Mirch v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 13, 2026
• Docket: 25-814
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 13 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KEVIN J. MIRCH, Attorney; Mrs. MARIE No. 25-814 CLAIRE MIRCH Esquire, Attorney, D.C. No. 3:24-cv-00721-TWR-DDL Plaintiffs - Appellants,

v. MEMORANDUM*

UNITED STATES OF AMERICA,

Defendant - Appellee.

Appeal from the United States District Court for the Southern District of California Todd W. Robinson, District Judge, Presiding

Submitted July 8, 2026** Pasadena, California

Before: RAWLINSON and SANCHEZ, Circuit Judges, and FITZWATER, District Judge.***

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. Kevin Mirch and Claire Mirch (together, Plaintiffs-Appellants) appeal pro se

the district court’s dismissal of their First Amended Complaint (FAC). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

On July 23, 2024, Plaintiffs-Appellants filed the FAC, asserting two claims

under 26 U.S.C. § 7433 for unauthorized collection activities. The government

filed a motion to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of

Civil Procedure. The district court granted the motion, and dismissed Plaintiffs-

Appellants’ FAC with prejudice. The district court determined that it lacked

jurisdiction due to Plaintiffs-Appellants’ failure to exhaust administrative

remedies, and because the action was time-barred. Plaintiffs-Appellants timely

appealed.

A district court’s “dismissal for failure to exhaust administrative remedies”

is reviewed de novo. Kildare v. Saenz, 325 F.3d 1078, 1082 (9th Cir. 2003). We

also review de novo the district court’s ruling on the statute of limitations. See

Bonelli v. Grand Canyon Univ., 28 F.4th 948, 951 (9th Cir. 2022).

1. “A Rule 12(b)(1) jurisdictional attack may be facial or factual. In a

facial attack, the challenger asserts that the allegations contained in a complaint are

insufficient on their face to invoke federal jurisdiction. . . .” Safe Air for Everyone

v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citation omitted). “The district

court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6):

2 25-814 Accepting the plaintiff’s allegations as true and drawing all reasonable inferences

in the plaintiff’s favor, the court determines whether the allegations are sufficient

as a legal matter to invoke the court’s jurisdiction.” Leite v. Crane Co., 749 F.3d

1117, 1121 (9th Cir. 2014) (citation omitted).

Subject to exhaustion of administrative remedies, 26 U.S.C. § 7433 “permits

taxpayers to recover damages from the government for intentional, reckless, or

negligent disregard of the Internal Revenue Code or Treasury Regulations in

connection with the collection of any tax.” Adams v. Johnson, 355 F.3d 1179,

1187 (9th Cir. 2004) (citation omitted); see also 26 U.S.C. § 7433(a), (d)(1).1

As the district court noted, Plaintiffs-Appellants conceded that they failed to

file the written claim required by 26 C.F.R. § 301.7433-1(e) prior to filing their

complaint. Thus, the district court did not err in dismissing the FAC for lack of

jurisdiction due to failure to exhaust administrative remedies. See Conforte v.

United States, 979 F.2d 1375, 1377 (9th Cir. 1993), as amended; see also Gilbert

v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) (stating that the United States is

immune from suit unless sovereign immunity is expressly waived).

1 Plaintiffs-Appellants characterize the challenge to the FAC as a facial attack. The government responds that the characterization is immaterial because the FAC “fails as a facial and factual matter.” Therefore, we proceed on the basis that the motion to dismiss raised a facial attack.

3 25-814 2. Plaintiffs-Appellants maintain that the district court erred in deciding

the statute of limitations issue after concluding that it lacked jurisdiction over the

action. However, a district court always has jurisdiction to determine its

jurisdiction. See Brownback v. King, 592 U.S. 209, 218 (2021). Here, the statute

of limitations in 26 U.S.C. § 7433(d) is jurisdictional. See Aloe Vera of Am., Inc.

v. United States, 580 F.3d 867, 870-72 (9th Cir. 2009), as amended; see also

Libitzky v. United States, 110 F.4th 1166, 1171 (9th Cir. 2024).

Finally, the district court did not err in concluding that the action was time-

barred. Section 7433(d)(3) provides for a two-year statute of limitations for

actions challenging collection activity. The last collection activity alleged in the

FAC occurred on October 27, 2021. Thus, the initial complaint filed on April 22,

2024 was untimely. See Bonelli, 28 F.4th at 951.2 Because this defect cannot be

cured by amendment, the district court did not err in dismissing the complaint with

prejudice. See Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009).

AFFIRMED.

2 Plaintiffs-Appellants argue for the application of equitable tolling. However, a jurisdictional statute of limitations is not subject to equitable tolling. See Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1035 (9th Cir. 2013), aff’d and remanded sub nom. United States v. Wong, 575 U.S. 402 (2015).

4 25-814