Opinion
Civil Action File No. 1:04-CV-1454-TWT.
October 20, 2004
ORDER
This is an action against an employee of the Internal Revenue Service. It was filed in the Superior Court of DeKalb County and removed to this Court where the United States was substituted as the Defendant. It is before the Court on the Defendant's First Motion to Dismiss [Doc. 6]. With two exceptions not present here, the Federal Tort Claims Act sets forth the exclusive remedy under which a person may recover damages for injury, loss of property, or death caused by the negligent or wrongful act of a federal employee acting within the scope of his or her employment. 28 U.S.C. § 2679(b)(1); United States v. Smith, 499 U.S. 160, 165-166 (1991); Matsushita Elec. Co. v. Zeigler, 158 F.3d 1167, 1169 (11th Cir. 1998). Where such a suit is brought against a federal employee, the Attorney General, or his delegate, determines whether the employee was acting within the scope of his or her employment at the time of the incident in question. If the Attorney General so determines, he so certifies to the Court. The United States is then substituted as defendant. 28 U.S.C. § 2679(d). The action then proceeds against the United States under the Federal Tort Claims Act.
Once the United States is substituted as defendant, the action must be dismissed if sovereign immunity has not been waived. Smith, 499 U.S. at 166 ("Congress recognized that the required substitution of the United States as the defendant in tort suits against Government employees would sometimes foreclose a tort plaintiff's recovery altogether. . . .");Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 427 (1995) ("When the United States retains immunity from suit, certification disarms plaintiffs. They may not proceed against the United States, nor may they pursue the employee shielded by the certification."); Matsushita, 158 F.3d at 1169-1170; Nadler v. Mann, 951 F.2d 301, 305 (11th Cir. 1992).
Although sovereign immunity has been generally waived with respect to tort claims pursuant to 28 U.S.C. § 2674, Congress has specifically excepted "any claim arising in respect of the assessment or collection of any tax or customs duty. . . ." 28 U.S.C. § 2680(c). This section has been given a broad interpretation and applies to suits for damages stemming from activities undertaken to collect taxes. Here, the allegedly tortuous conduct occurred in the course of collecting Quickley's unpaid federal tax liability. Therefore, sovereign immunity has not been waived and the Court lacks subject matter jurisdiction over his claims for damages.
The Court also lacks subject matter jurisdiction over Quickley's claim for an injunction against the collection of his federal tax liability. Although Quickley named a federal employee as the defendant, the real party in interest is the United States. Section 7421 of the Internal Revenue Code expressly precludes the Court from awarding such injunctive relief. It provides as follows:
Except as provided in sections 6015(e), 6212(a) and (c), 6213(a), 6225(b), 6246(b), 6330(e)(1), 6331(i), 6672(c), 6694(c), 7426(a) and (b)(1), 7429(b), and 7436, no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.26 U.S.C. § 7421(a). Section 7421 protects the expeditious collection of revenue and minimizes precollection judicial intervention with that process. Bob Jones University v. Simon, 416 U.S. 725, 736 (1974); South Carolina v. Regan, 465 U.S. 367, 376 (1984).
Although the Supreme Court has recognized a narrow, judicial exception to Section 7421, it does not apply here. In Enochs v. Williams Packing Navigation Co., 370 U.S. 1, 7 (1962), the Court concluded that the Anti-Injunction Act would not apply if (1) under the most liberal view of the law and the facts, it is apparent that there are no circumstances by which the Government could prevail and (2) equity jurisdiction otherwise exists. See also Bob Jones University v. Simon, 416 U.S. 725, 737 (1974); Hospital Resource Personnel, Inc. v. United States, 68 F.3d 421, 428-429 (11th Cir. 1995); Commissioner of Internal Revenue v. Shapiro, 424 U.S. 614 (1976).
The Plaintiff comes nowhere near showing that the Government has no chance of prevailing on the merits. Not only that, he has an adequate remedy at law. Provided that he meets the limitations periods imposed by the Internal Revenue Code, Quickley may pay the penalty, file a claim for refund and, if the claim is not allowed, bring an action to recover the penalty. 26 U.S.C. §§ 6511, 6532, 7422. Bob Jones University, 416 U.S. at 747; Leves v. Internal Revenue Service, 796 F.2d 1433, 1435 (11th Cir. 1986); Mobile Republican Assembly v. United States, 353 F.3d 1357, 1363 (11th Cir. 2003). The Court lacks subject matter jurisdiction over this case. The Defendant's First Motion to Dismiss [Doc. 6] is GRANTED.
SO ORDERED.