UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GEORGES MARCIANO,

Plaintiff,

v. Civil Action 09-01499 (HHK)

DOUGLAS SHULMAN, Commissioner of the Internal Revenue Service,

Defendant.

MEMORANDUM OPINION

Plaintiff Georges Marciano brings this action against Douglas Shulman, in his official

capacity as Commissioner of the Internal Revenue Service (“IRS”), seeking declaratory and

injunctive relief and a writ of mandamus. Marciano alleges that the IRS has violated his rights

by declining to investigate or audit his tax returns, and seeks to compel the IRS to provide him

with an explanation and documentation of its understanding of his tax liability for certain years.

Before the Court is the Commissioner’s motion to dismiss [#21], which asserts that this Court

lacks jurisdiction over certain of Marciano’s claims and that the rest of his allegations fail to state

a claim upon which relief may be granted. Upon consideration of the motion, the opposition

thereto, and the record of this case, the Court concludes that the motion must be granted.

I. BACKGROUND

Marciano is the co-founder of the apparel company Guess?, Inc. and an investor in

various companies and real estate ventures. Marciano alleges that in 2005 and 2006 he

discovered numerous instances of fraud and embezzlement by his former employees that resulted in a loss of nearly $200,000,000 from accounts held by him or in which he had an interest. Am.

Compl. ¶¶ 9–13. Believing these fraudulent transactions to have significant consequences for his

tax liability, Marciano attempted to obtain copies of his recent tax returns from the IRS. The

IRS, however, was initially unable to provide Marciano with tax returns for the years 2000, 2001,

2002, 2003, 2004 and 2006. Am. Compl. ¶ 17.

Despite indications that Marciano’s taxes had not been properly filed as of at least the

year 2000, Marciano received two refund checks from the IRS dated April 25, 2006, in the

amounts of $233,706.27 and $647,290.90, ostensibly for taxes paid in the year 2000. Am.

Compl. ¶ 21. He subsequently received more refund checks for the years between 2000 and

2006. Marciano returned all of these checks to the IRS, requesting an explanation for their

issuance. The IRS initially replied only that Marciano’s account for the year 2000 had been

adjusted because he had “requested a tentative carryback or restricted interest claim,” and

eventually sent Marciano a letter in June 2009 informing him that “no tax issues exist.” Am.

Compl. ¶¶ 21–24.

While these events were unfolding, Marciano filed two lawsuits in the Superior Court of

Los Angeles, California against his former accountants, bookkeepers and other employees:

Marciano v. Fahs, et al. (BC 375824) (Cal. Super. Ct. 2009) and Marciano v. Iskowitz, et al. (BC

384493) (Cal. Super. Ct. 2009). The former employees asserted counterclaims against Marciano

for libel and intentional infliction of emotional distress. In July 2009, the Superior Court entered

judgments against Marciano in both lawsuits. Def.’s Opp’n to TRO & Prelim. Inj. Exs. F, G. In

October 2009, Marciano’s judgment creditors commenced an involuntary chapter 11 bankruptcy

2 action against him in the U.S. Bankruptcy Court for the Central District of California, No. 09-

39630 (Bankr. C.D. Cal. filed Oct. 27, 2009).

Marciano filed the present case on August 10, 2009, initially seeking a stay of the

execution of the state court judgments against him, the attachment of the bank accounts he

believes to have been fraudulently opened in his name, the placement of a tax lien on his

property, an injunction of any further state court proceedings against him, a declaration that the

IRS had violated his rights (including his due process rights under the Constitution), and both a

writ of mandamus and an injunction requiring the IRS to furnish him with certain documents and

to commence a thorough investigation or audit of his tax liability. On August 21, 2009,

Marciano moved for a temporary restraining order and preliminary injunction providing these

various forms of relief. Following a hearing, the Court denied that motion. The IRS

subsequently moved to dismiss this action for failure to state a claim upon which relief may be

granted and lack of subject-matter jurisdiction.1

II. LEGAL STANDARDS

A. Lack of Subject-Matter Jurisdiction

Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a

complaint, or a claim therein, for lack of subject-matter jurisdiction. FED . R. CIV . P. 12(b)(1);

see Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994) (“Federal courts are

courts of limited jurisdiction. . . . It is to be presumed that a cause lies outside this limited

1 The IRS also asserts that the Court has no subject-matter jurisdiction to grant the relief Marciano initially sought regarding the state court actions. Because those claims have now been abandoned, see Pl.’s Opp’n at 2, the Court does not address this contention.

3 jurisdiction . . . .”). In response to such a motion, the plaintiff must establish that the court has

subject-matter jurisdiction over the claims in the complaint. See Shuler v. United States,

(D.C. Cir. 2008). If the plaintiff is unable to do so, the Court must dismiss the

action. Steel Co. v. Citizens for a Better Env’t,

(1998) (citing Ex parte

McCardle,

(1868)). When resolving a motion made under Rule 12(b)(1), a

court may consider material beyond the allegations in the plaintiff’s complaint. Jerome Stevens

Pharm., Inc. v. FDA,

, 1253–54 (D.C. Cir. 2005).

B. Failure to State a Claim Upon Which Relief May Be Granted

On a motion to dismiss for failure to state a claim upon which relief can be granted

pursuant to Rule 12(b)(6), the Court will dismiss a complaint, or a portion thereof, that fails to

plead “enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly,

(2007). Thus, although a complaint need not contain detailed

factual allegations, it must recite facts sufficient to at least “raise a right to relief above the

speculative level . . . on the assumption that all the allegations in the complaint are true (even if

doubtful in fact).”

. A “pleading that offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, —U.S.—,

(2009) (quoting Twombly,

). “Nor does a complaint suffice if it

tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”

(quoting Twombly,

) (alterations in original). At bottom, a complaint must contain sufficient factual

matter that, accepted as true, would allow the Court “to draw the reasonable inference that the

defendant is liable for the misconduct alleged.”

4 III. ANALYSIS

Marciano identifies a host of statutes and one constitutional provision as creating both

jurisdiction over his claims and a right to relief. The Court will address each in turn. Where the

Court finds the provision in question to create a cause of action, the Court will address whether

Marciano has stated one thereunder.

A.

confers on federal district courts “original jurisdiction of all civil

actions arising under the Constitution, laws, or treaties of the United States.”

.

As the Commissioner points out, however, § 1331 does not create any causes of action. See

Montana-Dakota Util. Co. v. Nw. Pub. Serv. Co.,

(1951) (“The Judicial Code,

in vesting jurisdiction in the District Courts, does not create causes of action, but only confers

jurisdiction to adjudicate those arising from other sources which satisfy its limiting provisions.”).

As a result, “a plaintiff must proffer a proper basis for both a federal court’s exercise of

jurisdiction and an independent cause of action under which to proceed.” Citizens for

Responsibility & Ethics in Wash. v. Cheney,

(D.D.C. 2009).

Accordingly, the Court turns to the other provisions cited by Marciano to determine whether any

of them, in combination with § 1331, creates “a separate, legally cognizable cause of action.”

See id.2

2 In his opposition to the IRS’s motion to dismiss, Marciano further identifies §§ 1340 and 1346 of Title 28 as supporting the Court’s jurisdiction in this case (although Marciano cites § 1346 of Title 26, which has been repealed, the Court understands him to refer to the equivalent section in Title 28). Like § 1331, these provisions create federal question jurisdiction and not a cause of action. Similarly, the Declaratory Judgment Act,

, creates only a remedy, and “is not an independent source of federal jurisdiction.” C & E Servs., Inc. v. D.C. Water & Sewer Auth.,

(D.C. Cir. 2002).

U.S.C. § 6103 and the Freedom of Information Act

provides in relevant part that “[t]he [tax] return of a person shall, upon

written request, be open to inspection by or disclosure to . . . that individual.”

(e)(1)(A)(I). This Court has explained that, by itself, “Section 6103 . . . cannot provide an

independent basis for subject matter jurisdiction” because it “operates as part of the larger

[Freedom of Information Act] framework” and does not supersede that statute’s jurisdictional

requirements. Maxwell v. O’Neill,

, at *3–4 (D.D.C. Sept. 12, 2002), aff’d

Maxwell v. Snow,

(D.C. Cir. 2005). Accordingly, Marciano’s claims cannot

proceed solely on this basis.

In an effort to wring more out of § 6103, however, Marciano now argues that this Court

should construe his claim under § 6103 as “an effective . . . request” under the Freedom of

Information Act (“FOIA”),

. Pl.’s Opp’n at 7. FOIA creates subject-matter

jurisdiction over claims based on the improper withholding of agency records. Bureau of Nat’l

Affairs, Inc. v. U.S. Dep’t of Justice,

(D.C. Cir. 1984) (citing Kissinger v.

Reporters Comm. for Freedom of the Press,

(1980)). Before plaintiffs can

seek judicial relief under FOIA, however, they must first exhaust their administrative remedies.

Dettmann v. U.S. Dep’t of Justice,

, 1476–77 (D.C. Cir. 1986). It is undisputed

that Marciano has failed to exhaust his administrative remedies in this case.

Marciano argues, however, that he is not required to exhaust his administrative remedies

because the IRS did not deny his request, but rather replied that the request itself was deficient.

Pl.’s Opp’n at 8. It is true that exhaustion of remedies is not required in such situations. See

6 Maxwell,

, at *6. Here, though, that is not the case. As Marciano’s own

complaint explains, the IRS responded to Marciano’s request for copies of his returns by

“indicat[ing] that copies of Plaintiff’s tax returns for the years [2000–2004 and 2005] were

unavailable and would not be provided.” Am. Compl. ¶ 17. Such a reply reads very much like a

denial, and not at all like the response in Maxwell, where the IRS specifically “informed

plaintiffs that their requests did not comply with regulatory requirements and advised them how

to cure the error.” Maxwell,

, at *6. Likewise, the IRS’s responses to

Marciano’s subsequent “requests and documents evidencing reasons why the financial

circumstances of [his] personal and business returns and accounts were in disarray,” Pl.’s Opp’n

at 9, cannot be considered responses to a properly formulated FOIA request.3 Thus, the Court

finds that Marciano’s FOIA request, if properly made, was effectively denied, and that he was

thus required to exhaust his administrative remedies, which he failed to do. Accordingly, the

Court has no jurisdiction to hear a FOIA claim regarding the returns that Marciano has not yet

received.4 If Marciano wishes to pursue a FOIA claim in federal court regarding these returns, he

must first exhaust his administrative remedies.

3 FOIA does not obligate an agency to “perform legal research, create individualized records, or answer legal questions.” Maxwell,

, at *4 (citing Tax Analysts v. IRS,

, at *2 (D.D.C. May 1, 1998)). 4 The Court notes that the parties agree that some of Marciano’s returns have been provided to him since this action began. They disagree, however, on whether he has received all of the returns to which he is entitled, and whether the documents provided were in the proper form.

U.S.C. § 6321

provides that “[i]f any person liable to pay any tax neglects or refuses to

pay the same after demand, the amount [owed] . . . shall be a lien in favor of the United States

upon all property and rights to property . . . belonging to such person.”

. There

are no indications whatsoever that this language is intended to create a private right of action, nor

of what such a right would entail.5 Further, this section is plainly inapplicable here; the IRS has

not demanded that Marciano pay any amount that he has failed to pay, and the entire premise of

Marciano’s suit seems to be that he would pay enthusiastically if asked, rather than “neglect or

refuse” to do so. Thus, this provision does not create a right of action that supports Marciano’s

claims.

D.

provides in relevant part that “[n]o suit or proceeding shall be

maintained in any court for the recovery of any [wrongfully or erroneously collected] internal

revenue tax . . . or . . . penalty . . . until a claim for refund or credit has been duly filed” with the

IRS.

(a). As its language makes plain, this provision bars suits against the IRS

absent specific conditions. Further, as the IRS observes, Marciano does not seek the recovery of

any tax paid; indeed, he has asserted throughout this action that he believes he has significant tax

liabilities. Finally, even if Marciano’s suit were construed as a suit for a refund within the

5 Where a statute does not expressly create a right of action, the Courts employ the test from Cort v. Ash,

(1975), to determine whether an implied right of action exists. Wilder v. Va. Hosp. Ass’n,

, 508 n.9 (1990). The Cort factors are congressional intent, the language and focus of the statute, its legislative history, and its purpose. Touche Ross & Co. v. Redington,

(1979). Here, none of these factors suggests that a private right of action is present.

8 meaning of § 7422, there is no indication that he has satisfied the condition precedent of filing

for a refund with the IRS.6 Accordingly, Marciano’s suit finds no support in this provision.

E. The Administrative Procedure Act

The judicial review provisions of the Administrative Procedure Act (“APA”), 5 U.S.C.

§§ 701–706, create “a limited cause of action for parties adversely affected by agency action,”

Trudeau v. FTC,

(D.C. Cir. 2006), provided that the agency action is “made

reviewable by statute [or is a] final agency action for which there is no other adequate remedy in

a court,”

, and is not “committed to agency discretion by law.”

§ 701(a)(2).

Marciano alleges that this Court has the power to review the IRS actions about which he

complains because those actions were “illegal, arbitrary and capricious . . . in that the IRS issued

a letter to Plaintiff, without elaboration, stating that he had no tax issues, and . . . failed in its

statutory duty to provide records of tax returns and reasons for refunds as requested by Plaintiff.”

Am. Compl. ¶ 39. The IRS responds that the actions complained of are committed to agency

discretion by law, and that Marciano has identified no agency actions that are “final” and thus

reviewable under the APA. Because Marciano fails to respond to these arguments, the Court

treats them as conceded. See Lewis v. District of Columbia,

, at *1 (D.C. Cir.

6 Despite Marciano’s original assertion that he was attempting to ensure that the United States would receive “millions of dollars” in taxes from him, Am. Compl. ¶ 29, he now appears to assert that he may be entitled to a refund. See Pl.’s Opp’n at 4. He also argues that the IRS’s assertion that he has “no tax issues” is belied by the fact that the IRS issued, and then accepted the return of, refunds for the years in question. To Marciano, this suggests that either the refunds were wrongly issued, meaning that “tax issues” must exist, or correctly issued and erroneously returned by Marciano himself, in which case he is entitled to them. Pl.’s Opp’n at 5. There is no contradiction here: as the IRS explains, the refund checks that Marciano sent back were not simply cancelled, but rather credited to his account to be returned at a later date or used to offset any future tax liability. Def.’s Reply at 6 n.2.

9 Feb. 2, 2011). Accordingly, the Court concludes that Marciano has failed to state a claim under

the APA.

F. The Due Process Clause of the Fifth Amendment

The Fifth Amendment of the U.S. Constitution provides that “No person shall be . . .

deprived of life, liberty, or property, without due process of law.” U.S. CONST . amend. V.

Marciano asserts that the IRS ran afoul of this principle by “refusing to provide appropriate

citizen protections to the efficient collection of taxes, and [failing] to prevent unwarranted

refunds,” Am. Compl. ¶ 42, and by failing to follow its own procedures with regard to his tax

situation. Pl.’s Opp’n at 15. Here, Marciano seems confused about the nature of the guarantee

created by the Due Process Clause: the Clause does not exist to provide process as an end unto

itself; it exists to provide adequate process where government threatens a judicially cognizable

interest in life, liberty, or property. See Ky. Dep’t of Corr. v. Thompson,

(1989). Marciano has not even attempted to identify a liberty or property interest upon which the

IRS has intruded such that the Clause’s protections are triggered.7 He has thus failed to state a

claim for a violation of Due Process.

G. The Mandamus and Venue Act

The Mandamus and Venue Act grants the “district courts . . . original jurisdiction of any

action in the nature of mandamus to compel an officer or employee of the United States or any

agency thereof to perform a duty owed to the plaintiff.”

. Mandamus is

7 Obviously, the extraction by the government of money or property via taxation implicates a constitutionally protected property interest, McKesson Corp. v. Dep’t of Bus. Reg.,

(1990), but, as noted above, Marciano has asserted repeatedly that he owes the government money, rather than the reverse. The Court is aware of no precedent establishing a protected property interest in the ability to pay taxes.

10 available only if: “(1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to

act; and (3) there is no other adequate remedy available to plaintiff.” Power v. Barnhart,

(D.C. Cir. 2002). Accordingly, there is no jurisdiction to issue a writ of

mandamus where a different statutory scheme provides the plaintiff with a remedy. In re

Cooper,

, at *1 (D.C. Cir. 1993) (per curiam) (“Mandamus [is] inappropriate

where petitioner has an adequate statutory remedy.” (citing In re GTE Serv. Corp.,

(D.C. Cir. 1985))). Mandamus relief “is not granted as of right,” and should issue

“only where the case is clear and the reasons compelling.” U.S. ex rel. Jump v. Ickes,

(D.C. Cir. 1940).

The Commissioner asserts that mandamus is improper here because Marciano has failed

to identify any clear, non-discretionary duties that the IRS has failed to perform.8 Specifically,

the Commissioner argues that whether to audit Marciano or further investigate his tax situation is

a decision wholly within the IRS’s discretion. Marciano rejoins that the IRS owes him two clear

duties: first, a duty to turn over the returns he has requested; and second, a “minimal duty to

provide taxpayer assistance.”9

8 As noted, supra note 5, the IRS also argues that, since this action began, it has complied with its duty to turn over copies of Marciano’s returns. The Court, however, understands Marciano to contest the adequacy of that disclosure and thus will not assume that his claim for copies of his returns is moot. 9 Marciano also claims that “the burden of proof is on the Commissioner” to show that the Court has no jurisdiction to issue a writ of mandamus. Pl.’s Opp’n at 21. This is incorrect. The party seeking to invoke the jurisdiction of a federal court bears the burden of establishing that the court has jurisdiction. Rempfer v. Sharfstein,

, 868–69 (D.C. Cir. 2009) (citing FW/PBS, Inc. v. City of Dallas,

(1990)).

11 As to the first duty, Marciano contends that § 6103 obligates the IRS to disclose his

returns. But mandamus is available only where no other adequate remedy exists. And, as

discussed above, § 6103 “operates as part of the larger FOIA framework,” Maxwell,

, at *3, which itself constitutes an adequate remedy where plaintiffs seek the release of

government records. Strunk v. U.S. Dep’t of State,

, 113 n.1 (D.D.C. 2010)

(citing Johnson v. Exec. Office for U.S. Attorneys,

(D.C. Cir. 2002);

Pickering-George v. Registration Unit,

(D.D.C. 2008)). Accordingly,

§ 6103 cannot create a duty enforceable by mandamus here.10

As to the second duty, Marciano fails to provide any support for his assertion that the IRS

has a non-discretionary duty to aid him in understanding his own finances. He first argues that

the IRS has a “minimal duty to provide taxpayer assistance.” Pl.’s Opp’n at 10–11. For this

proposition, he cites only a case in which Sixth Circuit affirmed the denial of a writ of mandamus

very much like that sought by Marciano here, finding that the IRS’s statutory duties had been

discharged. See Short v. Murphy,

(6th Cir. 1975). Marciano asserts that the

IRS’s failure to assist him is “inconceivable,” Pl.’s Opp’n at 11, but indignation is no substitute

for legal authority, and Marciano fails to identify any authority that could create the sort of

unambiguous obligation to which a writ of mandamus is properly directed.

Marciano next argues that even if the IRS had no initial duty to investigate, once it did so,

it was obligated to act in a fashion that was not “misleading or . . . confusi[ng].” Pl.’s Opp’n at

14. In support of this argument, Marciano points to Chute v. United States,

(1st Cir.

10 Portions of Marciano’s opposition suggest that he is abandoning his mandamus claim with regard to the returns in favor of his newly discovered FOIA claim. See Pl.’s Opp’n at 9. Because, however, that is unclear, the Court addresses both.

12 1979), in which the First Circuit considered a tort claim against the Coast Guard for negligently

placing a buoy that failed to adequately warn of the presence of a submerged wreck. There, the

“Plaintiffs argue[d] . . . that while [the applicable statute] allows the government some measure

of discretion in deciding whether or not, and how, to [place a buoy], its discretion is subject to a

judicially enforceable obligation to exercise it ‘responsibly.’”

. By analogy, Marciano

argues that even if the IRS has discretion to investigate or audit a taxpayer, once it looked into

his situation, its duty to act responsibly “kicked in.”

This argument is without merit. To the extent that the Chute court did recognize a duty to

act “responsibly,” it was a duty of care grounded in common law tort principles that prohibited

any actor from inducing reliance and then acting recklessly. See

. Even assuming that

the IRS’s conduct toward Marciano would run afoul of such a duty, the Court cannot issue a writ

of mandamus on that basis. A writ of mandamus will only issue to enforce a duty that is

ministerial, clearly defined and undisputable. 13th Regional Corp. v. U.S. Dep’t of Interior,

(D.C. Cir. 1980). The nebulous common law obligation recognized by the Chute

court does not approach the high level of clarity and specificity required for the writ to lie. See

United States ex rel. Chi. Great W. R.R. Co. v. Interstate Commerce Comm’n,

(1935) (“‘Where the matter is not beyond peradventure clear, we have invariably refused the writ

[of mandamus] . . . .’”). Accordingly, Chute does not help Marciano establish that the IRS owed

him a duty enforceable by mandamus.11

11 Indeed, recognizing a duty on the part of the government, enforceable by mandamus, that is as open-ended as the one Marciano proposes here would effectively allow plaintiffs to perform an end-run around the long-standing judicial review structure created by the APA. See, e.g., Norton v. S. Utah Wilderness Alliance,

(2004) (noting that the APA “carries forward” the traditional limits on the use of mandamus).

13 IV. CONCLUSION

In sum: neither

,

, nor

creates a cause

of action;

does not provide a basis for subject-matter jurisdiction; and

Marciano has not exhausted his remedies as required to file a FOIA action in federal court, has

conceded that his APA claim is not cognizable, has identified no property interest that could give

rise to a procedural due process claim here, and has established no clear duty that is enforceable

by mandamus. Accordingly, the Commissioner’s motion to dismiss [#21] must be granted. An

appropriate order accompanies this memorandum opinion.

Henry H. Kennedy, Jr. United States District Judge

14