nevertheless complains, inter alia, of actions by attorneys Parent and Abrams, the original individual defendants in this action. No matter how the amended complaint is construed, however, it fails to state claims on which relief can be granted.
Plaintiffs previously have been instructed that, as to alleged violations which occurred within the Tax Court proceedings themselves, the individuals are absolutely immune from suit. See Mireles v. Waco, 502 U.S. 9, 11 (judges and clerks (1991)); Fry v. Melarango, 939 F.2d 832, 836-837 (9th Cir. 1991) (attorneys); Butz v. Economou, 438 U.S. 478, 516-16 (1978) (agency officials performing adjudicatory and prosecutorial functions).
The Court will not repeat its prior order — allegations of constitutional, statutory, and rules violations in the tax court proceedings contained in the amended complaint, for the same reasons as the original complaint, fail to state a claim on which relief can be granted. See Stankevitz v. IRS, 640 F.2d 205, 206 (9th Cir. 1981) (stating that "the proper procedure for raising a claim of an illegal agency proceeding is as a defense in the enforcement proceeding itself"). The Olsens should present in their tax court case currently on appeal their claims regarding allegedly improper subpoenas (the 26 U.S.C. § 7602 claim), contact with trial witnesses, conduct of the tax court judges and clerks, and other complained of behavior in the tax court proceedings. See also Baker v. Internal Revenue Service, 74 F.3d 906 (9th Cir. 1995) (doctrine of res judicata applies to Tax Court decisions); see also Hovkins v. United States, 146 F.3d 729, 733 (9th Cir. 1998); Statland v. United States, 178 F.3d 465, 470-471 (7th Cir. 1999) (district court is deprived of jurisdiction to concurrently rule in tax suit when the Tax Court is proceeding with a taxpayer petition), citing Flora v. United States, 362 U.S. at 166, 80 S.Ct. at 641; Berkery v. United States, 767 F. Supp. 660, 661 (E.D.Pa. 1990) (district court has no jurisdiction to redetermine already decided Tax Court case); Roberts v. United States, 423 F. Supp. 1314 (C.D. Cal. 1976); 26 U.S.C. § 7422 (e).
Likewise, the court will not repeat its analysis of the immunity of the Judge and the Clerk in the tax court action, which was fully explained in the dismissed related Case No. CIV. S-00-499.
Based on plaintiffs' requests for judicial notice of the tax court proceedings, it appears plaintiffs have presented their claims on appeal to the Ninth Circuit.
Tax Refund
A suit for refund of taxes may only be brought against the United States, 26 U.S.C. § 7422 (f); Wiltgen v. United States, 813 F. Supp. 1387, 1395 (D.Iowa 1992); Brennan v. C.L.R., 581 F. Supp. 28, aff'd. 752 F.2d 187 (6th Cir. 1984), and then only if the taxpayer has actually paid the disputed tax. Flora v. United States, 362 U.S. 145, 80 S.Ct. 630 (1960); Francis v. United States, 715 F. Supp. 973 (D.Nev. 1988). The Olsens have not alleged that they have paid any of the disputed amounts in question. Therefore, the amended complaint fails to state a claim for a tax refund on which relief can be granted.
Civil Risrhts Claims
Potentially proper civil rights claims must be brought against the defendants in their individual capacities, because suits against United States employees in their official capacities are suits against the United States, Gilbert v. Da Grossa, 756 F.2d 1455, 1458 (9th Cir. 1985); Hutchinson v. United States 677 F.2d 1322, 1327 (9th Cir. 1982), and the United States may not be sued pursuant to the civil rights statutes. See, e.g., Graves v. United States, 961 F. Supp. 314 (D.D.C. 1997) (United States may not be sued pursuant to 42 U.S.C. § 1985);Biase v. Kaplan, 852 F. Supp. 268, 280 (D.N.J. 1994) ("[i]t has, in fact, been consistently held that neither section 1985 nor any other provision of the Civil Rights Act may provide the basis for an action against the United States or a Federal agency").
Similarly, a Bivens claim may not be brought against a federal agency.See F.D.I.C. v. Meyer, 510 U.S. 471, 114 S.Ct. 996 (1994). To the extent that plaintiffs attempt to state Bivens constitutional tort claims against the individuals, the court cannot find any authority which permits the filing of a Bivens claim in connection with the alleged unlawful collection of taxes. Schwarz v. United States, 2000 WL 1800196 *5 (9th Cir. 2000); Wages v. IRS, 915 F.2d 1230 (9th Cir. 1990); Pesci v. IRS, 67 F. Supp.2d 1189, 1197 (D.Nev. 1999). Moreover, even if there were, attorneys would again be immune from suit based on activities associated with advocacy. Fry, supra n. 2. Finally, even if a Bivens action would lie, a Bivens complaint must allege a specific deprivation of a clearly established constitutional right by each defendant, which the amended complaint does not do. See Carlson v. Green, 446 U.S. 14, 19 100 S.Ct. 1468, 1472 (1980); Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994) (applying heightened pleading standard to Bivens action).
Moreover, complaints about actions in the tax court proceedings should have been raised in the tax court, or on appeal from the tax court proceedings. Stankevitz v. United States, 640 F.2d 205, 206 (9th Cir. 1981); see also Trulis v. Barton, 107 F.3d 685, 694 (9th Cir. 1995) ("We do not consider the merits of this claim because the district court did not have power to sanction conduct that occurred in a different court in a different case."). To the extent that the Olsens did raise matters before the Tax Court, and those issues presently are on appeal, defendants are correct that this court would have no jurisdiction to review the issues presently pending appeal. Trulis v. Barton, supra.
Unauthorized Tax Collection
The amended complaint does not allege that tax collection has commenced against the Olsens, nor are specific instances of unauthorized tax collection actions described. See 26 U.S.C. § 6213 (a) (stay of assessment and collection until Tax Court case decided). Accordingly, the amended complaint fails to state a claim for relief pursuant to 26 U.S.C. § 7433. Because collection is barred during a Tax Court case (with exceptions not applicable here) conduct in Tax Court cannot be the subject of a § 7433 action. Moreover, a claim of invalid assessment or improper determination of tax is "not actionable as a matter of law under § 7433." Miller v. United States, 66 F.3d 220, 222 (9th Cir. 1995).
Conclusion
The court carefully has considered whether plaintiffs should be granted further leave to amend. In filing the first amended complaint, plaintiffs have disregarded the court's previously given advice concerning the deficiencies in their original complaint. Even construing the amended complaint liberally, as the court is bound to do, it is plain that plaintiffs misapprehend the legal bases for the claims they are attempting to make. The court cannot "supervise laymen in the practice of law."Springer v. Best, 264 F.2d 24, 25 (9th Cir. 1959.) The court has concluded that further attempts to amend would be futile, as would further explanations of the law by the court. The Ninth Circuit explicitly has warned against "becoming a player in the adversary process rather than remaining its referee." Jacobsen v. Filler, 790 F.2d 1362, 1365 (9th Cir. 1986) ("[I]t is not for the trial court to inject itself into the adversary process on behalf of one class of litigant"). Pro se litigants undoubtedly are entitled to have pleadings liberally construed. See, e.g., Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96 (1972). Moreover, they may be granted leeway in certain cases when they run afoul of merely technical procedural requirements. The Ninth Circuit recently reiterated, however, that "a pro se litigant is not excused from knowing the most basic pleading requirements." American Ass'n of Naturopathic Physicians v. Hayhurst, ___ F.3d ___, 2000 WL 1634237 *3 (9th Cir. 2000) (citing Briones v. Riviera Hotel Casino, 116 F.3d 379, 382 (9th Cir. 1997); see also McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 1984 (1993) ("[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel"). In sum, "pro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record."Jacobsen, 790 F.2d at 1364. Plaintiffs previously have been advised of deficiencies in their pleadings and granted leave to amend. Plaintiffs have disregarded that advice. The court has concluded that further amendment of the pleadings would be futile.
Accordingly, IT IS RECOMMENDED that defendants' October 18, 2000, motion to dismiss be granted and this action be dismissed without further leave to amend. This order and findings and recommendations disposes of all presently pending motions.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within ten (10) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten (10) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martimez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).