UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

James Harper

v. Civil No. 20-cv-771-JD Opinion No.

Charles P. Rettig, in his official capacity as Commissioner of the Internal Revenue Service, et al.

O R D E R

James Harper brought this civil rights suit against

Commissioner Charles Rettig, the IRS, and various unknown

officers of the IRS (John Does 1 through 10) (collectively, "the

government"). Harper alleges that the government violated the

Fourth Amendment, Fifth Amendment, and

(f) by

obtaining records of his financial transactions from third

parties. The government moves to dismiss (doc. no. 12) Harper's

suit for lack of jurisdiction under Federal Rule of Civil

Procedure 12(b)(1) and for failure to state a claim upon which

relief can be granted under Federal Rule of Civil Procedure

12(b)(6). Harper objects.

Standard of Review

When resolving a challenge to the court's subject-matter

jurisdiction under Rule 12(b)(1) or determining whether a claim upon which relief can be granted has been stated under Rule

12(b)(6), the court construes the allegations in the complaint

liberally, treats all well-pleaded facts as true, and resolves

inferences in the plaintiff's favor. Jalbert v. U.S. Securities

& Exchange Comm’n,

, 590-91 (1st Cir. 2019); Hamann

v. Carpenter,

, 88 (1st Cir. 2019). The court,

however, disregards conclusory allegations that simply parrot

the applicable legal standard. Manning v. Boston Med. Ctr.

Corp.,

(1st Cir. 2013).

When addressing subject-matter jurisdiction, in addition to

the complaint, the court may consider other evidence submitted

by the parties without objection. Hajdusek v. United States,

(1st Cir. 2018). The plaintiff, as the party

invoking federal jurisdiction, bears the burden of showing that

subject matter jurisdiction exists when challenged. Lujan v.

Defenders of Wildlife,

(1992).

Background

In 2013, Harper opened an account with "Coinbase," an

entity that "facilitates transactions in virtual currencies such

as bitcoin." Doc. 3 ¶ 18. Coinbase provided terms of agreement

alongside its account, stating, in relevant part, that "Coinbase

takes reasonable precautions, as described herein, to protect

2 your personal information from loss, misuse, unauthorized

access, disclosure, alteration, and destruction." Id. ¶ 25.

In 2013 and 2014, Harper deposited bitcoin into his

Coinbase account. Harper primarily received the bitcoin as

income from consulting work. Harper alleges that he declared

the transactions on his 2013 and 2014 tax returns and states

that he declared all "appropriate income from bitcoin payments,"

including capital gains tax. Id. ¶¶ 30-33. Harper states that

he also paid "appropriate capital gains on any bitcoin income

for tax years 2015 and 2016." Id. ¶ 37. In 2015, Harper

liquidated his holdings in the Coinbase account and by 2016

Harper no longer held any bitcoin in the Coinbase account.

Harper also held bitcoin in accounts with "Abra" and "Uphold".

Harper and his wife liquidated those accounts from 2016 through

the date of the Amended Complaint (August 2020).

In 2016, the IRS sought to enforce an ex parte third-party

"John Doe" administrative summons under

,1

1 Section 7602 generally authorizes the IRS to issue administrative summonses "[f]or the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability . . . ."

3 7609(f),2 and 7609(h)(2) against Coinbase in the Northern

District of California. Coinbase opposed enforcement of the

summons. Ultimately, the court ordered Coinbase to comply with

a narrowed version of the summons. United States v. Coinbase,

Inc.,

, at *1 (N.D. Cal. Nov. 28, 2017) (finding

that the narrowed IRS summons "serves the IRS's legitimate

2 Section 7609(f) details special prerequisites the IRS must satisfy before enforcing an ex parte "John Doe" third-party summons. It says:

Any summons described in subsection (c)(1) which does not identify the person with respect to whose liability the summons is issued may be served only after a court proceeding in which the Secretary establishes that—

(1) the summons relates to the investigation of a particular person or ascertainable group or class of persons,

(2) there is a reasonable basis for believing that such person or group or class of persons may fail or may have failed to comply with any provision of any internal revenue law, and

(3) the information sought to be obtained from the examination of the records or testimony (and the identity of the person or persons with respect to whose liability the summons is issued) is not readily available from other sources.

The Secretary shall not issue any summons described in the preceding sentence unless the information sought to be obtained is narrowly tailored to information that pertains to the failure (or potential failure) of the person or group or class of persons referred to in paragraph (2) to comply with one or more provisions of the internal revenue law which have been identified for purposes of such paragraph.

4 purpose of investigating Coinbase account holders who may not

have paid federal taxes on their virtual currency profits").

In 2019, the IRS sent Harper a letter entitled "Reporting

Virtual Currency Transactions." Doc. 3 ¶ 67; see also doc. 3-6

at 1. As relevant, the IRS's letter told Harper the following:

We have information that you have or had one or more accounts containing virtual currency but may not have properly reported your transactions involving virtual currency, which include cryptocurrency and non-crypto virtual currencies.

Doc. 3 ¶ 68; see also doc. 3-6 at 1. The IRS stated that if

Harper had failed to properly report his "virtual currency

transactions" then he "may be subject to future civil and

criminal enforcement activity." Doc. 3 ¶ 69; see also doc. 3-6

at 1. Additionally, upon Harper's "information and belief,"

John Does 1 through 10 "issued an informal demand" to Abra and

Coinbase for Harper's financial records. Harper believes that

Abra or Coinbase complied with that demand.

Harper's Amended Complaint contains three counts: (I)

violation of the Fourth Amendment; (II) violation of the Fifth

Amendment; and (III) declaratory judgment/violation of

(f). As relief for the alleged violations of law stated

in Counts I and II, Harper requests money damages from the

defendants, as well as injunctive and declaratory relief.

Specifically, Harper requests an order declaring § 7602, et

5 seq., unconstitutional as applied to him under the Fourth and

Fifth Amendments, requiring the IRS to expunge Harper's

financial records, and prohibiting the IRS and John Does 1

through 10 from seizing financial records from "virtual currency

exchanges" under § 7602, et seq., in the future.

In Count III, Harper requests a declaratory judgment that

the IRS is violating § 7609(f) and, like Counts I and II,

requiring the IRS to expunge his financial records and

prohibiting the IRS and John Does 1 through 10 from seizing

similar financial records through § 7609(f) in the future.

Commissioner Rettig is sued in his official capacity, while John

Does 1 through 10 are sued in their personal capacities.

Discussion

The government moves to dismiss Harper's suit for lack of

jurisdiction and for failure to state a claim upon which relief

can be granted. Harper objects to dismissal. The government

filed a reply.

A. Jurisdiction (Sovereign Immunity)

The government argues that, while Harper's suit is

nominally against Commissioner Rettig and unidentified "John

Doe" IRS officers, the suit is, in function, a suit against the

6 United States, so that the United States's sovereign immunity

bars the suit. Harper does not contest that his claims against

the IRS and Commissioner Rettig are functionally against the

United States, but he argues that the Administrative Procedure

Act ("APA") waives sovereign immunity to the extent he requests

declaratory or injunctive relief. Harper also suggests that

Bivens v. Six Unknown Named Agents of the Federal Bureau of

Narcotics,

(1971), provides an exception to the

United States's sovereign immunity for claims for money damages.

In its reply, the government argues that the APA does not waive

the United States's sovereign immunity because, 1) another

statute – the Anti-Injunction Act,

– precludes

judicial review; 2) the APA does not waive sovereign immunity if

another statute that grants consent to suit expressly or

implicitly forbids the relief sought; and 3) the agency action

complained of by Harper has another adequate court remedy.

"It is elementary that the United States, as sovereign, is

immune from suit save as it consents to be sued, and the terms

of its consent to be sued in any court define that court's

jurisdiction to entertain the suit." United States v. Mitchell,

(1980) (alterations and quotation marks

omitted). The burden is on Harper to establish that a waiver of

7 sovereign immunity is applicable here. In re Rivera Torres,

(1st Cir. 2005).

1. Counts I and II (Relief in Form of Money Damages)

In Counts I and II, in part, Harper appears to request

money damages from the IRS and Commissioner Rettig, who was sued

only in his official capacity. Contrary to Harper's apparent

contention in his objection to the motion to dismiss, Bivens

does not provide an exception to sovereign immunity for suits

against the United States or official-capacity defendants for

money damages. Tapia-Tapia v. Potter,

(1st

Cir. 2003) ("[T]he government's sovereign immunity does not

vanish simply because government officials may be personally

liable for unconstitutional acts."). Harper asserts no other

basis for his argument that the United States has waived its

sovereign immunity for his claims for money damages brought

against the IRS or Commissioner Rettig. Therefore, Counts I and

II are dismissed to the extent Harper seeks money damages from

the IRS or Commissioner Rettig. See id.

2. Count I, II, and III (Relief in Form of Injunctions & Declaratory Judgments)

Harper also requests that the court declare § 7602, et

seq., unconstitutional as applied to him and order Commissioner

8 Rettig, the IRS, and John Does 1 through 10 to expunge any

financial records they obtained about Harper's cryptocurrency

transactions via § 7602, et seq., and enjoin John Does 1 through

10 from violating the Fourth Amendment, Fifth Amendment, and

§ 7609(f) in the future. In its motion to dismiss, the

government contends that these requests for relief are barred by

the United States's sovereign immunity and the Anti-Injunction

Act. Harper objects, arguing that the APA waives the United

States's sovereign immunity and that the Anti-Injunction Act

does not prohibit the injunctive and declaratory relief he seeks

in this case.

"The APA generally waives the Federal Government's immunity

from a suit 'seeking relief other than money damages and stating

a claim that an agency or an officer or employee thereof acted

or failed to act in an official capacity or under color of legal

authority.'" Match-E-Be-Nash-She-Wish Band of Pottawatomi

Indians v. Patchak,

(2012) (quoting

). That waiver, however, contains two exceptions: (1) if

another limitation on judicial review requires the court to deny

relief; or (2) "if any other statute that grants consent to suit

expressly or impliedly forbids the relief" sought by the

plaintiff.

.

9 The Anti-Injunction Act provides such a limitation on

judicial review, as it states, in relevant part, 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);3 see also Nat'l Fed'n of Indep. Bus. v.

Sebelius,

(2012) ("This statute protects the

Government's ability to collect a consistent stream of revenue,

by barring litigation to enjoin or otherwise obstruct the

collection of taxes. Because of the Anti–Injunction Act, taxes

can ordinarily be challenged only after they are paid, by suing

for a refund."); Fostvedt v. United States,

, 1203-

04 (10th Cir. 1992) ("Contrary to Petitioner's assertions, § 702

of the APA does not override the limitations of the Anti–

Injunction Act and the Declaratory Judgment Act."). If a claim

"called in question a specific provision of the Internal Revenue

Code, or to a ruling or regulation issued under the Code, the

claim would clearly come under the general bars to jurisdiction

and declaratory relief . . . ." McCarthy v. Marshall,

Harper does not argue that any of the enumerated statutory exceptions to the Anti-Injunction Act apply here. See

(a) (stating that the act applies "[e]xcept as provided in sections 6015(e), 6212(a) and (c), 6213(a), 6232(c), 6330(e)(1), 6331(i), 6672(c), 6694(c), 7426(a) and (b)(1), 7429(b), and 7436"). Rather, he contends that the Anti-Injunction Act does not apply considering the circumstances of his claims.

10 1034, 1037 (1st Cir. 1983). "Conversely, if jurisdiction were

otherwise established and the controversy concerned essentially

nontax matters, there would be no question of dismissing the

case merely because a decision on the merits might have some

collateral tax repercussions."

The Anti-Injunction Act applies to Harper's claims for

declaratory and injunctive relief because they implicate

provisions of the Internal Revenue Code and would restrain the

assessment or collection of a tax. See

Although Harper's

suit ostensibly challenges the validity of nontax activity – the

IRS's enforcement of a John Doe third-party summons – the effect

of Harper's requested declaratory and injunctive relief would be

to prevent the IRS from assessing Harper's or others' taxes

using the information it has obtained through the John Doe

third-party process. Consequently, his suit, to the extent it

seeks injunctive and declaratory relief, is barred by the Anti-

Injunction Act. See Bob Jones Univ. v. Simon,

(1974) (rejecting argument that suit was not intended to

restrain the assessment or collection of any tax because the

"complaint and supporting documents" revealed the plaintiff's

concern about how the challenged IRS action would affect its

future federal tax liability); Gulden v. United States,

(11th Cir. 2008) ("[T]he Anti–Injunction Act bars

11 not only suits that directly seek to restrain the assessment or

collection of taxes, but also suits that seek to restrain IRS

activities 'which are intended to or may culminate in the

assessment or collection of taxes.'"); Dickens v. United States,

(6th Cir. 1982) ("A suit designed to prohibit

the use of information to calculate an assessment is a suit

designed 'for the purpose of restraining' an assessment under

the [Anti-Injunction Act]."). Therefore, the Anti-Injunction

Act bars consideration of Harper's claims for injunctive and

declaratory relief. See McCarthy,

; Breton v.

I.R.S.,

, at *2 (D.N.H. Apr. 10, 2013) (finding

that Anti-Injunction Act prohibited court from enjoining

administrative tax levy when plaintiff argued the levy violated

the Fourth and Fifth Amendments); see also Fostvedt,

("Although disguised as a procedural challenge, the

essence of Petitioner's action is an attempt to delay and/or

prevent the IRS from assessing and collecting the income tax . .

. . Actions in the nature of Petitioner's suit are prohibited

by the Anti–Injunction Act . . . .").4

4The federal declaratory judgment statute,

(a), includes a similar carve out for declaratory judgments "with respect to Federal taxes." Similar to the Anti- Injunction Act, that exception prevents Count III of Harper's complaint, which requests a declaratory judgment "with respect to Federal taxes," from moving forward. See

(a); Thompson/Center Arms Co. v. Baker,

,

12 In an attempt to evade that conclusion, Harper argues that,

because he alleged in the Amended Complaint that he has paid all

taxes that were due, his request for injunctive relief expunging

his financial records is not an attempt to preemptively stop

assessment or collection of his taxes and therefore does not

fall within the Anti-Injunction Act's scope. Harper, however,

also alleged in his Amended Complaint that the IRS sent him a

letter informing him that it had information – information that

Harper wants the court to direct the IRS to expunge – that he

may have additional tax liability. Therefore, Harper's

allegation that he paid all taxes that were due is an

unsupported conclusory statement and not well pled. See A.G. ex

rel. Maddox v. Elsevier, Inc.,

(1st Cir. 2013)

(observing that a conclusory statement "presented as an ipse

dixit" and "unadorned by any factual assertions that might lend

it plausibility" need not be taken as true at the motion to

dismiss stage).

Moreover, in enforcing the IRS's summons on Coinbase that

resulted in the IRS's acquisition of Harper's financial records,

the court found that "the IRS's purpose is related to tax

41 (D.N.H. 1988) ("[A] finding that the plaintiff's claim is barred by the Anti–Injunction Act necessitates a finding that the claim is similarly barred by the Declaratory Judgment Act.").

13 compliance, not research" and that the summons "serves the

legitimate investigative purpose of enforcing the tax laws

against those who profit from trading in virtual currency."

Coinbase,

, at *6, *8. Therefore, Harper's

argument that his proposed injunction and declaratory judgment

are not aimed at restraining the assessment or collection of

taxes is incorrect. See McCarthy,

; Dickens,

.

Harper also argues that, because he has no other remedy for

the IRS's constitutional or statutory violations, the Anti-

Injunction Act does not bar his suit even if it otherwise would

apply. See South Carolina v. Regan,

(1984)

("In sum, the [Anti-Injunction] Act's purpose and the

circumstances of its enactment indicate that Congress did not

intend the Act to apply to actions brought by aggrieved parties

for whom it has not provided an alternative remedy."). Harper,

however, had an alternative remedy to contest the third-party

summons at issue in this case: A taxpayer who is a target of a

John Doe third-party summons under § 7609(f) "may intervene and

challenge enforcement of the summons." United States v.

Ritchie,

(6th Cir. 1994); cf. United States v.

Coinbase,

(N.D. Cal. July 18, 2017) (pertaining

to the summons challenged by Harper in this case and granting

14 motion by John Doe to intervene as of right and permissively).

Furthermore, if the IRS determines that Harper does have

additional tax liability, additional processes are available to

challenge the IRS's actions. See

, 7422.

Therefore, Harper has failed to demonstrate that he lacks an

adequate remedy for the violations he claims in this suit.

Because Harper has not demonstrated the applicability of

any exception to the United States's sovereign immunity and

because the Anti-Injunction Act prohibits the court from

granting any of the injunctive and declaratory relief sought by

Harper in this suit, Counts I and II, to the extent Harper seeks

injunctive or declaratory relief against any defendant or money

damages from Commissioner Rettig or the IRS, are dismissed for

lack of jurisdiction. Count III of the Amended Complaint is

dismissed in its entirety for lack of jurisdiction.

B. Personal Capacity Claims / Bivens

Harper's remaining unaddressed claims are Counts I and II,

to the extent he seeks money damages from John Does 1 through 10

in their individual capacities. The government moves to dismiss

Harper's claims against the John Does in their individual

capacities on the ground that Harper seeks recognition of Bivens

claims in new contexts. The government contends that "the

15 existence of the Internal Revenue Code, and its comprehensive

scheme governing taxpayer remedies" is a special factor that

prohibits extending Bivens to the new context here, such that

Harper's claims do not state a claim upon which relief can be

granted. Doc. 12-1 at 17. Harper objects, contending that his

claims in Count I (Fourth Amendment violation) and Count II

(procedural due process violation) are not applications of

Bivens in a new context. Harper adds that, even if Counts I and

II do apply Bivens in a new context, Bivens should be extended

to this new context.

A claim seeking money damages from federal officers in

their individual capacities for alleged constitutional

violations is cognizable only if it fits within the existing

contexts in which the Supreme Court has applied Bivens or if

there are no special factors that counsel against extending

Bivens to a new context. Ziglar v. Abbasi, --- U.S. ---,

(2017). A court examining a claim seeking a

damages remedy under Bivens must first determine whether the

claim applies Bivens in a new context.

. "If the

case is different in a meaningful way from previous Bivens cases

decided by [the Supreme Court], then the context is new."

. "A case might differ in a meaningful way because of

the rank of the officers involved; the constitutional right at

16 issue; the generality or specificity of the official action; the

extent of judicial guidance as to how an officer should respond

to the problem or emergency to be confronted; the statutory or

other legal mandate under which the officer was operating; the

risk of disruptive intrusion by the Judiciary into the

functioning of other branches; or the presence of potential

special factors that previous Bivens cases did not consider."

at 1859–60. Moreover, "[a] claim may arise in a new context

even if it is based on the same constitutional provision as a

claim in a case in which a damages remedy was previously

recognized." Hernandez v. Mesa,

(2020).

If the claim is in a new context, the court must then

consider whether any "special factors counsel[] hesitation" in

extending Bivens "in the absence of affirmative action by

Congress." Abbasi,

. Only if there are no

such special factors may the court conclude that Bivens provides

a remedy for constitutional violations alleged by the plaintiff.

See id.

1. Applicability of Bivens to Count I (Fourth Amendment)

The government argues that Harper's Fourth Amendment claim

is dissimilar to Bivens. Harper responds that his claim in

Count I under the Fourth Amendment is not different in a

17 meaningful way from Bivens itself, which also involved a Fourth

Amendment claim.

Harper's claim here, however, applies Bivens in a "new

context." Harper's lawsuit is a broad challenge "largely aimed

at official IRS conduct and policy," while Bivens, in contrast,

was a narrowly-focused suit that challenged the acts of a few

individual officers. Doc. 14 at 6; Bivens,

("The agents manacled petitioner in front of his wife and

children, and threatened to arrest the entire family. They

searched the apartment from stem to stern. Thereafter,

petitioner was taken to the federal courthouse in Brooklyn,

where he was interrogated, booked, and subjected to a visual

strip search."). Additionally, the John Doe defendants here are

alleged to have violated the Fourth Amendment because they

obtained without a warrant Harper's electronically-stored

financial records from a third party that Harper believes was

contractually obligated to withhold those records. By contrast,

the Fourth Amendment claim in Bivens was based on federal

agents' unlawful entrance and ransacking of a home, their

threats to its occupants, and the strip search of the

petitioner.

. These contextual differences are

sufficient to differentiate Harper's case from Bivens under

Abbasi. See Attkisson v. Holder,

(4th Cir.

18 2019) ("The plaintiffs’ Fourth Amendment Bivens claim . . .

differs meaningfully from the claim raised in Bivens in numerous

ways that are material under Abbasi . . . . [A] claim based on

unlawful electronic surveillance presents wildly different facts

and a vastly different statutory framework from a warrantless

search and arrest.").

The existence of the Internal Revenue Code, which contains

a statutory remedial scheme covering the alleged wrongful

conduct here, as well as the inherent ability of a taxpayer who

is a target of a John Doe third-party summons to intervene in an

enforcement proceeding, is a "special factor" that counsels

against extending Bivens into the new context. See, e.g.,

Harvey v. U.S. Postal Serv.,

(1st Cir. Apr.

25, 1995) (per curiam) (declining to extend Bivens because a

"comprehensive scheme" provides an "exclusive remedy" for

wrongful personnel practices by the federal government);

McMillen v. U.S. Dep't of Treasury,

(1st

Cir. 1991) (per curiam) (observing that while the Internal

Revenue Code is not "perfectly comprehensive," Congress has

determined that it provides "adequate remedial mechanisms for

constitutional violations that may occur in the" enforcement of

tax laws). For those reasons alone, the court declines to find

that Bivens extends to the new context asserted by Harper here.

19 Additionally, Harper's suit, as discussed above, implicates

the federal government's power to assess and collect taxes.

That is also a "special factor" that counsels against extending

the Bivens remedy to this context. Cf. Cameron v. I.R.S.,

(7th Cir. 1985) ("Congress has given taxpayers all

sorts of rights against an overzealous officialdom, including,

most fundamentally, the right to sue the government for a refund

if forced to overpay taxes, and it would make the collection of

taxes chaotic if a taxpayer could bypass the remedies provided

by Congress simply by bringing a damage[s] action against

Treasury employees. It is hard enough to collect taxes as it

is; additional obstructions are not needed."). As discussed

above, Congress specifically exempted suits that implicate its

taxing power from the Declaratory Judgment Act and, through the

Anti-Injunction Act, affirmatively prohibited injunctions that

restrain that power. Considering Congress's limitations on

injunctive and declaratory relief in tax suits like the one

brought by Harper, as well as the statutory remedial scheme that

includes processes to challenge the conduct complained of by

Harper in this suit, the court declines to imply a money damages

remedy under Bivens.

20 For the foregoing reasons, the court dismisses Count I to

the extent Harper seeks money damages from the John Doe

defendants named in their individual capacities.

2. Applicability of Bivens to Count II (Procedural Due Process)

As with Count I, the government argues that Count II, which

raises a claim for violation of Harper's due process rights

under the Fifth Amendment, extends Bivens to a new context and

that special factors counsel against expansion. Harper responds

that, in Davis v. Passman,

(1979), the Supreme

Court recognized a Bivens remedy for Fifth Amendment violations

such that his Fifth Amendment claim in Count II does not apply

Bivens in a new context.

The circumstances of Harper's Fifth Amendment procedural

due process claim are distinguishable from the Fifth Amendment

claim in Davis. In Davis, "the Court held that the Due Process

Clause of the Fifth Amendment permitted a damages action where a

staffer sued a Member of Congress for cashiering her because of

her gender." Gonzalez v. Velez,

(1st Cir.

2017). By contrast, here, Harper asserts that unidentified

government agents deprived him of a property right that he held

in his financial records or the privacy thereof by seizing those

records without providing him sufficient notice and an

21 opportunity to challenge the seizure. The equal-protection type

claim made in Davis was unlike the procedural due process claim

made by Harper here. See Air Sunshine, Inc. v. Carl,

(1st Cir. 2011) ("While the Supreme Court has extended

Bivens to the Due Process Clause, it has only done so in the

context of '[t]he equal protection component' of that clause.")

(quoting Davis,

). Therefore, Davis does not

suffice to bring Harper's claim within an existing context in

which a Bivens action has been recognized.5

For the same reasons as discussed above as to Count I, the

court finds that special factors counsel against extending the

Bivens remedy. Specifically, the existence of a remedial scheme

under the Internal Revenue Code for violations of the law and

Congress's hesitancy to allow injunctions or declaratory

judgments that would interfere with the collection of taxes

counsel against implying a money damages remedy under the same

circumstances. Therefore, the court dismisses Count II of

5 Harper also cites Abdelfattah v. U.S. Dep't of Homeland Sec.,

(D.C. Cir. 2015), in support of his argument his claim does not extend Bivens into a new context. Abdelfattah is not relevant to this issue, however, because it rejected the plaintiff's damages claim under Bivens, while allowing a claim for a declaratory relief requiring the Department of Homeland Security to expunge certain information it had collected. See

The court addressed Harper's claims for declaratory and injunctive relief above in Part A.

22 Harper's complaint to the extent it raises a claim for money

damages against the John Doe defendants named in their

individual capacities.

Conclusion

For the foregoing reasons, the government's motion to

dismiss (doc. no. 12) is granted. Counts I and II, to the

extent injunctive or declaratory relief is sought from any

defendant or money damages are sought from Commissioner Rettig

and the IRS, are dismissed for lack of jurisdiction. Counts I

and II, to the extent money damages are sought from John Does 1

through 10, are dismissed for failure to state a claim upon

which relief can be granted. Count III is dismissed for lack of

jurisdiction.

Because all claims in this case have been dismissed, the

Clerk of Court is directed to close the case.

SO ORDERED.

_______________________ Joseph A. DiClerico, Jr. United States District Judge

March 23, 2021

cc: Counsel of Record

23