Petition for Writ of Certiorari — Terry Lee Hinds, Petitioner v. United States

App.51a

ORDER OF THE EIGHTH CIRCUIT

DENYING PETITION FOR REHEARING EN BANC

(APRIL 2, 2018)

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

In re: TERRY LEE HINDS,

Petitioner,

No. 18-1299

Appeal from U.S. District Court for the Eastern

District of Missouri-St. Louis—(4: 17-cv-00750-AGF)

The petition for rehearing en bane is denied. The

petition for rehearing by the panel is also denied.

Order Entered at the Direction of the Court:

Is! Michael E. Gans

Clerk, U.S. Court of Appeals,

Eighth Circuit.

App.la

JUDGMENT OF THE EIGHTH CIRCUIT

(FEBRUARY 26, 2018)

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

In re: TERRY LEE HINDS,

Petitioner,

No. 18-1299

Appeal from U.S. District Court for the Eastern

District of Missouri—St. Louis (4:17-cv-00750-AGF)

Before: WOLLMAN, MURPHY and

COLLOTON, Circuit Judges.

Petition for extraordinary writ has been considered

by the court and is denied. Mandate shall issue

forthwith.

Order Entered at the Direction of the Court:

Is! Michael E. Gans

Clerk, U.S. Court of Appeals,

Eighth Circuit.

App. 14a

ORDER OF DISMISSAL OF THE

DISTRICT COURT OF MISSOURI

(DECEMBER 11, 2017)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

TERRY LEE HINDS,

Plain tiff,

I!,

UNITED STATES GOVERNMENT,

Defendant.

No. 4:17-CV-00750 AGF

Before: Audrey G. FLEISSIG,

United States District Judge.

Pursuant to the Memorandum and Order issued

herein on this day,

IT IS HEREBY ORDERED that this case is DISMISSED without prejudice.

Is! Audrey G. Fleissig

United States District Judge

Dated this 11th day of December, 2017.

App. 3a

MEMORANDUM AND ORDER

OF THE DISTRICT COURT FOR THE

EASTERN DISTRICT OF MISSOURI

(DECEMBER 11, 2017)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

TERRY LEE HINDS,

Plain till,

V.

UNITED STATES GOVERNMENT,

Defendant.

No. 4:17-CV-00750 AGF

Before: Audrey G. FLEISSIG,

United States District Judge.

This matter is before the Court on the motion to

dismiss filed by Defendant, United States. ECF No.

82. Plaintiff filed a response in opposition to the

motion, and the United States filed a reply. On

November 22, 2017, Plaintiff filed a sur-reply. For

the reasons set forth below, the motion to dismiss of

the United States will be granted.

App. 4a

BACKGROUND

This case has a lengthy procedural history.l On

February 16, 2017, Plaintiff filed a 548-page pro se

complaint, in which Plaintiff contends that by virtue

of the Tax Code, the Government has established an

institutionalized faith and religion of taxism. Compi.

at ¶ 305. Plaintiff contends that this institutionalized

religion has the effect of endorsing, favoring, and

promoting organized religions, which Plaintiff believes

violates the Establishment andFree Exercise clauses

of the Constitution. He seeks declaratory and injunctive

relief, including a permanent injunction enjoining

the tax code from having any legal effect, as well as

nominal damages.

On Fébruary23, 2017, the Court ordered Plaintiff

to file an amended complaint in conformity with the

requirements of Fed. R. Civ. P. 8 (ECF No. 7), which

provides that a pleading must contain a short and

plain statement of the grounds for the Court's jurisdiction, a short plain statement of the claim showing

that the pleader is entitled to relief, and a demand

for the relief sought.2 The Court again ordered Plaintiff to file an amended complaint on March 10, 2017

(ECF No. 18), April 11, 2017 (ECF No. 29), and May

12, 2017 (ECF No. 36). Plaintiff filed a Petition for

Writ of Mandamus and Prohibition challenging the

Court's May 12, 2017 Order that Plaintiff file an

1 Since filing his lawsuit, Plaintiff has filed 34 "Notices" and

"Declarations" with the Court constituting numerous pages and

exhibits.

2 This matter was initially assigned to a magistrate judge, and then

to a district judge, before it was reassigned to the undersigned

on May 5, 2017. ECF No. 32.

App.5a

amended complaint. The Eighth Circuit Court of

Appeals denied Plaintiffs Petition. ECF No. 47.

On June 14, 2017, Plaintiff filed a "Hybrid Pleading

Making a Conscientious Effort to Comply with the

Court's Orders Manifesting an Amended Complaint"

("Hybrid Pleading"). ECF No. 44. There, Plaintiff

contends that requiring citizens to file an individual

tax return establishes a religion centered on the

Internal Revenue Service ("IRS"), which has burdened

Plaintiffs First Amendment rights to free speech and

free exercise of religion. Plaintiff further alleges that

the challenged government conduct and activities have

no legitimate, compelling interest or clear secular

purpose, but have the purpose of endorsing religion

with the primary effect of advancing it.

Although Plaintiffs Hybrid Pleading still did

not comply with the Court's prior orders, because

Plaintiff was proceeding pro Se, the Court elected to

construe Plaintiffs pleading very liberally and to not

require further pleading. Thus, on July 11, 2017, the

Court construed Plaintiffs Hybrid Pleading as an

amended complaint. ECF No. 55. On July 24, 2017,

Plaintiff filed a motion to reconsider the Court's

ruling construing the Hybrid Pleading as an amended

complaint (ECF No. 56), which the Court denied (ECF

No. 66).

On September 11, 2017, the United States filed

a motion to dismiss. ECF No. 82. In its motion, the

United States argues that sovereign immunity bars

Plaintiffs claims, that the declaratory and injunctive

relief sought is precluded by statute, and that Plaintiff

failed to exhaust administrative remedies. The United

States further argues that if the Court finds that it

has subject matter jurisdiction over Plaintiffs case,

Plaintiff failed to state a claim for the violation of his

right to free exercise of religion.

In his response in opposition and sur-reply,

Plaintiff first attempts to re-litigate his complaints

with regard to the Court's interpretation of his Hybrid

Pleading as an amended complaint. He then contends

that this Court has subject matter jurisdiction because

the lawsuit seeks declarations of Plaintiffs and the

Government's rights with regard to First Amendment

challenges and free exercise clause violations. Specifically, Plaintiff challenges the Government's "new

priesthood for [the] religious doctrine of legalism." ECF

No. 85 at 15. Plaintiff contends that the Government

waived sovereign immunity when Congress passed

the First Amendment and that the federal courts

always have the power to adjudicate issues of federal

law. ECF No. 85 at 9, 15. He also contends that the

sovereign immunity doctrine is a legal fiction and

conflicts with the Constitution. ECF No. 92.

DISCUSSION

a.

Sovereign Immunity

"[Tihe United States, as sovereign, is immune from

suit save as it consents to be sued." Lehman v.

Nakshian, 453 U.S. 156, 160 (1981). Federal courts

generally lack jurisdiction to hear claims against the

United States because of sovereign immunity. Barnes

v. US, 448 F.3d 1065, 1066 (8th Cir. 2006). This

immunity can be waived, but the waiver must be clear

and unmistakable. US. v. Mitchell, 445 U.S. 535, 538

(1980). Courts narrowly construe such waivers. US

v. Sherwood, 312 U.S. 584, 587-88 (1941); see also

Ginter v. US, 815 F. Supp. 1289, 1293(W.D. Mo.

App. 7a

1993) (such a waiver "must be strictly construed,

unequivocally expressed, and cannot be implied").

Here, the Court has not found, nor has Plaintiff

pointed the Court to, any case law indicating that the

First Amendment is strictly construed to waive sovereign immunity. While the United States has, for

instance, waived sovereign immunity for claims in suits

for a tax refund, that waiver is conditioned upon the

taxpayer first exhausting administrative remedies.

Olson v. Soc. Sec. Admin., 243 F.Supp.3d 1037, 1054

(D.N.D. 2017). As discussed more fully below, Plaintiff has not done so here.

Plaintiff argues that 28 U.S.C. § 1331 confers

jurisdiction. However, federal courts have consistently

held that this statute does not waive sovereign

immunity. See Whittle v. US., 7 F.3d 1259, 1262 (6th

Cir. 1993) ("The federal question jurisdictional statute

is not a general waiver of sovereign immunity; it

merely establishes a subject matter that is within the

competence of federal courts to entertain."); Toledo v.

Jackson, 485 F.3d 836, 838 (6th Cir. 2007) (holding

that 1331 did not independently waive the government's sovereign immunity and plaintiffs had to go

further than merely invoking the general jurisdiction

statute).

Plaintiff also claims that the Court has jurisdiction

pursuant to 28 U.S.C. § 1367. However, before invoking

supplemental jurisdiction under 28 U.S.C. § 1367,

Plaintiff must first establish this Court's original

jurisdiction over a claim upon which others, not within

the Court's original jurisdiction, may be supplemented.

Plaintiff has not done so.

Lastly, to the extent Plaintiff challenges the constitutionality of the doctrine of sovereign immunity

itself, the doctrine pre-dates the Constitution and has

been consistently upheld by the United States Supreme

Court. See, e.g., US v. Thompson, 98 U.S. 486, 489

(1878); US. v. Lee, 106 U.S. 196, 204 (1882); State of

Kan. v. U.S, 204 U.S. 331, 341 (1907).

b.

Declaratory Judgment Act

The Declaratory Judgment Act, 28 U.S.C.

§ 2201(a), provides the courts with the authority to

enter declaratory judgments in favor of "any interested

party," regardless of whether further relief could be

sought, "except with respect to Federal taxes other

than actions brought under section 7428 of the Internal

Revenue Code of 1986.11 3 This action "pertains to taxes"

and was not brought under 26 U.S.C. § 7428. Therefore,

the Declaratory Judgment Act does not grant this Court

jurisdiction to enter declaratory judgment on the constitutionality of assessing and collecting taxes from

Plaintiff. Ginter, 815 F. Supp. at 1293; Davis v. US,

No. 07-3039 CV-SRED, 2007 WL 1847190, at *1

(W.D. Mo. June 25, 2007); Vaughn v. IR.S, 2013 WL

3898890, at *5; see also E.i Friedman Co. v. US, 6

F.3d 1355, 1358 (9th Cir. 1993). The alleged constitutional nature of Plaintiffs claims does not affect this

conclusion. Wyo. Trucking Ass'n v. Bentsen, 82 F.3d

930, 933-34 (10th Cir. 1996).

3 Section 7428 of the Internal Revenue Code provides for

declaratory judgments relating to 501(c)(3) status.

c.

Anti-Injunction Act

The Anti-Injunction Act provides, in relevant

part, that "no suit for the purpose of restraining the

assessment or collection of any tax shall be maintained

in any court." 26 U.S.C. § 7421(a). The Anti-Injunction

Act was intended to protect "the Government's need

to assess and collect taxes as expeditiously as possible

with a minimum of reinforcement judicial interference."

Bob Jones Univ. v. Simon, 416 U.S. 725, 736 (1974).

Although the taxpayer cannot bring a pre-enforcement

challenge, a taxpayer may raise a dispute after the

assessment of taxes in a suit for refund or by petitioning

the Tax court to review a notice of deficiency. Id at

730-31.

The Anti-Injunction Act provides a narrow exception that allows for the courts to enter injunctive

relief in a tax suit if two elements are met. Id. at 725,

737. First, injunctive relief is only authorized if "it is

clear that under no circumstances could the Government ultimately prevail," based on the information

available to the Government at the time of the lawsuit.

Id at 737. Second, injunctive relief is only authorized

"if equity jurisdiction otherwise exists," or, in other

words, the plaintiff has shown an irreparable injury

for which there is no adequate remedy at law. Id. at

725, 737; see also id. at 744 n.19, 745 (illustrating the

meaning of the requirement that equity jurisdiction

exist); McGraw, 782 F. Supp. at 1334. If the plaintiff

fails to make a showing pursuant to this standard,

the court should dismiss the case. Bob Jones, 416 U.S.

at 737; see also Porter v. Fox, 99 F.3d at 274

(granting motion to dismiss where the plaintiff made

no allegations his claim "fell within the limited judicial exception" to the Anti-Injunction Act).

App. 10a

The exception to the Anti-Injunction Act does

not apply in this case. The Court cannot say that the

United States is certain to lose on the merits. Courts

have long held that religious beliefs in conflict with

the payment of taxes are no basis for challenging the

collection of a tax. See, e.g., US. v. Lee, 455 U.S. 252,

260 (1982). Courts have likewise found the federal

tax system constitutional under the Establishment

Clause. See, e.g., Jimmy Swaggart Ministries v. Bd.

of Equalization of Cal., 493 U.S. 378, 394 (1990).

Additionally, "[c]ourts are properly hesitant to declare

legislative enactments unconstitutional," meaning a

constitutional challenge to the federal tax system is

not certain to prevail. McGraw, 782 F. Supp. at 1334.

Lastly, Plaintiff cannot show irreparable harm because

he has an adequate remedy at law. For instance, he

may "pay the tax, file a claim for refund with the

IRS, and sue for refund" once he has exhausted his

administrative remedies, as discussed below. See

McGraw, 782 F. Supp. at 1334. As a result, the AntiInjunction Act bars Plaintiff's claim.

d.

Exhaustion of Administrative Remedies

Congress has created a number of "specific and

meaningful remedies for taxpayers" who wish to

challenge the assessment and collection of taxes,

including challenges grounded in the constitutionality

of assessment and collection. Vennes v. An Unknown

No. of Unidentified Agents of US, 26 F.3d 1448,

1454 (8th Cir. 1994). Taxpayers wishing to challenge

the assessment or collection of taxes may bring a suit

for refund under 26 U.S.C. § 7422(a). The statute

provides that filing a claim for refund with the IRS is

a jurisdictional prerequisite that cannot be waived.

Bruno v. US, 547 F.2d 71, 74 (8th Cir. 1976). Further,

App. ha

exhaustion is a jurisdictional prerequisite that must

be pled. Bellecourt v. US., 994 F.2d 427, 430 (8th

Cir. 1993). To the extent Plaintiff seeks to bring his

cause of action under § 7422, his cause of action is

barred for failure to exhaust administrative remedies.

e.

Bivens claim

The United States Government is the only

Defendant named in Plaintiffs Complaint. However,

"[a] document filed pro se is to be liberally construed,

and a pro se complaint, however inartfully pleaded,

must be held to less stringent standards than formal

pleadings drafted by lawyers." Erickson v. Pardus,

551 U.S. 89, 94 (2007) (internal citations and quotations

omitted). Therefore, the Court will analyze Plaintiffs

claims to the extent they can be construed as making

a claim against IRS agents.

A plaintiff may bring a cause of action for damages

caused by individual federal official's violations of the

plaintiffs constitutional rights. Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S.

388, 396-97 (1971); Servs. Corp. v. Malesko, 534 U.S.

61, 72 (2001) (cited by Defendant).4 If Plaintiff is

asserting a Bivens cause of action, sovereign immunity

is no bar because a Bivens claim is not made against the

federal government, but rather against an individual

official for conduct outside of their official capacities.

4 A Bivens cause of action is the federal counterpart of a § 1983

claim; 42 U.S.C. § 1983 provides a cause of action against state

officials who act outside of their official capacity to violate a

person's constitutional rights, and Bivens created a like claim

as against federal officials. Vennes, 26 F.3d at 1452; Piciulo v.

Brown, 2005 WL 1926688, at *2..3.

App. 12a

See Shah v. Samuels, 121 F.Supp.3d 843, 845 (E.D.

Ark. 2015).

However, the courts have long dismissed Bivens

actions against IRS agents for assessment and collection

of taxes. Vennes, 26 F.3d at 1454 (collecting cases).

Where Congress has provided "adequate remedial

mechanisms for constitutional violations," the courts

refrain from creating Bivens remedies. Id. (quoting

Schweiker v. Chilicky, 487 U.S. 412, 423 (1988)).

Congress has refused to "permit unrestricted damage

actions by taxpayers," instead providing specific

remedies to challenge the collection and assessment

of taxes administratively. Id.

To the extent Plaintiff seeks monetary damages

relating to the assessment of taxes, his claim is again

barred by sovereign immunity because the United

States has not waived its sovereign immunity for

Bivens-type constitutional tort claims alleging damages

caused by the government's violation of the plaintiff's

constitutional rights. Phelps v. U.S, 15 F.3d 735, 739

(8th Cir. 1994); Olson v. Soc. Sec. Admin., 243

F.Supp.3d 1037, 1053-54 (D.N.D. 2017).

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that the motion to dismiss of Defendant United States [ECF No. 821 is

GRANTED, and the case is dismissed without prejudice.

IT IS FURTHER ORDERED that all pending

motions are DENIED as moot. A separate Order of

Dismissal shall accompany this Memorandum and

Order.

App. 13a

Dated this 11th day of December, 2017.

Is! Audrey G. Fleissig

United States District Judge

Additional material

from this filing is

available In'the

Clerk's Office.