UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

WILLIAM M. GREENE and KAREN M.

GREENE,
Plaintiffs,
v. No. 08-CV-280
(LEK/DRH)
INTERNAL REVENUE SERVICE,

Defendant.

DAVID R. HOMER
U.S. MAGISTRATE JUDGE

ORDER

Plaintiffs William M. Greene and Karen M. Greene (collectively the “Greenes”)

commenced this action on March 12, 2008 by filing a complaint against defendant Internal

Revenue Service (IRS) seeking qui tam relief. Docket No. 1. In accordance with the

procedure in qui tam actions, the United States of America was given notice of the action to

determine whether it wished to intervene. Docket No. 12; see 31 U.S.C. § 3730(b)(2). The

United States failed to seek to intervene, the Greenes filed an amended complaint, and the

IRS moved to dismiss the amended complaint. Docket Nos. 6, 13. The motion to dismiss

remains pending as does the Greens’ motion for a preliminary injunction. Docket No. 10.

Presently pending before the undersigned is the Greenes’ motion to strike the notice

of appearance filed on behalf of the IRS by an attorney for the United States Department of

Justice (Docket No. 9) and to strike all pleading filed on behalf of the United States and the

IRS. Docket Nos. 14, 18. The IRS opposes the motion. Docket No. 16. In support of their

motion, the Greenes assert that because the United States has already been brought into

this action as a party plaintiff in their qui tam complaints, it cannot also defend the action.
Docket No. 14. The Greenes further assert that only the IRS is named as a defendant and

that the United States is not a party here in any event. First, while the Greenes commenced

this as a qui tam action, the United States has never acted to intervene and is not,

therefore, a party plaintiff here. Second, the IRS is an agency of the United States under

the Secretary of the Treasury. See 26 U.S.C. 7801(a)(1); see also McNeil v. United States,

78 Fed Cl. 211, 220-21 (Fed. Cl. 2007). A suit against the IRS is, therefore, a suit against

the United States. See Nassar v. United States, 792 F. Supp. 1040, 1043 (D. Minn. 1992);

see also Shanklin v. Fernald, 539 F. Supp. 2d 878, 884 (W.D. Tex. 2008). Thus,

representation of the IRS here by attorneys for the United States is proper. See 28 U.S.C.

§§ 515(a), 547.

Accordingly, finding that the notice of appearance filed by the attorney for the IRS

was proper and that all pleadings filed on behalf of the IRS and the United States were

likewise proper, it is hereby

ORDERED that the Greenes’ motion to strike the notice of appearance of the

attorneys for the IRS and all pleadings filed by those attorneys (Docket No. 14) is DENIED

in all respects.

IT IS SO ORDERED.

DATED: July 11, 2008

Albany, New York