UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-50439
No. 96-50779
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ELIZABETH GONZALES; EVANGELINA GONZALES; JERRY GONZALES;
JOSEPH GONZALES; DARLENE CORONA; ERNESTO GONZALES, SR.,
Individually and as Representative of the Estate of
Yolanda Gonzales, Deceased; and as Next Friend of
Ernestina Gonzales and Ernesto Gonzales, Jr., Minors,
Plaintiffs-Appellants,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court for the
Western District of Texas
(SA-95-CV-746, 96-CV-556)
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April 8, 1997
Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.
PER CURIAM:*
This case involves whether sovereign immunity bars claims
against the United States government arising out of the allegedly
tortious acts of an Internal Revenue Service agent. We conclude
that the appellants’ claims “aris[e] in respect of the assessment
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
or collection of any tax or customs duty . . .” and are thus
excepted by 28 U.S.C. § 2680 from the Federal Tort Claims Act’s
limited waiver of sovereign immunity. Accordingly, we affirm the
judgments of the district court dismissing appellants’ complaints.
I.
The Gonzales family moved out of their home in San Antonio,
Texas, and into an apartment after the house had been the target of
seven drive-by shootings. The house was subject to Internal
Revenue Service (“IRS”) liens, which were placed on the house in
connection with approximately $14,500 in delinquent federal taxes
owed by the Gonzaleses. They allege that they moved back into the
house because of an IRS agent’s threats that unless they did so,
the IRS would seize the house. The IRS agent apparently insisted
that they move back into the house even after learning why they had
moved out. Several weeks after moving back into the house, Yolanda
Gonzales suffered a gunshot wound to the head while in the house.
She died the next day. Her husband and children seek to assert
tort claims against the United States for her death under the
Federal Tort Claims Act (“FTCA”).
On April 26, 1996, the district court dismissed the
plaintiffs’ first amended complaint for lack of subject matter
jurisdiction on the grounds that (1) an exception to the FTCA’s
waiver of sovereign immunity, 28 U.S.C. § 2680(c), applies, and (2)
the appellants failed to exhaust their administrative remedies
2
before asserting claims against the United States.1 On May 29,
1996, the plaintiffs brought a second suit against the United
States, asserting claims virtually identical to those in the
earlier suit. On the government’s motion, the district court took
judicial notice of the earlier suit and dismissed the plaintiffs’
complaint on the grounds of res judicata and lack of subject matter
jurisdiction.
II.
If the United States has not waived its sovereign immunity,
the district court lacks subject matter jurisdiction to entertain
claims against it. See Truman v. United States, 26 F.3d 592, 594
(5th Cir. 1994). The FTCA effects a limited waiver of the United
States’ sovereign immunity. See 28 U.S.C. § 2674. The federal
district courts have jurisdiction over suits against the United
States “where the United States, if a private person, would be
liable to the claimant in accordance with the law of the place
where the act or omission occurred.” 28 U.S.C. § 1346(b).
Congress, however, provided certain exceptions to the FTCA’s waiver
of sovereign immunity. Section 2680(c) specifically excepts “any
claim arising in respect of the assessment or collection of any tax
. . . .” Id. § 2680(c). The district court relied on this
provision in dismissing the Gonzaleses’ claims for want of
1
Because we conclude that the case was properly dismissed on
the basis of sovereign immunity, we need not address this ground
for dismissal of the first suit.
3
jurisdiction.
Appellants argue that the IRS agent’s actions in this case do
not fall within Section 2680(c)’s tax assessment and collection
exception. They rely on Capozzoli v. Tracey, in which we
recognized that, at least in theory, an agent’s tortious conduct
might be so tangential to his assessment and collection duties to
fall outside Section 2680(c), yet still be conduct for which the
United States would be vicariously liable. 663 F.2d 654, 658 (5th
Cir. 1981). Appellants’ claims do not fall within this limited
window. Section 2680(c) prevents claims against the United States
based on an agent’s actions that are “even remotely related to his
or her official duties.” Id. at 658 (emphasis added). The agent’s
actions in this case, however ill-fated, were related to his
efforts to collect back taxes owed by the Gonzaleses.2 No more is
required under Section 2680(c).3 See Capozzoli, 663 F.2d at 658.
We are not insensitive to the tragedy faced by the Gonzales
family. However, because the agent’s actions were related to tax
assessment and collection efforts, the United States retained
sovereign immunity as to those claims under 28 U.S.C. § 2680(c),
and the district court properly dismissed the appellants’
complaints. Accordingly, we AFFIRM the judgments of the district
court.
2
For example, the agent expressed concern that the IRS’s
collateral would deteriorate if left unoccupied.
3
We have considered the appellants’ remaining arguments and
find them to be without merit as well.
4