Bowman, Jr. v. Iddon

• Court: District Court, District of Columbia
• Decided: October 13, 2015
• Docket: Civil Action No. 2014-0520
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHN J. BOWMAN, Plaintiff v. Civil Action No. 14-520 (CKK) KIMBERLY IDDON, et al., Defendants

MEMORANDUM OPINION (October 13, 2015) Plaintiff John J. Bowman, proceeding pro se, brings this action against five current and

former employees of the Internal Revenue Service (“IRS”), claiming that those employees

violated his Constitutional due process rights in taking action to suspend him from practicing as

an “enrolled agent” before the IRS with defective notice because the notice of the suspension

proceedings was not sent to the correct address. Bowman also claims that the IRS had no

jurisdiction over him as a result of prior criminal proceedings in the United States District Court

for the Western District of Pennsylvania. Bowman seeks damages from the Defendants in their

individual capacities under the doctrine of Bivens v. Six Unknown Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). 1 Presently before this Court is Defendants’ [13] Motion to

Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Defendants argue

that Plaintiff has no standing to bring this action because Plaintiff cannot show that Defendants

1 Notwithstanding Defendants’ suggestion that the complaint “fails to specify the Federal Defendants in their official capacities or personal capacities,” Defs.’ Mot. to Dismiss at 7, the Complaint states clearly that Plaintiff is bringing claims against Defendants in their individual capacities only. See Compl. at 1 (“Wherein, defendants in their individual capacity violated Plaintiff’s Fifth Amendment right.”); id. at 17 (“This lawsuit is brought against 5 defendants in their individual capacity, not their official capacity.”); see also Pl.’s Opp’n at 3 (confirming that the suit is brought against Defendants only in their individual capacities).

1 caused the injury that Plaintiff allegedly suffered. Defendants argue that the Complaint fails to

state a claim upon which relief may be granted and must be dismissed pursuant to Rule 12(b)(6)

because (a) the comprehensive remedial scheme pertaining to the challenged conduct precludes a

Bivens remedy; (b) the claims are barred by absolute immunity or qualified immunity2; (c) the

Complaint fails to allege a Constitutional injury because Bowman was never authorized to

practice as an “enrolled agent”; and (d) the Complaint fails to allege facts sufficient to state a

plausible claim for relief against any of the defendants. Upon consideration of the pleadings, 3 the

relevant legal authorities, and the record for purposes of this motion, the Court GRANTS

Defendants’ motion. The Court concludes that, although Plaintiff has standing to pursue this

action, the Complaint fails to state a claim because a Bivens remedy is unavailable as a result of

the comprehensive remediable scheme regarding the actions that are the basis of this action. The

Court, therefore, need not resolve Defendants other arguments for dismissal. This action is

dismissed in its entirety.

I. BACKGROUND

For the purposes of the motion before the Court, the Court accepts as true the well-

pleaded allegations in Plaintiff’ Complaint. The Court does “not accept as true, however, the

plaintiff’s legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp.

2 Defendants also argue that, insofar as the Complaint includes claims against Defendants in their official capacities, those claims are barred by sovereign immunity. Because the Complaint includes no such claims, the Court has no occasion to consider that argument. 3 The Court’s consideration has focused on the following documents: • Federal Defendants’ Mot. to Dismiss (“Defs.’ Mot. to Dismiss”), ECF No. 13; • Pl.’s Answer to Defs.’ Mot. for Dismissal According to Fed. R. Civ. P. 12(b)(1) (“Pl.’s Opp’n”), ECF No. 16; and • Reply in Support of Federal Defs.’ Mot. to Dismiss (“Defs.’ Reply”), ECF No. 20. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).

2 v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014). The Court recites the facts

pertaining to the issues raised in the pending motion, focusing on those facts relevant to the

inquiries in which the Court engages.

On September 9, 2003, Plaintiff was indicted in the United States District Court for the

Western District of Pennsylvania for multiple felonies, including mail fraud, wire fraud, and

money laundering. Compl., Facts ¶ 2. As a result, Plaintiff was incarcerated between August 10,

2005, and June 18, 2010. Id. ¶ 3. On January 9, 2006, the IRS Officer of Professional

Responsibility sent a notice of proceeding, Complaint No. XP-2006-067, to Plaintiff’s business

address (5031 Route 8 Gibsonia, PA 15044). Id. ¶ 12. Defendant did not receive the notice. See

id. ¶ 13. On March 3, 2006, the IRS sent to the same address notice of the suspension decision by

Defendant Cono Namorato, which stated that “effective this date, you are suspended from

eligibility to practice before the Internal Revenue Service. Your suspension prohibits you from

engaging in practice before the Internal Revenue Service as that term is defined in section

10.2(d) of Circular 230.” Id. ¶ 14. Defendant Karen Copeland notified other IRS employees and

affiliates of the suspension by e-mail on March 15, 2006. Id. ¶ 15. The suspension was

announced publicly through the Internal Revenue Bulletin 2006-18, dated May 1, 2006,

Announcement 2006-23, which publicized disciplinary actions regarding attorneys, certified

public accountants, enrolled agents, and enrolled actuaries. Id. ¶ 16. The Bulletin identified

Plaintiff as an “enrolled agent” and identified the date of his suspension as “indefinite from

March 9, 2006.” 4 Id.; see also Internal Revenue Bulletin, 2006-18 I.R.B. 855, 859 (May 1,

4 The Court notes that Plaintiff does not allege that he was an “enrolled agent.” He only alleges that IRS identified him as an “enrolled agent.” Compl., Facts ¶ 1. In Plaintiff’s Opposition, he explicitly disclaims ever being an enrolled agent. Pl.’s Opp’n at 2. Similarly, in Defendants’ briefing, Defendants argue that Plaintiff never was an enrolled agent. See Def.’s Mot. at 16-18

3 2006), available at http://www.irs.gov/pub/irs-irbs/irb06-18.pdf, last visited October 2, 2015.

Plaintiff did not learn of the suspension until he was released from prison. Compl., Facts ¶¶ 18-

19.

II. LEGAL STANDARD

Pursuant to Article III of the Constitution, Defendant moves to dismiss this action on the

basis that this Court has no jurisdiction because Plaintiff lacks standing. “Article III of the

Constitution limits the jurisdiction of federal courts to ‘actual cases or controversies between

proper litigants.’” Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014) (quoting Fla.

Audubon Soc’y v. Bentsen, 94 F.3d 658, 661 (D.C. Cir. 1996)). Because standing is a “threshold

jurisdictional requirement,” a court may not assume that Plaintiff has standing in order to

proceed to evaluate a case on the merits. Bauer v. Marmara, 774 F.3d 1026, 1031 (D.C. Cir.

2014). A plaintiff “bears the burden of showing that he has standing for each type of relief

sought.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). “To establish constitutional

standing, plaintiffs ‘must have suffered or be imminently threatened with a concrete and

particularized injury in fact that is fairly traceable to the challenged action of the defendant and

likely to be redressed by a favorable judicial decision.’” Mendoza, 754 F.3d at 1010 (quoting

Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014); see also

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a

complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed.

R. Civ. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of

(citing Iddon Decl. ¶¶ 4-5,7; Rogers Decl. ¶¶ 2-5). However, the Court’s resolution of the pending motion to dismiss does not turn on whether or not Bowman was, in fact, an enrolled agent at the time of the suspension or at any other time.

4 ‘further factual enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual

allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly,

550 U.S. at 570. “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.” Iqbal, 556 U.S. at 678.

III. DISCUSSION

Defendants move to dismiss the Complaint because Plaintiffs lack standing to pursue this

action. Defendants also move to dismiss the Complaint for failure to state a claim. The Court

considers first, as it must, the threshold jurisdictional issue of standing.

A. Standing “The ‘irreducible constitutional minimum of standing contains three elements’: injury in

fact, causation, and redressability.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (quoting

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). “Injury in fact is the ‘invasion of a

legally protected interest which is (a) concrete and particularized ... and (b) actual or imminent,

not conjectural or hypothetical.” Id. (quoting Lujan, 504 U.S. at 560) (alterations in original).

“The ‘causal connection between the injury and the conduct complained of’ must be ‘fairly

traceable to the challenged action of the defendant, and not the result of the independent action

of some third party not before the court.’” Id. (quoting Lujan, 504 U.S. at 561). Finally, “it must

be ‘likely, as opposed to merely speculative, that the injury will be redressed by a favorable

decision.’” Id. (quoting Lujan, 504 U.S. at 561).

Defendants only challenge standing with respect to the second prong, arguing that there is

not a sufficient causal connection between the alleged deficiencies in the notice given to Plaintiff

5 regarding the suspension and the harm that he suffered. 5 Defendants present two arguments

about why causation is lacking here, and the Court finds both arguments unavailing.

First, Defendants argue that Plaintiff’s felony convictions were grounds for suspending

him from practice before the IRS as a matter of law—and that therefore any deficiency in notice

was irrelevant. The Court disagrees. Pursuant to IRS Circular 230, with respect to practitioners

who have “been convicted of any crime under title 26 of the United States Code, any crime

involving dishonesty or breach of trust, or any felony for which the conduct involved renders the

practitioner unfit to practice before the Internal Revenue Service,” “the expedited procedures

described in this section may be used to suspend the practitioner from practice before the Internal

Revenue Service.” 31 C.F.R. § 10.82 (emphasis added). Contrary to Defendant’s suggestion,

Circular 230 does not mandate that someone in Plaintiff’s position would necessarily be

suspended from practice. It simply allows the use of expedited procedures to do so. But even

those expedited procedures involve sending notice to the person who would be subject to a

suspension—and Plaintiff’s claim revolves around allegedly defective notice. It is not a foregone

conclusion that Plaintiff would nonetheless have been suspended had Plaintiff received the notice

that he claims was constitutionally required. Therefore, Plaintiff’s status as a felon and the

availability of expedited procedures in these circumstances does not interrupt the chain of

5 The Court notes that Defendants’ argument that Plaintiff did not suffer a “Constitutional injury” because Plaintiff was never authorized to practice as an “enrolled agent” is directed at the question of whether Plaintiff has alleged an injury that could be the basis for a Bivens remedy rather than whether Plaintiff has alleged an injury that would provide him standing to bring this action in the first instance. See Def.’s Mot. at 16 (citing cases analyzing whether injuries would suffice for the purposes of bring Bivens actions). In any event, the Court concludes that, whether or not Plaintiff was ever actually an “enrolled agent,” the fact that he was publicly suspended from practice before the IRS indefinitely, as if he were an “enrolled agent,” qualifies as an injury for standing purposes.

6 causation between the harm that Plaintiff allegedly suffered and the actions that he claims are

unconstitutional.

Second, Defendants argue that the allegedly unconstitutional actions of the IRS

employees did not cause the harm that Plaintiff suffered because any enrolled agent status would

have terminated after three years due to Plaintiff’s failure to comply with the applicable renewal

requirements. The Court disagrees. It appears that Plaintiff claims that he was harmed by

publication of the IRS bulletin indicating that he was suspended. The harm that he claims

accrued immediately when the Internal Revenue Bulletin 2006-18, which noted Plaintiff’s

suspension, was published on May 1, 2006. The fact that the status that Plaintiff may have had as

an enrolled agent would have expired due to Plaintiff’s failure to comply with renewal

requirements at a later point, therefore, does not eliminate causation for standing purposes.

Accordingly, the Court concludes that Plaintiff has standing to pursue the Bivens action

that he purports to bring. The Court next addresses whether it is possible to bring a Bivens action

in these circumstances.

B. Availability of a Bivens Remedy Defendants argue that a Bivens remedy is unavailable in the circumstances of this case

because a comprehensive remedial scheme exists in the Internal Revenue Code and the

accompanying regulations. Plaintiff responds that “constitutional rights, if they are to be rights at

all, must have some discernible remedy.” Pl.’s Opp’n at 3. Plaintiff further responds that

“[l]eaving Plaintiff to pursue remedies without the Court’s assistance through the very agency for

which Defendant Iddon was the main actor on both sides of the investigation would be, in

essence[,] no remedy at all.” Id. The Court agrees with Defendants that Bivens remedy is

7 precluded as a result of the comprehensive remedial scheme in the Internal Revenue Code and its

implementing regulations.

Pursuant to the Supreme Court’s decision in 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, 704-05 (D.C. Cir. 2008). As the D.C. Circuit has counseled,

however, courts “must decline to exercise that discretion where ‘special factors counsel[ ]

hesitation’ in doing so.” Id. “One [such] ‘special factor’ that precludes creation of a Bivens

remedy is the existence of a comprehensive remedial scheme.” Id. That is, 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 “must withhold their power to fashion damages

remedies” pursuant to Bivens. Spagnola v. Mathis, 859 F.2d 223, 228 (D.C. Cir. 1988) (per

curiam) (en banc), rev’d on other grounds, Hubbard v. EPA, 949 F.2d 453, 467 (1991); see also

Schweiker v. Chilicky, 487 U.S. 412, 429 (1988) (when “Congress has discharged that

responsibility [to create a complex government program] ... we see no legal basis that would

allow us to revise its decision”).

Defendants assert that the Internal Revenue Code is one such “comprehensive” remedial

scheme and that the Court therefore should decline to extend Bivens in this instance. The Court

agrees. In Kim v. United States, 632 F.3d 713 (D.C. Cir. 2011), the D.C. Circuit Court of Appeals

considered the situation of aggrieved taxpayers who challenged alleged IRS wrongdoing and

endorsed the conclusion of the district court that “no Bivens remedy was available in light of the

comprehensive remedial scheme set forth by the Internal Revenue Code.” Id. at 717. In Kim, the

8 Court of Appeals also noted that this conclusion was in accordance with numerous other Circuit

Courts. Id. at 717-18 (citing cases).

For the same reasons that a Bivens remedy was unavailable in Kim with respect to the

claims of aggrieved taxpayers, such a remedy is unavailable in the circumstances of this case

with respect Plaintiff’s suspension from practice as an alleged enrolled agent. Congress has

authorized the Secretary of the Treasury to “regulate the practice of representatives of persons

before the Department of the Treasury.” 31 U.S.C. § 330(a)(1). In accordance with this

authorization, the Treasury Department has “created a detailed scheme to address accusations of

practitioner misconduct.” Kenny v. United States, 489 F. App’x 628, 632 (3d Cir. 2012). Those

regulations “contain twenty-two rules governing disciplinary proceedings,” including provisions

for an administrative appeal process within the agency. Id. (citing 31 C.F.R. §§ 10.60–10.82). “A

practitioner may then appeal an adverse determination to the federal district and circuit courts for

further review.” Id. (citing Harary v. Blumenthal, 555 F.2d 1113, 1115 n.1 (2d Cir. 1977); Lopez

v. United States, 129 F. Supp. 2d 1284, 1288 (D.N.M. 2000)). In light of these provisions, the

U.S. Court of Appeals for the Third Circuit considered a purported Bivens claim regarding

disciplinary proceedings before the IRS in Kenny and concluded that the “provisions governing

potential disbarment or suspension before the IRS create a comprehensive remedial scheme for

addressing allegations of practitioner misconduct, including any constitutional concerns raised

by practitioners.” Id. The Third Circuit therefore declined to infer a Bivens remedy regarding

claims about IRS disciplinary proceedings. The same conclusion is applicable in this case. In

light of the D.C. Circuit’s holding in Kim that the Internal Revenue Code establishes a

comprehensive remedial scheme, and given that this remedial scheme is applicable to

9 practitioner misconduct, such as the conduct at issue in this case, the Court concludes that no

Bivens remedy is available to Plaintiff in this case.

As a final matter, the Court notes that the fact that Plaintiff may not, in fact, have ever

been an enrolled agent—either at the time of the suspension or at any other time—does not

change this conclusion. In light of the comprehensive remedial scheme, Plaintiff’s remedy is to

seek redress for his grievances through the scheme set up by Congress and by the regulations of

the Treasury Department. Plaintiff may not, by contrast, seek damages through a Bivens action in

this Court. Because this action is limited to the Bivens remedy that Plaintiff seeks, the Court

dismisses this action in its entirety because no Bivens remedy is available, and the Court has no

occasion to consider any of Defendants’ other arguments in favor of dismissal.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendants’ [13] Motion to Dismiss. This

case is dismissed in its entirety.

An appropriate Order accompanies this Memorandum Opinion.

Dated: October 13, 2015 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge