NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 18-2892 ____________

EDWARD T. KENNEDY, Appellant

v.

COMMISSIONER, Department of the Treasury Internal Revenue Service; JOHN DOE, Department of the Treasury Internal Revenue Service; EQUIFAX, INC.; RICHARD F. SMITH, CEO Equifax, Inc. __________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. No. 5-18-cv-00257) District Judge: Joseph F. Leeson, Jr. __________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 1, 2019 Before: MCKEE, COWEN, and ROTH, Circuit Judges

(Opinion filed November 4, 2019) ____________

OPINION* ____________

PER CURIAM

Edward T. Kennedy appeals from an order of the District Court dismissing his

complaint. For the reasons that follow, we will affirm. Kennedy filed a civil action in the United States District Court for the Eastern

District of Pennsylvania against the Commissioner of the Internal Revenue Service

(“IRS”); IRS employee R.B. Simmons in his official capacity; Equifax, Inc.; and the

Chief Executive Officer of Equifax, Inc., Richard F. Smith, seeking money damages for

intentional infliction of emotional distress and loss of reputation. Kennedy claimed that

the IRS demanded payment from him of a delinquent federal income tax liability in the

amount of $75,957.35 for the year 2007, despite knowing that he had been the victim of

identity theft, and then notified him that it would levy on up to 15 percent of his Social

Security benefits if he did not pay the amount due in full. (He asserted that his identity

theft claim related to a data breach at Equifax). Kennedy demanded money damages in

the amount of $250,000.00. The District Court dismissed the claims against Equifax and

Smith without prejudice because Kennedy had raised duplicate claims against them in a

separate, and pending, lawsuit, see Kennedy v. Equifax, Inc., D.C. Civ. No. 18-cv-00214.

The United States, as the real party in interest with respect to the remaining

defendants, moved to dismiss Kennedy’s complaint under Federal Rule of Civil

Procedure 12(b)(1), argued that sovereign immunity applied to bar the action.1 The

Government acknowledged that, under the Federal Tort Claims Act (“FTCA”),

(b), 2671-2680, the United States had waived its sovereign immunity for claims

for damages sounding in tort. Nevertheless, the Government argued, damages arising

1 A plaintiff cannot circumvent the doctrine of sovereign immunity by naming the Commissioner and an IRS employee as defendants where, as here, there is no indication that the defendants are being sued in anything other than their official capacity. 2 from the collection of taxes are expressly barred by the tax collection exception to the

FTCA,

at § 2680(c). In response, Kennedy argued for the first time that his claim

arose not under the tax code, but under 15 U.S.C. § 1692d, the Fair Debt Collection

Practices Act (“FDCPA”),

, et seq., which prohibits “any conduct the

natural consequence of which is to harass, oppress, or abuse any person in connection

with the collection of a debt.” In an order entered on June 18, 2018, the District Court

dismissed Kennedy’s complaint, concluding that it was barred by the tax exception to the

FTCA,

(c).

On June 25, 2018, Kennedy filed two documents titled “Notice and Objections,”

arguing that the District Court lacked jurisdiction over his case and requesting that the

District Judge resign from office because he is biased. Treating the items as a motion for

reconsideration, the District Court, in an order entered on July 2, 2018, denied

reconsideration, determining that Kennedy had not shown a manifest error of law in the

order of dismissal, nor had he presented any newly discovered evidence. Kennedy then

filed two more motions within the 28-day period for filing a Rule 59(e) motion. In an

order entered on July 16, 2018, the District Court again denied reconsideration.

Kennedy appeals. We have jurisdiction under

. We review de

novo an order granting a motion to dismiss for lack of subject matter jurisdiction. See

Metropolitan Life Insurance Co. v. Price,

(3d Cir. 2007).

We will affirm. “Absent a waiver, sovereign immunity shields the Federal

Government and its agencies from suit.” FDIC v. Meyer,

(1994). The

District Court properly dismissed Kennedy’s amended complaint for lack of subject

3 matter jurisdiction because, although the FTCA waives sovereign immunity for tort

claims against the United States, the tax exception to the FTCA provides that sovereign

immunity is not waived for “[a]ny claim arising in respect to the assessment or collection

of any tax . . . .”

(c). Kennedy’s claim for damages for intentional

infliction of emotional distress and loss of reputation is related to the collection of his

2007 federal income tax liability. A demand for payment, a notice of intent to levy, and a

levy are quintessential tax collection actions and thus his alleged injury falls within the

tax exception to the FTCA. We noted that § 7433 of the tax code provides a remedy for

damages for unauthorized collection activity,

(a), (b), but Kennedy

stated in numerous items filed in the District Court that title 26 -- and § 7433 specifically

-- were not relevant to his case.

Kennedy argues on appeal that damages for emotional distress for improper tax

collection activities are permitted under Hunsaker v. United States,

(9th

Cir. 2018). Appellant’s Informal Brief, at 3. In Hunsaker, the IRS sent numerous notices

to the Chapter 13 debtors demanding payment and threatening imminent enforcement

action, including a levy on their Social Security benefits. The debtors responded by

bringing an adversary proceeding against the United States in bankruptcy court seeking

damages for emotional distress based on a violation of the automatic stay, as allowed by

(k). The Government, in response, argued that sovereign immunity

barred this relief. The bankruptcy court disagreed and awarded money damages. The

District Court on appeal reversed, but, on further appeal, the Ninth Circuit Court of

Appeals upheld the bankruptcy court. The Ninth Circuit reasoned that § 106(a)(3) of the

4 bankruptcy code,

(a)(3), expressly waives sovereign immunity for a

claim for damages caused by a violation of the automatic stay. Hunsaker,

. We need not address whether Hunsaker is persuasive (though nonbinding) authority

because Kennedy’s claim for damages for intentional infliction of emotional distress does

not involve a violation of an automatic stay or § 106(a)(3) of the bankruptcy code.

Hunsaker has no application to his case.

In the proceedings below, Kennedy argued that the IRS’s conduct violated federal

consumer protection law. The claim is meritless. The FDCPA prohibits a “debt

collector” from “engag[ing] in any conduct the natural consequence of which is to harass,

oppress, or abuse any person in connection with the collection of a debt,” 15 U.S.C. §

1692d, but the FDCPA expressly excludes “any officer or employee of the United States”

from the definition of “debt collector” where that officer or employee is “collecting or

attempting to collect any debt . . . in the performance of his official duties,” id. at §

1692a(6)(C). Moreover, federal tax obligations are not “debts” under the FDCPA,

because they do not arise out of a “consumer . . . transaction,” 15 U.S.C § 1692a(5).

Kennedy further argues on appeal that the collection of taxes in his case is

unlawful because the IRS is not licensed to collect debts in Pennsylvania, Appellant’s

Informal Brief, at 4-5, and that the District Court erred in overlooking this argument. We

conclude, however, that a remand is not necessary because the argument is frivolous.

The IRS does not need a state license to collect federal income taxes from residents of

Pennsylvania.

5 Last, Kennedy’s motions for reconsideration were properly denied because he did

not argue an intervening change in the law, new evidence, or a clear error of law. See

Max’s Seafood Café v. Quinteros,

, 673 (3d Cir. 1999). With respect to his

allegation of judicial bias, we note that Kennedy took exception to the District Court’s

rulings, and that this was his primary reason for seeking recusal, but “judicial rulings

alone almost never constitute a valid basis for a bias or partiality motion,” Liteky v.

United States,

(1994), and they specifically do not do so here. There

was no basis for assignment of Kennedy’s case to a different U.S. District Judge.

For the foregoing reasons, we will affirm the orders of the District Court

dismissing Kennedy’s complaint and denying reconsideration. Kennedy’s motion “to

compel Obama administration assigned judges” to recuse is denied.

6