United States District Court, D. Kansas
RAYMOND R. MILLER and JO ANNA MILLER, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
plaintiffs Raymond and Jo Anna Miller filed this action on
December 6, 2018, suing various IRS officers and employees.
On, March 11, 2019, the United States filed a motion asking
the court to substitute it as the proper defendant in place
of the IRS officers and employees. Doc. 6. The court granted
that motion. Doc. 10. This matter is now before the court on
the defendant's Motion to Dismiss (Doc. 11). Plaintiffs
have filed a Response (Doc. 16) and defendant has replied
(Doc. 17). And, defendant has filed a Notice of Supplemental
Authority (Doc. 19).
considering a motion to dismiss, the court accepts
well-pleaded factual allegations asserted by the Complaint as
true and views them in the light most favorable to
plaintiffs. Burnett v. Mortg. Elec. Registration Sys.,
Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (citing
Smith v. United States, 561 F.3d 1090, 1098 (10th
Complaint asserts that they cannot be compelled to pay taxes
on their income. Doc. 1 at 3. Plaintiffs' Complaint
alleges “federal agents in the guise of IRS
agents” have taken $134, 562.63 from plaintiffs since
2001 and continue to take their social security checks.
Id. at 2. They allege the “takings were
executed without judicial court orders and without a
warrant” and were not supported by probable cause.
Id. The Complaint references various sources to
support their assertions, including the International
Covenant on Civil and Political Rights and the Declaration of
Independence. Plaintiffs claim “[they] cannot be
compelled or forced to contribute to the social, economic and
cultural development of the United States.”
Id. at 3. And, “[a]nyone who forces [them] to
contribute to the social, economic and cultural development
of the United States is committing a violation of the Law of
Nations . . . .” Id.
allege that the government cannot collect their outstanding
tax liability because taxation is “illegal” and
“unlawful.” Id. at 3, 5-7. Additionally,
plaintiffs claim, they did not receive a pre-assessment
Notice of Deficiency, and they thus are entitled to an
injunction. Plaintiffs attached to their Complaint copies of
orders issued by the United States Tax Court that-they
allege-show that no Notices of Deficiency were ever issued.
Id. at 5; Doc. 1-1; Doc. 1-2.
Complaint alleges seven causes of action against defendant.
The court has categorized their claims into four categories:
(1) Fourth Amendment violations, (2) conspiracy to commit
Fourth Amendment violations, (3) levy of plaintiffs'
property without a Notice of Deficiency in violation of 26
U.S.C. § 6231, and (4) Eighth Amendment violations.
Plaintiffs seek “[a] permanent injunction”
against defendant, “[r]eturn of each and every dollar
seized without warrant and without a judicial order, ”
“[r]eturn [of] all funds taken from any and all
accounts, ” costs, and attorney's fees.
Id. at 9.
moves for dismissal on two grounds: lack of subject matter
jurisdiction and failure to state a claim.
Rule 12(b)(1) Standard
courts are courts of limited jurisdiction and, as such, must
have a statutory basis to exercise jurisdiction.”
Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002)
(citation omitted). Federal district courts have original
jurisdiction over all civil actions arising under the
constitution, laws, or treaties of the United States or where
there is diversity of citizenship. 28 U.S.C. § 1331; 28
U.S.C. § 1332. “A court lacking jurisdiction
cannot render judgment but must dismiss the cause at any
stage of the proceedings in which it becomes apparent that
jurisdiction is lacking.” Basso v. Utah Power &
Light Co., 495 F.2d 906, 909 (10th Cir. 1974) (citation
omitted). Since federal courts are courts of limited
jurisdiction, there is a presumption against jurisdiction,
and the party invoking jurisdiction bears the burden to prove
it exists. Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994).
a motion to dismiss for lack of subject matter jurisdiction
under Fed.R.Civ.P. 12(b)(1) takes one of two forms: a facial
attack or a factual attack. Holt v. United States,
46 F.3d 1000, 1002-03 (10th Cir. 1995). “First, a
facial attack on the complaint's allegations [about]
subject matter jurisdiction questions the sufficiency of the
complaint. In reviewing a facial attack on the complaint, a
district court must accept the allegations in the complaint
as true.” Id. at 1002 (citing Ohio
Nat'l Life Ins. Co. v. United States, 922 F.2d 320,
325 (6th Cir. 1990)) (internal citations omitted).
a party may go beyond allegations contained in the complaint
and challenge the facts upon which subject matter
jurisdiction depends.” Id. at 1003 (citations
omitted). “When reviewing a factual attack on subject
matter jurisdiction, a district court may not presume the
truthfulness of the complaint's factual
allegations.” Id. (citations omitted).
“A court has wide discretion to allow affidavits, other
documents, and [to conduct] a limited evidentiary hearing to
resolve disputed jurisdictional facts under Rule
12(b)(1).” Id. (citations omitted); see
also Los Alamos Study Grp. v. U.S. Dep't of Energy,
692 F.3d 1057, 1063-64 (10th Cir. 2012).
Rule 12(b)(6) Standard
survive a Rule 12(b)(6) 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) (quoting 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.” Id.
(citing Twombly, 550 U.S. at 556). “Under this
standard, ‘the complaint must give the court reason to
believe that this plaintiff has a reasonable
likelihood of mustering factual support ...