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No. 16-2387 (Filed: October 21 ,2016) NOT FOR PUBLICATION FILED ocT 2 i 2016 ) roHN r. DEZMAN, ) r!ot;3^o.'3l|nL ) Pro,Se Plaintiff, ) ) Pro Se Plaintiff; Motion to Dismiss for v. ) Lack ofJurisdiction; RCFC 12(b)(l); ) Tax Refund; Wrongful Lery THE LINITED STATES, ) ) Defendant. )
ORDER GRANTING MOTION TO DISMISS
Pending before the court is defendant the United States' (.,the govemment,')
motion, filed August 8,2016, to dismiss the above-captioned case for lack ofjurisdiction
pursuant to Rule l2(b)(l) of the Rules of the Court of Federal Claims (.,RCFC,').
In his complaint, pro se plaintiff John J. Dezman claims that he is entitled to
damages and injunctive relief on the grounds that the govemment has collected more
taxes from him than he owes, the correct amount of which he alleges is zero, in violation
of the united States constitution and 26 u.s.c. $ 7214. }lr. Dezman also alleges that the
govemment has violated the Racketeer Influenced and corrupt organizations Act
("RICO), 18 U.S.C. $$ 196l-68, and the Hobbs Ac! l8 U.S.C. g 1951. Mr. Dezman
also alleges that the govemment has violated his privacy rights and his rights to be secure
?01,1, uq?0 00De 5D8q 3?5P in his house, papers, and effects. Mr. Dezman states that this court has jurisdiction to
hear his claims pursuant to the Tucker Act, 28 U.S.C. $ 1491, and 26 U.S.C. S 7 426,
which permits certain actions based on a wrongful levy.l
In the pending motion to dismiss, the government argues that the court lacks
jurisdiction to hear Mr. Dezman's case, which the government characterizes as a tax
refund suit, because Mr. Dezman has failed to plead any facts to establish that he fully
paid his assessed tax liability and hled a valid, timely claim for a tax refund. In addition,
the government argues that the court lacks jurisdiction to hear Mr. Dezman's case to the
extent his claims allege violations of criminal law or sound in tort. Finally, the
govemment argues that the court lacks jurisdiction to hear Mr. Dezman's other claims
because the complaint fails to identifu any "money-mandating" source of law. The court
finds that oral argument is not necessary.
A plaintiff has the burden of establishing the court's subject matter jurisdiction by .
a preponderance ofthe evidence. see Fid. & Guar. Ins. (Jnderwriters, Inc. v. united
States,805 F.3d 1082, 1087 (Fed. Cir.20l5) (citingBrandtv. United States, Tl0 F.3d
I Mr. Dezman also names as defendants the United States Attomey General and the Commissioner of the IRS. Because the only proper defendant for any matter before this court is the United States, the court construes Mr. Dezman's claims as claims against the United States. see 28 U.S.c. g 1491; RCFC l0(a) (requiring that the United States be designated as the defendant in any complaint before this covrt); stephenson v. United states, 5g Fed. cl. lg6, 190 (2003) ('[T]he only proper defendant for any matter before this court is the United States, not its officers, nor any other individual." (citing United States v. Sherwood,3 12 U.S. 5g4. 5gg (1941)). 1369,1373 (Fed. Cir.2013);Reynoldsv. Army & Air Force Exch.\erv.,846F.2d746,
748 (Fed. Cir. 1988). "In deciding a motion to dismiss for lack of subject matter
jurisdiction, the court accepts as true all uncontroverted factual allegations in the
complaint, and construes them in the light most favorable to the plaintiff." Estes Express
Lines v. United States,739 F.3d 689,692 (Fed. Cir. 2014) (citing Cedars-Sinai Med. Ctr.
v. lVatkins, l1 F.3d 1573, 1583-84 (Fed. Cir. 1993)). If a motion to dismiss for lack of jurisdiction challenges the jurisdictional facts alleged in the complaint, the court may
consider relevant evidence outside the complaint in order to determine whether it has
jurisdiction. Banks v. Uniled States,T4l F.3d 1268, 1277 (Fed. Cir. 2014) (citing
Reynolds,846F.2d at747). Although pro se plaintiffs are held to less stringent pleading
standards, they must still demonstrate that the court has jurisdiction to hear their claims.
see Matthews v. united states, 750 F.3d 1320,1322 (Fed. cir. 2014) (citation omitted). The Tucker Act, 28 U.S.C. g lagl(a)(1), grants this court jurisdiction to hear..any
claim against the united States founded either upon the constitution, or any Act of congress or any regulation ofan executive department, or upon any express or implied
contract with the United states, or for liquidated or unliquidated damages in cases not
sounding in tort." However, the Tucker Act does not create a substantive cause of action.
Jan's Helicopter Serv., Inc. v. Fed. Aviation Admin.,525 F.3d 1299,1306 (Fed. Cir.
2008). "[I]n order to come within the jurisdictional reach and the waiver of the Tucker
Act, a plaintiff must identif, a separate source ofsubstantive law that creates the right to
money damages." 1d (quoting Fisher v. United states,402F.3d 1167. rr72 Ged. cir. 2005) (en banc in relevant part)). Generally, under the Tucker Act, this court has jurisdiction to hear claims for a
refund of tax alleged to have been erroneously or illegally assessed or collected. .!ee,
e.g.,RadioShackCorp.v.UnitedStates,566F.3dl358, 1360(Fed.Cir.2009). One
prerequisite to bringing a tax refund claim in this court is "payment ofthe assessed taxes
intuII." Ledfordv. UnitedStates,297F.3d1378, 1382 (Fed. Cir.2002)(citingFlorav.
Unit ed S tate s, 362 U. S. | 45, 17 7 (19 60); Rocov ic h v. Unite d S tates, 933 F .2d 99 1, 993 -9 4
(Fed. Cir. 1991)). In addition, under 26 U.S.C. $ 7422(a), "[n]o suit . . . shall be
maintained in any court for the recovery ofany intemal revenue tax alleged to have been
erroneouslyorillegallyassessedorcollected...untilaclaimforrefund...hasbeen
duly filed with" the IRS. See United States v. Clintwood Elkhorn Mining Co., 553 U.S.
1,7 (2008); see also RCFC 9(m) (requiring a party pleading a claim for a tax refund to
include with the complaint a copy of the claim for refund and a statement identifying,
among other things, the tax year or years for which a refund is sought; ,,the amount, date,
and place ofeach payment to be refunded"; and "the date and place the claim for refund
was filed").
In response to the government's motion to dismiss his tax refund claims for lack of jurisdiction, Mr. Dezman argues that he "has indeed paid his 'assessed tax tiability' due
to the IRS levy" and that the subsequent release of the lely shows that the assessed tax
liabilitywaspaidin full. Pl.'sResp. 1. Mr. Dezman further asserts that he "noticed,,the IRS, Compl. fl 8, and states that he "did in fact file a claim for refund" consistent with the
requirements of 26 U.S.C. 57a22@). Pl.'s Resp. 1.2
The court agrees with the government that Mr. Dezman's conclusory statements
are insufficient to establish that this court has jurisdiction to hear his tax refund claim.
See Banks,741 F .3d at 1277; see also RCFC 9(m). Mr. Dezman provides no evidence in
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(}Rflffi[NA!, lln tW @nfteb 5tutts @ourt of fc[rrsl @lsims
No. 16-2387 (Filed: October 21 ,2016) NOT FOR PUBLICATION FILED ocT 2 i 2016 ) roHN r. DEZMAN, ) r!ot;3^o.'3l|nL ) Pro,Se Plaintiff, ) ) Pro Se Plaintiff; Motion to Dismiss for v. ) Lack ofJurisdiction; RCFC 12(b)(l); ) Tax Refund; Wrongful Lery THE LINITED STATES, ) ) Defendant. )
ORDER GRANTING MOTION TO DISMISS
Pending before the court is defendant the United States' (.,the govemment,')
motion, filed August 8,2016, to dismiss the above-captioned case for lack ofjurisdiction
pursuant to Rule l2(b)(l) of the Rules of the Court of Federal Claims (.,RCFC,').
In his complaint, pro se plaintiff John J. Dezman claims that he is entitled to
damages and injunctive relief on the grounds that the govemment has collected more
taxes from him than he owes, the correct amount of which he alleges is zero, in violation
of the united States constitution and 26 u.s.c. $ 7214. }lr. Dezman also alleges that the
govemment has violated the Racketeer Influenced and corrupt organizations Act
("RICO), 18 U.S.C. $$ 196l-68, and the Hobbs Ac! l8 U.S.C. g 1951. Mr. Dezman
also alleges that the govemment has violated his privacy rights and his rights to be secure
?01,1, uq?0 00De 5D8q 3?5P in his house, papers, and effects. Mr. Dezman states that this court has jurisdiction to
hear his claims pursuant to the Tucker Act, 28 U.S.C. $ 1491, and 26 U.S.C. S 7 426,
which permits certain actions based on a wrongful levy.l
In the pending motion to dismiss, the government argues that the court lacks
jurisdiction to hear Mr. Dezman's case, which the government characterizes as a tax
refund suit, because Mr. Dezman has failed to plead any facts to establish that he fully
paid his assessed tax liability and hled a valid, timely claim for a tax refund. In addition,
the government argues that the court lacks jurisdiction to hear Mr. Dezman's case to the
extent his claims allege violations of criminal law or sound in tort. Finally, the
govemment argues that the court lacks jurisdiction to hear Mr. Dezman's other claims
because the complaint fails to identifu any "money-mandating" source of law. The court
finds that oral argument is not necessary.
A plaintiff has the burden of establishing the court's subject matter jurisdiction by .
a preponderance ofthe evidence. see Fid. & Guar. Ins. (Jnderwriters, Inc. v. united
States,805 F.3d 1082, 1087 (Fed. Cir.20l5) (citingBrandtv. United States, Tl0 F.3d
I Mr. Dezman also names as defendants the United States Attomey General and the Commissioner of the IRS. Because the only proper defendant for any matter before this court is the United States, the court construes Mr. Dezman's claims as claims against the United States. see 28 U.S.c. g 1491; RCFC l0(a) (requiring that the United States be designated as the defendant in any complaint before this covrt); stephenson v. United states, 5g Fed. cl. lg6, 190 (2003) ('[T]he only proper defendant for any matter before this court is the United States, not its officers, nor any other individual." (citing United States v. Sherwood,3 12 U.S. 5g4. 5gg (1941)). 1369,1373 (Fed. Cir.2013);Reynoldsv. Army & Air Force Exch.\erv.,846F.2d746,
748 (Fed. Cir. 1988). "In deciding a motion to dismiss for lack of subject matter
jurisdiction, the court accepts as true all uncontroverted factual allegations in the
complaint, and construes them in the light most favorable to the plaintiff." Estes Express
Lines v. United States,739 F.3d 689,692 (Fed. Cir. 2014) (citing Cedars-Sinai Med. Ctr.
v. lVatkins, l1 F.3d 1573, 1583-84 (Fed. Cir. 1993)). If a motion to dismiss for lack of jurisdiction challenges the jurisdictional facts alleged in the complaint, the court may
consider relevant evidence outside the complaint in order to determine whether it has
jurisdiction. Banks v. Uniled States,T4l F.3d 1268, 1277 (Fed. Cir. 2014) (citing
Reynolds,846F.2d at747). Although pro se plaintiffs are held to less stringent pleading
standards, they must still demonstrate that the court has jurisdiction to hear their claims.
see Matthews v. united states, 750 F.3d 1320,1322 (Fed. cir. 2014) (citation omitted). The Tucker Act, 28 U.S.C. g lagl(a)(1), grants this court jurisdiction to hear..any
claim against the united States founded either upon the constitution, or any Act of congress or any regulation ofan executive department, or upon any express or implied
contract with the United states, or for liquidated or unliquidated damages in cases not
sounding in tort." However, the Tucker Act does not create a substantive cause of action.
Jan's Helicopter Serv., Inc. v. Fed. Aviation Admin.,525 F.3d 1299,1306 (Fed. Cir.
2008). "[I]n order to come within the jurisdictional reach and the waiver of the Tucker
Act, a plaintiff must identif, a separate source ofsubstantive law that creates the right to
money damages." 1d (quoting Fisher v. United states,402F.3d 1167. rr72 Ged. cir. 2005) (en banc in relevant part)). Generally, under the Tucker Act, this court has jurisdiction to hear claims for a
refund of tax alleged to have been erroneously or illegally assessed or collected. .!ee,
e.g.,RadioShackCorp.v.UnitedStates,566F.3dl358, 1360(Fed.Cir.2009). One
prerequisite to bringing a tax refund claim in this court is "payment ofthe assessed taxes
intuII." Ledfordv. UnitedStates,297F.3d1378, 1382 (Fed. Cir.2002)(citingFlorav.
Unit ed S tate s, 362 U. S. | 45, 17 7 (19 60); Rocov ic h v. Unite d S tates, 933 F .2d 99 1, 993 -9 4
(Fed. Cir. 1991)). In addition, under 26 U.S.C. $ 7422(a), "[n]o suit . . . shall be
maintained in any court for the recovery ofany intemal revenue tax alleged to have been
erroneouslyorillegallyassessedorcollected...untilaclaimforrefund...hasbeen
duly filed with" the IRS. See United States v. Clintwood Elkhorn Mining Co., 553 U.S.
1,7 (2008); see also RCFC 9(m) (requiring a party pleading a claim for a tax refund to
include with the complaint a copy of the claim for refund and a statement identifying,
among other things, the tax year or years for which a refund is sought; ,,the amount, date,
and place ofeach payment to be refunded"; and "the date and place the claim for refund
was filed").
In response to the government's motion to dismiss his tax refund claims for lack of jurisdiction, Mr. Dezman argues that he "has indeed paid his 'assessed tax tiability' due
to the IRS levy" and that the subsequent release of the lely shows that the assessed tax
liabilitywaspaidin full. Pl.'sResp. 1. Mr. Dezman further asserts that he "noticed,,the IRS, Compl. fl 8, and states that he "did in fact file a claim for refund" consistent with the
requirements of 26 U.S.C. 57a22@). Pl.'s Resp. 1.2
The court agrees with the government that Mr. Dezman's conclusory statements
are insufficient to establish that this court has jurisdiction to hear his tax refund claim.
See Banks,741 F .3d at 1277; see also RCFC 9(m). Mr. Dezman provides no evidence in
support of his statements that he paid the assessed taxes in full or that he filed a refund
claim with the IRS. Moreover, Mr. Dezman provides no indication as to which year or
years he is seeking a refund, which would allow the government to reasonably investigate
his claims. The government, in its reply, states that Mr. Dezman in fact still has an
outstanding balance ofnearly $20,000 in unpaid taxes for tax year 2012. Def.'s Reply 4
(citing Ex. A at A-4).
The court also agrees with the government that it lacks jurisdiction to hear Mr.
Dezman's wrongful levy claim pursuant to 26 U.S.C. $ 7426 to the extent Mr. Dezman
affeges it separately from his tax refund claim. section 7 a26@)(l) permits a third parry to
bring a civil action against the united States in a district court of the united States, not
2 In his complaint, Mr. Dezman states that he "noticed the IRS pursuant to 26 USC'7432.- compl. !f 8. section 7432 of the Intemal Revenue code ("IRC") is titled "civil damages for failure to release lien" and provides in relevant part that a "taxpayer may bring a civil action for damages against the United States in a district cou( of the united states." not this court. for wrongful failure to release a lien on the taxpayer's property.
In his response to the govemment's motion to dismiss, Mr. Dezman states that he filed his administrative refund claim "under 26 cFR 301.7433-1." pl.'s Resp. L section 301.7433-1 is titled "civil cause ofaction for certain unauthorized collection actions" and provides in relevant part that a "taxpayer may bring a civil action for damages against the United States in federal district court," not this court, in connection with unauthorized tax collection after filins an administrative refund claim pursuant to 26 C.F.R. $ 301 .7433- I tet this court, for a wrongful levy. See Dennis v. United States,976F.2d 748 (Fed. Cir.
1992) (per curiam); Four Rivers Investments, Inc. v. United States,77 Fed. Cl. 592, 604
(2007), aff'd sub nom. Four Rivers Inv., Inc.v. United States,330 F App'x919(Fed.
Cir. 2009) (per curiam); Pacettiv. United States,50 Fed. Cl. 239,252-53 (2001).
The court further finds that it lacks jurisdiction to hear Mr. Dezman's criminal law
claims and tort claims pursuant to the Tucker Act, 28 U.S.C. g 1a91(a)(l). See Dumont
v. United States, 345 F. App'x 586, 593 (Fed. Cir. 2009) (per curiam) ("[A] felony claim
for extortion is clearly not within the Claims Court's jurisdiction because the Claims
Court has no jurisdiction over claims of criminal misconduct, including [plaintiff s]
further assertion of a claim arising under RIco." (citing Joshua v. united states, l7 F.3d 378,379 (Fed.Cir. 199a))); seealsoJohnsonv. UnitedStates,127Fed.Cl.529,537,
reconsideration denied, 127 Fed. Cl. 661 (2016) ("The Court also cannot decide
[plaintiff s] Hobbs Act claims because they either involve criminal code violations or
sound in tort." (quoting.llaka v. United States, l0T Fed. Cl. l l l, l l4 (2012)). Finally, the court finds that it lacks jurisdiction to hear Mr. Dezman's other claims
because those claims are not based on a money-mandating source of law. In particular,
this court is bound by Federal circuit precedent holding that the Fourth Amendment,
which provides for "[t]he right ofthe people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures," does not mandate the pavment ofmoney foritsviolation. See Brownv. UnitedStates, 105 F.3d 621,623 (Fed. Cir.
1997).3
For the reasons above, the court finds that it lacks jurisdiction to hear
Mr. Dezman's complaint.a Therefore, the government's motion to dismiss is
GRANTED. The clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
3 Mr. Dezman also asserts that he has identified a money-mandating source of law based on his selection of the "suit code" for "miscellaneous - damages" in the cover sheet accompanying his complaint. Pl.'sResp.2. However, "nature ofsuit" codes are not themselves .ourcer oilu-. 4 The court also finds that it lacks jurisdiction to grant Mr. Dezman's requested injunction. ^see, e.g., Champion v. United States,6l5 F. App'x 690,691(Fed. Cir. 2015) (per curiam) (citation omitted).