“An unrepresented litigant should not be punished for his failure to recognize subtle factual or legal deficiencies in his claims.”
How later courts described this case
- “An unrepresented litigant should not be punished for his failure to recognize subtle factual or legal deficiencies in his claims.”
- “[A] court may not . . . take a liberal view of . . . jurisdictional requirement[s] and set a different rule for pro se litigants only.”
- en banc in relevant part
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
No. 20-770T
(Filed: November 25, 2020)
(NOT TO BE PUBLISHED)
)
GEORGE G. ALEXANDER )
BEVERLY A. ALEXANDER, )
)
Plaintiffs, )
)
v. )
)
UNITED STATES, )
)
Defendant. )
)
George G. Alexander, Beverly A. Alexander, pro se, Selah, Washington.
Elizabeth Ann Kanyer, Tax Division, United States Department of Justice, Washington,
D.C., for defendant. With her on the brief were Richard E. Zuckerman, Principal Deputy
Assistant Attorney General, and David I. Pincus, Chief of Court of Federal Claims Section,
United States Department of Justice, Washington, D.C.
OPINION AND ORDER
LETTOW, Senior Judge.
Plaintiffs George and Beverly Alexander have brought suit seeking injunctive relief for
an alleged violation of their due process rights by the Internal Revenue Service (“IRS”). See
Compl., at 1-2, ECF No. 1. Plaintiffs allege that a Notice of Lien filed by the IRS against
plaintiffs’ property was a counterfeit security, and that the IRS stole $113,150.60 from plaintiffs’
IRA. Id. at 4-5. Pending before the court is the United States’ (“the government”) motion to
dismiss the Alexanders’ complaint pursuant to Rule 12(b)(1) of the Rules of the Court of Federal
Claims (“RCFC”). See Def.’s Mot. to Dismiss (“Def.’s Mot.), ECF No. 11. Plaintiffs filed a
response to the motion. See Pls.’ Resp. to Def.’s Mot. (“Pls.’ Resp.”), ECF No. 13. Because the
Alexanders have failed to establish jurisdiction by a preponderance of the evidence, the
government’s motion to dismiss is GRANTED and the Alexanders’ claims are DISMISSED.
BACKGROUND1
On September 27, 2016, the IRS sent the Alexanders a Notice of Jeopardy and Right to
Appeal, notifying them of their failure to make certain income tax payments for 2015. See
Def.’s Mot., Decl. of Catherine Campbell (“Campbell Decl.”) Ex. F. Notices of Federal Tax
Liens were filed with the Yakima County auditor and the Washington State Department of
Licensing two days later. See Campbell Decl. Ex. D. The Alexanders timely requested a
Collection Due Process (“CDP”) hearing pursuant to 26 U.S.C. § 6330(b)(1), Campbell Decl. ¶
7, but the IRS mailed Notices of Determination sustaining its decision to collect the unpaid tax
assessment, id. Ex. G. No timely request for judicial review of the Notices of Determination was
made within the 30-day time period established by 26 U.S.C. § 6330(d). Id. ¶ 8. The
Alexanders subsequently filed a petition in the United States Tax Court challenging the
deficiencies and collection actions, but the court dismissed the suit for lack of jurisdiction. See
Alexander v. Commissioner, No. 25785-17, slip op. (T.C. Feb. 20, 2018).
The Alexanders filed suit in this court on June 18, 2020, seeking removal of the lien
placed on their property as well as tort damages arising from the IRS’ levying of $113,150.60
from their IRA. See Compl. at 1-2. They allege that the IRS violated their due process rights
and failed to follow “required Internal Revenue Procedures.” Id. at 1. Furthermore, the
Alexanders assert that the IRS “lacked the [j]urisdiction to take the action they took,” id. at 2,
and that the lien on their property constitutes a “[c]ounterfeit [s]ecurity” under 18 U.S.C. § 513.
id. at 4.
STANDARDS FOR DECISION
The Tucker Act provides this court with jurisdiction over “any 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 States, or for
liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). To
invoke this court’s Tucker Act jurisdiction, “a plaintiff must identify a separate source of
substantive law that creates the right to money damages.” Fisher v. United States, 402 F.3d
1167, 1172 (Fed. Cir. 2005) (en banc in relevant part) (citing United States v. Mitchell, 463 U.S.
206, 216 (1983); United States v. Testan, 424 U.S. 392, 398 (1976)). If a plaintiff fails to raise a
claim under a money-mandating provision, this court “should [dismiss] for lack of subject matter
jurisdiction.” Jan’s Helicopter Serv., Inc. v. Federal Aviation Admin., 525 F.3d 1299, 1308 (Fed.
Cir. 2008) (quoting Greenlee Cnty. v. United States, 487 F.3d 871, 876 (Fed. Cir. 2007)).
As plaintiffs, the Alexanders must establish jurisdiction by a preponderance of the
evidence. See Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011)
(citing Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)).2 When
1
The recitations that follow do not constitute findings of fact, but rather are recitals
attendant to the pending motions and reflect matters drawn from the complaint, the parties’
briefs, and records and documents appended to the complaint and briefs.
2
A court may “grant the pro se litigant leeway on procedural matters, such as pleading
requirements.” McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356 (Fed. Cir. 2007) (citing
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ruling on a motion to dismiss for lack of jurisdiction, the court must “accept as true all
undisputed facts asserted in the plaintiff’s complaint and draw all reasonable inferences in favor
of the plaintiff.” Id. (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)). “If a
court lacks jurisdiction to decide the merits of a case, dismissal is required as a matter of law.”
Gray v. United States, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCardle, 74 U.S. (7 Wall.)
506, 514 (1868); Thoen v. United States, 765 F.2d 1110, 1116 (Fed. Cir. 1985)); see also RCFC
12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”).
ANALYSIS
In its motion to dismiss, the government asserts that “each of [the Alexanders’] claims is
outside this [c]ourt’s subject-matter jurisdiction.” Def.’s Mot. at 7. First, the Alexanders named
the Commissioner of Internal Revenue as the defendant in their filing. See Compl. at 1. This
court lacks jurisdiction over the Alexanders’ claims to the extent that they are “attempting to
obtain relief from the IRS Commissioner because the court has ‘jurisdiction over suits against the
United States, not against individual federal officials.’” Kupersmit v. United States, 2019 WL
1569791, at *3 (Fed. Cl. Apr. 11, 2019) (quoting Brown v. United States, 105 F.3d 621, 624
(Fed. Cir. 1994) (additional citation omitted).
Second, given that “the Due Process Clauses of the Fifth and Fourteenth Amendments do
not mandate the payment of money and thus do not provide a cause of action under the Tucker
Act,” the Alexanders’ claims of due process violations are not cognizable in this court. Smith v.
United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013) (citing LeBlanc v. United States, 50 F.3d
1025, 1028 (Fed. Cir. 1995)). The Alexanders’ request for removal of the lien similarly falls
outside the court’s jurisdiction. While the Tucker Act authorizes the award of equitable relief
that is ancillary to an award for money damages, see 28 U.S.C. § 1491(a)(2), “[t]his court's
equitable authority does not allow the court to enjoin the IRS from collection of penalties or
taxes even if the IRS’ assessment and collection is tied directly to a claim for a refund that is
properly before the court.” Schlabach v. United States, 97 Fed. Cl. 232, 234 (2011).
Third, the Alexanders also fail to establish jurisdiction over their claim that the IRS
illegally levied money from their IRA. “[A] claim of fraudulent tax collection is essentially a
tort claim,” Pekrul v. United States, 792 Fed. Appx. 836, 838 (Fed. Cir. 2020), and the plain text
of the Tucker Act forecloses this court from hearing claims “sounding in tort,” 28
U.S.C. § 1491(a)(1). Lastly, the Alexanders’ claim that the notice of lien constitutes a
counterfeit security under 18 U.S.C. § 513 is not cognizable in this court. Title 18 of the United
States Code covers federal crimes and criminal procedure, subject matter that this court is
precluded from adjudicating. See Joshua v. United States, 17 F.3d 378, 379 (Fed. Cir. 1994)
Hughes v. Rowe, 449 U.S. 5, 15 (1980) (“An unrepresented litigant should not be punished for
his failure to recognize subtle factual or legal deficiencies in his claims.”)). This leniency,
however, cannot extend to lessening jurisdictional requirements. See Kelley v. Secretary, United
States Dep’t of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987) (“[A] court may not . . . take a
liberal view of . . . jurisdictional requirement[s] and set a different rule for pro se litigants
only.”).
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(“The court has no jurisdiction to adjudicate any claims whatsoever under the federal criminal
code . . . .”).
CONCLUSION
For the reasons stated, the government’s motion to dismiss is GRANTED. The
Alexanders’ complaint shall be DISMISSED for lack of subject-matter jurisdiction. The clerk
shall enter judgment accordingly.
No costs.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Senior Judge
4