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Three Federal Road Blocks
Below are two federal district court decisions that address the big three
roadblocks now in place to prevent anyone from being able to sue in
a federal district court to challenge a federal agency's denial of rights or for redress of grievance in reference to taxation, or for what they believe to be
an erroneous claim as to their status, such as not being one who is liable or subject to the income tax, or to object to the assertion that they are ones who can be brought within the purview of a taxing statute that requires the waiver of fundamental rights.
These three federal road blocks are:
(a) The Declaratory Judgment Act at 28 USC 2201 grants authority
for federal courts to determine any issue within its jurisdiction
except those issues dealing with federal taxes.
(b) The Anti-Injunction Act at 26 USC 7421 prevents the federal courts from granting an injunction to restrain the assessment or collection of any tax, whether erroneous or not, and
(c) The Doctrine of Sovereign Immunity prevents anyone from suing
the United States of America in the federal district courts unless
permission to sue is first granted by the United States of America.
This first case below is the August 31st 2005 dismissal by the district court, in Washington DC, of the We The People and Bob Schultz law suit against the United States, the IRS, the Treasury Department and others.
The second is a 2001 case out of the 2nd District of California entitled Fogel v. United States of America.
As the DC circuit court mentions, the only openings given for suit against those who wrongfully bring you within the taxing statutes are those openings found within the federal statutes where one is already pre-determined to be a "taxpayer" and "person liable."
Recently the press has reported that federal judges are upset with judicial bashing and fearful for their safety because of it. When the feds screw over people's lives and then those people are denied the opportunity to address their complaints within the federal judicial system,those judges and the congressmen who pass such road blocks, should not only be fearful, they should be expecting to hear the call to
Hang em high!!!
bob minarik - 5288 n. 1000 w. rochester indiana 46975 - 574-542-9065
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
WE THE PEOPLE, et al., )
Plaintiffs, )
v. ) Civil Action No. 04-1211) (EGS)
UNITED STATES, et al., )
Defendants. )
___________________________________)OPINION & ORDER
Plaintiff , We the People Foundation for Constitutional
Education, Inc. and several individually-named plaintiffs,
including pro se plaintiff Robert L. Schultz, bring this action
against the United States of America, the U.S. Treasury
Department, the Internal Revenue Service, and the U.S. Department
of Justice. Plaintiffs' Complaint "arises from the failure of
the President of the United States and his Attorney General and
his Secretary of the Treasury and his Commissioner of the
Internal Revenue Service, and the failure of the United States
Congress, to properly respond to Plaintiffs' Petitions for
Redress of Grievances against their government, namely:
grievances relating to violations of the U.S. Constitution's war
powers, taxing, money, and "privacy" clauses." See Plaintiffs'
Amended Complaint ("Compl.") at 66. Plaintiffs also allege that
the Executive Branch has retaliated against plaintiffs for
petitioning the government and for "Peaceably Assembling and
Associating with other individuals under the umbrella of the We
the People Foundation for Constitutional Education and the We the
Case 1:04-cv-01211-EGS Document 28 Filed 08/31/2005 Page 1 of 7
2
People Congress." Id.
Pending before the Court are defendants' Motion to Dismiss
and plaintiffs' Motion to Amend the Complaint. Upon
consideration of the motions, the oppositions thereto, and the
replies in support thereof, and for the following reasons, it is
herebyORDERED that the defendants' Motion to Dismiss is GRANTED.
It is furtherORDERED that the plaintiffs' Motion for Leave to File
Amended Complaint is DENIED.I. Motion to Dismiss
A. Standard of ReviewA motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6) should be granted when
it appears "beyond doubt" that there is no set of facts that
plaintiffs can prove that will entitle them to relief. See, Inc., 216 F.3d 1111, 1114 (D.C. Cir.
Sparrow v. United Air Lines
2000). "Accordingly, at this stage in the proceedings, the Court
must accept as true all of the complaint's factual allegations."
Johnson v. District of Columbia
2002).B. Discussion
The First Amendment provides that "Congress shall make no
law ... abridging ... the right of the people peaceably to
Case 1:04-cv-01211-EGS Document 28 Filed 08/31/2005 Page 2 of 7
3
assemble, and to petition the Government for a redress of
grievances." U.S. Const. Amend. I. Plaintiffs contend that they
therefore have a constitutional right to a response to the
petitions they have filed with the various defendants, and that
defendants have committed constitutional torts against plaintiffs
in failing to respond to their petitions. See Pl. Opposition to
Def. Motion to Dismiss ("Pl. Opp.") at 9-10. The Supreme Court,
however, has held that "the First Amendment does not impose any
affirmative obligation on the government to listen, to respond
or, in this context, to recognize the association and bargain
with it." See Smith v. Ark. State Highway Employees, Local 1315,
441 U.S. 463, 465 (1979). Plaintiffs' claims that the defendants
are obligated to "properly" respond to plaintiffs' petitions
shall thus be dismissed for failure to state a claim upon which
relief may be granted.
Plaintiffs' claims based on the "retaliatory actions" the
defendants have allegedly taken against plaintiffs for exercising
their First Amendment rights are similarly flawed. The
governmental actions plaintiffs complain of include sending
plaintiffs threatening letters, placing liens on their property,
raiding plaintiffs' homes or offices, and forcing plaintiffs to
appear before administrative or other tribunals. Compl. at ¶ 48.
It appears that because plaintiffs have not received responses to
their petitions, they have "decided to give further expression to
their Rights under the First Amendment to Speech, Assembly and
Case 1:04-cv-01211-EGS Document 28 Filed 08/31/2005 Page 3 of 7
4
Petition, by not withholding and turning over to government
direct, un-apportioned taxes on Plaintiffs' labor - money earned
in direct exchange for their labor (not to be confused with money
"derived from" labor)." Pl. Opp. at 30-31.
Congress has provided methods for challenging the legality
of such enforcement actions and to prevent governmental abuse.
For example, taxpayers have the right to notice and a hearing
before the federal government can file a notice of a tax lien or
levy. 26 U.S.C. §§ 6320, 6330. Citizens have a right of action
for wrongful levies or other collection actions and for wrongful
failure to release liens. Id. at §§ 7426(a). And taxpayers may
sue to recover money erroneously or illegally assessed or
collected by the government. Id. at § 7422(a).
Plaintiffs do not, however, have a First Amendment right to
withhold money owed to the government and to avoid governmental
enforcement actions because they object to government policy.
See, e.g., Adams v. Comm'r
1999)("Plaintiffs engaging in civil disobedience through tax
protests must pay the penalties incurred as a result of engaging
in such disobedience."); United States v. Rowlee, 899 F.2d 1275,
1279 (2d Cir. 1990)("The consensus of this and every other
circuit is that liability for a false or fraudulent return cannot
be avoided by evoking the First Amendment[.]")(citing cases);
United States v. Kelley
, 864 F.2d 569, 576-77 (7 Cir.), cert. th
denied
Case 1:04-cv-01211-EGS Document 28 Filed 08/31/2005 Page 4 of 7
5
mere advocacy not protected by the First Amendment); Welch v., 750 F.2d 1101, 1108 (1 Cir. 1985) st
("[N]oncompliance with the federal tax laws is conduct that is
afforded no protection under the First Amendment[.]"); United, 652 F.2d 890, 892 (9 Cir.), cert. denied, 454 th
U.S. 1126 (1981)("Tax violations are not a protected form of
political dissent."); United States v. Malinowski, 472 F.2d 850,
857 (3d Cir. 1973)("To urge that violating a federal law which
has a direct or indirect bearing on the object of protest is
conduct protected by the First Amendment is to endorse a concept
having no precedent in any form of organized society where
standards of societal conduct are promulgated by some
authority.").
Moreover, the injunctive relief that plaintiffs seek, that
is, "a temporary injunction against the United States Internal
Revenue Service and the Department of Justice and any other
agency of the United States that arguably may act in this matter
under color of law, from taking any further retaliatory actions
against the named plaintiffs in this proceeding," is clearly
barred by the Anti-Injunction Act, 26 U.S.C. § 7421. See, e.g.,, 809 F.2d 842, 844
Foodservice & Lodging Institute, Inc. v. Regan
(D.C. Cir. 1987)("The Anti-Injunction Act provides that ?no suit
for the purpose of restraining the assessment or collection of
any tax shall be maintained in any court by any person.' 26
U.S.C. § 7421(a)(1982). The Declaratory Judgement Act provides
Case 1:04-cv-01211-EGS Document 28 Filed 08/31/2005 Page 5 of 7
6
that ?[i]n a case of actual controversy within its jurisdiction,
except with respect to Federal taxes ... any court of the United
States ... may declare the rights and other legal relations of
any interested party seeking such declaration, whether or not
further relief is or could be sought.' 28 U.S.C. § 2201(a)(Supp.
III 1985). By their terms, these statutes clearly bar the
appellant's claims for injunctive and declaratory relief as to
the [challenged IRS regulations].").
For the above cited reasons, plaintiffs' complaint must be
dismissed for failure to state a claim, pursuant to Fed. R. Civ.
P. 12(b)(6).II. Motion for Leave to File Amended Complaint
In light of the preceding discussion and the Court's ruling
granting the defendants' motion to dismiss the complaint,
plaintiffs' motion for leave to amend their complaint to add
additional defendants, including the President of the United
States, the United States Congress, the Commissioner of the
Internal Revenue Service and others, as well as adding 1,600
plaintiffs, shall be DENIED as futile. See James Madison Ltd. v., 82 F.3d 1085, 1099 ("Courts may deny a motion to amend a
Ludwig
complaint as futile ... if the proposed claim would not survive a
motion to dismiss.")(citations omitted); see also Nat'l Wrestling, 263 F. Supp. 2d 82, 103-04
Coaches Ass'n v. U.S. Dept. of Educ.
(2003), aff'd, 366 F.3d 1047 (D.C. Cir. 2004), cert. denied, 125
S.Ct. 2537 (2005)(citing and discussing cases supporting a
Case 1:04-cv-01211-EGS Document 28 Filed 08/31/2005 Page 6 of 7
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district court's discretion pursuant to Fed. R. Civ. P. 15(a) to
deny a motion for leave to amend complaint on the grounds of
futility).III. Conclusion
For the reasons set forth herein, it is hereby ORDERED that
the defendants' motion to dismiss the complaint is GRANTED and
plaintiffs' motion for leave to amend their complaint is DENIED.
An appropriate order accompanies this Opinion & Order.
Signed: EMMET G. SULLIVAN
U.S. District Judge
August 31, 2005
Case 1:04-cv-01211-EGS Document 28 Filed 08/31/2005 Page 7 of 7
States v. Ness
United States
, 493 U.S. 811 (1989)(actions that constitute more than, 170 F.3d 173, 182 (3d Cir., 190 F. Supp. 2d 34, 39 (D.D.C.
FEDERAL JURISDICTION TAX QUESTION ANSWERED
2001 WL 306496
87 A.F.T.R.2d 2001-1233, 2001-1 USTC P 50,366
(Cite as: 2001 WL 306496 (S.D.Cal.))
United States District Court, S.D. California.
Matthew A. FOGEL, Plaintiff,
v.
UNITED STATES of America, Defendant.
No. 00-CV-2293-J (LSP).
Feb. 6, 2001.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS WITH PREJUDICE
JONES, District J.
*1 This matter comes before the Court on the United States OF America's Motion to Dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Because section 2201(a) of the Declaratory Judgment Act [FN1] expressly denies federal courts subject matter jurisdiction over requests for declaratory judgments in federal tax matters, the Government's motion to dismiss for lack of subject matter jurisdiction is GRANTED with prejudice. Because the Court lacks jurisdiction, Defendant's motion to dismiss for failure to state a claim upon which relief may be granted is DENIED as MOOT.
FN1. 28 U.S.C. § 2201(a) (2001).
BACKGROUND
Plaintiff, Matthew A. Fogel, was born in New York and has paid taxes in the United States for several years. (Compl. 6, 10.) On November 14, 2000, Mr. Fogel, in propria persona, filed a complaint against the United States of America, alleging "fraud, slavery and involuntary servitude in the application of the Collective Entity Rule." (Compl. at 1.) Plaintiff claims that obtaining a Social Security Number from the government amounts to a contractual relationship with the United States and that paying taxes is voluntary under that contractual relationship. Plaintiff further alleges that because he was not born "within the boundaries of the United States" he is not a "person" or "taxpayer" within the meaning of the United States tax code and thus, his social security "contract" is void. (Compl. 10-13.) Plaintiff now seeks a declaratory judgment which provides him with "non-taxpayer" status and rescinds all "contracts" between him and the United States. (Compl. at 3.)
DISCUSSION
I. Subject Matter Jurisdiction
A. Standard of Review
Under Federal Rule of Civil Procedure l2(b)(1), a motion to dismiss for lack of subject matter jurisdiction may be properly granted if the plaintiff does not meet its burden in establishing that the court has such jurisdiction. Because federal courts are courts of limited jurisdiction, the plaintiff must demonstrate that the court has been authorized to preside over the case either by statute or the constitution. See Willy v. Coastal Corp., 503 U.S. 131, 136-37 (1992). Whenever it appears that the court lacks subject matter jurisdiction, the court is obligated to dismiss the action. Fed.R.Civ.P. 12(h)(3) .In a suit against the United States, a 12(b)(I) motion is proper when sovereign immunity has not been waived. See McCarthy v. United States, 850 F .2d 558, 560 (9th Cir.1988). "[A] waiver cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S. 1,4 (1969).
B. Analysis
The government's motion to dismiss for lack of subject matter jurisdiction must be granted pursuant to 28 U.S.C. § 2201(a), which expressly declares an exception to federal, court jurisdiction in controversies "with respect to Federal taxes" when the plaintiff requests declaratory relief. See Hughes v. United States, 953 F.2d 531, 536-37 (9th Cir. 1991) (where the real issue in the case is whether the plaintiff must pay taxes, the court lacks subject matter jurisdiction under § 2201). Because Plaintiff has requested a declaratory judgment finding that he is a "non-taxpayer" and is not required to file taxes in the United States, this Court lacks subject matter jurisdiction and is obligated to grant the United States' motion to dismiss.
*2 Furthermore, even if Plaintiffs claim validly invoked federal question jurisdiction under 28 U.S.C. § 1331, he has failed to demonstrate that the United States has given consent to be sued and thereby waived its sovereign immunity, a requirement that must be met before this Court may preside over such a case. See United States v. Dalm, 494 U.S. 596,608 (1990). Section 1331 itself does not contain a waiver of sovereign immunity. See Kester v. Campbell, 652 F.2d 13 (9th Cir.1981). Because the Plaintiff has failed to establish that the United States has waved its sovereign immunity, there is undeniably no basis for subject matter jurisdiction in this case. [FN2]
FN2. Plaintiff filed an untimely opposition motion for summary judgment on January 25, 2001. In it he asserts that the United States is not sovereign to him, thus no waiver is necessary. Plaintiff's failure to recognize the U.S. as his sovereign does not obliterate the doctrine of sovereign immunity.
CONCLUSION
Based on the foregoing, Defendant's Motion to Dismiss for lack of subject matter jurisdiction is GRANTED with prejudice pursuant to section 2201(a) of Declaratory Judgment Act. The Defendant's Motion to Dismiss for failure to state a claim upon which relief may be granted is DENIED as MOOT. Plaintiffs Motion for Summary Judgment is also DENIED as MOOT. The Clerk of the Court is ORDERED to close this fIle.
IT IS SO ORDERED.
