In the Um'ted States Court of Federal Claims
No. 18-1387T
(Filed: March 28, 2019)
(NOT TO BE PUBLISHED)
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JOHN W. BARRY, et al.,
Plaintiffs,
UNTTEDSTATES,
Defendant.
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John W. Ban‘y, pro se, Pemberton, NJ; Karrine N. Montaque, pro se, Valley Stream, NY;
Moses Nelson, pro se, Bridgeport, CT; Joel Adeyemi Omotosho, pro se, Bridgeport, CT; julio
Ruiz, pro Se, Bridgeport, C'f; Patricia Hinds, pro se, West l~laven, CT; Elba M. Viera Lopez, pro
se, Bridgeport, CT; Rosemarie M. Lastimado~Dradi, pro se, Ridgefleld, WA; Elvah Bliss
l\/liranda, pro se, Waipahu, HI; Daniel B. Miranda, pro se, Waipahu, HI; Marciaminajuanequita
R. T. Dumlao, Honolulu, HI; Rosalie O. Libanag, pro se, EWa Beach, Hl; Rodrigo B. Libanag,
pro Se, Ewa Beach, HI; Hannah K. Hart, pro se, Honolulu, Hl; Brigida E. Chook, pro se, EWa
Bcach, Hl; Michael T. Chocl<, pro Se, EWa Beach, HI; Leonicio Bautista, pro se, Honolulu, HI;
Scott F. I~lawver, pro se, Ewa Beach, HI; Beverly Braumuller-Hawver, pro se, Ewa Beach, HI;
Paul K. Meyer, pro Se, Kilauea, Hl.
Katherine R. Powers, Trial Attorney, Court of Federal Claims Section, Tax Division,
United States Department of Justice, Washington, D.C., for defendant With her on the motion
and brief Were Richard E. Zuckennan, Principal Deputy Assistant Attorney General, Tax
Division, United States Department of Justice, Washington, D.C., and David l. Pincus, Chief,
Court of F ederal Clairns Section, Tax Division, United States Departrnent of Justice,
Washington, D.C.
OPINION AND ORDER
LETTOW, Senior Judge.
Twenty plaintiffs have brought Suit in effect contending that the Internal Revenue Service
(“IRS”) Was and is Without authority to pursue the collection of tax against them. They identify
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nine separate causes of action premised on a variety of tort, constitutional, and statutory bases.l
The government has moved to dismiss the complaint pursuant to Rule lZ(b)(l) of the Rulcs of
the Couit of Federal Claims (“RCFC”) for lack of subject-matter jurisdiction United States’
Mot. to Dismiss (“Def.’s l\/Iot.”), ECF No. 134. Because the court lacks subject-matter
jurisdiction over the plaintiffs’ claims, the government’s motion to dismiss the complaint is
GRANTED. The remaining motions by the government and the plaintiffs are all DENIED as
moot.
BACKGROUND
This litigation commenced on September 7, 2018, When the twenty named plaintiffs filed
their complaint With the court. Compl., ECF No. l. Soon after the filing, however, the plaintiffs
moved to amend their complaint to add additional plaintiffs and causes of action. Pls.’ Mot. to
Arn. Sealed Compl. (“Arn. Compl.”), ECF No. 4.2 In the first amended complaint, the plaintiffs
allege nine claims against the federal government and a broad array of government officials in
their individual capacities See, e.g., Am. Cornpl. W 49 (naming the United States as a
defendant), 50 (naming the Secretary of the Treasury as a defendant), 51~89 (naming 39 other
government employees), 90 (naming 100 “unknovvn others” as defendants).
Specifically, the plaintiffs allege: (I) “intentional interference With the person [and]
invasion of privacy,” Arn. Compl. at 75-78; (II) “intentional interference With property, trespass
to land, trespass to chattels and chattel paper instruments,” Am. Compl. at 78-82', (ill)
“violations of procedural and fundamental due process of law pursuant to 5 U.S.C. § 552(a),
[and] the [Fourth], [Fifth], and [Fourteenth] Amendments [as Weil as to violations of state
constitutions] . . . ,” Am. Compl. at 82-84; (iV) “violations of civil rights . . . ,” Am. Compl. at
85~89', (V) “abuse of process,” Am. Compl. at 89-93; (Vi) violations of fvarious tax laws and
regulations] culminating in unlawful conduct of an enterprise through a pattern of racketeering
activity and mail fraud,” Am. Compl. 94-98; (Vil) “common law joint tortfeasor” liability, Am.
Compl. at 98-99; (VIII) “intentional infliction of emotional distress and mental anguish,” Am.
Compl. at 99-102; and (IX) “defamation, libel and slandei',” Am. Compl. at 102~04. Plaintiffs
seek monetary and equitable relief for each of these claims. Am. Cornpi. at 105-10.
'fhe catalyst for these claims Was a multitude of collection actions instituted by the iRS
from 2000 to 2017, along With a United States Tax Court decision related to some of the
collection actions. See Order of Dismissal for Lack of Jurisdiction, Barry v. ]RS Comm ’r, U.S.
lPlaintiffs have also filed a series of duplicative motions requesting ancillary relief,
including “Motion[s] to Claim and Exercise Constitutionaily Secured Rights and Privileges,”
e,g., ECF Nos. 15-33, 36-37, 43. “Motion[s] for Default Judgrnent,” e.g., ECF Nos. 63-65, 67-
82, 85, 89-90, “l\/Iotion[s] to Strike,” e.g., ECF Nos. 91, 94, 96, 98, 100-101, 103, 105, 107, 109-
110, 112, 114, and “Motion[s] for Sanctions,” e.g., ECF Nos. 150-151, 154, 156, 158.
2Plaintiffs’ first amended complaint is 944 pages long and does not include page
numbers Therefore, all citations to the first amended complaint Will refer to numbered
paragraphs or the ECF page number.
Tax Court, No. 9682-18 (July 23, 2018).3 Among other things, the plaintiffs contend that
because the 'l`ax Couit dismissed Mr. Barry’s petition for lack of jurisdiction, see e.g., Am.
Compl. ii 157, the IRS lacked jurisdiction to take any action regarding the several tax issues and
therefore acted Without authority. ln short, the plaintiffs contend that if the U.S. Tax Court lacks
jurisdiction over a tax issue, then any action taken by the IRS regarding that tax issue must be
outside the scope of the agency’s powers and therefore ultra vires.
The complaints Were initially filed under seal because they contained unredacted personal
information Accordingly, the government moved to require plaintiffs to file a redacted version
of the complaint that omitted all sensitive personal information, see Mot. . . . for a Redacted
Version of the Compl., ECF No. 6, arguing that “public access to judicial documents” is a
“common law right,” id. at 2 (citations omitted). The court granted the government’s motion on
November 20, 2018, and required the plaintiffs to “file redacted versions of their complaint, first
amended complaint, and second amended complaint that omit all personal information.” Order
OrNOV. 19, 2018, ECF No. iz.“
Additionally, two individual plaintiffs, Rosemarie M. Lastimado-Dradi and Paul K.
Meyer, filed notices With the court in vvhich they sought to act as representatives for other
plaintiffs See Notice of Rosemarie M. Lastimado-Dradi (Nov. 16, 2018), ECF No. 10, Notice of
Paul K. l\/leyer (Nov. 16, 2018), ECF No. ll. On November 19, 2018, the court denied
plaintiffs’ request, ruling that RCFC 83.1(a)(3) “limits the ability ofpro se plaintiffs to represent
other pro se litigants before this couit.” Order of Nov. 19, 2018, ECF No. 13.5 Subsequently,
plaintiffs filed numerous duplicative motions. See supra, at 2 n. l.
Proceedings in this case vvere suspended due to the lapse in government appropriations
for the Department of Justice, Which began on Decem'oer 2l, 2018. See Mot. for Stay of Case
Proceedings in Light of Lapse of Appropriations (Jan. 2, 2019), ECF No. 61; Order Granting in
Part and Denying in Part [Motion for Stay] (Jan. 7, 2019), ECF No. 62. Plaintiffs opposed the
suspension and thereafter filed various motions, asking the court to vacate its order suspending
the case and also to strike the government’s motion to stay. See, e.g., Mot. to Strike Mot. for
Stay, filed by Joel Adeyemi Omotosho (Jan. 22, 2019), ECF No. 9l; l\/lot. to Vacate Order on
Mot. to Stay, filed by Radames Rodriguez (Jan. 22, 2019), ECF No. l02.
The case resumed on January 31, 2019, after the restoration of funding See Notice of
Restored Appropriations, ECF No. 131. Soon thereafter, the government responded to the
3The collection actions included imposition of liens, levies on property, vvage
garnishment, and Seizing of assets for the non-payment of taxes or collection of taxes. See, e.g.,
Am. Compl. atli 139.
4On November 16, 2018, plaintiffs had filed a motion to further amend their complaint,
See ECF No. 9, and the court had not acted on that motion by November 19, 2018.
5Because the plaintiffs did not fall into one of the exceptions to RCFC 83.l(a)(3), the
court required that “each plaintiff in this case must be responsible for his or her own claims.”
Order of Nov. l9, 20l8, at 2. The court also noted that “RCFC 17 requires that ‘any action must
be prosecuted in the name of the real party at interest.”’ Id. (quoting RCFC 17(a)(l)).
3
plaintiffs’ numerous motions for default judgment by moving to dismiss the complaint for lack
of jurisdiction pursuant to RCFC l2(b)(l), ECF No. l34, and also by moving to amend the
caption to remove the names of individual defendants, ECF No. 132. The plaintiffs responded
by filing a flurry of their own motions and responses over the next month. See, e.g., Resp. to
Mot. to Dismiss, filed by Karrine N. l\/lontaque (Feb. 25, 2019), ECF No. 141; l\/lot. for
Sanctions Pursuant to Rule 11, filed by Moses Nelson (Feb. 27, 2019), ECF No. 151; Reply to
Resp. to l\/Iot. for Default ludgment, filed by Leonicio Bautista (Mar. 7, 2019), ECF No, 213.
ll`he government replied to the plaintiffs’ responses and responded to their motions for sanctions
on March 18, 2019, ECF Nos. 232, 233.
STANI)ARDS FOR DECISION
Rule ]2(1))(1) - Lack ofSubjecr-Matrer Jurisdz'ction
As a threshold matter, jurisdiction must be established before the court may proceed to
the merits of a case. Steel Co. v. Citizem‘for a Betrer Env ’t, 523 U.S. 83, 94 (1998). When
jurisdiction is challenged, the plaintiff bears the burden of establishing subject matter
jurisdiction M. Maropakis Cm'pentry, Inc. v, United States, 609 F.3d l323, 1327 (Fed. Cir.
2010). Although a pro se litigant is afforded some leniency as to legal formalities, this does not
relieve him or her from meeting his or her jurisdictional burden. Kelley v. Secretary, United
Sfafes Dep’t ofLabor, 8l2 F.2d 1378, 1380 (Fed. Cir. 1987).
The Tucl