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Fletcher v. Shulman

United States District Court, Fifth Circuit

January 21, 2014

DOUGLAS SHULMAN, et al., Defendants.


SIDNEY A. FITZWATER0, Chief District Judge.

Pro se plaintiff Herbert Fletcher ("Fletcher")-whose two prior challenges to the assessments of federal income taxes for 2007 and 2008 have been dismissed-is before the court again, this time suing several parties and challenging the assessment of federal income tax for 2009. The United States of America ("the government") moves to dismiss Fletcher's claims against all defendants under, inter alia, Fed.R.Civ.P. 12(b)(1) and 12(b)(6). For the reasons that follow, the court grants the motion, denies Fletcher's request for another opportunity to replead, and dismisses this action with prejudice by judgment filed today.


Fletcher filed the instant lawsuit in Texas state court, making a number of tax protest arguments and seeking injunctive and declaratory relief, administrative sanctions, and damages against Douglas Shulman ("Shulman"), the former Commissioner of the Internal Revenue Service ("IRS"); Steven Miller ("Miller"), the Acting Commissioner of the IRS; Bill Banowsky ("Banowsky"), an employee of the IRS's regional office in Ogden, Utah; William Wilkins ("Wilkins"), Chief Counsel for the IRS; and the government. The government removed the case to this court, and, after the court granted Fletcher leave to amend, Fletcher filed a first amended petition ("amended complaint") in which he added as defendants Jacob Lew ("Lew"), the Secretary of the U.S. Department of the Treasury (the "Treasury Department"), and the Treasury Department, while apparently attempting to dismiss the government as a defendant by not referring to it in the case caption.

Fletcher's lawsuit is similar to two that he has filed before. In the instant action, Fletcher denies that he owes any federal income tax for the year 2009 and that the various defendants have violated his rights by attempting to collect from him. Fletcher filed a substantially similar lawsuit in which he denied owing federal income tax for the year 2007, which was dismissed, see Fletcher v. United States, 2011 WL 1043491 (N.D. Tex. Mar. 22, 2011) (Kinkeade, J.), aff'd, 452 Fed.Appx. 547 (5th Cir. 2011), cert. denied, ___ U.S. ___ , 132 S.Ct. 1873 (2012), and another lawsuit in which he denied owing federal income tax for the year 2008, which was also dismissed, see Fletcher v. Shulman, 2011 WL 8107056 (N.D. Tex. Aug. 23, 2011) (Fitzwater, C.J.), aff'd, 470 Fed.Appx. 394 (5th Cir. 2012), cert. denied ___ U.S. ___, 133 S.Ct. 468 (2012).

Fletcher makes essentially the same arguments in the instant action that he made in his two prior lawsuits. On February 4, 2013 the IRS issued a 90-day notice of deficiency, stating that Fletcher owed the IRS federal income tax in the amount of $4, 826.00 for the year 2009 and several additional penalties, in violation of 26 U.S.C. §§ 6651(a)(1)-(2), 6654(a). Rather than pay the tax and seek a refund, Fletcher filed this lawsuit, alleging that he is not a "taxpayer" and thus owes no federal tax, that the case is governed by Texas law of trusts rather than federal tax law, and that the defendants sued in their individual capacities were deliberately indifferent to the alleged violations of his rights. The government moves to dismiss, contending that the court lacks subject matter jurisdiction because Fletcher is seeking an injunction, in violation of the Anti-Injunction Act, 26 U.S.C. § 7421(a), and a declaratory judgment, which is precluded by the federal Declaratory Judgment Act ("DJA"), 28 U.S.C. § 2201, or, in the alternative, that he has failed to state a claim on which relief can be granted. The government also maintains that Fletcher's amended complaint fails to state a claim against Shulman, Miller, Banowsky, Wilkins, and Lew in their individual capacities because the only possible basis for such a claim identified in the amended complaint is Bivens, [1] and the collection of taxes does not give rise to a Bivens claim.[2]


"Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by statute, lack the power to adjudicate claims." Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). "The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citations omitted).

"In deciding a Rule 12(b)(6) motion to dismiss, the court evaluates the sufficiency of [the] plaintiff['s]... complaint by accepting all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" Bramlett v. Med. Protective Co. of Fort Wayne, Ind., 855 F.Supp.2d 615, 618 (N.D. Tex. 2012) (Fitzwater, C.J.) (quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks and alteration omitted)). To survive the government's motion to dismiss under Rule 12(b)(6), Fletcher must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "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 .; see also Twombly, 550 U.S. at 555 ("Factual allegations must be enough to raise a right to relief above the speculative level[.]"). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown'-that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2)) (alteration omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678 (citation omitted).


The court first considers whether Fletcher's claim for injunctive relief is barred by the Anti-Injunction Act.


"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit. Sovereign immunity is jurisdictional in nature." Fletcher v. United States, 452 Fed.Appx. 547, 552 (5th Cir. 2011) (per curiam) (quoting FDIC v. Meyer, 510 U.S. 471, 475 (1994)) (internal quotation marks omitted).

The district courts have jurisdiction over "[a]ny civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been ...

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