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”),

,

; violated

,

; trampled their rights under 4th, 5th, and 14th

Amendments to the U.S. Constitution,

; 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,

(1983). Similarly, because an action against federal officers

1 See Fox v. Strickland,

(D.C. Cir. 1988); Neal v. Kelly,

(D.C. Cir. 1992).

2 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,

(1985) (quoting Monell v. New York City Dept. of

Social Services,

, 690 n.55 (1978)). Plaintiffs bear the burden of demonstrating

waiver for each claim that they bring. United States v. Mitchell,

(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

(b), which generally includes claims for intentional torts, see,

e.g., Levin v. United States,

, 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,”

(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

§§ 2680(h),

1346(b)(1). To the extent plaintiffs seek to raise other claims of fraud, the federal government

3 also retains sovereign immunity for such claims. Budik v. Ashley,

(D.D.C. 2014), aff'd sub nom. Budik v. United States, No. 14-5102,

(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.”

(a). Similarly, the Declaratory Judgment Act (DJA) expressly bars claims for

declaratory relief “with respect to Federal taxes.”

. These two Acts are

coterminous, Cohen v. United States,

(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,

, 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

, Compl. ¶¶ 192-202, which permits

civil recovery for constitutional violations occurring under color of state law. Because the

4 actions of the federal government “are exempt from the proscriptions of § 1983,” District of

Columbia v. Carter,

(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,

(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,

(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,

, 37–38 (D.D.C. 2009), rev’d on other

grounds,

(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.”

(citation omitted); see also Esposito v. Dep’t of Treasury, No.

1:10-CV-980 RLW,

, at *3 (D.D.C. Mar. 30, 2012).

Lastly, plaintiffs allege that the defendants have committed mail fraud in violation of

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,

(1979),

plaintiffs have failed to state a claim.

5 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,

(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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