Petition for Writ of Certiorari — Boatner v. United States

Supreme Court brief1991

Ask Donna

What actually matters in this document.

Text

90-1189,

Number

IN THE

SUPREME COURT

OF THE

UNITED STATES

October Term, 19 _

NATHAN BOATNER

Petitioner

vs.

UNITED STATES OF AMERICA,

FREDERICK C NIELSEN, ROSEMARY BOWEN, AND

DOES ONE THROUGH TWENTY FIVE INCLUSIVE

Respondents

On A Writ Of Certiorairi

To The

United States Court Of Appeals

For The Ninth Circuit

Petition For Certiorari--Civil Rights

Nathan Boatner, Attorney

445 South Figueroa Street, 26th Floor

Los Angeles, California, 90071

(213) 489-6871

Pro Se

Preliminary Matter

Questions presented

1) Should a party be pemitted to

file an amended complaint when no

responsive pleading was filed in the

District Court and the party alleges that

there is a factual basis for a claim for

which relief can be granted.

The District Court ruled No. This is

affirmed by the Court Of Appeals. All

case law, however, holds this to be

error. Nolen v Fitzharris 450 F.2d 958

(CA9, 1971)

2) Does an IRS agent have unlimited,

unchecked, absolute power over the

economic affairs of a taxpayer so that a

United States taxpayer has no legal

defense to any act of an agent of the IRS

however, egregious.

The District Court ruled yes.

Affirmed by the Court Of Appeals. The

Supreme Court has not specifically

answered this guestion in its decisions.

Bothke v Flour 713 F.2d 1405 (CA9, 1983)

the opinion of which was summarily

vacated without explanation at 468 U.S.

1201, 104 S.Ct. 3566, 82 L.Ed.2d 867.

3) Is there a basis for an attorney

at law to recover attorney's fees as

costs from the sovereign if a suit

against the sovereign is successful even

if the suit is based on alleged wrongful

acts of an agent of the IRS.

The Courts have not clearly answered

this question.

a. ee ee he ee

iii

Parties

The parties to this petition are

listed in the caption of this case.

Contents

Questions Presented . ‘ i

Parties . ° iii

Contents . . iii

Authorities : . vi

Petition For Certiorari--

Civil Rights A ‘ l

Decisions Below . : 2

Jurisdiction ° . 2

Constitutional Provision And

Statutes Involved ° ° 2

Statement ° ° 3

Reasons For Granting The Writ . 9

Summary Of The Argument ‘ 12

Argument ° . 14

te, A RR, a

Point 1

A Party Should Be Able To

File An Amended Complaint As A

Matter Of Right If No Responsive

Pleading Has Been Filed 13

Point 2

A Claim For Relief Based

On Bad Faith Can Be Stated

Against The United States

Pursuant To 26 U.S.C. 7433

Or In The Alternative 42 U.S.C.

1983 When The Bad Faith Rises

To The Level Of Constitutional

Denial Of Due Process 24

Point 3

A Party Should Be Able

To Recover Reasonable Attorney;s

Fees From The United States

If Successful In A Suit Against

An IRS Agent Or Based On Actions

Of An IRS Agent ° 34

Conclusion . . 24

Appendix

Court Of Appeals Decision

United States Constitution

Amendment V

26 U.S.C.

28 U.S.C.

42 U.8.c.

6532

7422

7430

7433

2412

1983

APPENDIX

AUTHORITIES Page

Cases:

Bothke v Flour

713 F.2d 1405 (1983) ii,10,11

Butz v Economou

438 U.S. 478 (1978) > 20

GM Leasing v United States

429 U.S. 338 (1977) . 21

Life Science v IRS

525 F.Supp. 399 (a981) ° 20

Nolen v Fitzharris

450 F.2d 958 (1971) » bedeae

Orloaff v Cleveland

708 F.2d 372 (1983) . 17

Parratt v Taylor

451 U.S. 527 . 17

Starbuck v City and County

556 F.2d 450 (1977) - 19,20

United States v McPherson

840 F.2d 244 (1988) ‘ 23

Statutes, Rules:

26 U.S.C. 7430 . 23

26 U.S-C. 7433 15,22

28 U.S.C. 1254(1) . 2

28 U.S.C. 1257(3) - (10,11

42 U.S.C. 1983 - 15,22

Rule 12, F.R.Civ.P. : 3

vii

Rule 10, Supreme Court 12

a < F é ; . —

e ROCKS ERS 8 a

ae ef pasty | omg Tue BY atus |

pa wt

IN THE

SUPREME COURT

OF THE

UNITED STATES

October Term, 19 _

NATHAN BOATNER

Petitioner

vs.

UNITED STATES OF AMERICA,

FREDERICK C NIELSEN, ROSEMARY BOWEN, AND

DOES ONE THROUGH TWENTY FIVE INCLUSIVE

Respondents

Petition For Certiorari--Civil Rights

Nathan Boatner, Attorney

445 South Figueroa Street, 26th Floor

Los Angeles, California, 90071

(213) 489-6871

Pro Se

Decisions Below

On September 25, 1989, the District

Court for the Central District Of

California dismissed the complaint in

this case with prejudice in a decision

that was not reported. (R 147) The

judgment of the Court Of Appeals for the

Ninth Circuit was filed and entered

September 6, 1999, and is not reported.

Jurisdiction

The judgment of the Court Of Appeals

For The Ninth Circuit was made and

entered on September 6, 1990 and a copy

thereof is appended to this petition in

the Appendix. Rehearing was not sought.

The jurisdiction of this Court is invoked

under 28 U.S.C. Section 1254(1)

Constitutional Provision And

Statutes Involved

1) The Fifth Amendment to the United

States Constitution and

2) The following statutes 26 U.S.C.

Sec. 6532; 26 U.S.C. Sec. 7422; 26 U.S.C.

Sec. 7430; 26 U.S.C. Sec. 7433; 28 U.S.C.

Sec. 2412; and 42 U.S.C. Sec. 1983.

All of the above are included

verbatim in the appendix to this

petition.

Statement

On May 15, 1989, your plaintiff

filed a complaint against the United

States and two employees of the Internal

Revenue Service. (R 14) On July 10, 1989,

the defendants filed a notice of motion

and memorandum for dismissal of the

complaint pursuant to Rule 12(b)(1), Rule

12(b) (2), and Rule 12 (b) (6) of the

F.R.Civ.P. (R 81) Your plaintiff filed a

memorandum in oppositon to the motion for

dismissal on August 23, 1989. (R 110)

Defendants filed reply papers on

September 6, 1989. (R 133) After hearing

on September 11, 1989, the Court

dismissed the complaint with prejudice

and an order was filed September 26,

1989. (R 142) A notice of appeal was

timely filed on October 6, 1989. (R 145)

After appeal to the Circuit Court

the decision of the trial Court was in

all respects, affirmed in a Memorandum

Decision. A copy of the decision is

appended hereto.

The complaint alleges that District

Director Frederick Nielsen has contrived

an artifice or scheme to obtain payment

of additional taxes from United States

citizens without regard for whether the

taxpayer actually owes any additional

taxes or not. (R 19)

This artifice or scheme involves (1)

establishing of a quota of at least

$2,500 additional taxes per audit for

each IRS agent (R 19); making such

burdensome, oppressive, and costly

demands on the taxpayer without any

Substantial justification so that the

taxpayer would gladly pay the IRS

additional taxes just to avoid the

burdensome and oppressive demands of the

IRS agent (R 19 te 20); and to otherwise

harass the taxpayer so that additional

taxes could be collected whether actually

owed the United States or not. (R19,

et esq)

In furtherance of the artifice or

scheme of the District Director agent

Rosemary Bowen (1) disallowed substantial

expenses of your plaintiff without any

known reason or explanation; (2) the

Subsequent protest to the IRS and the

internal appeal at the IRS was totally

ignored by the IRS; (3 sent a 90 day

letter claiming unpaid taxes that

automatically would go to a lien against

your plaintiff; and (4) noticed another

audit for another two years under the

same conditions with considerably more

oppressive and burdensome demands for

evidence production to your plaintiff so

as to result in the total financial ruin

of your plaintiff without any factual or

any legal basis, and without any

explanation to your plaintiff. (R 23 to

24)

In the memorandum in oppostion to

the motion to dismiss the complaint, your

plaintiff admits that the complaint is

not well pleaded and that the complaint

is largely based on an error of law as to

running of the statute of limitations on

the claim’ of the IRS. (R110) However,

your plaintiff asked the Court for leave

to amend (R 110, et seq)

In the opposition memorandum it was

set forth in detail that agent Rosemary

Bowen is making a clearly false and

fraudulent claim against your plaintiff

for the 1985 tax year (R116) For one

thing she claims the tax return was not

timely filed but the tax return for 1985

(Exhibit 11, R 125) was filed timely

pursuant to an automatic extension of

time to file (R 123) (Exhibit 10) (R 118)

This caused your plaintiff to have to pay

the IRS $8,939 on or about August 17,

1989 (R118) (Exhibit 15)

It is further explained that the IRS

representatives have yet to even offer to

explain to your plaintiff why all of this

is being done by the IRS and why your

plaintiff is forced to pay at least

$8,939 to the IRS none of which is

actually owed. (R116) And that this is

just the tip of the iceberg of what the

IRS is doing to myself, your plaintiff.

(R 116 to 117) At the hearing on the

motion to dismiss your plaintiff argued

to the Court that it is the policy in the

9th Circuit that when the Court dismisses

a complaint pursuant to Rule 12,

F.R.Civ.P. the dismissal should be

2 Marie omnes

without prejudice. (R 8) Your plaintiff

argued that the United States has all

along acted in the most abject bad faith

(R 10) the IRS agent totally fabricated

the iain for taxes due for 1985 (R10),

and clearly the complaint can be amended

to state a cause of action against the

defendants (Rll).

The attorney for the United States

argued that the complaint should be

dismissed with prejudice and that

sanctions should be imposed on your

Plaintiff for filing the suit. (R10 to

11)

The principal argument of the

defendants seems to be that an agent of

the IRS should be permitted to do

anything necessary to force a taxpayer

such as your plaintiff to pay large

additional amounts to the IRS dependant

only on the amount demanded by the IRS

agent, regardless of the facts and

applicable law; and that your plaintiff

should be denied access to the District

Court and should be denied any

explanation whatsoever by the IRS and the

United States. And that your plaintiff

should be sanctioned for believing that

there is anything wrong with being

defrauded by the agent with the

fraudulent claim for at least $8,939 in

unpaid taxes; and that the agent or

someone should at least give your

plaintiff an explanation of the basis of

the agent's claim; and certainly your

plaintiff is not entitled to any

meaningful hearing on the claim for

relief (R11 to 12)

Reasons For Granting The Writ

1) In Nolen v Fitzharris 450 F.2d

958 (CA9, 1971) the Circuit Court held.

that a party may amend a pleading as a

matter of right at any time before a

responsive pleading is served and a

nes bien bd Pettit

9h eae oh Bled

atest its itn hts Lele

motion to dismiss is not a_ responsive

pleading within the meaning of the

Federal Rules Of Civil Procedure. In the

present case the District Court dismissed

the couplaint without leave to amend

prior to a responsive pleading being

filed at complete variance with all known

case law. There is no known Supreme

Court case on this issue, so that the

Court may grant the writ to review this

matter pursuant to Supreme Court Rule

10(1) (a) or pursuant to the provisions of

28 U.S.C. 1257(3).

2) The Supreme Court has not decided

what legal rights, defenses, or the like,

if any, can be invoked by an aggrieved

taxpayer in defense to alleged egregious,

perphaps completely uncivilized behavior

of an IRS agent. In Bothke v Flour 713

F.2d1405 (CA9, 1983) the Circuit Court

For The Ninth Circuit set forth

guidelines for behavior of any government

agent, even an agent of the IRS, and the

Supreme Court summarily vacated the

decision in Bothke at 468 U.S. 1201, 104

S.Ct. 3566, 82 L.Ed.2d 867 so there are

no legal guidelines for using the legal

system to derend against completely

uncivilized behavior of an IRS agent.

This may be an important question of

federal law that the Supreme Court could

clarify for the taxpayers of the United

States at this time pursuant to Rule

10(1) (c) of the Supreme Court and 28

U.S.C. 1257(3)

3) The conditions under which a

party may, if at all, recover reasonable

attorney's fees if successful in

litigation with the United States

involving behavior of an IRS agent is not

clear in that no one really knows’ what

legal defense, if any, is available

against uncivilized behavior of an_ IRS

agent, so it is not possible to determine

ini tse ne hes

what law is applicable to this question

Or issue so the Court may grant the writ

on this issue again pursuant to the

provisions of Rule 10(1)(c) and 28 U.S.C.

1257(3)

Summary Of The Argument

If the dictionary definition of a

slave being that a slave is one

completely under the dominance of another

is true then all of the taxpayers of the

United States are slaves of each and

every agent of the IRS at the present

time because of congressional fiat and

lack of any case authority to the

contrary. Since the most uncivilized

behavior of an IRS agent is also the

most cost effective behavior assuming

that the taxpayer does not do anything

to defend against the uncivilized

behavior of an IRS agent, the present

well known trend for IRS agents to behave

in a more and more uncivilized manner can

only be expected to continue, even

accelerate unless this Court at least

theoretically prohibits certain specific

uncivilized behavior of IRS agents.

The facts of this case present to

the Court proof of all the well known

political maxims such as “you cannot

legislate morality" and “absolute power

corrupts absolutely" and the like.

The behavior of the [IRS agent in

the present case is so uncivilized and

egregious that the agent is. practically

begging this Court to proscribe such

behavior in order to promote the concept

that our society is at least civilized.

In the present matter this Court is

being asked to rule at least that an IRS

agent mus t at the very least

explain the factual basis and the

applicable legal basis for depriving a

taxpayer of his or her property in order

to comply with Constitutional due process

and good faith requirements. This might

seem to be an illusory request in that a

ee a ee eee

false claim for additional taxes could

eaSily be based on a false premise.

However, the alternative is to give

absolute dominion and power to an _ IRS

agent over the economic affairs of every

United States taxpayer, and it is

submitted that this would be indeed a

dangerous precedent for this Court to set.

It is submitted that we cannot live

in a civilized country where one class of

persons such as IRS agents have absolute

dominion and power over another class of

persons, the taxpayers of the Untied

States.

Argument

Point 1

A Party Should Be Able To File An

Amended Complaint As A Matter Of Right

If No Responsive Pleading Has Been Filed

There is no known Supreme Court case

dealing with this issue, but in Nolen v

Pitzharris 450 F2d. 958 (CA9, 1971) it

was held that a party does indeed have a

right to amend the complaint once prior

to a responsive pleading being filed.

This appears to be good law but in the

present case the District Court dismissed

the complaint without leave to amend

prior to any responsive pleading being

filed. Perphaps the Supreme Court will

rule on this issue.

Point 2

A Claim For Relief Based On

Bad Faith Can Be Stated Against

The United States Pursuant To 26 U.S.C. 74

Or In The Alternative 42 U.S.C. 1983

When The Bad Faith Rises To The Level

Of Constitutional Denial Of Due Process

New 26 USC 7433 states in pertinent

part:

If, in connection with any

collection of Federal tax with

respect to a taxpayer, any officer

Or employee of the Internal Revenue

133

Service recklessly or intentionally

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.

As an issue of first impression your

plaintiff submits that any employee of

the Internal Revenue Service who

violates fundamental principles of due

process of law in the assessment and

collection of taxes by such conduct comes

within the meaning of this statute which

proscribes actions that "recklessly Or

intentionally disregard the law”. It is

further submitted that so called actions

in bad faith could well be actions that

deprive the taxpayer of any semblance of

due process of law within the meaning of

26 U.S.C. 7433. Using California

Insurance Code Section 790.03(h) as a

- a

guide your plaintiff submits that a cause

of action may be stated pursuant to 26.

USC 7433 for any or the following acts:

Failure of an employee of the IRS

to provide promptly a reasonable

explanation of the basis relied on, in

relation to the facts or applicable law,

for a claim for tax deficiency.

It is well known that after an audit

the agent may assess a tax deficiency

which automatically becomes a lien.

Unless the agent will at least explain

the basis’ for the assessment the

taxpayer has no meaningful opportunity to

be heard before the property of that

taxpayer has been taken away by the

sovereign. This has repeatedly been held

to deprive a person of due process of

law. Parratt v Taylor 451 U.S. 527, 101

S.Ct. 1908, 68 L.Ed.2d 420.

In Orloff v Cleveland 708 F.2d 372

(CA9, 1983) the court held that due

ee — — ee

lh eee One oe & we Ree a,

process is a flexible concept and its

procedural requirements vary depending on

the paticular deprivation. Thus, there is

no reason why certain actions held to be

bad faith cannot also be actions that

deprive one of due process of law under

the circumstances.

Because every section of the

Internal Revenue Code is subsidiary to

the provisions of the United States

Constitution and to requirements of due

process of law, your platintiff submits

that if an agent willfully refuses to

explain the basis for a claim for a tax

deficiency before the claim becomes an

automatic lien this gives rise to a claim

for bad faith based on due _ process

considerations. Clearly if, as is

alleged to have occurred in this case,

the agent makes a claim for a tax

deficiency then refuses to discuss the

claim or explain the basis, if any, for

the claim against the taxpayer, then the

taxpayer has no opportunity to correct

the situation or possibly compromise the

claim with the agent. Clearly this

deprives the taxpayer of any hearing on

the matter before the property of the

taxpayer is taken away, and deprives the

person of due process.

In Starbuck v City and County of San

Framcisco 556 F.2d 450 (CA9, ND CA,

1977) the Court held that an employee of

the sovereign loses any qualified

immunity from suit when the employee

substantially departs from authority

conferred upon the employee by law.

In the present case it is alleged

agent Rosemary Bowen made a completely

false and fraudulent claim for unpaid

taxes against your plaintiff for the tax

year 1985. Clearly this means she can be

sued as an individual for this claim. To

be sure, it may later be found that the

tenes BS ERC ees OI RRS TSAI te APT Rte of aE ean eS,

2a a ata Mah aah RIE Ot

3 a ONO elem "ots Lice meen tk

agent acted within the scope of her

employment and would at least have

qualified immunity from suit, but that is

not presently the issue. The only issue

is iether a complaint can be filed

against the agent for fraud and other

civil torts based on conduct not

authorized by statute. According to

Starbuck this would be perfectly proper.

In Life Science v IRS 525 F.Supp.

399 (ND CA, 1981) it was held that if IRS

agents act in violation of their

Statutorily defined duties, not pursuant

to them, a suit against the agent is not

barred by the doctrine of soverign

immunity.

In Butz v Economou 438 U.S.. 478,

57 L.Ed.2d 895, 98 S.Ct. 2894 (1978) this

Court held that federal officials have no

Greater immunity from suit than _ state

officialy under 42 U.S.C. 1983. The

Court held that government officials may

be entitled to qualified immunity fron

suit, but not absolute immunity unless

absolute immunity is essential tc

performance of the official's duties.

In GM Leasing v United States 42°

U.S. 338, 50 L.Ed.2d 530, 97 S.Ct. 61%

(1977) this Court held that even IRS

agents must act with some modicum of good

faith, but specific behavior was not set

forth in this case illustrative of good

or bad faith.

Uncivilized behavior takes many

shapes and forms, but to take away the

property of a person without at the least

any explanation is clearly not civilized

behavior even if the person taking away

the property of another acts under color

of sovereign authority. Clearly if <«&

taxpayer can be legally deprived of his

or her property by an IRS agent without

being informed of the applicable factual!

reason for the deprivation and the lega!

basis for the deprivation the taxpayer is

de facto absolutely under the dominion

and power of the IRS agent and

according to the dictionary is de facto

the slave of the agent.

Thus this Court is being asked to

decide that if an agent of the IRS does

not give a taxpayer a factual reason for

depriving the taxpayer of his or her

property and does not explain the

applicable law to the taxpayer, then the

taxpayer is denied Constitutional due

process of law and may maintain a_ legal

action against the IRS agent as an

individual pursuant to either 26 U.S.C.

7433 or 42 U.S.C. 1983. It is not

possible to imagine a more basic issue or

how less than this can be even a modicum

of good faith and even a modicum of due

process.

Point 3

A Party Should Be Able To Recover

Reasonable Attorney's Fees From The

United States If Successful In A Suit

Against An IRS Agent Or Based On

Actions Of An IRS Agent

26 U.S.C. 7430 authorizes recovery

of attorney's fees from the prevailing

party if successful ina suit against the

IRS. However, there are cases such as

United States v McPherson 840 F.2d 244,

245, (CA4, 1988) that hold that a party

who prosecutes an action pro se cannot

recover reasonable attorney's fees. This

seems to be bad law in that usually at

least 50% of an attorney's fees are

ordinarily paid out by the attorney as

expenses. Denial of the recovery of

attorney's fees, then to an attorney

prosecuting an action pro se is to in

effect sanction the attorney for trying

to set a desirable precedent in our

hatte

ere Aba ty Natasa

oe eee ee

society and to set up legal defenses to

demonstrated wrongful behavior. 5 oe

submitted that if a party, even the

sovereign, behaves wrongfully and does

not prevail in the matter in Court ctnen

the party should have to pay reasonable

attorney's fees to the prevailing party

even if that party is also an attorney on

the ground that the wrongful behavior

damaged the prevailing party for costs of

legal services and for loss of time that

could be spent on business of a client.

To rule otherwise would be to permit the

sovereign to benefit from its own wrong.

Conclusion

Premises considered it is_ prayed

that the Court will grant this petition

for certiorari on the ground that the

time has come for this Court to decide

whether the Fifth Amendment is applicable

to uncivilized actions of an IRS agent

and to define for us at least one or more

such uncivilized actions that the United

States taxpayers have Fifth Amendment

protection from, and to decide how a

taxpayer may procedurally file a claim

for relief based on allegations of

uncivilized actions of an agent of the

IRS.

Respectfully submitted.

DATED: JAN 18 1991

Nathan Boatner, Pro Se

445 S Figueroa St, #2600

Los Angeles, CA, 90071

(213) 489-6871

' IN THE

SUPREME COURT

OF THE

UNITED STATES

October Term, 19 __

NATHAN BOATNER

Petitioner

vs.

UNITED STATES OF AMERICA,

FREDERICK C NIELSEN, ROSEMARY BOWEN, AND

DOES ONE THROUGH TWENTY FIVE INCLUSIVE

Respondents

Appendix

Nathan Boatner, Attorney

445 South Figueroa Street, 26th Floor

Los Angeles, California, 90071

(213) 489-6871

Pro Se

—

’

* Tv bf

£3 ~ <= ") ‘

eee a ie wa ser nse ee a ——— gin = at ie —

c a a I _— —— — a — ons s ~ o - wee

- : on 7 icdtmaagloes Sx SE _ ed atta clans eamanest agile Yasah er apat deeded idles itinaale aaa aa aaa ee

Mare a ie LE LENS Ene Rs eee Cee ee ea ae aoe Fee Le

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATHAN BOATNER FILED

SEP 6 1990

Plaintiff-

Appellant, No. 89-56172

D.C.No.

CV~-89-2900-DT

vs.

UNITED STATES OF

AMERICA, et al., MEMORANDUM*

Defendants-

Appellees.

eee eee ee ee ee ee

Appeal From The United States

District Court For The Central

District Of California Dickran

Tevrizian, District Judge, Presiding

Submitted August 20, 1990**

Before: TANG, ALARCON, and WIGGINS,

Circuit Judges

* This disposition is not appropriate for

publication and may not be cited to or by

the courts of this circuit except as

provided by 9th Cir. R. 36-3.

** The panel unanimously finds this case

Suitable for disposition without oral

argument. Therefore Boatner's request for

Oral argument is denied. Fed. R. App. P.

34(a); 9th Cir. R. 34-4

Nathan Boatner appeals pro se the

district court's order dismissing his

action for lack of subject matter

jurisdiction, personal juciaéicrios, and

failure to state a claim upon which

relief can be granted. 4 The district

court Found that Boatner failed to

exhaust his administrative remedies prior

to filing his complaint, and that it was

deprived of jurisdiction by sovereign

immunity which also made it impossible

for Boatner to state a claim upon which

relief courld be granted. Boatner

contends that the court erred in denying

him leave to amend his complaint. we

have jurisdiction pursuant to 28 U.S.C.

Sec. 1291. We affirm.

We review de novo the dismissal of a

complaint for lack of subject matter

jurisdiction under Fed. R. Civ. P.

Although Boatner appeals pro se, he is a

licensed, practicing attorney.

——

SA a I ale le le cer el wer

ee eee es

re. nett

12(b) (1), for failure to state a claim

pursuant to F. R. Civ. P. 12(b) (6), Kruso

v. International Tel. & Tel. Co., 872

F.2d 1416, 1421 (9th Cir. 1989), cert.

denied 110 S. Ct. 3217 (1990), or for

lack of personal jurisdiction under Fed.

R. Civ. P. 12(b) (2) Brainerd v Governors

of the Univ. of Alberta, 873 F.2d 1257,

1258 (9th Cir. 1989). The district

court's factual findings on

jurisdictional issues must be accepted

unless clearly erroneous. Stock West,

Inc. v. Confederated Tribes of the

Colville Reservation, 873 F.2d 1221, i225

(9th Cir. 1989)

We review the district court's

refusal to allow Boatner to amend his

complaint under the abuse of discretion

standard. See Thomas-Larear v FBI, 851

F.2d 1202, 1206 (9th Cir. 1988).

Dismissal with prejudice is

warranted where the pleadings before the

court demonstrate that a plaintiff would

not be entitled to relief under any set

of facts. Rutman Wine Co v E. & J. Gallo

Wimery, 829 F.2d 729, 732 (9th Cir. 1987)

In May, 1989, Boatner filed suit

against the United States, IRS agent

Rosemary Bowen, IRS district director

Frederick Neilson, and DOES 1-25.

Boatner alleged that the IRS has

established a scheme to obtain additional

taxes whereby each agent fulfills a quota

by assessing a deficiency of $3,500 per

audited account, regardless of whether

that amount is actually owed by the

taxpayer. Boatner asserts that in

furtherance of this scheme, the IRS

audited hin, disallowed substantial

expenses, and ignored his subsequent

protest and appeal. Boatner concedes

that his existing claim against the IRS

is barred by the doctrine of sovereign

immunity, but asserts that he will state

a proper cause of action under 26 U.S.C.

Sec 7433 if permitted to amend his

complaint.

A. Sovereign Immunity

It is settled law that the United

States, as a sovereign entity, may not be

sued without its consent, and that the

terms of that consent define the courts'

jurisdiction. Lehman v Nakshian, 453

U.S. 156, 160 (1981); Hutchinson v United

States, 677 F.2d 1322, 1327 (9th Cir.

1982). The Federal Tort Claims Act

(FTCA), provides a limited waiver of

sovereign immunity and permits’ recovery

against the United States for tertious

conduct by federal employees that occurs

within the scope of their employment.

See generally 28 U.S.C. Sec. 2671-80.

Prior to commencing an FTCA action in

federal court a plaintiff must present a

claim to the appropriate agency. Id. at

Sec. 2675(a). If the agency denies or

fails to decide the claim within six

months, the plaintiff is free to file a

federal action. Id. Boatner filed a FTCA

Claim with the IRS which was rejected by

the agency on the ground that the FTCA

does not waive sovereign immunity for

claims arising out of the assessment or

collection of taxes. See 28. U.S.C. Sec.

2680(c) see also Hutchinson 677 F.2d at

1327. The district court correctly

determined that because Boatner's claims

arose out of the assessment and

collection of taxes, sovereign immunity

was not waived and therefore it lacked

subject matter jurisdiction over his FTCA

claim. See 28 U.S.C. Sec 2680(c).

The district court was also correct

in holding that it lacked jurisdiction

over the two individual IRS agents. The

bar of sovereign immunity extends to

agents and officers of the United States

where they are sued in their official

capacities for actions within the scope

of their employment. Hawaii v Gordon 373

U.S. 57, 58 (1963); Hutchinson, 677 F.2d

at 1327. Boatner specifically stated in

his complain that the defendants were

the agents and employees of their

codefendants and acting within the course

and scope of their employment.

Therefore, they were protected by

sovereign immunity, and dismissal as to

them was proper. See id.

B. Lack of Personal Jurisdiction and

Failure to State a Claim

Because the district court properly

dismissed this action for lack of subject

matter jurisdiction, there is no

authority to decide the other issues. a

Dismissal was proper because the

district court lacked subject matter

jurisdiction over Boatner's action.

AFFIRMED.

UNITED STATES CONSTITUTION

AMENDMENT V

No person shall be held to answer

for a capital, or otherwise infamous

crime, unless On a presentment Or

indictment or a Grand Jury, except in

cases arising in the land or naval

forces, Or in the Militia, when in actual

service in time of War or public danger;

nor shall any person be subject for the

same offence to be twice put in jeopardy —

of life or limb; nor shall be compelled

in any criminal case to be a witness

against himself, nor be deprived of life,

liberty, or property, without due process

of law; nor shall private property be

taken for public use, without just

compensation.

26 U.S.C. Sec. 6532

(a) Suits by Taxpayers for

Refund--

(1) General rule.--No suit or

eroceeding under Section 7422(a) for the

recovery of any internal revenue tax,

penalty, or other sum, shall be begun

before the expiration of 6 months’ from

the date of filing the claim required

under such section unless the Secretary

renders a decision thereon within that

time, nor after the expiration of 2 years

from the date of mailing by certified

mail or registered mail by the Secretary

to the taxpayer of a notice of the

disallowance of the part of the claim to

which the suit or proceeding relates.

(2) Extension of time.--The 2-

year period prescribed in paragraph (1)

shall be extended for such period as may

be agreed upon in writing ‘between the

taxpayer and the Secretary.

—-— aa

(3) Waiver of notice of

disallowance--If any person files a

written waiver of the requirement that he

be mailed a notice of disallowance, the

2-year period prescribed in paragraph (1)

shall begin on the date such waiver is

filed.

(4) Reconsideration after mailing

of notice--any consideration,

reconsideration Or action by the

Secretary with respect to such claim

following the mailing of a notice by

certified mail or registered mail of

disallowance shall not operate to extend

the period within which suit may be

begun.

26 U.S.C. Sec. 7422

(a) No suit prior to filing claim

for refund.--No suit or proceeding shall

be maintained in any court for the

recovery of any internal revenue tax

alleged to have been- erroneously

Or illegally assessed or collected, or of

any penalty claimed to have been

collectéd without authority, or of any

sum alleged to have been excessive or in

any manner wrongfully collected, until a

claim for refund or credit has been duly

filed with the Secretary, according to

the provisions of law in that regard, and

the regulations of the Secretary

established in pursuance ckeceee,”

(b) Protest or duress--Such suit

Or proceeding may be maintained whether

Or not such tax, penalty, or sum has been

paid under protest or duress.

officer a bar--A suit against any officer

Or employee of the United States (or

former officer or employee) or his

personal representative for the recovery

of any internal revenue tax alleged to

have been erroneously or illegally

assessed or collected, or of any penalty

Claimed to have been collected without

authority, or of any sum alleged to have

| been excessive or in any manner

| wrongfully collected shall be treated as

if the United States had been a party to

such suit in applying the doctrine or res

judicata in all suits in respect of any

internal revenue tax, and in all

proceedings in the Tax Court and on

review of decisions of the Tax Court.

(d) Credit treated as payment--

The credit of an overpayment of any tax

in satisfaction of any tax liability

siall, for the purpose of any suit for

refund of such tax liability so

satisfied, be deeded to be a payment in

respect of such tax liability at the time

\ oh j

such credit is allowed.

(e) Stay of proceedings--If the

Secretary prior to the hearing of a suit

brought by a taxpayer ina district court

or the United States Claims Court for the

recovery of any income tax, estate tax,

gift tax, or tax imposed by chapter 41,

42, 43, or 44 (or any penalty relating to

such taxes) mails to the taxpayer a

notice that a deficiency has been

determined in respect of the tax which is

the subject matter of taxpayer's suit,

the proceedings in taxpayer's suit shall

be stayed during the period of time in

which the taxpayer files a petition with

the Tax Court for a redetermination of

the asserted definiency, and for 60 days

thereafter. If the taxpayer files a

peitiion with the Tax Court, the district

court or the United States Claims Court,

as the case may be, shall lose

jurisdiciton of taxpayer's suit to

whatever extent jurisdiction is acquired

by the Tax Court of the subject matter of

taxpayer's suit for refund. If the

taxpayer does not file a petition with

the Tax Court for a redetermination of

the asserted deficiency, the United

States may counterclaim in the taxpayer's

Suit, or intervene in the event of a srvit

as described in subsection (¢c) (relating

to suits against officers or employees of

the United States), within the period of

the stay of proceedings notwithstanding

that the time for such pleading may have

otherwise expired. The taxpayer shall

have the burden of proof with respect to

the issued raised by such counterclaim or

intervention of the United States except

as to the issue of whether the taxpayer

has been guilty of fraud with intent to

evade tax. This subsection shall not

apply to a suit by a taxpayer which,

prior to the date of enactment of this

title, is commenced, instituted, or

pending in a district court or the United

States Claims Court for the recovery of

any income tax, estate tax, or gift tax

for any penalty relating to such taxes.)

(£) Limitation on right of action

for refund--

(1) General Rule--A_ suit or

proceeding referred to in subsection (a)

may be maintained only against the United

States and not against any officer or

employee of the United States (or former

officer or employee) or his personal

representative. Such suit or proceeding

may be maintained against the United

States notwithstanding the provisions of

section 2502 of title 28 of the united

States Code (relating to aliens'

privilege to sue) and notwithstanding the

provisions of section 1502 of such title

28 (relating to certian treaty cases).

(2) Misjoinder and change of venue--

If a suit or proceeding brought in a

United States district court against an

officer or employee of the United States

(or former officer or employee) or his

personal representative is improperly

brought solely by virtue of paragraph

(1), the court shall order, upon such

terms as are just, that the pleadings be

amended to substitute the United States

as a party for such officer or employee

as of the time such action commenced,

upon proper service of process on the

united States. Such suit or proceeaing

shall upon request by the United States

be transferred to the district Or

division where it should have been

brought if such action initially had been

brought against the Untied States.

26 U.S.C. Sec 7430

(a) In General-- In any

administrative or court proceeding which

is brought by or against the United

States in connection with the

determination, collection, or refund of

any tax, interest, or penalty under this

title, the prevailing party may be

awarded a judgment or a settlement for --

(1) reasonable administrative costs

incurred in connection with such

administrative proceeding within the

Internal Revenue Service, and

(2) reasonable litigation costs

incurred in connection’ with such

proceeding.

(b) Limitations--

(1) Requirement that administrative

remedies be exhausted--A judgment for

reasonable litigation costs shall not be

awarded under subsection (a) in any court

proceeding unless the court determines

that the prevailing party has exhausted

the administrative remedies available to

such party within the internal Revenue

Service.

(2) Only costs allocable to the

Untied States--An award under subsection

(a) shall be made only for reasonable

litigation and administrative costs which

are allocable to the United States and

not to any other party.

(3) Exclusion of declaratory

Judgment proceedings--

(A) In general--No award for

reasonable litigation costs may be made

under subsection (a) with respect to any

declaratory judgment proceeding.

(B} Exception for section 501(c) (3)

determination revocation proceedings--

Subparagraph (a) shall not apply to any

proceeding which involves the revocation

of a determination that the organization

is described in section 501l(c) (3).

(4) Costs denied where party

prevailing protracts proceedings--No

award for reasonable litigation and

administrative costs may be made under

subsectiuon (a) with respect to any

portion of the administrative or court

proceeding during which the prevailing

Party has unreasonably protracted such

proceeding.

this section--

)1) Reasonable litigation costs.--

The term "reasonable litigation costs”

includes--

(A) reasonable court costs. and

(b) based upon prevailing market

rates for the kind or quality of services

furnished--

(i) the reasonable expenses of

expert witnesses inconnection with a

court proceeding, except that no expert

witness shall be compensated at a rate in

‘

excess or the highest rate of

compensation for expert witnesses paid by

the United States,

(ii) the reasonable cost of any

Study, analysis, engineering report,

test, or project which is found by the

court to be necessary for the preparation

of the party's case, and

(iii) reasonable fees paid or

incurred for the services of attorneys in

connection with the civil proceeding,

except that such fees shall not be in

excess of $75 per hour unless the court

determines that an increase in the cost

of living or a special factor, such as

the limited availability of qualified

attorneys for such proceeding, justifies

a higher rate.

(2) Reasonable administrative

costs--The : term "reasonable

administrative costs” means--

iss acnenceaiininenneianinteaineeamnimnnat

(A) any administrative fees or

Similar charges imposed by the _ Internal

Revenue Service, and

(B) expenses, costs, and fees

described in paragraph (1)(B), except

that any determination made by the ocurt

under clause (ii) and (iii) thereof shall

be made by the Internal Revenue Service

in cases where the determination under

paragraph (4)(B) of the awarding of

reasonable administrative costs is made

by the Internal Revenue Service.

Such term shall only include costs

incurred on or after the earlier of (i)

the date of the receipt by the taxpayer

of the notice of the decision of the

Internal Revenue service Office of

Appeals or (ii) the date of the notice of

deficiency.

(3) Attorney's fees--For purposes of

paragraphs (1) and (2), fees for the

services of an individual (whether or not

an attorney) who is authorized to

practice before the Tax Court or before

the Internal Revenue Service shall be

treated as fees for the services of an

attorney.

(4) Prevailing party--

(A) In general--The term "prevailing

party” means any party in any proceeding

to which subsection (a) applies (other

than the United States or any creditor of

the taxpayer involved)--

(i) which establishes that the

position of the United States in the

civil proceeding was not substantially

justified,

(ii) which--

(I) has substantially prevailel with

respect to the amount in controversy, or

(II) has substantially prevailed

with respect to the most significant

issue or set of issues presented, and

(iii) which meets the requirements

of the lst sentence of section

2412(d)(1)(B) of title 28 United States

Code (as in effect on October 22, 1986)

except to the extent differing procedures

are established by rule of court and

meets the requirements of section

2421(d) (2) (B) of such title 28 (as so in

effect)

(B) Determination as to prevailing

party--

Any determination under subparagraph

(A) as to whether a party is a prevailing

party shall be made by agreement of the

parties or--

(i) in the case where the final

determination with respect to the tax,

interest, or penalty is made at the

administrative lever, by the Internal

Revenue Service, or

(ii) in the case where such final

determination is made by a court, the

court.

(5) Administrative proceedings--The

term “administrative proceeding” means

any procedure or other action before the

Internal Revenue Service.

(6) Court proceedings--The term

"court proceeding” means any civil action

brought ina court of the United States

(including the Tax Court and the United

States Claims Court).

(7) Position of United States--The

term “position of the united States"

me ans--

(A) the position taken by the United

States in a judicial proceeding to which

subsection (a) applies, and

(B) the position taken in an

administrative proceeding to which

subsection (a) applies as the earlier of

(i) the date of the receipt by the

taxpayer of the notice of the decision of

the Internal Revenue Service Office of

Appeals, or

(ii) the date of the notice of

deficiency.

(d) Special Rules for Payment of

Costs--

(1) Reasonable administrative

costs--An award for reasonable

administrative costs shall be payable out

of funds appropriated under section 1304

of title 31, United States Code.

(2) Reasonable litigation costs--an

award for reasonable litigation costs

shall be payable in the case of the Tax

Court in the same manner as such an award

by a district court.

(d) Multiple Actions--For purposes

of this section, in the case of--

(1) multiple actions which could

have been joined or consolidated, or

(2) a case or cases involving a

return or returns of the same taxpayer

(including joint returns of married

individuals) which could have been joined

in a single proceeding in the same court,

Such actions or cases shall be

treated as 1 court proceeding regardless

of whether such joinder or consolidation

actually occurs, unless the court in

which such action is brought determines,

in its discretion, that it would be

inappropriate to treat such actions or

cases as joined or consolidated.

(£) Right of appeal--

(1) Court proceedings--an order

granting or denying an award for

reasonable litigation costs under

subsection (a), in whole or in part,

shall be incorporated as a part of the

decision or judgment inthe case and

shall be subject to appeal in the same

manner as the decision or judgment.

(2) Administrative proceedings--A

decision granting or denying (in whole or

in part) an award for reasonable

administrative costs under subsection (a)

by the Internal Revenue Service shall be

subject to appeal to the Tax Court under

rules similar to the rules under section

7463 (without regard to the amount in

dispute).

26 U.S.C. Sec. 7433

(a) In General--If, in connection

with any collection of Federal tax with

respect to a taxpayer, any officer or

employee of the Internal Revenye Service

recklessly or intentionally 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.

(b) Damages~-In any action brought

under subsection (a), upon a finding of

liability on the part of the defendant,

the defendant shall be liable to the

Plaintiff in an amount equal to the

lesser of $100,000 or the sum cf--

(1) actual, direct economic damages

Sustained by the plaintiff as a proximate

result of the reckless or intentional

actions of the officer or employee, and

(2) the costs of the action.

pursuant to this section shall be payable

out of funds appropriated under section

1304 of title 3l, United States Code.

(d) Limitations--

(1) Requirement that administrative

remedies be exhausted--A judgment for

damages shall not be awarded under

subsection (b) unless the court

determines that the plaintiff has

exhausted the administrative remedies

available to such plaintiff within the

Internal Revenue Service.

(2) Mitigation of damages--The

amount of damages awarded under

subsection (b) (1) shall be reduced by the

amount of such damages which could have

reasonably been mitigated by the

plaintiff.

(3) Period for bringing action--

Notwithstanding any other provision of

law, an action to enforce liability

created under this section to enforce

liability created under this section may

be brought without regard to the amount

in controversy and may be brought only

within 2 years after the date the right

of action accrues.

28 U.S.C. Sec. 2412

(a) Except as otherwise specifically

provided by statute, a judgment for costs

aS enumerated in section 1920 of this

title, but not including the fees and

expenses of attorneys, may be awarded to

the prevailing party in any civil action

brought by or against the United States

Or any agency or any official of the

united States acting in his or her

official capacity in any court having

jurisdiction of such action. A judgment

for costs when taxed against the Untied

States shall, in an amount established by

statute, court rule, or order, be limited

to reimbursing in whole or in part the

prevailing party for the costs’ incurred

by such party in the litigation.

(b) Unless expressly prohibited by

Statute, a court may award reasonable

fees and expenses of attorneys, in

addition to the costs which may be

awarded pursuant to subsection (a), to

the prevailing party in any civil action

brought by or against the United States

Or any agency or any official of the

united States acting in his or her

official capacity in any court having

jurisdiction of such actin. The United

States shall be liable for such fees and

expenses to the same extent ie any

other party would be liable under the

common law or under the terms of any

Statute which specifically provided for

such an award.

: * * * * * * ® *

(e) The provisons of this section

shall not apply to any costs, fees, and

other expenses in connection with any

proceeding to which sectio 7430 of the

Internal Revenue Code of 1954 applies

(determined without regard to subsections

(b) and (£) of such section). Nothing in

the preceeding sentence shall prevent the

awarding under subsection (a) of section

2412 of title 28, United States Code, of

costs enumerated in section 1920 of such

title (as in effect on October 1, 1981).

42 U.S.C. Sec. 1983

Every person who, under color of any

Statute,. ordinance, regulation, custom,

or usage, of any State or Territory or

the District Of Columbia, subjects, or

causes to be subjected, any citizen of

the United States or other person within

the jurisdiction thereof to the

deprivation of any rights, privileges, or

immunities secured by the Constitution

and laws, shall be liable to the party

injured in anaction at law, suit in

equity, or other proper proceeding for

redress. For the purposes of this

section, any act of Congress applicable

exclusively to the District Of Columbia

shall be considered to be a Statute of

the District of Columbia.

CERTIFICATE OF SERVICE

I, Nathan Boatner, am petitioner

herein, appearing pro se. I hereby

certify that on this day of mn

I deposited in the United States Mail at

Los Angeles, California, with first class

postage prepaid, copies of the foregoing

Petition For Certiorari--Civil Rights

addressed as follows:

l copy to: Solicitor General, Department

Of Justice, Washington, DC, 20530

l copy to: Gary A. Feess, Esq, United

States Attorney, 300 N Los Angeles St, Rm

2315, Los Angeles, CA, 90012

4 copies to: Shirley D Peterson, Esq,

Assistant AG, Tax Division, Department of

Justice, PO Box 502, Washington, DC, 20044

I have read the foregoing and

declare under penalty of perjury of the

laws of the United States that the

foregoing certificate is true and correct.

DATED: JAN 1 8 199 tpl

Nathan Boatner, Pro Se

445 S Figueroa St, 26th Floor

Los Angeles, CA, 90071

(213) 489-6871

CERTIFICATE OF MAILING

I, Nathan Boatner, pro se, hereby

certify that on this day of JAN YR 199)

I deposited 40 copies of the foregoing

Petition For Certiorari--Civil Rights

in the United States Mail with first

class postage fully prepaid addressed to:

Clerk, United States Supreme Court, 1

First Street, N.E., Washington, DC, 20543.

I hereby declare under penalty of

perjury of the laws of the United States

that the foregoing is true and correct.

DATED: JAW18 199]

Nathan Bodtner, Pro Se

445 S Figueroa St, 26th Floor

Los Angeles, CA, 90071

(213) 489-6871

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.