                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                       September 18, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
GERARDO RIVERA; OSCAR PRIETO;
HECTOR BACA; JUAN DOMINGUEZ;
STEVE WILSON; ELIJIO BORJA;
MIRIAM GRANADOS,

      Plaintiffs - Appellants,

v.                                                         No. 16-2277
                                                (D.C. No. 1:16-CV-00946-RB-KK)
INTERNAL REVENUE SERVICE; JOHN                              (D. N.M.)
KOSKINEN; UNITED STATES OF
AMERICA,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
                  _________________________________

      Plaintiffs-Appellants in this case are Miriam Granados, a tax-return preparer

doing business as Columbia Tax Service (“Columbia”), and six of her clients

(“Clients”). Plaintiffs filed a class-action complaint against the Internal Revenue

Service (“IRS”) challenging its voluntary Annual Filing Season Program (“AFSP”)


      *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
for certain tax-return preparers and the IRS’ investigation of Columbia and audits of

Client tax returns prepared by Columbia. The district court sua sponte dismissed

their claims for lack of subject matter jurisdiction. Exercising appellate jurisdiction

under 28 U.S.C. § 1291, we affirm.

                                            I

      The AFSP is a voluntary program offered by the IRS that allows

non-credentialed tax-return preparers to be listed on the IRS’ online “Directory of

Federal Tax Return Preparers” if they complete continuing education courses, pass an

exam and comply with other elements of the program. Am. Inst. of Certified Pub.

Accountants v. IRS, 804 F.3d 1193, 1195 (D.C. Cir. 2015). The AFSP’s purpose is to

encourage tax-return preparers who are not attorneys, certified public accountants, or

registered agents to complete continuing education courses in order to increase their

knowledge of relevant federal tax law. Id. The IRS began offering this program

after the D.C. Circuit held that the IRS lacked authority to issue a rule requiring

non-credentialed tax-return preparers to register with the IRS and comply with

similar requirements. See id.; Loving v. IRS, 742 F.3d 1013, 1015 (D.C. Cir. 2014).

      According to Plaintiffs’ first amended complaint, Columbia is a longtime

non-credentialed tax-return preparer that decided not to enroll in the voluntary AFSP.

The complaint alleges that as a result the IRS has targeted Columbia in a criminal

investigation, is pressuring the Clients to “denounce and impute” Columbia by

conducting audits and examinations of their Columbia-prepared tax returns, and is

contacting the Clients, sometimes without prior notice, in connection with the

                                            2
agency’s criminal investigation of Columbia. The complaint alleges the IRS is being

“more intrusive and aggressive than necessary” in auditing the Clients’ tax returns,

and has violated the Clients’ “basic rights” in the course of these audits by ignoring

crucial evidence, disallowing lawful deductions, issuing defective and misleading

notices, and harassing and intimidating them. Aplts. App. at 11; see id. at 13.

      Based on these allegations, Plaintiffs assert three substantive claims against

the IRS and IRS Commissioner under the Administrative Procedures Act (“APA”),

5 U.S.C. §§ 701-706.1 In Count 1, Columbia asks the court to invalidate the AFSP

on the ground that it exceeds the IRS’ statutory authority. In Count 2, both Columbia

and the Clients assert that the IRS’ “harassment and intimidation” of the Clients

constitutes a final agency action that is contrary to their constitutional rights. Aplts.

App. at 21. Similarly, in Count 3, the Clients allege that the IRS violated their

constitutional rights and was arbitrary and capricious in issuing tax deficiency notices

to them. As relief, Plaintiffs seek a declaration that the IRS actions of which they




      1
          In “Count 4” of the complaint and in the case caption, Plaintiffs also purport
to name the National Taxpayer Advocate as an involuntary plaintiff in this action.
Aplts. App. at 5, 23. On February 14, 2017, the United States filed a Motion to
Correct the Case Caption and Clarify that the National Taxpayer Advocate Is Not a
Party to This Case in this court. The United States reports that the National Taxpayer
Advocate is a federal employee who reports to the IRS Commissioner. Mot. at 2.
The National Taxpayer Advocate has not appeared in this action or been compelled to
join it as an involuntary plaintiff. See Fed. R. Civ. P. 19(a)(2) (required party may be
made an “involuntary plaintiff” by court order). Plaintiffs also concede that the
Advocate is not currently a party to this case and that the caption should reflect this.
See Aplts. Br. at 5-6. The United States’ motion is therefore granted, and the caption
of the appeal has been revised accordingly.
                                            3
complain are unconstitutional and in violation of federal law and an order enjoining

these actions.

       In November 2016, the district court dismissed the complaint sua sponte for

lack of subject matter jurisdiction upon finding that the United States had not waived

its sovereign immunity with respect to these claims. This appeal followed.

                                               II

       We review a dismissal for lack of subject matter jurisdiction de novo. Smith v.

United States, 561 F.3d 1090, 1097 (10th Cir. 2009). Because the issues presented

for review are facial challenges to the sufficiency of Plaintiffs’ amended complaint,

we assume for purposes of this appeal that the allegations are true. See id.

                                               A

       Under the doctrine of sovereign immunity, the United States “may not be sued

without its consent and . . . the existence of consent is a prerequisite for jurisdiction.”

United States v. Mitchell, 463 U.S. 206, 212 (1983). The burden is on the plaintiff “to

find and prove an explicit waiver of sovereign immunity.” Fostvedt v. United States,

978 F.2d 1201, 1203 (10th Cir. 1992) (internal quotation marks omitted).

       The only statute Plaintiffs cite in their complaint that includes a waiver of

sovereign immunity is § 702 of the APA, in which Congress waived the United States’

immunity from suit for actions “seeking relief other than money damages and stating a

claim that an agency or an officer or employee thereof acted or failed to act in an official

capacity or under color of legal authority.” 5 U.S.C. § 702. Because Plaintiffs’ suit



                                               4
against the IRS does not seek monetary relief, it falls within the APA’s waiver of

sovereign immunity unless an exception to the waiver applies.2

       The APA’s sovereign immunity waiver does not apply “if any other statute that

grants consent to suit expressly or impliedly forbids the relief which is sought.” Id. As

relevant here, there are two statutes that forbid the relief Plaintiffs seek with respect

to the IRS’ investigations and audits: the Anti-Injunction Act (“AIA”), 26 U.S.C.

§ 7421(a), and the tax exception provision of the Declaratory Judgment Act (“DJA”),

28 U.S.C. § 2201(a). The AIA bars suit in federal district court “for the purpose of

restraining the assessment or collection of any tax,” 26 U.S.C. § 7421(a), and the DJA

prohibits declaratory judgments “with respect to Federal taxes,” 28 U.S.C. § 2201(a).

See Fostvedt, 978 F.2d at 1203. In spite of the DJA’s broader language, its tax exception

is coterminous with the AIA’s prohibition. Green Sol. Retail, Inc. v. United States,

855 F.3d 1111, 1115 (10th Cir. 2017). The AIA and DJA prohibitions apply “not

only to the actual assessment or collection of a tax, but [are] equally applicable to




       2
          The waiver of sovereign immunity provided in APA § 702 encompasses both
claims for nonmonetary relief asserted under the APA and claims asserted against
federal agencies under other, non-APA authority. See, e.g., Simmat v. U.S. Bureau of
Prisons, 413 F.3d 1225, 1233 (10th Cir. 2005) (holding APA’s waiver of sovereign
immunity is not limited to suits under the APA); Trudeau v. Fed. Trade Comm’n,
456 F.3d 178, 186 (D.C. Cir. 2006) (same). As a result, the district court’s finding
that the IRS’ ongoing investigations and audits were not final agency actions and
hence not reviewable under the APA, Aplts. App. at 27, is not relevant to
determining whether the APA’s waiver of sovereign immunity applies in this case.
See Trudeau, 456 F.3d at 187 (holding APA § 702’s waiver applies to claims against
an agency for nonmonetary relief regardless of whether the challenged agency action
constitutes “final agency action” subject to review under APA § 704).
                                             5
activities leading up to, and culminating in, such assessment and collection.” Id.

at 1116 (internal quotation marks omitted) (discussing AIA).

      It is clear from the complaint, and undisputed by Plaintiffs here, that the IRS is

conducting the investigations, audits and other actions complained of as part of the

agency’s tax assessment and collection efforts. Accordingly, Counts 2 and 3 of the

complaint, in which Columbia and the Clients seek an order enjoining the IRS’

investigations, audits and notices of deficiency towards them and a declaration that

they are unconstitutional and in violation of federal law, fall within the prohibitions

stated in the AIA and DJA and therefore outside of the waiver of sovereign immunity

provided in the APA.3

      Plaintiffs apparently accept that the AIA and DJA bar Count 3 of their

complaint, in which they seek to invalidate and enjoin the notices of deficiency the

IRS issued the Clients, because Plaintiffs concede in their opening brief that the

district court lacked jurisdiction over this claim. Aplts. Br. at 14-15. They maintain,

however, that they may proceed with their claim seeking to enjoin the IRS’

investigation and audits (Count 2), because Congress “has not allowed the IRS to

infringe on the taxpayer’s constitutional rights and claim lack of consent to be sued.”

      3
         There are statutory and judicial exceptions to the prohibitions in the AIA and
DJA, see Fostvedt, 978 F.2d at 1203 n.4 (citing exceptions), but Plaintiffs failed to
mention or present argument regarding these exceptions in their briefing to this court.
Accordingly, Plaintiffs have forfeited any argument that their claims fall within these
exceptions. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (stating
“the omission of an issue in an opening brief generally forfeits appellate
consideration of that issue”); see also Fostvedt, 978 F.2d at at 1203 n.4 (refusing to
consider whether exceptions to AIA and DJA prohibitions applied because the
petitioner had failed to bring himself within any of them).
                                            6
Aplts. Br. at 13. They do not reference the AIA, DJA or any other statute in making

this argument, however, and instead rely only on the Fifth Circuit’s decision in

Rutherford v. United States, 702 F.2d 580 (5th Cir. 1983).

      Rutherford does not support Plaintiffs’ argument. In that case, the court

considered whether a taxpayer’s due process claim against an IRS agent for damages

caused by his allegedly abusive behavior in a tax assessment was properly dismissed

for failure to state a claim on which relief could be granted. Id. at 582-83. The court

held that the ground relied upon by the district court, that due process was provided

by the post-deprivation statutory remedies for tax over-assessments, was improper

because it was not responsive to the taxpayers’ claim of harassment by the IRS agent.

Id. at 584. That holding is irrelevant to the issues presented in this appeal. The

Rutherford court construed the taxpayers’ claim against the IRS agent as an attempt

to allege a Bivens action. See id. at 582 & n.4. Bivens claims are asserted against

government officials in their individual capacities and hence are not actions against

the government potentially subject to sovereign immunity. See Simpkins v. Dist. of

Columbia Gov’t, 108 F.3d 366, 369 (D.C. Cir. 1997). Not surprisingly, therefore, the

Rutherford court did not address sovereign immunity in its decision and made no

findings relevant to it. And for this reason, and because the claim was for damages

instead of nonmonetary relief, there was also no cause for the court to consider the

AIA and DJA and their bar against suits brought “for the purpose of restraining the

assessment or collection of any tax.” 26 U.S.C. § 7421(a).



                                           7
       In portraying Count 2 as a constitutional claim, Plaintiffs also appear to be

assuming that such claims are per se exempt from the prohibition on suits seeking to

restrain the IRS’ tax assessment and collection activities. This is incorrect. Claims

seeking to restrain the assessment or collection of taxes are prohibited by the AIA,

“notwithstanding that plaintiffs have couched [them] in constitutional terms.” We the

People Found., Inc. v. United States, 485 F.3d 140, 143 (D.C. Cir. 2007); see also

Alexander v. “Americans United” Inc., 416 U.S. 752, 759 (1974) (stating “the

constitutional nature of a taxpayer’s claim . . . is of no consequence under the

Anti-Injunction Act”).

       For the reasons stated above, we conclude that Plaintiffs’ claims seeking to enjoin

the IRS’ investigation and audits, Counts 2 and 3 in the amended complaint, are for the

purpose of restraining the assessment and collection of taxes and are therefore barred by

the AIA and the DJA and not covered by the waiver of sovereign immunity provided in

the APA. We therefore affirm the district court’s dismissal of these claims for lack of

jurisdiction.

                                            B

       The district court’s dismissal of this action on sovereign immunity grounds

also encompassed Count 1 of the complaint, in which Columbia sought a declaration

and order invalidating the AFSP on the ground that it exceeds the IRS’ statutory

authority. As discussed above, whether this claim falls within the prohibitions of the

AIA and DJA, and hence outside of the APA’s waiver of sovereign immunity,

depends on whether this remedy can be said to restrain the assessment and collection

                                            8
of federal taxes. See Fostvedt, 978 F.2d at 1203; see also Cohen v. United States,

650 F.3d 717, 727 (D.C. Cir. 2011) (AIA “bars suits concerning the assessment or

collection of any tax,” but “is no obstacle to other claims seeking to enjoin the IRS,

regardless of any attenuated connection to the broader regulatory scheme” (internal

quotation marks omitted)).

       The district court did not discuss or decide this issue, and the United States

also opted not to address it in its briefing to this court. Instead, the United States

argues that the district court’s dismissal of Count 1 was proper because Columbia—

the only plaintiff to bring Count 1—lacked standing to bring this claim. For the

reasons discussed below, we agree. As a result, and because we may affirm the

district court’s judgment on any ground supported by the record, Richison v. Ernest

Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011), we do not consider whether

sovereign immunity would also bar Count 1 of Plaintiffs’ complaint.

                                            C

       Under Article III of the Constitution, standing is a prerequisite to subject

matter jurisdiction that we must address, sua sponte if necessary, when the record

reveals a colorable standing issue. United States v. Ramos, 695 F.3d 1035, 1046

(10th Cir. 2012). As the party invoking federal jurisdiction, Columbia has the burden

of establishing the elements of standing. Lujan v. Defs. of Wildlife, 504 U.S. 555,

561 (1992). These elements are: (1) that it has suffered an “injury in fact” that is

concrete, particularized and actual or imminent; (2) that there is a causal connection



                                            9
between the injury and the conduct complained of, and (3) that the injury will likely

be redressed by a favorable decision. Id. at 560-61.

      At the pleading stage, we accept as true all material allegations of the complaint

relating to standing and construe them in favor of the complaining party. COPE v. Kan.

State Bd. of Educ., 821 F.3d 1215, 1220 (10th Cir.), cert. denied, 137 S. Ct. 475

(2016). “‘General factual allegations of injury resulting from the defendant’s

conduct may suffice’” at this stage of litigation to show standing, id. (quoting Lujan,

504 U.S. at 561) (brackets omitted), but “‘threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.’” Id.

at 1221 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (brackets omitted).

      Upon review of the relevant record, we conclude Columbia has not met its

burden as to any of these elements of standing with respect to Count 1. First, the

only allegation of injury Columbia offers in the complaint to support this claim is

that Columbia is “adversely affected and aggrieved by the AFSP.” Aplts. App. at 20.

This conclusory allegation merely repeats the elements of a cause of action under the

APA, see 5 U.S.C. § 702, and thus is not sufficient to establish an injury in fact,

see COPE, 821 F.3d at 1221, let alone one that is concrete, particularized, and actual

or imminent.

      Elsewhere in the complaint, Columbia and the Clients assert they have been

injured by the IRS targeting Columbia for criminal investigation and targeting its

clients for audits and examinations in retaliation for Columbia opting not to

participate in the AFSP. Assuming these allegations sufficiently allege an “injury in

                                           10
fact” to Columbia, the complaint still fails to allege or explain any causal connection

between this injury and the existence of the AFSP. Nor is it apparent how the relief

sought with respect to Count 1, invalidation of the AFSP, is likely redress this

alleged injury.

      Any one of these standing deficiencies would defeat Columbia’s assertion of

standing to challenge the AFSP. We therefore conclude that Columbia does not have

standing to pursue this claim, and that subject matter jurisdiction is lacking for

Count 1 as a result.

                                           III

      For the reasons stated above, the judgment of the district court is affirmed.


                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




                                           11
