Welcome to Scribd. Sign in or start your free trial to enjoy unlimited e-books, audiobooks & documents.Find out more
Download
Standard view
Full view
of .
Look up keyword
Like this
0Activity
0 of .
Results for:
No results containing your search query
P. 1
Memo of Law, Motion to Dismiss, Fattah v. IRS, FBI, DOJ

Memo of Law, Motion to Dismiss, Fattah v. IRS, FBI, DOJ

Ratings: (0)|Views: 8|Likes:
Published by Chaka Fattah Jr.
Government's argument seeking to dismiss
Government's argument seeking to dismiss

More info:

Published by: Chaka Fattah Jr. on Jul 14, 2014
Copyright:Traditional Copyright: All rights reserved

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

07/14/2014

pdf

text

original

 
 1
11453135.1
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CHAKA FATTAH, JR., : CIVIL ACTION : Plaintiff : : v. : No. 14-1092-TJS : UNITED STATES OF AMERICA, et al., : : Defendants. :
DEFENDANTS’ BRIEF IN SUPPORT OF ITS MOTION TO DISMISS CLAIMS UNDER PRIVACY ACT AND 26 U.S.C. §§ 7431, 7433, AND FOR SUMMARY JUDGMENT AS TO REMAINING CLAIM FOR REFUND OF PENALTIES
Plaintiff’s amended complaint grasps at various legal theories, but they all fall short of what is required to bring a claim in federal court. Plaintiff alleges that, on February 29, 2012, two IRS special agents interviewed him in his unit in a high-rise apartment building in Center City Philadelphia. He alleges the agents also served him with a subpoena. Later that day, he alleges various news outlets carried news reports – and photographs – about a “raid” by federal agents, including the FBI and the IRS. Almost exactly two years later, Plaintiff filed a complaint against the IRS. He claimed the IRS owed him a refund of tax penalties, and he also sought almost $1 million in damages for the IRS’s visit on February 29, 2012 – namely, arriving too early in the morning, and not contacting Plaintiff’s lawyer before arriving. (Docs. 1-2, 1-3.) Plaintiff amended his complaint to add a brand new claim against the United States, alleging that he believed the media received his tax return information before and after the February 29 interview in his apartment. (Doc. 11.) That new claim was leveled not only against the IRS, but also against new defendants, the FBI and Department of Justice, because he believed
 
 2
11453135.1
they may the source of the media reports and advance notice.
1
 Plaintiff’s claims are insufficiently supported by factual allegations, and they do not fall within specific, limited waivers of sovereign immunity. Therefore, the Court lacks subject matter jurisdiction, or in the alternative, Plaintiff has failed to state a claim upon which relief may be granted.
2
 
LEGAL STANDARDS
“Jurisdiction over any suit against the Government requires a clear statement from the United States waiving sovereign immunity, together with a claim falling within the terms of the waiver.”
United States v. White Mountain Apache Tribe
, 537 U.S. 465, 472 (2003). The waiver must be unequivocally expressed in statutory text and it cannot be implied or inferred.
United States v. Nordic Village, Inc.
, 503 U.S. 30, 33-34 (1992);
 Irwin v. Dep’t of Veterans Affairs
, 498 U.S. 89, 95 (1990);
Clinton County Comm’rs v. E.P.A.
, 116 F.3d 1018, 1021 (3d Cir. 1997). Any ambiguity must be construed strictly in favor of immunity.
 Nordic Village
, 503 U.S. at 34. If the plaintiff cannot carry his burden to show a claim falls within a waiver of immunity, the claim must be dismissed. Fed. R. Civ. P. 12(b)(1). In this case, Plaintiff’s complaint is insufficient to establish jurisdiction, which would trigger a “facial attack” under Fed. R. Civ. P. 12(b)(1).
CNA v. United States
, 535 F.3d 132, 139 (3d Cir. 2008) (describing “facial” versus “factual” attack). But the United States’ present motion is also a “factual attack” on jurisdiction: the question is whether the Court actually has  jurisdiction, i.e., “the actual failure of a plaintiff’s claim to comport factually with the
1
 Plaintiff’s pleadings also mention the Privacy Act, 5 U.S.C. § 552a
2
 Plaintiff seeks a trial by jury, but a jury is not available in connection most or all of his claims. To the extent that any of his claims survive dismissal, the United States will then move the Court to strike the jury demand if warranted.
 
 3
11453135.1
 jurisdictional prerequisites.”
CNA,
 535 F.3d at 139. When considering a factual attack, “[n]o  presumptive truthfulness attaches to plaintiff’s allegations,” and the plaintiff bears the burden of establishing that jurisdiction does, in fact, exist.
 Mortensen v. First Fed. Savings & Loan Ass’n.
, 549 F.2d 884, 891 (3d Cir. 1977). The Court, therefore, may consider evidence outside the  pleadings “to satisfy itself as to the existence of its power to hear the case.”
 Id.
 Even if the Court determined that it had subject matter jurisdiction, Plaintiff has failed to allege sufficient – or the necessary – facts to state a plausible claim upon which relief may be granted. As such, his claims are insufficiently pleaded under the Federal Rules of Civil Procedure. The party seeking relief must put forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss such as this, a complaint must contain more than a “formulaic recitation of the elements of a cause of action,” “labels[,] and conclusions.”
 Bell Atlantic Corp. v. Twombly
, 550 U.S. 544, 555 (2007);
 Ashcroft v. Iqbal 
, 556 U.S. 662, 678 (2009),
quoting Twombly
, 550 U.S. at 570 (after stripping away “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” there must remain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”);
 Baraka v. McGreevey
, 481 F.3d 187, 195 (3d Cir. 2007) (courts are not required to accept as true “unsupported conclusions and unwarranted inferences” or “legal conclusions”). The “[f]actual allegations must be enough to raise a right to relief above the speculative level.”
Twombly
, 550 U.S. at 555. This standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
 Id.
 As set forth below for each of Plaintiff’s claims, the amended complaint does not meet this standard, and therefore, the claims should be dismissed.

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->