Petition for Writ of Certiorari — Norman Douglas Diamond, Petitioner v. United States, et al.

APPENDIX

i-a

INDEX TO APPENDICES

Appendix A, Memorandum of the United States Court

of Appeals for the District of Columbia Circuit, Filed

March 26, 2025................................................................ la

Appendix B, Memorandum Opinion of the United

States District Court for the District of Columbia,

Filed September 15, 2023.............................................. 5a

Appendix C, Memorandum Order of the United

States District Court for the District of Columbia,

Filed November 1, 2023 ..........

19a

Appendix D, Denial of Panel Rehearing by United

States Court of Appeals for the District of Columbia

Circuit, Filed July 1, 2025.......................................... 25a

Appendix E, Denial of Rehearing En Banc by United

States Court of Appeals for the District of Columbia

Circuit, Filed July 1, 2025.......................................... 26a

Appendix F, Treasury Inspector General's publication

of details of former IRS employee Monica Hernandez,

Dated May 1, 2011........................................................ 27a

Appendix G, Assistant Attorney General's report to

Congress on stolen identity refund fraud, Dated April

10, 2013.......................................................................... 28a

Appendix H, Order of the United States Tax Court,

Dated December 12, 2011...........................................29a

Appendix I, IRS publication "National Taxpayer

Advocate 2011 Annual Report to Congress Executive

Summary Preface & Highlights", Dated December 31,

2011 .........................................

30a

Appendix A - Memorandum of the United States

Court of Appeals for the District of Columbia Circuit,

Filed March 26, 2025

United States Court of Appeals

For the District of Columbia Circuit

No. 23-5265

September Term, 2024

Filed On: March 6, 2025

Norman Douglas Diamond, Appellant,

v.

United States of America and Unknown Employees of

the United States, Appellees.

No. 23-5265

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF

COLUMBIA, No. i:23-cv-00326-TNM.

BEFORE: Henderson, Millett, and Walker, Circuit

Judges

JUDGMENT

This appeal was considered on the record from the

United States District Court for the District of

Columbia and on the briefs filed by the parties. See

Fed. R. App. P. 34(a)(2); D.C. Cir. Rule 34(j). Upon

consideration of the foregoing and the motion for

appointment of counsel, it is

ORDERED that the motion for appointment of

counsel be denied. In civil cases, appellants are not

entitled to appointment of counsel when they have

not demonstrated sufficient likelihood of success on

the merits. It is

FURTHER ORDERED AND ADJUDGED that the

2a

Appendix A

district court's September 15, 2023 dismissal order

and November 1, 2023 reconsideration order be

affirmed.

First, appellant has not demonstrated any error in

the district court's conclusion that the court was an

improper venue for appellant's claims under 26 U.S.C.

§ 7422. See 28 U.S.C. §§ 1346(a)(1), 1402(a)(1). Nor

has appellant shown that the district court abused its

discretion in dismissing those claims instead of

transferring them.

Second, appellant has not demonstrated any error in

the district court's dismissal of his claims under 26

U.S.C. § 7433 for lack of subject matter jurisdiction

because the claims as alleged were beyond the

statute's limited waiver of sovereign immunity. See

Ivy v. Comm'rofIRS, 877 F.3d 1048, 1048, 1050 (D.C.

Cir. 2017); Kim v. United States, 632 F.3d 713,

716-17 (D.C. Cir. 2011).

Third, appellant has shown no error in the district

court's conclusion that his tort claims fell within the

tax exception to the Federal Tort Claims Act's limited

waiver of sovereign immunity and were beyond the

court's jurisdiction. See 28 U.S.C. § 2680(c);

Brownback v. King, 592 U.S. 209, 217 (2021).

Appellant has failed to raise in his opening brief, and

thus has forfeited, any challenge to the district court's

conclusion that the Administrative Procedure Act, 5

U.S.C. § 702, and the Mandamus Act, 28 U.S.C. §

1361, do not provide jurisdiction for his tort claims.

See Twin Rivers Paper Co. v. SEC, 934 F.3d 607, 615

(D.C. Cir. 2019).

3a

Appendix A

Fourth, appellant likewise has failed to raise in his

opening brief, and thus has forfeited, any challenge to

the district court's dismissal of his requests for

injunctive relief as barred by the Tax Anti-Injunction

Act, 26 U.S.C. § 7421. See Twin Rivers, 934 F.3d at

615.

Finally, appellant also has not shown that the district

court abused its discretion in denying his motion for

leave to file a second sur-reply or in denying as moot

his motion to correct the sur-reply. It is

FURTHER ORDERED AND ADJUDGED that the

district court's November 2, 2023, prefiling injunction

order be affirmed. Appellant has forfeited any

challenge to the prefiling injunction order by failing

to raise it in his opening brief. See Twin Rivers, 934

F.3d at 615. Even if the opening briefs reference to

appellant's prior litigation could be construed as an

argument against the prefiling injunction, the issue is

forfeited due to appellant's failure to develop any

such challenge. See Gov't of Manitoba v. Bernhardt,

923 F.3d 173, 179 (D.C. Cir. 2019). Due to appellant's

forfeiture, this decision does not address the propriety

of the prefiling injunction. It is

FURTHER ORDERED AND ADJUDGED that the

district court's November 3, 2023 minute order be

affirmed. Appellant has failed to raise, and thus has

forfeited, any arguments challenging the district

court's denial of his motion for return of a declaration.

See United States ex rel. Totten v. Bombardier Corp.,

380 F.3d 488, 497 (D.C. Cir. 2004).

Pursuant to D.C. Circuit Rule 36, this disposition will

4a

Appendix A

not be published. The Clerk is directed to withhold

issuance of the mandate herein until seven days after

resolution of any timely petition for rehearing or

petition for rehearing en banc. See Fed. R. App. P.

41(b); D.C. Cir. Rule 41.

Per Curiam

5a

Appendix B - Memorandum Opinion of the United

States District Court for the District of Columbia,

Filed September 15, 2023

United States District Court for the District of

Columbia

NORMAN DOUGLAS DIAMOND, Plaintiff,

v.

UNITED STATES OF AMERICA, et al., Defendants.

Case No. i:23-cw00326 (TNM).

United States District Court, District of Columbia.

September 15, 2023.

MEMORANDUM OPINION

TREVOR N. McFADDEN, District Judge.

No stranger to federal court, pro se Plaintiff

Norman Diamond sues the United States and

unknown civil servants (together, "the Government"),

alleging various violations of federal law related to

his income taxes. The Government moves to dismiss

on several grounds, including that venue is improper

and that this Court lacks subject matter jurisdiction.

The Court will grant the motion and dismiss this

case. Venue for Diamond's tax refund and wrongful

collections claims lies exclusively in the Court of

Federal Claims. And Diamond has pointed to no

waiver of sovereign immunity that allows the Court

to hear his other claims against the United States.

I.

Plaintiff Norman Diamond, a U.S. citizen and

current resident of Canada, has repeatedly sued the

United States for claims related to his income taxes.

This saga began in 2012 when he and his wife, Zaida

Golena Del Rosaria, sued for a refund of their 2005

income taxes. 1 See Diamond v. United States

1 This background does not include Diamond's litigation history

against the IRS before the U.S. Tax Court. Between 2010 and

6a

Appendix B

(Diamond I), 107 Fed. Cl. 702, 703 (2012), affd, 530 F.

App'x 943 (Fed. Cir. 2013). The couple resided in

Japan in 2005, and "paid income taxes through the

withholding on income generated by investments in

the United States." Id. Diamond and Del Rosario

asserted that the IRS improperly credited their 2005

withholdings and that they were owed a refund of

$10,645. See id.

The couple then filed a joint federal tax return

containing several errors and omissions. See id. For

example, they did not include their social security

numbers (SSNs) or taxpayer identification numbers

on the return; they crossed out the attestation above

the signature line regarding the truth and accuracy of

the statements in the return! and they claimed zero

dollars in wages and gross income from sources in a

foreign country. See id. They then claimed a refund of

$10,645—the total amount of tax withheld during

that year. See id.

After the IRS rejected the return as frivolous,

Diamond and Del Rosario filed an amended 2005

return. See id. This return was also faulty. It did not

contain Del Rosario's SSN or tax identification

number! it again claimed zero dollars in foreign

income! and it failed to provide the required

supporting documentation. See id. After Diamond

and Del Rosario failed to respond to the IRS's request

for more information, the IRS informed them in 2011

that their refund request was denied because they

had failed to submit a return within three years of its

due date. See id.

Diamond and Del Rosario then sued in the Court

2020, Diamond appears to have brought at least ten suits there.

See Notice of Related Cases, ECF No. 2.

7a

Appendix B

of Federal Claims. Diamond I, 107 Fed. Cl. at 702.

The court found that they failed to submit a valid

refund claim and that it thus lacked subject matter

jurisdiction over the case. See id. at 707. The Federal

Circuit affirmed. See 530 F. App'x at 944.

In 2013, Diamond and Del Rosario filed another

refund suit, this time for their 2006’2011 tax

withholdings and for an abatement of penalties

assessed against them for filing frivolous tax returns.

See Diamond v. United States (Diamond II), 115 Fed.

Cl. 516, 522 (2014), affd, 603 F. App'x 947 (Fed. Cir.

2015). The Government moved to dismiss. First, it

argued that the court lacked subject matter

jurisdiction because Diamond and Del Rosario had

not paid the 2008 tax liability for which they sought a

refund. See id. at 525’26. Second, it argued that they

failed to state a claim for the remaining tax years

because they had received a refund in the form of tax

credits that were legally applied to their other

outstanding tax liabilities. See id. at 527’28. The

court agreed and granted the Government's motion.

The Federal Circuit again affirmed. See 603 F. App'x

at 952.

Diamond sued again in 2013, this time bringing a

smorgasbord of claims against the IRS and unnamed

government employees. See Diamond v. IRS

(Diamond III), No. 13-cw8042, 2014 WL 7883613, at

*3 (C.D. Cal. Nov. 14, 2014), R. & R. adopted, 2015

WL 64805 (C.D. Cal. June 4, 2015), affd sub nom.

Diamond v. United States, 688 F. App'x 429 (9th Cir.

2017). Diamond alleged (1) fraudulent filing of

information returns; (2) unauthorized disclosure of

his SSN; (3) conspiracy to interfere with civil rights

under 42 U.S.C. § 1985! (4) imposition of frivolous

filing penalties in violation of the Constitution! and

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Appendix B

(5) perjury by IRS employees in the Tax Court. See id.

at *4. Specifically, Diamond accused IRS personnel of

altering tax records. See id. The IRS moved to dismiss

to the complaint, which the district court granted. See

2015 WL 354046, at *1. The Ninth Circuit affirmed.

See 688 F. App'x at 430.

The next year Diamond was back at it, reprising

his claims that the IRS and various government

agents altered his tax records and publicly revealed

his SSN. See Diamond v. IRS (Diamond IV), No.

14-cv-9196, 2015 WL 3532901, at *2 (C.D. Cal. Apr.

16, 2015), R. & R. adopted, 2015 WL 3545046 (C.D.

Cal. June 4, 2015), affd sub nom., Diamond v. United

States, 688 F. App'x 445 (9th Cir. 2017). The district

court again dismissed the complaint, see 2015 WL

3545046, at *1, and the Ninth Circuit again affirmed,

see 688 F. App'x at 446.

Diamond returned to federal court in 2017. He

sued the United States for (1) refunds for various

years that he overpaid his taxes, (2) return of

amounts the IRS wrongfully collected or withheld,

and (3) the wrongful disclosure of his SSN. See

Diamond v. United States (Diamond V), No.

17-cw6327, 2018 WL 922128, at *1 (C.D. Cal. Feb. 15,

2018), affd, 765 F. App'x 377 (9th Cir. 2019). The

court dismissed Diamond's claims for improper venue

and claim preclusion. Id. at *2. For the third time, the

Ninth Circuit affirmed. See 765 F. App'x at 378.

That brings us to this case. Diamond again brings

a bevy of claims against the United States related to

his income taxes. He claims^

• $3 million in damages for the IRS's alleged

fraudulent conversion of his 2005 tax withholdings.

See Compl. TH 41-42.

• $1 million in damages for the IRS's alleged failure

9a

Appendix B

to follow I.R.C. § 6201(d) in connection with

determining his 2005 tax withholdings. See id.

49,

51.

• $3 million in damages for the IRS's alleged violation

of I.R.C. § 31 and I.R.C. § 6401 by not properly

crediting his 2005 tax withholdings. See id.

54, 61.

• $3 million in damages for the IRS's alleged failure

to notify him that his 2005 refund claim was denied.

See id. H 63, 68.

• $4 million in damages for the IRS's alleged

submission of fraudulent transcripts and making

inconsistent factual statements in Tax Court

proceedings related to his 2007 tax return. See id.

71-74, 77, 81.

• $1 million in damages for the IRS's alleged

submission of a fraudulent or modified declaration to

the Tax Court. See id. 84.

• $8 million in damages for the IRS's alleged

submission of fraudulent supporting records to the

Tax Court. See id.

96, 99.

• $2 million in damages for the IRS's alleged

"fraudulent assertions of joint and several liability."

See id. H 110, 120.

• A refund of penalties that were "fraudulently"

collected for 2002, 2005-2008, and an unknown year

in the total amount of $3,659. See id.154.

• A refund of the 2005 tax overpayment of $10,645.

See id. 198.

Diamond also asks for injunctive relief requiring

the IRS to issue a notice of mathematical error, file

his 2005 tax return, revise its list of frivolous

positions, and provide tax assessments, addresses,

and his amended return for 2007. See Compl.

155-200.

The United States has moved to dismiss for

10a

Appendix B

improper venue and lack of subject matter

jurisdiction. See Mot. to Dismiss (MTD), ECF No. 10.

The motion is now ripe.

IL

To survive a Rule 12(b)(1) motion, a plaintiff must

establish this Court's jurisdiction over his claims. See

Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

The Court "assume[s] the truth of all material factual

allegations in the complaint and construe [s] the

complaint liberally, granting plaintiff the benefit of

all inferences that can be derived from the facts

alleged." Am. Natl Ins. Co. v. FDIC, 942 F.3d 1137,

1139 (D.C. Cir. 2011) (cleaned up). If the Court

determines that it lacks jurisdiction as to any claim,

it must dismiss that claim. -See Fed. R. Civ. P. 12(b)(1),

12(h)(3).

Rule 12(b)(3) allows dismissal for improper venue.

And under 28 U.S.C. § 1406(a), the Court must

"dismiss, or if it be in the interest of justice, transfer,"

a case filed "in the wrong division or district." When

evaluating a Rule 12(b)(3) motion, the Court "accepts

the plaintiffs well-pled factual allegations regarding

venue as true, draws all reasonable inferences from

those allegations in the plaintiffs favor, and resolves

any factual conflicts in the plaintiffs favor."

Sanchez-Mercedes v. BOP, 453 F. Supp. 3d 404, 414

(D.D.C. 2020) (cleaned up), affd, 2021 WL 2525679

(D.C. Cir. June 2, 2021). The plaintiff bears the

burden of showing that venue is proper. See id.

The Court is mindful that Diamond proceeds

without counsel. Complaints filed by pro se litigants

"must be held to less stringent standards than formal

pleadings drafted by lawyers." Erickson v. Pardus,

551 U.S. 89, 94 (2007) (cleaned up). More, the Court

must consider a pro se complaint "in light of all filings,

11a

Appendix B

including filings responsive to a motion to dismiss."

Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146,

152 (D.C. Cir. 2015). But even pro se litigants must

meet the minimum pleading standards required by

the Federal Rules and the Constitution. See Yellen v.

U.S. Bank, Natl Assoc., 301 F. Supp. 3d 43, 47 (D.D.C.

2018).

III.

A.

Consider first Diamond's tax refund and wrongful

collection claims. See 26 U.S.C. § 7422 (actions for

refund); id. § 7433 (actions for unauthorized collection

activity). The Government argues that venue is

improper in this district and that the claims should

be dismissed. The Court agrees.

Federal district courts and the U.S. Court of

Federal Claims have concurrent jurisdiction over

claims against the United States for the recovery of

taxes "alleged to have been erroneously or illegally

assessed or collected." 28 U.S.C. § 1346. For such

claims brought in district court, venue is proper in the

judicial district where the plaintiff resides. See 28

U.S.C. § 1402(a)(1). Taken together, this means that

a plaintiff living outside the United States may only

bring a tax collection claim in the Court of Federal

Claims. See Topsnik v. United States, 554 F. App'x

630, 631 (9th Cir. 2014).

Diamond resides in Canada, and thus the proper

venue for his wrongful collection and tax refund

claims is the Court of Federal Claims. See id.', Compl.

4. Diamond disagrees. He says that he is treated as

a resident of this district under 26 U.S.C. §

7701(a)(39), which provides that citizens residing

abroad "shall be treated as residing in the District of

Columbia" for certain purposes. The problem for

12a

Appendix B

Diamond is that this special definition modifies only

some "provisionls] of this title"—i.e., Title 26. And the

venue provision applicable to these claims, 28 U.S.C.

§ 1404(a), is found in Title 28. So Diamond is not a

resident of this district, nor any other, for purposes of

the venue statute.

Thus, venue for Diamond's tax refund and

wrongful collection claims lies exclusively in the

Court of Federal Claims. See Topsnik, 554 F. App'x at

631. The Court typically would need to decide

whether is it "in the interest of justice" to transfer

these claims to the proper venue, or whether

dismissal is justified instead. See 28 U.S.C. § 1406(a).

But the Court of Federal Claims is not a "district or

division" to which a district court may transfer a case

under 28 U.S.C. § 1404(a). See Fisherman’s Harvest,

Inc. v. PBS & J, 490 F.3d 1371, 1378 (Fed. Cir. 2007).

So the Court has no statutory authority to transfer

these claims. Dismissal is thus required. See Laukus

v. United States, 691 F. Supp. 2d 119, 127 (D.D.C.

2010) (explaining that the court "must dismiss

because there is no appropriate transferee court").

Diamond has one final arrow in his quiver. He

says that another transfer provision, 28 U.S.C. § 1631,

requires this Court to transfer his tort actions to the

Court of Federal Claims. That frog will not hop.

Section 1631 permits district courts to transfer civil

actions "[w]henever a civil action is filed in a court. . .

and that court finds that there is a want of

jurisdiction." (emphasis added). And this Court has

not determined that it lacks jurisdiction over

Diamond's tax refund and wrongful collection claims.2

2 Though the Government asserts defects in both subject matter

jurisdiction and venue, this Court "has leeway to choose among

threshold grounds for denying audience to a case on the merits."

13a

Appendix B

Instead, the Court has found that venue for these

claims is improper here. That does not trigger § 1631.

Sorcia v. Holder, 643 F.3d 117, 122 (4th Cir. 2011)

("We hold that § 1631, which speaks exclusively of

jurisdiction, does not mandate transfer where venue

is lacking.").

In any event, even if this Court did have authority

to transfer these claims, it would decline to do so. It is

not in the interest of justice to send this suit

elsewhere. The claims have "obvious substantive

problems." Ananiev v. Wells Fargo Bank, Natl Assoc.,

968 F. Supp. 2d 123, 132 (D.D.C. 2013) (cleaned up).

And Diamond has a long history of vexatious

litigation against the United States. See Diamond V,

2018 WL 922128 at *1 ("Plaintiff has filed numerous

cases with similar if not identical allegations against

the United States."). "So troublesome is this plaintiff

that transfer of this action would not be in the

interest of justice." Chandler v. BOP No. 17-cwll,

2017 WL 2787598, at *3 (D.D.C. June 27, 2017).

B.

Consider next Diamond's tort claims. The United

States may not be sued for damages unless it has

waived its sovereign immunity. See United States v.

Orleans, 425 U.S. 807, 814 (1976). And the Federal

Tort Claims Act (FTCA) waives the Government's

sovereign immunity for common law tort claims

brought in federal court. See Millbrook v. United

States, 569 U.S. 50, 52 (2013). But this waiver is

limited by enumerated exceptions. Key here, the

Sinochem Int'l Co. v. Malaysia Int'lShipping Corp., 549 U.S. 422,

431 (2007). And because the Court agrees that these claims must

be dismissed for improper venue, it need not reach the

Government's arguments about subject matter jurisdiction.

14a

Appendix B

FTCA expressly divests district courts of jurisdiction

over tort claims "arising in respect of the assessment

or collection of any tax." 28 U.S.C. § 2680(c).

The question, then, is whether Diamond's tort

claims against the Government relate to the IRS's

assessment of taxes and penalties. If so, the Court

lacks subject matter jurisdiction and must dismiss

these claims under § 2680(c).

Courts have "consistently" interpreted this

exception "to exclude most tort actions involving IRS

agents from the FTCA's waiver of sovereign

immunity." Reiff v. United States, 107 F. Supp. 3d 83,

87 (D.D.C. 2015). The language of § 2680(c) "is broad

enough to encompass any activities of an IRS agent

even remotely related to his or her official duties."

Childresss v. Northrop Corp., 618 F. Supp. 44, 49

(D.D.C. 1985) (cleaned up). And, as here, this

exception "applies with particular force" in cases in

which "the IRS is attempting to collect a specific debt

from a specific taxpayer." Reiff, 107 F. Supp. 3d at 87.

With these principles in mind, the Court finds

that Diamond's tort claims fall within the tax

exception to the FTCA. The gist of Diamond's

Complaint is that various IRS agents modified

records and violated their statutory duties, resulting

in the improper calculation and assessment of taxes

and penalties. See Compl.

11 ("Damages are

claimed for fraudulent actions ... pertaining to illegal

conversions of legal collected taxes, collections of

penalties, and fraudulent submissions to US courts.").

This falls within the heartland of the FTCA's tax

exception.

Diamond's allegations of fraud do not undermine

the fact that each of the alleged fraudulent actions

occurred during, or resulted from, the IRS's

15a

Appendix B

assessment of taxes and penalties. These allegations

thus do not allow him to skirt the United States'

sovereign immunity from tax-related suits. Section

2680(c) "reflect[s] the government's strong interest in

protecting the administration of its tax system from

the burden of constant litigation." Capozzoli v. Tracey,

663 F.2d 654, 657 (5th Cir. 1981). This interest would

be entirely frustrated if courts permitted plaintiffs to

bring tax-related claims against the United States

whenever those claims are characterized as sounding

in fraud.

Diamond points to two other statutes that he

claims grant this Court jurisdiction over his claims.

See Opp'n at 3. For both, his reliance is misplaced.

First, he notes that the Administrative Procedure

Act (APA), 5 U.S.C. § 702, waives sovereign immunity

for certain agency actions. True enough. But this door

is closed to a plaintiff when another statute provides

an "adequate" alternative remedy for his claim. See

Perry Cap. LLC v. Mnuchin, 864 F.3d 591, 620’21

(D.C. Cir. 2017). If relief of the "same genre" is

available, review under the APA is precluded.

Women's Equity Action League v. Cavazos, 906 F.2d

742, 751 (D.C. Cir. 1990).

The Court has little difficultly concluding that a

tax refund suit is an adequate alternative remedy for

Diamond's claims here. As Diamond is well aware,

the refund statute, 26 U.S.C. § 7422(a), "provides a

cause of action for the recovery of taxes alleged to

have been illegally or improperly collected and, in

doing so, displaces a cause of action under the APA."

Harrison v. IRS, No. 20-cw828, 2021 WL 930266, at

*4 (D.D.C. March 11, 2021). Indeed, Diamond has

brought claims against the Government under §

7422(a) in at least five separate lawsuits, including

16a

Appendix B

this one. He has provided no explanation why a tax

refund suit would not be an adequate remedy for his

damages claims. So the APA does not rescue his tort

claims.

Second, Diamond says that this Court has

jurisdiction under the Mandamus Act. See Opp'n at 3.

The Act confers original jurisdiction in district courts

over "any action in the nature of mandamus to compel

an officer or employee of the United States or any

agency thereof to perform a duty owed to the

plaintiff." 28 U.S.C. § 1361. Mandamus is an

extraordinary remedy and thus an "option of last

resort." Process & Indus. Devs. Ltd. v. Fed. Republic

ofNigeria, 962 F.3d 576, 582 (D.C. Cir. 2020).

Mandamus relief is unavailable to Diamond for

the same reason that he cannot rely on the APA. The

Court may not assert mandamus jurisdiction when

the plaintiff has an adequate alternative remedy. See

Illinois v. Ferriero, 60 F.4th 704, 714 (D.C. Cir. 2023).

And § 7422(a) allows Diamond to seek damages in a

tax refund suit. See Harrison, 2021 WL 930266, at *4.

More, a writ of mandamus is "reserved only for the

most transparent violations of a clear duty to act," In

re Bluewater Network, 234 F.3d 1305, 1315 (D.C. Cir.

2000), and Diamond has not specified the duty that

he is owed.

Diamond's tort claims arise from the IRS's

assessment of taxes and penalties and are thus

excepted from the FTCA's waiver of sovereign

immunity. And because the refund statute provides

Diamond with an adequate remedy for his damages

claims, neither the APA nor Mandamus Act allow this

Court to hear these claims. So this Court must

dismiss Diamond's tort claims for want of subject

17a

Appendix B

matter jurisdiction.3

C.

Last up are Diamond's requests for injunctive

relief. He asks for an order requiring the IRS to issue

a notice of mathematical error, file his 2005 tax

return, revise its list of frivolous positions, and

provide tax assessments, addresses, and his amended

tax return for 2007. See Compl.

155-200. Diamond

faces the same problem as before: He has not pointed

to any waiver of sovereign immunity that would allow

him to pursue injunctive relief against the United

States. This is so because the Anti-Injunction Act,

which is part of the Tax Code, specifically bars a

plaintiff from suing "for the purpose of restraining the

assessment or collection of any tax." 26 U.S.C. §

7421(a).

This provision reflects "the Government's need to

assess and collect taxes as expeditiously as possible

with a minimum of pre-enforcement judicial

interference," and it works by "requiring] that the

legal right to the disputed sums be determined in a

3 The Government also argues that -these claims should be

dismissed because Diamond did not plead that he submitted an

administrative claim for damages before suing. See MTD at 12.

Not so. Diamond attached documents to his opposition that show

he submitted an incident notification and claim for damages to

the IRS, which the agency denied a few months before he filed

this suit. See Admin. Claim at 1-23, ECF No. 14-1; IRS Denial at

24, ECF No. 14-1. This is sufficient. The Court also rejects the

Government's suggestion that consideration of these exhibits

requires the Court to convert its motion to one for summary

judgment. See Reply at 9 n.l, ECF No. 16. Because Diamond is

pro se, facts and exhibits in his responses to the Government's

motion to dismiss are treated as pleaded facts. See Brown, 789

F.3d at 152.

18a

Appendix B

suit for refund." Bob Jones Univ. v. Simon, 416 U.S.

725, 736 (1974) (cleaned up). Thus, a suit for

injunctive relief brought under the APA is dead on

arrival if it "concerns the assessment or collection of

federal taxes." McGuirl v. United States, 360 F. Supp.

2d 129, 132 (D.D.C. 2004), affd, 167 F. App'x 808

(D.C. Cir. 2005). And because "relief in the nature of

mandamus is no different than a request for a

mandatory injunction," a suit brought under the

Mandamus Act is similarly precluded if its purpose is

to prevent the IRS from assessing or collecting taxes.

Ross v. United States, 460 F. Supp. 2d 139, 150

(D.D.C. 2006) (cleaned up). So Diamond has not

offered a statutory basis for this Court to exercise

subject matter jurisdiction over his claims for

injunctive relief.

IV.

For these reasons, the Court will grant the

Government's motion to dismiss. A separate Order

will issue today.4

Dated: September 15, 2023

trevor n. McFadden, u.s.d.j.

4 The Court will deny Diamond's motion for leave to file a

second sur-reply. See Pl.'s Mot. for Leave to File Surreply, ECF

No. 20. The "decision to grant or deny leave to file a sur-reply is

committed to the sound discretion of the Court." Lu v. Lezell, 45

F. Supp. 3d 86, 91 (D.D.C. 2014). The Government has raised no

arguments for the first time in its reply. More, the Court has

already permitted Diamond to file one sur-reply already. See

Min. Order (June 28, 2023); Pl.'s Surreply, ECF No. 18. And even

if the Court were to grant leave, none of Diamond's

supplemental submissions would change the Court's analysis.

The Court will thus deny as moot Diamond's motion to correct

his proposed sur-reply. See Mot. to Correct, ECF No. 24.

19a

Appendix C — Memorandum Order of the United

States District Court for the District of Columbia,

Filed November 1, 2023

United States District Court for the District of

Columbia

NORMAN DOUGLAS DIAMOND, Plaintiff,

v.

UNITED STATES OF AMERICA, et al., Defendants.

Case No. i:23-cwOO326 (TNM).

United States District Court, District of Columbia.

November 1, 2023.

MEMORANDUM ORDER

TREVOR N. McFADDEN, District Judge.

Plaintiff Norman Diamond has sued the United

States repeatedly in various federal courts for claims

related to his income taxes. On this stop of his tour,

Diamond sued in this district seeking millions of

dollars in damages and injunctive relief against the

United States. The Court dismissed Diamond’s suit

on improper venue and sovereign immunity grounds.

Despite the dismissal of all claims, the Government

filed this Motion for Reconsideration to correct its

position (which the Court adopted) that venue for

some of Diamond’s claims was only proper in the

Court of Federal Claims. The Government now urges

the Court to dismiss Diamond’s wrongful collection

claims on the alternative ground, argued below, that

the Court lacks subject matter jurisdiction. The Court

concludes that reconsideration is warranted on this

narrow issue.

I.

In its Motion to Dismiss, the Government argued

that this Court was the wrong venue for Diamond’s

wrongful collection claims because Diamond did not

reside in this district. Defs.’ Mot. to Dismiss (MTD) at

20a

Appendix C

7, ECF No. 10. But the Government explained that

venue for non-resident defendants like Diamond

would be proper in the Court of Federal Claims,

which has concurrent jurisdiction over civil actions

against the United States for' the recovery of

“erroneously or illegally assessed or collected” taxes.

See 28 U.S.C. § 1346(a)(1); Topsnik v. United States,

554 F. App’x 630, 631 (9th Cir. 2014). The Court

agreed. It therefore dismissed Diamond’s tax refund

and wrongful collection claims for improper venue,

while further noting that venue would be proper in

the Court of Federal Claims. Mem. Op. at 6-7.

This conclusion was clearly erroneous and

warrants reconsideration. See Wright v. FBI, 598 F.

Supp. 2d 76, 77 (D.D.C. 2009) (noting that courts will

grant reconsideration “to correct clear error”). As the

Government now explains, Diamond could not bring

his § 7433 wrongful collection claims in the Court of

Federal Claims because such claims must be brought

“in a district court of the United States,” 26 U.S.C. §

7433(a), and the Court of Federal Claims is not a

“district court,” Wall v. United States, 141 Fed. Cl.

585, 596 (2019). Thus, contrary to the Court’s

conclusion in its Memorandum Opinion, Diamond

may not bring his § 7433 wrongful collection claims in

the Court of Federal Claims.

In its Motion for Reconsideration, the Government

suggests that venue might be proper in this district

under the general venue statute, 28 U.S.C. § 1391.

Defs.’ Mot. for Recon. (MFR) at 14 n.4, ECF No. 28.

But § 1402(a)(1) indicates that civil actions for

wrongful collection, when brought by natural persons

in district courts, “may be prosecuted only... in the

judicial district where the plaintiff resides.” Id. §

1402(a)(1) (emphasis added). Indeed, courts in this

21a

Appendix C

district and others have strongly suggested that

venue under § 1402(a)(1) is restrictive and thus

precludes venue under § 1391. See Wallace v. United

States, 557 F. Supp. 2d 100, 103 (D.D.C. 2008)

(“Courts in this district have consistently held that

D.C. is an improper venue for non-resident plaintiffs

bringing suit on tax related matters against the

government.”); see also Vanskiver v. Rossotti, No.

OO-cv-2455, 2001 WL 361470, at *2 (D.D.C. Jan. 31,

2001) (“In a tax refund suit against the United States,

plaintiffs must file suit in the district in which they

reside.”); Krapf v. United States, 604 F. Supp. 1164,

1165 (D. Del. 1985) (concluding that, for plaintiffs

living in the Bahamas, “the venue provisions of 28

U.S.C. § 1402(a)(1) preclude litigation of Plaintiffs’

claim in any district court.”). Since Diamond does not

reside in this district—or in any federal judicial

district—venue is not proper under § 1402(a)(1). See

Compl., ECF No. 1, at

3—4 (indicating the

Diamond resided in either Japan or Canada during

relevant periods).

That said, the Court need not determine whether

venue could be proper in this district under 28 U.S.C.

§1391 because Diamond’s wrongful collection claims

cannot survive for another reason.

II.

Even if venue were proper in this district,

Diamond’s wrongful collection claims must be

dismissed for lack of subject matter jurisdiction

because they fall outside Congress’s limited waiver of

sovereign immunity.

Section 7433 of the Internal Revenue Code waives

sovereign immunity “if the IRS or its agents have

intentionally, recklessly, or negligently disregarded

any provision of the Code ‘in connection with any

22a

Appendix C

collection of Federal tax.’” Buaiz v. United States, 471

F. Supp. 2d 129, 135 (D.D.C. 2007). Courts have

construed this provision narrowly, however, holding

“that § 7433 does not provide a cause of action for

wrongful tax assessment or other actions that are not

specifically related to the collection of income tax.”

Id.', see also Jaeger v. United States, 524 F. Supp. 2d

60, 64 (D.D.C. 2007) C‘[S]ection 7433 does not provide

a cause of action for wrongful tax assessment, the

absence of a tax assessment, or other actions not

related to the collection of income tax.”); Miller v.

United States, 66 F.3d 220, 222 (9th Cir. 1995)

(“[I]mproper determination [of tax] is not actionable

as a matter of law under § 7433.”); Shaw v. United

States, 20 F.3d 182, 184 (5th Cir. 1994) (“[A] taxpayer

cannot seek damages under § 7433 for an improper

assessment of taxes.”).

The Government argues that the Court lacks

subject matter jurisdiction because Diamond’s claims

do not constitute wrongful collection activity under §

7433. MFR at 3-5. The Court agrees. Indeed, while

Diamond’s Complaint is prolix and difficult to follow,

it states,

“The IRS legally collected tax

overpayments .... Diamond does not allege damage

from collection of withholdings.” Compl.

128

(emphasis added). His claims to the contrary now do

not persuade.

First, Diamond asserts that he is entitled to relief

under § 7433 because the IRS filed tax liens against

him, claimed that it intended to levy such liens,

conducted Collection Due Process Hearings, and

issued several Notices of Determination. Pl.’s Resp. to

MFR at 1—4, ECF No. 30. While activities such as “the

filing of a notice of lien [are] patently . . . tax

collection activitie[s],” Glass v. United States, 480 F.

23a

Appendix C

Supp. 2d 162, 165 (D.D.C. 2007), Diamond pleads no

facts suggesting that IRS’s collection actions involved

any reckless, intentional, or negligent disregard of

the Internal Revenue Code. And to the extent that

Diamond alleges any wrongdoing regarding the tax

assessments underlying the IRS’s collection actions,

his claims are not actionable under § 7433. See

Pollinger v. United States, 539 F. Supp. 2d 242, 251

(D.D.C. 2008) (dismissing quiet title action

challenging “the merits and validity of the tax

assessment underlying [a] Notice of Federal Tax

Lien” for lack of subject matter jurisdiction).

Next, Diamond contends that the IRS engaged in

collection activity by applying his tax refund from one

year to his underlying tax liability. Pl.’s Resp. to MFR

at 3. Again, while offsetting might be a collection

activity, Diamond does not allege that the offset

involved reckless, intentional, or negligent disregard

of any provision of the Internal Revenue Code.

Last, Diamond levies several allegations of fraud,

including that the United States submitted

fraudulent documents to federal courts. See Compl.

88—96. Even favorably construed, these

allegations fall outside the scope of § 7433’s waiver of

sovereign immunity because they do not involve

violations of the IRS’s collection regulations. See

Buaiz, 471 F. Supp. 2d at 136.

Diamond’s wrongful collection claims all fall

outside the scope of § 7433’s limited waiver of

sovereign immunity. The Court therefore dismisses

them for lack of subject matter jurisdiction.

III.

For these reasons, it is hereby

ORDERED

that

Defendants’

Motion

Reconsideration is GRANTED; and it is further

for

24a

Appendix C

ORDERED that this case is DISMISSED for lack of

subject matter jurisdiction.

SO ORDERED.

Dated: November 1, 2023

trevor n. McFadden, u.s.d.j.

25a

Appendix D - Denial of Panel Rehearing by United

States Court of Appeals for the District of Columbia

Circuit,

Filed July 1, 2025

United States Court of Appeals

For the District of Columbia Circuit

No. 23*5265

September Term, 2024

Filed On^ July 1, 2025

Norman Douglas Diamond, Appellant,

v.

United States of America and Unknown Employees of

the United States, Appellees.

No. 23*5265

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF

COLUMBIA, No. i:23*cv*00326*TNM.

BEFORE: Henderson, Millett, and Walker, Circuit

Judges

ORDER

Upon consideration of the petition for rehearing, it is

ORDERED that the petition be denied.

Per Curiam

BY:

FOR THE COURT:

Clifton B. Cisak, Clerk

/s/

Daniel J. Reidy

Deputy Clerk

26a

Appendix E - Denial of Rehearing En Banc by United

States Court of Appeals for the District of Columbia

Circuit,

Filed July 1, 2025

United States Court of Appeals

For the District of Columbia Circuit

No. 23’5265

September Term, 2024

Filed On: July 1, 2025

Norman Douglas Diamond, Appellant,

v.

United States of America and Unknown Employees of

the United States, Appellees.

No. 23-5265

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF

COLUMBIA, No. i:23-cw00326-TNM.

BEFORE: Srinivasan, Chief Judge, and Henderson,

Millett, Pillard, Wilkins, Katsas, Rao, Walker, Childs,

Pan, and Garcia, Circuit Judges

ORDER

Upon consideration of the petition for rehearing en

banc, and the absence of a request by any member of

the court, it is

ORDERED that the petition be denied.

Per Curiam

BY:

FOR THE COURT:

Clifton B. Cisak, Clerk

/s/

Daniel J. Reidy

Deputy Clerk