Reiff v. United States of America

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
GEORGE RUSSELL REIFF, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 14-cv-1413 (TSC)
)
UNITED STATES OF AMERICA, et al., )
)
Defendants. )
)

MEMORANDUM OPINION
This action arises from a tax dispute between Plaintiffs George Russell Reiff, Jr. and

Amy Reiff and the IRS that was previously litigated in the United States Tax Court. Plaintiffs

purport to not challenge the Tax Court decision directly, but instead challenge the actions of two

IRS employees in connection with the Tax Court case and a related administrative proceeding.

Plaintiffs bring numerous claims against the United States of America under the Federal Tort

Claims Act (“FTCA”) and against the IRS employees in their individual capacities under Bivens

v. Six Unknown Named Agents, 403 U.S. 388 (1971). Defendants move to dismiss the Complaint

on a variety of grounds, including that this court lacks subject matter jurisdiction and that

Plaintiffs have failed to state a claim upon which relief may be granted. Because the FTCA does

not waive the United States’ sovereign immunity with respect to tax assessment or collection

matters, and because the Internal Revenue Code provides a comprehensive remedial scheme

which precludes Bivens actions against IRS employees under these circumstances, Defendants’

motion to dismiss is granted.

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 I. BACKGROUND

The following facts taken from the Complaint are assumed to be true on a motion to

dismiss. At some point, the Reiffs became parties to a Tax Court proceeding. In connection

with that proceeding, plaintiff Amy Reiff filed a motion to approve an Innocent Spouse Relief

Request (“ISRR”). (Compl. ¶ 24). An “innocent spouse” request seeks relief from joint tax

liability pursuant to the spousal relief provisions of the Internal Revenue Code. 26 U.S.C. §

6015. After receiving the ISRR motion, counsel for the IRS filed a motion for continuance of

trial to allow the IRS to process the ISRR administratively before the Tax Court ruled on the

motion. (Compl. Ex. 1). Although the motion for continuance indicates that the IRS was not

aware of Plaintiffs’ position on their motion, Plaintiffs now claim they did not oppose the

motion, that they signed the motion (even though no signature is present on the motion), and that

it is a “negotiated written agreement” between the parties which created numerous duties that the

IRS later breached. (Compl. ¶¶ 25, 35, Ex. 1).

As part of the administrative processing of the ISRR, Sharon Casey, an employee at the

IRS’s Centralized Innocent Spouse Operations (“CISO”) office which handles ISRR

determinations, sent Amy Reiff a letter requesting that she complete and submit Form 8857—

Request for Innocent Spouse Relief. Casey also requested that George Reiff complete Form

12508 in connection with the ISRR. (Compl. ¶ 27). Plaintiffs responded via letter the next

month and refused to submit the two required forms, arguing that the administrative record was

already sufficient for CISO to make its ISRR determination. (Compl. Ex. 3). Plaintiffs also

raised a number of questions and concerns it asked the CISO to address. According to Plaintiffs,

they never received a response to their letter. Only after the Tax Court re-noticed the case for

trial eight months later did Adam Sweet, the IRS’s attorney in the Tax Court proceeding, notify

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Plaintiffs that “Mrs. Reiff was not responsive to the Appeals division when they asked her for

information. Accordingly, her request for relief was denied.” (Compl. Ex. 4). Plaintiffs sent

another letter to the IRS asking why they were never notified of the decision and alleging various

improprieties, which was similarly ignored.

Plaintiffs now challenge Casey and Sweet’s actions during the ISRR administrative

proceeding as tortious, unconstitutional, in violation of due process, and abusive of discretionary

authority. Plaintiffs take pains to make clear that they challenge only the ISRR determination

made by the CISO, and not any issues related to the Tax Court proceeding directly. This is likely

because the Plaintiffs already raised similar issues in the Tax Court and lost. In that case,

Plaintiffs brought a motion for sanctions against Defendant Sweet for his failure to properly

consider the ISRR application, which the Tax Court denied as “groundless” because “[o]n the

record presented, the Court is satisfied that CISO and respondent’s counsel acted properly at all

times in this case and made a good faith effort to fully develop and evaluate Mrs. Reiff’s claim.”

(Mot. 4). Because the Tax Court reviewed the IRS’s ISRR determination de novo, “petitioners

had a full and fair opportunity to prosecute Mrs. Reiff’s claim for spousal relief”—a claim that

was denied by the Tax Court in part for the Reiffs’ failure to provide the requisite financial

information. (Id.).

II. LEGAL STANDARD

a. Motion to Dismiss Pursuant to Rule 12(b)(1)

In evaluating a motion to dismiss under Rule 12(b)(1) for lack of subject matter

jurisdiction, the Court must “assume the truth of all material factual allegations in the complaint

and ‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be

derived from the facts alleged[.]’” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir.

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2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). Nevertheless, “‘the

court need not accept factual inferences drawn by plaintiffs if those inferences are not supported

by facts alleged in the complaint, nor must the Court accept plaintiff’s legal

conclusions.’” Disner v. United States, 888 F. Supp. 2d 83, 87 (D.D.C. 2012) (quoting Speelman

v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006)). The court “is not limited to the

allegations of the complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986),

vacated on other grounds, 482 U.S. 64 (1987). Rather, “a court may consider such materials

outside the pleadings as it deems appropriate to resolve the question [of] whether it has

jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22

(D.D.C. 2000) (citing Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)).

Courts may raise issues of subject matter jurisdiction sua sponte, regardless of whether the

parties contest the court’s jurisdiction. NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir.

2008).

b. Motion to Dismiss Pursuant to Rule 12(b)(6)

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (internal quotation marks and citation omitted). “The plausibility standard

is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Id. (citation omitted). Although a plaintiff may survive a Rule

12(b)(6) motion even where “recovery is very remote and unlikely[,]” the facts alleged in the

complaint “must be enough to raise a right to relief above the speculative level[.]” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555–56 (2007) (internal quotation marks and citation omitted).

Moreover, a pleading must offer more than “labels and conclusions” or a “formulaic recitation of

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the elements of a cause of action[.]” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

It is well established that “[c]ourts must construe pro se filings liberally.” Richardson v. United

States, 193 F.3d 545, 548 (D.C. Cir. 1999); Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro se

pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers”).

However, if the facts as alleged, which must be taken as true, nonetheless fail to establish that a

pro se plaintiff has stated a claim upon which relief can be granted, the Rule 12(b)(6) motion

must be granted. See, e.g., Am. Chemistry Council, Inc. v. U.S. Dep’t of Health & Human

Servs., 922 F. Supp. 2d 56, 61 (D.D.C. 2013).

III. ANALYSIS

a. FTCA Claims

Plaintiffs bring four claims under the FTCA. Counts 1 and 2 allege that the IRS’s failure

to respond to the Reiffs’ two letters during the ISRR administrative proceeding violated the

“negotiated written agreement” (i.e., the motion for continuance in the Tax Court proceeding)

and constituted “negligent tortious conduct.” Count 3 alleges that the IRS violated the

“negotiated written agreement” by failing to timely notify Plaintiffs of the ISRR determination.

Count 4 alleges that the IRS tortiously failed to notify Plaintiffs that the ISRR administrative file

had been transferred from CISO to Sweet for purposes of the Tax Court proceeding.

The United States can only be sued if it has waived its sovereign immunity. United

States v. Orleans, 425 U.S. 807, 814 (1976). The FTCA is one example of such a waiver—it sets

out the particular circumstances in which plaintiffs are permitted to sue the United States for

common law torts. 28 U.S.C. §§ 2671-80. The waiver of sovereign immunity in the FTCA is

subject to certain enumerated exceptions. 28 U.S.C. § 2680. “If one of the FTCA’s exceptions

applies to a claim for relief against the government, that claim cannot be maintained under the

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FTCA,” and the court lacks subject matter jurisdiction over that claim. Van Sant v. United

States, No. 96-309, 1996 WL 627438, at *1-2 (D.D.C. Aug. 7, 1996), aff’d, No. 96-5299, 1997

WL 404965 (D.C. Cir. July 2, 1997).

One of these exceptions states that “[t]he provisions of this chapter and section 1346(b)

of this title shall not apply to . . . [a]ny claim arising in respect of the assessment or collection of

any tax . . . .” 28 U.S.C. § 2680(c). This exception has consistently been interpreted “as

demonstrating a congressional intent to exclude most tort actions involving IRS agents from the

FTCA’s waiver of sovereign immunity.” Starling v. United States, No. 93-1132, 1994 WL

706072, at *1 (D.D.C. Sept. 26, 1994). “‘Congress retained the United States’ sovereign

immunity for any claim in respect of the assessment or collection of taxes. This language is

broad enough to encompass any activities of an IRS agent even remotely related to his or her

official duties.’” Childress v. Northrop Corp., 618 F. Supp. 44, 49 (D.D.C. 1985) (quoting

Capozzoli v. Tracey, 663 F.2d 654, 658 (5th Cir. 1981) (emphasis in original)), aff’d, 784 F.2d

1131 (D.C. Cir. 1986); Clark Cnty. Bancorporation v. U.S. Dep’t of Treasury, No. 13-632, 2014

WL 5140004, at *11 (D.D.C. Sept. 19, 2014). The exception applies with particular force where

the IRS is attempting to collect a specific debt from a specific taxpayer. See Perkins v. United

States, 55 F.3d 910, 915 (4th Cir. 1995) (“In cases in which a specific tax debt of a specific

taxpayer is at issue, the exemption immunizes the IRS from suit for activities that are even

remotely related to the tax assessment or collection.”).

Based on the facts alleged in the Complaint, Plaintiffs’ FTCA claims fall within the tax

exception to the FTCA, meaning the United States has not waived its sovereign immunity with

respect to those claims, and this court has no subject matter jurisdiction to hear them. The Reiffs

owe some unspecified tax deficiency, which is presumably what led to the Tax Court proceeding.

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Amy Reiff sought to relieve herself of liability with respect to this deficiency pursuant to an

ISRR, and the Plaintiffs challenge the IRS’s handling of that ISRR. This is clearly a claim

“arising in respect of the assessment or collection of any tax.” The actions (or inactions) taken

by Sweet and Casey are official actions of IRS employees related to the assessment or collection

of a tax—the Reiffs owed taxes, Amy Reiff challenged her liability, and the IRS made an

administrative determination with respect to Plaintiffs’ tax liability. Given the broad scope of

the exception, this case falls easily within its ambit.

Plaintiffs marshal two arguments to resist this result. First, Plaintiffs argue that Sweet

and Casey are not IRS “agents,” meaning the exception does not apply. Plaintiffs offer no legal

support for this contention, which is not supported by the text of the FTCA exception (which

makes no reference to IRS “agents”). Even if Casey and Sweet did need to be agents for the

exception to apply, the record suggests they are. Casey works in the Centralized Innocent

Spouse Operations unit, which determines the liability of potentially innocent spouses. (Def.

Mot. 2). There is no evidence indicating she is not an IRS agent. Sweet litigates in front of the

Tax Court on behalf of the IRS with the intention of collecting taxes owed—the same purpose as

any other IRS agent. Further, as Defendants note, an employee can be construed as an agent.

Restatement (Third) of Agency § 7.07(3)(a) (2006) (“[A]n employee is an agent whose principal

controls or has the right to control the manner and means of the agent’s performance of work.”);

Perkins, 55 F.3d at 915 (referencing “IRS officer”).

Second, Plaintiffs argue that the ISRR administrative proceeding did not occur in the

context of assessment or collection, but instead was a “determination,” meaning the tax

exception does not apply. Once again, Plaintiffs offer no legal support for this argument, and

other courts have expressly rejected it. For example, the Fifth Circuit considered an argument by

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plaintiffs in Capozzoli v. Tracey that “the activities of the IRS fall into three distinct categories:

‘determination,’ ‘assessment’ and ‘collection’ of taxes. Plaintiffs contend that Agent Tracey’s

activities were limited to ‘determining’ the Capozzolis’ taxes, and that his job involved neither

‘assessment’ nor ‘collection.’” Capozzoli v. Tracey, 663 F.2d 654, 657 (5th Cir. 1981). The

court rejected that argument, finding that “Plaintiffs cannot point to any provision of the Code

which would support their tripartite division of the IRS’s functions” and that there was no

“suggestion that the ‘determination’ of taxes is separate from or unrelated to the overall process

of assessing and collecting taxes.” Id. Even if “determination” was so distinct, there was

“nothing to show that the language of Section 2680(c) was intended by Congress to track,

incorporate or refer to the Code’s supposed tripartite division. On the contrary, we find that, in

enacting Section 2680(c) of the FTCA, Congress intended to insulate the IRS from tort liability

stemming from any of its revenue-raising activities.” Id. The Supreme Court, interpreting

identical language in a similar provision, came to a similar result in Bob Jones University v.

Simon, 416 U.S. 725, 738-42 (1974)—that “assessment or collection” is broadly construed. As

the Capozzoli court held, and this court agrees, the FTCA tax exception “reflect[s] the

government’s strong interest in protecting the administration of its tax system from the burden of

constant litigation. This interest would be completely frustrated if we were to read Section

2680(c) as providing an immunity for only certain narrowly defined activities of the IRS.”

Capozzoli, 663 F.2d at 657.1

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This is in some tension with cases holding that a provision in the Taxpayer Bill of Rights that waives sovereign
immunity with respect to “any collection of Federal tax” does not include assessments or determinations. See Kim v.
United States, 632 F.3d 713, 716-17 (D.C. Cir. 2011) (“Section 7433 applies only to collection-related activities.
See Miller v. United States, 66 F.3d 220, 222-23 (9th Cir. 1995) (‘[T]he assessment or tax determination part of the
[Internal Revenue Code enforcement] process is not an act of ‘collection’ and therefore, not actionable under §
7433.’)”); Morrow v. United States, 723 F. Supp. 2d 71, 80 (D.D.C. 2010) (“[Section] 7433 waives sovereign
immunity only insofar as it pertains to tax collection activities, and does not provide a cause of action for wrongful
tax assessment or other actions not specifically related to the collection of federal tax.”) (emphasis in original).
These cases can be distinguished on at least two grounds. First, the Taxpayer Bill of Rights speaks only of “any

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 b. Bivens Claims

Counts 5-11 of the Complaint are factually similar to Counts 1-4, but are brought against

Casey and Sweet in their individual capacities under Bivens v. Six Unknown Named Agents, 403

U.S. 388 (1971). Under Bivens, federal courts “have discretion in some circumstances to create

a remedy against federal officials for constitutional violations.” Wilson v. Libby, 535 F.3d 697,

704 (D.C. Cir. 2008). However, the Supreme Court has cautioned against undue expansion of

Bivens. Schweiker v. Chilicky, 487 U.S. 412, 421 (1988). Bivens remedies are not to be created

“where special factors counsel hesitation in doing so.” Wilson, 535 F.3d at 704 (internal

quotation marks and alterations omitted). “One ‘special factor’ that precludes creation of a

Bivens remedy is the existence of a comprehensive remedial scheme.” Id. at 705; see also

Spagnola v. Mathis, 859 F.2d 223, 228 (D.C. Cir. 1988) (“courts must withhold their power to

fashion damages remedies when Congress has put in place a comprehensive system to administer

public rights, has ‘not inadvertently’ omitted damages remedies for certain claimants, and has

not plainly expressed an intention that the courts preserve Bivens remedies.”).

Courts have repeatedly found that the Internal Revenue Code is a comprehensive

remedial scheme that precludes a Bivens remedy. See Kim v. United States, 632 F.3d 713, 717-

18 (D.C. Cir. 2011) (agreeing with the district court’s holding that “no Bivens remedy was

available in light of the comprehensive remedial scheme set forth by the Internal Revenue

Code.”); Kim v. United States, 618 F. Supp. 2d 31, 38-40 (D.D.C. 2009), aff’d in part, rev’d in

part on other grounds, 632 F.3d 713 (D.C. Cir. 2011) (“almost every circuit court that has

collection of Federal tax,” whereas the FTCA exception encompasses “the assessment or collection of any tax”—a
facially broader category. In addition, section 7433 of the Taxpayer Bill of Rights is a waiver of sovereign
immunity, meaning the courts interpreting that provision construe it narrowly. See Buaiz v. United States, 471 F.
Supp. 2d 129, 135 (D.D.C. 2007) (in the context of interpreting section 7433, the court explained that “[w]aivers of
sovereign immunity are strictly construed and any doubt or ambiguity is resolved in favor of immunity.”). By
contrast, the provision here is an exception to a waiver of sovereign immunity, meaning it is interpreted more
broadly to serve the same purpose: so “that any doubt or ambiguity is resolved in favor of immunity.”

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[considered the issue] has concluded that the [Internal Revenue Code] is a ‘comprehensive

statutory remedial scheme’ that precludes creation of a Bivens action . . . Similarly, lower courts

in this jurisdiction have, for the same reasons, declined to create a Bivens remedy to redress

injuries alleged by other tax protesters, like Plaintiffs, who allege due process violations

stemming from purported violations of the [Internal Revenue Code].”); True the Vote, Inc. v.

IRS, No. 13-734, 2014 WL 5395036, at *7-8 (D.D.C. Oct. 23, 2014). Therefore, because there is

no Bivens remedy available for claims against Sweet and Casey for their alleged conduct related

to the ISRR determination, Counts 5-11 must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).

See Kim, 632 F.3d at 717-18 (D.C. Cir. 2011) (endorsing the district court’s dismissal on

12(b)(6), rather than 12(b)(1), grounds).

Plaintiffs challenge this conclusion on two grounds. First, Plaintiffs reiterate the

difference between a tax “determination” and “assessment or collection,” although it is unclear

what difference this makes in the Bivens analysis. The Internal Revenue Code, which includes

tax determinations, assessments, and collection, provides a comprehensive remedial scheme, and

the asserted distinction between IRS activities makes no difference here.

Second, Plaintiffs argue that because the Internal Revenue Code does not provide full

relief for their tort and constitutional claims, it cannot be deemed a comprehensive remedial

scheme for Bivens purposes. As a threshold matter, Plaintiffs’ claim that they have no remedy is

dubious. Plaintiffs’ claims arise out of various alleged improprieties in the IRS’s handling of

Amy Reiff’s spousal relief request. Congress has provided an avenue for relief for taxpayers

unhappy with their results at the IRS: de novo review by the Tax Court, which Plaintiffs pursued,

to no avail.2 That the Tax Court found against them does not mean Plaintiffs were deprived of a

2
Plaintiffs also have other remedies under the Code. See, e.g., 26 U.S.C. § 6673(a)(2) (permitting the Tax Court to
impose penalties for certain attorney misconduct).

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remedy for the IRS’s allegedly faulty handling of Amy Reiff’s request. In any event, the Bivens

analysis does not turn on whether the comprehensive remedial scheme offers remedies that make

the plaintiff whole. As the district court in Kim explained, “even assuming that Plaintiffs are

correct that no remedy is available for their particular injuries under the [Internal Revenue

Code], it is well established that ‘a comprehensive statutory scheme precludes a Bivens remedy

even when the scheme provides the plaintiff with no remedy whatsoever.’ It is ‘the

comprehensiveness of the statutory scheme involved, not the adequacy of specific remedies

extended thereunder, that counsels judicial abstention.’” Kim, 618 F. Supp. 2d at 38-40 (internal

quotation marks and citations omitted). The D.C. Circuit affirmed this analysis, Kim, 632 F.3d at

717-18, and this court has not been provided any reason to deviate from it.

IV. CONCLUSION

For the foregoing reasons, the motion to dismiss is granted and Plaintiffs’ claims are

dismissed without prejudice. The court need not address Defendants’ other bases for dismissal.

An appropriate Order accompanies this Memorandum Opinion.

Date: June 3, 2015

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge

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