United States District Court, E.D. Pennsylvania
EDWARD T. KENNEDY, Plaintiff,
COMMISSIONER, DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE; JOHN DOE, DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE, Defendants.
OPINION UNITED STATES' MOTION TO DISMISS, ECF, 5
F. LEESON, JR. UNITED STATES DISTRICT JUDGE
Edward T. Kennedy alleges that the Commissioner of the
Internal Revenue Service (“IRS”) and an IRS
employee intentionally inflicted emotional distress upon him
when the IRS sent him a letter informing him that he owed
$75, 957.35 in unpaid federal taxes. The United States of
America, as the real party in interest and in place of the
named Defendants, moves to dismiss Kennedy's Complaint
for lack of subject matter jurisdiction pursuant to Federal
Rule of Civil Procedure 12(b)(1), and for failure to state a
claim pursuant to Rule 12(b)(6). Because this Court lacks
jurisdiction over Kennedy's claims, the Motion is
filed his Complaint against the “Commissioner,
Department of Treasury, Internal Revenue Service”;
“John Doe, ” an unnamed employee of the IRS;
Equifax, Inc.; and the Chief Executive Officer of Equifax,
Inc., Richard F. Smith. The Court subsequently dismissed
Equifax and Smith as parties because the claims raised
against them duplicated another lawsuit that Kennedy had
previously filed. See Order, Jan. 31, 2018, ECF No.
2. Thus, the only remaining Defendants in this action are the
IRS and the unnamed IRS employee. Kennedy subsequently
identified the IRS employee as “R.B. Simmons.”
See Pl.'s Mem. Resp. Def.'s Mot. 1, ECF No.
Complaint, Kennedy alleges that he has been the victim of
identity theft, which occurred as the result of the data
breach at Equifax, Inc., “and the IRS knows
this.” Compl. Attach. B, ECF No. 3. Further, he alleges
that he received a letter from the IRS in which the IRS
informed him that he owes $75, 957.35 in federal taxes and
“threatened unlawful[ly]” to take his Social
Security benefits if he did not pay this amount. Id.
Kennedy also states that he “did not amend a 2007 tax
return” and that “[a] claim for a debt from 2007
is past the statute of limitations.” Id. On
the basis of these factual allegations, Kennedy asserts a
claim of intentional infliction of emotional distress
(“IIED”). See Compl. Attach. C,
He seeks money damages for his loss of reputation and seeks
injunctive relief in the form of an order directing that
“all collections [ ] cease for 2007 [t]ax return”
and that his account be credited for $75, 957.35.
Id. He states that the jurisdictional basis for his
lawsuit is “IRS-Tax.” Compl. 2.
United States, asserting that it is the real party in
interest in this matter, moves to dismiss Kennedy's
Complaint on two grounds. First, under Federal Rule of Civil
Procedure 12(b)(2), the United States contends that Kennedy
has failed to establish this Court's jurisdiction over
this matter because he has failed to identify any statute
that waives the United States' sovereign immunity with
respect to his claims in this lawsuit. Second, the United
States contends that, under Rule 12(b)(6), Kennedy's
Complaint fails state a claim upon which relief may be
granted. In response to the United States' Motion,
Kennedy has filed a brief as well as several other documents,
including four motions for summary judgment.
outset, the United States is correct that it is the real
party in interest in this case. See Pilchesky v. United
States, No. CIV.A. 3:08-MC-0103, 2008 WL 2550766, at *3
(M.D. Pa. June 23, 2008) (“A suit against IRS employees
in their official capacity is essentially a suit against the
United States.” (quoting Gilbert v. DaGrossa,
756 F.2d 1455, 1458 (9th Cir. 1985))). The United States and
its agencies are immune from suit unless they consent to
waive immunity and, without such consent, there is no subject
matter jurisdiction. See Ruddy v. United States, No.
3:11-CV-1100, 2011 WL 5834953, at *3 (M.D. Pa. Nov. 21,
2011). As the United States observes in its filings, it has
waived immunity for certain types of claims by means of the
Federal Tort Claims Act, which “was designed primarily
to remove the sovereign immunity of the United States from
suits in tort and, with certain specific exceptions, to
render the Government liable in tort as a private individual
would be under like circumstances.” See Sosa v.
Alvarez-Machain, 542 U.S. 692, 700 (2004) (quoting
Richards v. United States, 369 U.S. 1, 6 (1962)).
Indeed, the FTCA provides “the exclusive remedy for
tort claims against the United States arising from negligent
or wrongful acts of government employees acting within the
scope of their employment.” Lichtman v. United
States, No. CIV.A. 07-10, 2007 WL 2119221, at *4 (E.D.
Pa. June 8, 2007). But the FTCA does not waive immunity for
all torts. Rather, the statute contains several enumerated
exceptions, one of which excludes from the FTCA's waiver
“[a]ny claim arising in respect of the assessment or
collection of any tax.” 28 U.S.C. § 2680(c).
claim of intentional infliction of emotional distress plainly
arises “in respect of the assessment or collection of
[a] tax, ” as he contends he suffered emotional
distress because he received a letter from the IRS informing
him that he owed federal taxes. As a result, Kennedy may not
bring his claim under the FTCA, this Court lacks jurisdiction
over his claim, and the Complaint must be dismissed. See
Petrillo v. United States, No. 3:15-CV-1894-GPC-NLS,
2017 WL 2413396, at *4 (S.D. Cal. May 31, 2017) (dismissing
an IIED claim related to allegedly improper assessment and
collection of taxes because “the plain language of the
FTCA and its exceptions make clear that no taxpayer may sue
the United States for a tort arising out of the assessment or
collection of any tax”); Gavigan v. Com'r.
I.R.S., No. 3:06-CV-942PCD, 2007 WL 1238651, at *8 (D.
Conn. Apr. 27, 2007) (same). The Court dismisses
Kennedy's Complaint with prejudice, as “[a]mendment
would be futile because the United States has not waived its
sovereign immunity as to torts that arise from collection of
tax dollars.” See Petrillo, 2017 WL 2413396,
reasons set forth above, the United States' Motion to
Dismiss is granted and Kennedy's Complaint is dismissed
with prejudice. A separate order follows.