Case 2:12-cv-00320-DBH Document 95 Filed 01/07/13 Page 1 of 7 PageID #: 967
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MAINE
`
`
`F. WILLIAM MESSIER, et al.,
`
`
`
`
`
`
`Plaintiff
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`
`
`INTERNAL REVENUE, et al.,
`
`
`
`
`
`
`Defendants
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`)
`)
`)
`)
`) 2:12-cv-00320-DBH
`)
`)
`)
`)
`
`RECOMMENDED DECISION
`
`On or about October 1, 2012, the plaintiffs filed their “Complaint and Motion for
`
`Summary Judgment or Jury Trial” in the Superior Court for the State of Maine, Sagadahoc
`
`County. The United States removed the case to this Court on October 19, 2012, because it, its
`
`agencies, its IRS special agents, the United States Senate, and Senator Susan M. Collins were
`
`named as defendants. The two pro se plaintiffs are Messier, who alleges that he is not required
`
`to pay taxes because he is “not an officer, agent, [or] employee of the corporate United States”
`
`(Complaint (part 1) at 6, ECF No. 1-1 (emphasis omitted)), and David Robinson, whose interest
`
`is apparently attributable to his claimed status as the “Interim Attorney General” of the “Maine
`
`Free State.” (Id. at 25.)
`
`The 89-page complaint flows from the plaintiffs’ contentions that the federal income tax
`
`is not binding and that the IRS has no authority to levy. The complaint randomly incorporates
`
`extrinsic documents, such as “Maine Republic Email Alerts,” espousing extreme tax-
`
`protestor views. The complaint alleges that Messier has no federal income tax liabilities and that
`
`the IRS’s levies to his customers were wrongful.
`
`
`
`The term “customers” refers to a host of telecommunications companies named as
`
`defendants. The plaintiff, F. William Messier, leases real estate in Brunswick, Maine, to several
`
`

`
`Case 2:12-cv-00320-DBH Document 95 Filed 01/07/13 Page 2 of 7 PageID #: 968
`
`companies that operate telecommunication towers on his land. Messier allegedly believes he has
`
`no obligation to pay federal income tax, for reasons explained in the complaint, including that
`
`only federal employees are subject to income tax and “[t]he entire IRS Code is unconstitutional,
`
`null, and void . . . .” (Id. at 16.) In accordance with those beliefs, Messier failed to file income
`
`tax returns for the years 2000 through 2010. The IRS made assessments against Messier of
`
`income tax, and related penalties and interest, for the years 2000 through 2004, based on
`
`information provided to the IRS by third parties. The balance of those liabilities, as of October
`
`31, 2012, was $133,990. In early 2012, IRS Revenue Officer Joline Henderson began collecting
`
`the liabilities, including by issuing levies to Messier’s “customers,” i.e., the leaseholders.
`
`
`
`The Court now has before it nine motions to dismiss filed by various defendants (ECF
`
`Nos. 24, 26-29, 31, 40, 45, and 63) and a host of motions/demands/notices filed by the plaintiffs,
`
`including but not limited to ECF Nos. 59, 67, and 68. I now recommend that the Court grant all
`
`nine of the motions to dismiss filed by the defendants rendering the numerous pleadings/motions
`
`filed by plaintiffs moot. I note that the plaintiffs have filed a tardy (and meaningless) opposition
`
`to all of the pending motions to dismiss. (ECF No. 93.)
`
`DISCUSSION
`
`The Telecommunications Companies’ Motions
`
`
`
`For ease of reference I will treat all of these motions (seven in total) as identical, although
`
`some of the telecommunications defendants have raised issues other than lack of subject matter
`
`jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. I am confident that
`
`this Court lacks jurisdiction to entertain this taxpayer dispute over the IRS claims regarding
`
`unpaid federal income taxes and thus I believe no further analysis of the claims and defenses is
`
`
`
`2
`
`

`
`Case 2:12-cv-00320-DBH Document 95 Filed 01/07/13 Page 3 of 7 PageID #: 969
`
`necessary.1 Congress has vested the United States Tax Court with exclusive jurisdiction over
`
`challenges to federal income tax liabilities and collection. See Marino v. Brown, 357 F.3d 143,
`
`145-146 (1st Cir. 2004) (addressing challenge to federal tax liability in U.S. District Court in first
`
`instance as “completely frivolous” and noting that it is uncontroverted that the Tax Court has
`
`exclusive jurisdiction in cases involving income tax liability); Voelker v. Nolen, 365 F.3d 580,
`
`581 (7th Cir. 2004) (determining that exclusive jurisdiction vested in the Tax Court in a case
`
`involving requested relief including suspension of IRS collection effort). See also 26 U.S.C. §
`
`7433(a) (permitting a damages claim in the district court against officers or employees of the
`
`Internal Revenue Service only for reckless or intentional disregard of tax law in connection with
`
`collection activity, not for the imposition or calculation of tax liability).
`
`The Town of Brunswick’s Motion
`
`
`
`The Town of Brunswick is not responsible for creating or administering federal tax law
`
`on behalf of the IRS, so it is a mystery to me why it has been named as a party in this lawsuit.
`
`The plaintiffs’ complaint contains generalized grievances against the IRS and the federal income
`
`tax laws. It does not explain what role, if any, the Town of Brunswick has served in connection
`
`with the events giving rise to the lawsuit, other than it is the municipality wherein Messier’s real
`
`estate is located. The litany of relief requested does not contain any specific reference to the
`
`Town of Brunswick, but refers to obtaining relief against fifteen “payors” and the IRS. There is
`
`no suggestion that plaintiffs are asserting a claim of municipal liability against the Town of
`
`Brunswick under 42 U.S.C. § 1983. I am unable to ascertain any claim against the Town of
`
`
`1
`Because the complaint is devoid of any plausible allegations that would support any theory of liability
`against any of these telecommunications defendants and because the relief plaintiffs request in the complaint would
`require these defendants to take measures in violation of legal obligations imposed upon them by federal law, it
`patently fails to state a claim against this set of defendants under Ashcroft v. Iqbal, 556 U.S. 662 (2009). Thus, to
`the extent the telecommunications companies have argued they are entitled to dismissal under Fed. R. Civ. P.
`12(b)(6) they are entitled to dismissal on that basis as well.
`
`
`
`3
`
`

`
`Case 2:12-cv-00320-DBH Document 95 Filed 01/07/13 Page 4 of 7 PageID #: 970
`
`Brunswick and the only claims I can glean from the complaint pertain to income tax laws. I
`
`therefore conclude that there is no subject matter jurisdiction in this Court and judgment should
`
`enter on behalf of the Town.
`
`The Federal Defendants’ Motion
`
`
`
`The plaintiffs’ complaint targets the IRS for acting in violation of the Fair Debt
`
`Collection Practices Act, 15 U.S.C. § 1692. Toward that end the Internal Revenue Service, its
`
`Commissioner, its secretary, and three IRS agents have been named as defendants. Additionally
`
`Senator Susan Collins and the United States Senate are named defendants. I will address the
`
`claims against Senator Collins first.
`
`The plaintiffs’ claims against the United States Senate and Senator Collins are
`
`jurisdictionally barred, as well as frivolous on the merits. While the case caption appears to
`
`name Senator Collins as a defendant, the only reference to her in the body of the complaint is
`
`contained in an attached copy of a July 23, 2012, letter from Plaintiff Robinson to the Senator
`
`asking for her help with regard to a matter involving unspecified governmental wrongdoing and
`
`stating that he would be filing with the local sheriff a “Citizen Complaint” against her for
`
`committing a “Violation Worthy of Arrest” by voting ten years ago in favor of the legislation
`
`establishing the Department of Homeland Security. (Complaint (part 2), ECF No. 1-2, PageID #
`
`71.) The only relief requested against the Senator and/or the Senate is injunctive, namely, that the
`
`court “order the Office of Maine Senator Susan M. Collins to announce the settlement of this
`
`case in the House of Representatives in Maine and Washington, D.C.” (Id. (part 1), ECF No. 1-
`
`1, Page ID # 7.) The Senate is not referenced anywhere in the body of the complaint. The
`
`Speech or Debate Clause of the United States Constitution, Article I, Section 6, provides
`
`members of Congress with an absolute immunity that shields them from any sort of attack based
`
`
`
`4
`
`

`
`Case 2:12-cv-00320-DBH Document 95 Filed 01/07/13 Page 5 of 7 PageID #: 971
`
`on their “legislative acts”—that is, acts which are “an integral part of the deliberative and
`
`communicative process by which Members participate in committee and House proceedings with
`
`respect to the consideration and passage or rejection of proposed legislation or with respect to
`
`other matters which the Constitution places within the jurisdiction of either House.” Gravel v.
`
`United States, 408 U.S. 606, 625 (1972). While it is unclear why Senator Collins is being sued
`
`in this Court, it is clear the complaint against her should be dismissed.
`
`The complaint also targets the Internal Revenue, Douglas H. Shulman, the
`
`Commissioner, the Internal Revenue Service, and Manual Dias Saldana, the Secretary of the
`
`IRS. The Internal Revenue Service is not an entity subject to suit, and the “Internal Revenue,”
`
`which the complaint asserts is a separate governmental defendant from the IRS, does not exist.
`
`Furthermore, the plaintiffs’ demands for relief against the federal government and its officials are
`
`really claims against the United States itself and such claims are barred by the sovereign
`
`immunity doctrine, and the Tax Anti-Injunction Act, 26 U.S.C. § 7421. The limitations and
`
`conditions upon which the United States has waived its sovereign immunity must be strictly
`
`observed. Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999). Plaintiffs have
`
`not pointed to any possible waiver of sovereign immunity that would cover the conduct at issue
`
`in this complaint.
`
`Finally, the complaint targets three special agents of the IRS who have apparently been
`
`involved in the collection efforts relating to Messier. To the extent the complaint is brought
`
`pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq., the Act does not
`
`even apply to “any officer or employee of the United States or any State to the extent that
`
`collecting or attempting to collect any debt is in the performance of his official duties.” 15
`
`U.S.C. § 1692a(6)(C). To the extent the three agents are targeted for having individually
`
`
`
`5
`
`

`
`Case 2:12-cv-00320-DBH Document 95 Filed 01/07/13 Page 6 of 7 PageID #: 972
`
`violated plaintiffs’ constitutional rights under a Bivens v. Six Unknown Named Agents of the
`
`Federal Bureau of Narcotics, 403 U.S. 388 (1971) rationale, the plaintiffs have not stated a
`
`plausible claim that would exceed the scope of the defendants’ immunity under Harlow v.
`
`Fitzgerald, 457 U.S. 800, 818 (1982) (extending qualified immunity over actions that do not
`
`violate a “clearly established statutory or constitutional right of which a reasonable person
`
`would have known”) (emphasis added).
`
`In the final analysis plaintiffs’ complaint is simply a conglomeration of well-worn
`
`taxpayer protest arguments. These arguments have been considered and uniformly rejected by
`
`courts for years. See, e.g., United States v. Gerards, 999 F.2d 1255, 1256 (8th Cir. 1993)
`
`(rejecting claim that citizenship of state precludes citizenship of United States); Ryan v. Bilby,
`
`764 F.2d 1325, 1328 (9th Cir. 1985) (holding that Internal Revenue Code was properly enacted);
`
`Knoblauch v. Comm’r of Internal Revenue, 749 F.2d 200, 201 (5th Cir. 1984) (rejecting claim
`
`that the Sixteenth Amendment was not properly ratified); see also Donaldson v. United States,
`
`400 U.S. 517, 534 (1971) (declaring that the IRS is an agency of the federal government and not
`
`a private company; superseded by statute on other grounds involving IRS authority to examine
`
`third party documents); Brushaber v. Union Pac. R.R., 240 U.S. 1, 18-19 (1916).
`
`CONCLUSION
`
`
`
`I recommend that the Court grant the motions to dismiss filed by all defendants. All
`
`motions filed by the plaintiffs should be terminated as moot once the motions to dismiss are
`
`granted.
`
`NOTICE
`
`
`
`A party may file objections to those specified portions of a magistrate
`judge’s report or proposed findings or recommended decisions entered pursuant to
`28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is sought,
`together with a supporting memorandum, within fourteen (14) days of being
`
`
`
`6
`
`

`
`Case 2:12-cv-00320-DBH Document 95 Filed 01/07/13 Page 7 of 7 PageID #: 973
`
`served with a copy thereof. A responsive memorandum shall be filed within
`fourteen (14) days after the filing of the objection.
`
`
`
`Failure to file a timely objection shall constitute a waiver of the right to de
`novo review by the district court and to appeal the district court's order.
`
`
`January 7, 2013
`
`
`
`
`
`
`
`
`
`
`/s/ Margaret J. Kravchuk
`U.S. Magistrate Judge
`
`
`
`7