Brooks v. United States

3Jn tbe Wniteb ~tates <!Court of jfeberal <!Claitns

No. 19-587T

Filed: Febrnary 14, 2020

NOT FOR PUBLICATION

)

BARRY EUGENE BROOKS, )

)

Plaintiff, ) Pro Se; RCFC 12(b)(l); Subject-Matter

) Jurisdiction; Tax Refund Claim.

V. )

)

THE UNITED STATES, )

)

Defendant. )

------------~)

Barry Eugene Brooks, Kemp, TX, plaintiff prose.

Margaret E. Sheer, Trial Attorney, Richard E. Zuckerman, Principal Deputy Assistant

Attorney General, David I. Pincus, Chief, G. Robson Stewart, Assistant Chief, United States

Department of Justice, Tax Division, Court of Federal Claims Section, Washington, DC, for

defendant.

MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I. INTRODUCTION

Plaintiff, pro se, Barry Eugene Brooks, brings this action against the United States

alleging that the government violated his constitutional rights under the Due Process Clause,

by seizing his assets in connection with the collection of certain unpaid federal income tax.

Comp!. at 1. As relief, plaintiff seeks to recover $5,191,427.04 in monetary damages from the

government. Id at 3.

The government has moved to dismiss this matter for lack of subject-matter jurisdiction,

pursuant to Rule 12(b)(l) of the Rules of the United States Court of Federal Claims ("RCFC").

See generally Def. Mot. Plaintiff has also filed a motion to proceed in this matter informa

pauperis. See generally PI. Mot. for IFP. For the reasons set forth below, the Court: (1)

GRANTS the government's motion to dismiss; (2) GRANTS plaintiffs motion to proceed in

forma pauperis; and (3) DISMISSES the complaint.

II. FACTUAL AND PROCEDURAL BACKGROUND 1

A. Factual Background

This case is one of several tax-related matters before the Court alleging, among other

things, that the Internal Revenue Service ("IRS") lacks jurisdiction to collect federal income tax

and asserting a claim for damages against the United States. Plaintiff, pro se, Barry Eugene

Brooks, commenced this paiiicular action on April 15, 2019. See generally Comp!.

In the complaint, plaintiff alleges that the government violated his "due process of law,"

when it seized his household goods, professional equipment, automobile and personal bank

account. Id. at 1-2. Plaintiff also alleges that his family members, friends and dental patients

were "misinformed" regarding plaintiffs "false prosecution, sentencing, and two-year

incarceration," in connection with his criminal prosecution and conviction for willful failure to

file federal income tax returns. Id. at 2. Plaintiff further alleges that the government violated his

rights under the Fourth Amendment to the United States Constitution, by taking his assets

without authority. Pl. Sur-Reply at 1.

In addition, plaintiff attaches to the complaint certain IRS levy notices and certificates of

release of federal tax liens for tax years 1987 through 1992. Pl. Ex.Cat 8-12. As relief, plaintiff

seeks to recover $5,191,427.04 in monetary damages from the United States. Comp!. at 3.

As background, in 200 I, plaintiff was indicted on three counts of felony willful failure to

file federal income tax returns for a number of years in the United States District Court for the

Eastern District of Texas. Pl. Ex.Cat 5; Def. Ex. A Plaintiff was ultimately convicted and

sentenced to, among other things, 21 months of imprisonment in connection with that criminal

proceeding. Id.

The IRS has undetiaken certain collection activity against plaintiff, including levies

aJtd seizures and sales, that led to the satisfaction of plaintiffs federal income tax liability.

Def. Mot. at 4-5; see also Def. Ex. G. For tax year 1988, the IRS collected a portion of

1 The facts recited in this Memorandum Opinion and Order are taken from the complaint ("Comp!.") and

the exhibits attached thereto ("Pl. Ex."); the government's motion to dismiss ("Def. Mot.") and the

exhibits attached thereto ("Def. Ex."); plaintiff's response and opposition to the government's motion to

dismiss ("Pl. Resp."); the government's reply in suppmi of its motion to dismiss ("Def. Reply"); and

plaintiff's sur-reply ("Pl. Sur-Reply"). Unless otherwise noted herein, the facts recited are undisputed.

2

plaintiffs unpaid taxes via levy. Id. at 044. But, the IRS ultimately deemed plaintiff to be

in hardship status and the remaining unpaid taxes uncollectable. Id. And so, the IRS wrote

off$28,245.44 in plaintiffs unpaid taxes. Id.

The IRS also filed a notice of federal tax lien regarding plaintiffs unpaid taxes for tax

years 1989 and 1990. Id. at 049, 054. But, the IRS ultimately was not able to successfully

collect these unpaid taxes. Id. As a result, the IRS also wrote off $53,201.53 in plaintiffs

unpaid taxes for tax year 1989, and $54,059.80 in plaintiffs unpaid taxes for tax year 1990.

Id. at 050, 055. Similar write-offs occurred for tax years 1991 and 1992, and the IRS

ultimately wrote off $57,475.07 and $51,270.72, in plaintiffs unpaid taxes for tax years

1991 and 1992, respectively. Id. at 060, 065.

On June 14, 2018, plaintiff filed a petition in the United States Tax Court disputing a

notice of deficiency and notice of determination concerning a collection action related to his

federal income tax for tax years 1987-1999. Def. Ex. E. The Tax Court dismissed this petition

forlack of jurisdiction on August 23, 2018. Def. Ex. F.

Thereafter, plaintiff commenced this action. See generally Comp!.

B. Procedural Background

Plaintiff commenced this action and filed a motion to proceed in forma pauperis on April

15, 2019. See generally Comp!.; Pl. Mot. for IFP.

On June 21, 2019, the government filed a motion to dismiss this matter for lack of

subject-matter jurisdiction, pursuant to RCFC 12(b)(1 ). See generally Def. Mot. On August 22,

2019, plaintiff filed a response and opposition to the government's motion to dismiss. See

generally Pl. Resp.

On August 29, 2019, the government filed a reply in support of its motion to dismiss. See

generally Def. Reply. On September 24, 2019, plaintiff filed a sur-reply by leave of the Court.

See generally PI. Sur-Reply.

These matters having been fully briefed, the Court resolves the pending motions.

3

III. LEGAL ST AND ARDS

A. Pro Se Litigants

Plaintiff is proceeding in this matter pro se. The Court grants parties that are proceeding

prose greater leeway than litigants represented by counsel. See Haines v. Kerner, 404 U.S. 519,

520-21 (1972) (holding that prose complaints are held to "less stringent standards than formal

pleadings drafted by lawyers"). But, 'justice is ill-served when a jurist crosses the line from

finder of fact to advocate." Demes v. United States, 52 Fed. Cl. 365, 369 (2002). And so, the

Court may excuse ambiguities in plaintiffs complaint, but the Court does not excuse the

complaint's failures. See Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995).

In this regard, this Comt has long recognized that "the leniency afforded to a prose

litigant with respect to mere formalities does not relieve the burden to meet jurisdictional

requirements." Minehan v. United States, 75 Fed. Cl. 249, 253 (2007). For this reason, the pro

se plaintiff-like any other plaintiff-must establish the Court's jurisdiction to consider his

claim. Riles v. United States, 93 Fed. Cl. 163, 165 (2010).

B. RCFC 12(b)(l)

When deciding a motion to dismiss for lack of subject-matter jurisdiction, this Court must

assume that all undisputed facts alleged in the complaint are true and must draw all reasonable

inferences in the non-movant's favor. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); RCFC

12(b)(! ). Plaintiff bears the burden of establishing subject-matter jurisdiction, and he must do so

by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746,

748 (Fed. Cir. 1988). And so, should the Court determine that "it lacks jurisdiction over the

subject matter, it must dismiss the claim." Matthews v. United States, 72 Fed. Cl. 274, 278

(2006).

In this regard, the United States Court of Federal Claims is a court of limited jurisdiction

and "possess[es] only that power authorized by Constitution and statute .... " Kokkonen v.

Guardian Life Ins. Co. ofAm., 511 U.S. 375,377 (1994). In particular, the Tucker Act grants

the Comt jurisdiction over:

[A]ny claim against the United States founded either upon the

Constitution, or any Act of Congress or any regulation of an executive

department, or upon any express or implied contract with the United

4

States, or for liquidated or unliquidated damages in cases not sounding in

tort.

28 U.S.C. § 149l(a)(l). The Tucker Act is, however, "a jurisdictional statute; it does not create

any substantive right enforceable against the United States for money damages. [T]he Act

merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the

substantive right exists." United States v. Testan, 424 U.S. 392, 398 (1976). And so, to pursue a

substantive right against the United States under the Tucker Act, a plaintiff must identify and

plead a money-mandating constitutional provision, statute or regulation, or an express or implied

contract with the United States. Cabral v. United States, 317 F. App'x 979,981 (Fed. Cir.

2008),

Specifically relevant to this case, it is well-established that this Court does not possess

subject-matter jurisdiction to consider claims based upon the Fomih Amendment, because the

Fourth Amendment is not a money-mandating provision of law. Brown v. United States, 105

F.3d 621,623 (Fed. Cir. 1997) ("Because monetary damages are not available for a Fomih

Amendment violation, the Court of Federal Claims does not have jurisdiction over such a

violation."). This Court is also without jurisdiction to consider claims brought pursuant to the

Due Process Clauses of the Constitution, because they do not obligate the payment of money.

Kenyon v. United States, 127 Fed. Cl. 767, 773 (2016), aff'd, 683 F. App'x 945 (Fed. Cir. 2017);

see also Bailey v. United States, No. 15-09C, 2015 WL 4505915, at *3 (Fed. Cl. July 23, 2015)

(stating that due process claims are not considered to be money-mandating because they are

outside of the scope of the jurisdiction granted to the Court of Federal Claims by the Tucker

Act). And so, the Comi must dismiss Fourth Amendment and due process claims for lack of

subject-matter jurisdiction.

C. Tax Refund Claims

Title 26, United States Code, section 7422(a) provides the money-mandating source of

law for bringing a tax refund claim in this Court. Dumont v. United States, 85 Fed. Cl. 425, 427-

28 (2009). And so, a taxpayer may bring an action in this Court to recover any internal revenue

tax erroneously or illegally assessed, provided that the taxpayer first files a claim for a refund

with the IRS. I.R.C. § 7422(a); United States v. Clintwood Elkhorn Mining Co., 553 U.S. I, 4

5

(2008); Dumont, 85 Fed. Cl. at 428; see also 28 U.S.C. § 1346(a)(l); Rocovich v. United States,

933 F.2d 991,993 (Fed. Cir. 1991).

The United States Court of Appeals for the Federal Circuit has held, however, that this

Court is without jurisdiction to entertain a claim for damages flowing from the allegedly

unlawful collection activities of the IRS. Ledford v. United States, 297 F.3d. 1378, 1382 (Fed.

Cir. 2002). And so, such claims must be brought before a United States district court. Id.; see

also Zolman v. United States, Nos. 17-1901 T, 17-1902T, 2018 WL 1664690, at* 1-2 (Fed. Cl.

April 6, 2018) (holding that the Court does not possess subject-matter jurisdiction to consider

damages claims resulting from unauthorized collection actions, or failure to release a lien under

either 26 U.S.C. §§ 7432(a) or 7433(a)). 2 This Court is similarly without jurisdiction to ente11ain

claims challenging the imposition of tax liens, because such claims must be brought before a

United States district court by a third party, and not by the taxpayer. Zolman, 2018 WL

1664690, at * 1-2.

IV. LEGAL ANALYSIS

The govenm1ent has moved to dismiss this matter upon the ground that the Com1 does

not possess subject-matter jurisdiction to consider plaintiffs claims. See generally Def. Mot.

Specifically, the government argues that the Court may not consider plaintiffs claims for

wrongful levy, Ulljust conviction, defamation and constitutional law violations pursuant to the

2 Section 7432(a) of the Internal Revenue Code provides that:

If any officer or employee of the Internal Revenue Service knowingly, or by reason

of negligence, fails to release a lien under section 6325 on prope1ty of the taxpayer,

such taxpayer may bring a civil action for damages against the United States in a

district court of the United States.

I.R.C. § 7432(a). Section 7433(a) of the Internal Revenue Code provides, in relevant pmt, that:

If, in connection with any collection of Federal tax with respect to a taxpayer, any

officer or employee of the [IRS] recklessly or intentionally, or by reason of

negligence, disregards any provision of this title, or any regulation promulgated

under this title, such taxpayer may bring a civil action for damages against the

United States in a district court of the United States. Except as provided in section

7432, such civil action shall be the exclusive remedy for recovering damages

resulting from such actions.

I.R.C. § 7433(a).

6

Tucker Act. Id. at 6-9; Def. Reply at 2-3. And so, the government requests that the Court

dismiss this action. Def. Mot. at 10; Def. Reply at 3.

Plaintiff has also moved to proceed in this matter in forma pauperis. See generally PI.

Mot. for IFP.

For the reasons discussed below, plaintiff has not met his burden to show that any of his

claims fall within the Court's limited jurisdiction under the Tucker Act. Plaintiff has, however,

satisfied the statutory requirements to proceed in this matter without paying the Court's filing

fee. And so, the Court: (1) GRANTS the government's motion to dismiss; (2) GRANTS

plaintiffs motion to proceed informa pauperis; and (3) DISMISSES the complaint.

A. The Court May Not Consider Plaintiff's Constitutional Law Claims

As an initial matter, the Court must dismiss plaintiffs constitutional law claims, because

plaintiff fails to establish that the Court possesses subject-matter jurisdiction to consider these

claims.

In the complaint, plaintiff alleges that the government violated his "due process of law,"

when it seized his household goods, professional equipment, automobile and personal bank

account. Comp!. at 1-2. To the extent that plaintiff asserts a due process claim under Fifth

and/or Fourteenth Amendments of the United States Constitution, the Court does not possess

subject-matter jurisdiction to consider such claims under the Tucker Act. Indeed, it is well-

established that this Court may not consider constitutional claims based upon a violation of the

Due Process Clause of the Fifth and Foutieenth Amendments, because these constitutional

provisions are not money-mandating. Kenyon v. United States, 127 Fed. Cl. 767, 773 (2016),

ajf'd, 683 F. App'x 945 (Fed. Cir. 2017); see also Bailey v. United States, No. 15-09C, 2015 WL

4505915, at *3 (Fed. Cl. July 23, 2015) (stating that due process claims are not considered to be

money-mandating because they are outside of the scope of the jurisdiction granted to the Court

of Federal Claims by the Tucker Act).

The Comi may also not consider plaintiffs Fourth Amendment claim. In his sur-reply,

plaintiff alleges that the government violated his rights under the Fourth Amendment. Pl. Sur-

Reply at 1. But, the Court does not possess subject-matter jurisdiction to consider this

constitutional claim, because the Fourth Amendment is not a money-mandating provision of law.

7

Brown v. United States, I 05 F Jd 621, 623 (Fed. Cir. 1997) ("Because monetary damages are not

available for a Fourth Amendment violation, the Court of Federal Claims does not have

jurisdiction over such a violation."). Given this, the Court must dismiss plaintiffs Due Process

and Fourth Amendment claims for lack of subject-matter jurisdiction. RCFC 12(b)(! ).

B. The Court May Not Consider Plaintiff's Wrongful Collection Claims

To the extent that plaintiff alleges wrongful levy or wrongful collection claims, the Court

must also dismiss these claims for want to subject-matter jurisdiction.

In the complaint, plaintiff alleges that he is entitled to recover monetary damages from

the government because the govermnent improperly seized his assets in connection with the

collection of certain federal income tax. Comp!. at 1-2. But, the United States Court of Appeals

for the Federal Circuit has held that this Court is without jurisdiction to entertain a claim for

damages flowing from the allegedly unlawful collection activities of the IRS. Ledford v. United

States, 297 F.3d. 13 78, 1382 (Fed. Cir. 2002); see also Zolman v. United States, Nos. 17-190 IT,

17-1902T, 2018 WL 1664690, at* 1-2 (Fed. Cl. April 6, 2018) (holding that the Court does not

possess subject-matter jurisdiction to consider damages claims resulting from unauthorized

collection actions, or failure to release a lien under either 26 U.S.C. §§ 7432(a) or 7433(a)).

This Court is similarly without jurisdiction to entertain plaintiffs claim challenging the

imposition of tax liens, because such claims must be brought before a United States district court

by a third party, and not by plaintiff. Zolman, 2018 WL 1664690, at * 1-2. And so, the Court

must also dismiss plaintiffs wrongful levy and wrongful collection claims for lack of subject-

matter jurisdiction.

Because plaintiff has not established that the Court possesses subject-matter jurisdiction

to consider any of his claims, the Court GRANTS the govermnent's motion to dismiss and

DISMISSES the complaint. RCFC (12)(b)(l).

C. Plaintiff May Proceed In Forma Pauperis

As a final matter, plaintiff has moved to proceed in this matter without paying the Comt's

filing fee. See generally Pl. Mot. for IFP. In his application to proceed informapauperis,

plaintiff states that he is not employed and that he is unable to pay the Court's filing fee. Id. at 1.

This Comt may authorize commencement of a suit without prepayment of fees when a person

8

submits an affidavit including a statement of all assets, a declaration that he or she is unable to

pay the fees and a statement of the nature of the action and a belief that he or she is entitled to

redress. See 28 U.S.C. § 1915(a); see also 28 U.S.C. § 2503(d). Due to the Comt' s summary

disposition of this case, and plaintiffs pro se status, the Comt finds that plaintiff satisfies the

statutory requirements to proceed informa pauperis. And so, the Comt GRANTS plaintiffs

motion to proceed informa pauperis.

V. CONCLUSION

In sum, the most generous reading of the complaint makes clear that the Court does not

possess subject-matter jurisdiction to consider any of plaintiffs claims. Plaintiff has, however,

satisfied the statutory requirements to proceed in this matter without paying the Court's filing

fee.

And so, for the foregoing reasons, the Court:

1. GRANTS the government's motion to dismiss;

2. GRANTS plaintiffs motion to proceed informa pauperis; and

3. DISMISSES the complaint.

The Clerk shall enter judgment accordingly.

Each pa1ty shall bear its own costs.

IT IS SO ORDERED.

9