          3Jn tbe Wniteb ~tates <!Court of jfeberal <!Claitns
                                           No. 19-587T
                                     Filed: Febrnary 14, 2020
                                    NOT FOR PUBLICATION

                                              )
 BARRY EUGENE BROOKS,                         )
                                              )
                       Plaintiff,             )      Pro Se; RCFC 12(b)(l); Subject-Matter
                                              )      Jurisdiction; Tax Refund Claim.
 V.                                           )
                                              )
 THE UNITED STATES,                           )
                                              )
                       Defendant.             )
------------~)
       Barry Eugene Brooks, Kemp, TX, plaintiff prose.
       Margaret E. Sheer, Trial Attorney, Richard E. Zuckerman, Principal Deputy Assistant
Attorney General, David I. Pincus, Chief, G. Robson Stewart, Assistant Chief, United States
Department of Justice, Tax Division, Court of Federal Claims Section, Washington, DC, for
defendant.

                             MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I.     INTRODUCTION

       Plaintiff, pro se, Barry Eugene Brooks, brings this action against the United States
alleging that the government violated his constitutional rights under the Due Process Clause,
by seizing his assets in connection with the collection of certain unpaid federal income tax.
Comp!. at 1. As relief, plaintiff seeks to recover $5,191,427.04 in monetary damages from the
government. Id at 3.

       The government has moved to dismiss this matter for lack of subject-matter jurisdiction,
pursuant to Rule 12(b)(l) of the Rules of the United States Court of Federal Claims ("RCFC").
See generally Def. Mot. Plaintiff has also filed a motion to proceed in this matter informa
pauperis. See generally PI. Mot. for IFP. For the reasons set forth below, the Court: (1)
GRANTS the government's motion to dismiss; (2) GRANTS plaintiffs motion to proceed in
forma pauperis; and (3) DISMISSES the complaint.
II.     FACTUAL AND PROCEDURAL BACKGROUND 1

        A.     Factual Background

        This case is one of several tax-related matters before the Court alleging, among other
things, that the Internal Revenue Service ("IRS") lacks jurisdiction to collect federal income tax
and asserting a claim for damages against the United States. Plaintiff, pro se, Barry Eugene
Brooks, commenced this paiiicular action on April 15, 2019. See generally Comp!.

        In the complaint, plaintiff alleges that the government violated his "due process of law,"
when it seized his household goods, professional equipment, automobile and personal bank
account. Id. at 1-2. Plaintiff also alleges that his family members, friends and dental patients
were "misinformed" regarding plaintiffs "false prosecution, sentencing, and two-year
incarceration," in connection with his criminal prosecution and conviction for willful failure to
file federal income tax returns. Id. at 2. Plaintiff further alleges that the government violated his
rights under the Fourth Amendment to the United States Constitution, by taking his assets
without authority. Pl. Sur-Reply at 1.

        In addition, plaintiff attaches to the complaint certain IRS levy notices and certificates of
release of federal tax liens for tax years 1987 through 1992. Pl. Ex.Cat 8-12. As relief, plaintiff
seeks to recover $5,191,427.04 in monetary damages from the United States. Comp!. at 3.

        As background, in 200 I, plaintiff was indicted on three counts of felony willful failure to
file federal income tax returns for a number of years in the United States District Court for the
Eastern District of Texas. Pl. Ex.Cat 5; Def. Ex. A Plaintiff was ultimately convicted and
sentenced to, among other things, 21 months of imprisonment in connection with that criminal
proceeding. Id.

        The IRS has undetiaken certain collection activity against plaintiff, including levies
aJtd seizures and sales, that led to the satisfaction of plaintiffs federal income tax liability.
Def. Mot. at 4-5; see also Def. Ex. G. For tax year 1988, the IRS collected a portion of


1 The facts recited in this Memorandum Opinion and Order are taken from the complaint ("Comp!.") and
the exhibits attached thereto ("Pl. Ex."); the government's motion to dismiss ("Def. Mot.") and the
exhibits attached thereto ("Def. Ex."); plaintiff's response and opposition to the government's motion to
dismiss ("Pl. Resp."); the government's reply in suppmi of its motion to dismiss ("Def. Reply"); and
plaintiff's sur-reply ("Pl. Sur-Reply"). Unless otherwise noted herein, the facts recited are undisputed.



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plaintiffs unpaid taxes via levy. Id. at 044. But, the IRS ultimately deemed plaintiff to be
in hardship status and the remaining unpaid taxes uncollectable. Id. And so, the IRS wrote
off$28,245.44 in plaintiffs unpaid taxes. Id.
       The IRS also filed a notice of federal tax lien regarding plaintiffs unpaid taxes for tax
years 1989 and 1990. Id. at 049, 054. But, the IRS ultimately was not able to successfully
collect these unpaid taxes. Id. As a result, the IRS also wrote off $53,201.53 in plaintiffs
unpaid taxes for tax year 1989, and $54,059.80 in plaintiffs unpaid taxes for tax year 1990.
Id. at 050, 055. Similar write-offs occurred for tax years 1991 and 1992, and the IRS
ultimately wrote off $57,475.07 and $51,270.72, in plaintiffs unpaid taxes for tax years
1991 and 1992, respectively. Id. at 060, 065.
       On June 14, 2018, plaintiff filed a petition in the United States Tax Court disputing a
notice of deficiency and notice of determination concerning a collection action related to his
federal income tax for tax years 1987-1999. Def. Ex. E. The Tax Court dismissed this petition
forlack of jurisdiction on August 23, 2018. Def. Ex. F.

       Thereafter, plaintiff commenced this action. See generally Comp!.

       B.      Procedural Background

       Plaintiff commenced this action and filed a motion to proceed in forma pauperis on April
15, 2019. See generally Comp!.; Pl. Mot. for IFP.

       On June 21, 2019, the government filed a motion to dismiss this matter for lack of
subject-matter jurisdiction, pursuant to RCFC 12(b)(1 ). See generally Def. Mot. On August 22,
2019, plaintiff filed a response and opposition to the government's motion to dismiss. See
generally Pl. Resp.

       On August 29, 2019, the government filed a reply in support of its motion to dismiss. See
generally Def. Reply. On September 24, 2019, plaintiff filed a sur-reply by leave of the Court.
See generally PI. Sur-Reply.

       These matters having been fully briefed, the Court resolves the pending motions.




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III.      LEGAL ST AND ARDS

       A.        Pro Se Litigants

          Plaintiff is proceeding in this matter pro se. The Court grants parties that are proceeding
prose greater leeway than litigants represented by counsel. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972) (holding that prose complaints are held to "less stringent standards than formal
pleadings drafted by lawyers"). But, 'justice is ill-served when a jurist crosses the line from
finder of fact to advocate." Demes v. United States, 52 Fed. Cl. 365, 369 (2002). And so, the
Court may excuse ambiguities in plaintiffs complaint, but the Court does not excuse the
complaint's failures. See Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995).

          In this regard, this Comt has long recognized that "the leniency afforded to a prose
litigant with respect to mere formalities does not relieve the burden to meet jurisdictional
requirements." Minehan v. United States, 75 Fed. Cl. 249, 253 (2007). For this reason, the pro
se plaintiff-like any other plaintiff-must establish the Court's jurisdiction to consider his
claim. Riles v. United States, 93 Fed. Cl. 163, 165 (2010).

          B.     RCFC 12(b)(l)

          When deciding a motion to dismiss for lack of subject-matter jurisdiction, this Court must
assume that all undisputed facts alleged in the complaint are true and must draw all reasonable
inferences in the non-movant's favor. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); RCFC
12(b)(! ). Plaintiff bears the burden of establishing subject-matter jurisdiction, and he must do so
by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746,
748 (Fed. Cir. 1988). And so, should the Court determine that "it lacks jurisdiction over the
subject matter, it must dismiss the claim." Matthews v. United States, 72 Fed. Cl. 274, 278
(2006).

          In this regard, the United States Court of Federal Claims is a court of limited jurisdiction
and "possess[es] only that power authorized by Constitution and statute .... " Kokkonen v.
Guardian Life Ins. Co. ofAm., 511 U.S. 375,377 (1994). In particular, the Tucker Act grants
the Comt jurisdiction over:

          [A]ny claim against the United States founded either upon the
          Constitution, or any Act of Congress or any regulation of an executive
          department, or upon any express or implied contract with the United


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         States, or for liquidated or unliquidated damages in cases not sounding in
         tort.

28 U.S.C. § 149l(a)(l). The Tucker Act is, however, "a jurisdictional statute; it does not create
any substantive right enforceable against the United States for money damages. [T]he Act
merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the
substantive right exists." United States v. Testan, 424 U.S. 392, 398 (1976). And so, to pursue a
substantive right against the United States under the Tucker Act, a plaintiff must identify and
plead a money-mandating constitutional provision, statute or regulation, or an express or implied
contract with the United States. Cabral v. United States, 317 F. App'x 979,981 (Fed. Cir.
2008),

         Specifically relevant to this case, it is well-established that this Court does not possess
subject-matter jurisdiction to consider claims based upon the Fomih Amendment, because the
Fourth Amendment is not a money-mandating provision of law. Brown v. United States, 105
F.3d 621,623 (Fed. Cir. 1997) ("Because monetary damages are not available for a Fomih
Amendment violation, the Court of Federal Claims does not have jurisdiction over such a
violation."). This Court is also without jurisdiction to consider claims brought pursuant to the
Due Process Clauses of the Constitution, because they do not obligate the payment of money.
Kenyon v. United States, 127 Fed. Cl. 767, 773 (2016), aff'd, 683 F. App'x 945 (Fed. Cir. 2017);
see also Bailey v. United States, No. 15-09C, 2015 WL 4505915, at *3 (Fed. Cl. July 23, 2015)
(stating that due process claims are not considered to be money-mandating because they are
outside of the scope of the jurisdiction granted to the Court of Federal Claims by the Tucker
Act). And so, the Comi must dismiss Fourth Amendment and due process claims for lack of
subject-matter jurisdiction.

         C.      Tax Refund Claims

         Title 26, United States Code, section 7422(a) provides the money-mandating source of
law for bringing a tax refund claim in this Court. Dumont v. United States, 85 Fed. Cl. 425, 427-
28 (2009). And so, a taxpayer may bring an action in this Court to recover any internal revenue
tax erroneously or illegally assessed, provided that the taxpayer first files a claim for a refund
with the IRS. I.R.C. § 7422(a); United States v. Clintwood Elkhorn Mining Co., 553 U.S. I, 4




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(2008); Dumont, 85 Fed. Cl. at 428; see also 28 U.S.C. § 1346(a)(l); Rocovich v. United States,
933 F.2d 991,993 (Fed. Cir. 1991).

           The United States Court of Appeals for the Federal Circuit has held, however, that this
Court is without jurisdiction to entertain a claim for damages flowing from the allegedly
unlawful collection activities of the IRS. Ledford v. United States, 297 F.3d. 1378, 1382 (Fed.
Cir. 2002). And so, such claims must be brought before a United States district court. Id.; see
also Zolman v. United States, Nos. 17-1901 T, 17-1902T, 2018 WL 1664690, at* 1-2 (Fed. Cl.
April 6, 2018) (holding that the Court does not possess subject-matter jurisdiction to consider
damages claims resulting from unauthorized collection actions, or failure to release a lien under
either 26 U.S.C. §§ 7432(a) or 7433(a)). 2 This Court is similarly without jurisdiction to ente11ain
claims challenging the imposition of tax liens, because such claims must be brought before a
United States district court by a third party, and not by the taxpayer. Zolman, 2018 WL
1664690, at * 1-2.

IV.       LEGAL ANALYSIS

          The govenm1ent has moved to dismiss this matter upon the ground that the Com1 does
not possess subject-matter jurisdiction to consider plaintiffs claims. See generally Def. Mot.
Specifically, the government argues that the Court may not consider plaintiffs claims for
wrongful levy, Ulljust conviction, defamation and constitutional law violations pursuant to the


2   Section 7432(a) of the Internal Revenue Code provides that:

          If any officer or employee of the Internal Revenue Service knowingly, or by reason
          of negligence, fails to release a lien under section 6325 on prope1ty of the taxpayer,
          such taxpayer may bring a civil action for damages against the United States in a
          district court of the United States.

I.R.C. § 7432(a). Section 7433(a) of the Internal Revenue Code provides, in relevant pmt, that:

          If, in connection with any collection of Federal tax with respect to a taxpayer, any
          officer or employee of the [IRS] recklessly or intentionally, or by reason of
          negligence, disregards any provision of this title, or any regulation promulgated
          under this title, such taxpayer may bring a civil action for damages against the
          United States in a district court of the United States. Except as provided in section
          7432, such civil action shall be the exclusive remedy for recovering damages
          resulting from such actions.

I.R.C. § 7433(a).


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Tucker Act. Id. at 6-9; Def. Reply at 2-3. And so, the government requests that the Court
dismiss this action. Def. Mot. at 10; Def. Reply at 3.

          Plaintiff has also moved to proceed in this matter in forma pauperis. See generally PI.
Mot. for IFP.

          For the reasons discussed below, plaintiff has not met his burden to show that any of his
claims fall within the Court's limited jurisdiction under the Tucker Act. Plaintiff has, however,
satisfied the statutory requirements to proceed in this matter without paying the Court's filing
fee. And so, the Court: (1) GRANTS the government's motion to dismiss; (2) GRANTS
plaintiffs motion to proceed informa pauperis; and (3) DISMISSES the complaint.

          A.     The Court May Not Consider Plaintiff's Constitutional Law Claims

          As an initial matter, the Court must dismiss plaintiffs constitutional law claims, because
plaintiff fails to establish that the Court possesses subject-matter jurisdiction to consider these
claims.

          In the complaint, plaintiff alleges that the government violated his "due process of law,"
when it seized his household goods, professional equipment, automobile and personal bank
account. Comp!. at 1-2. To the extent that plaintiff asserts a due process claim under Fifth
and/or Fourteenth Amendments of the United States Constitution, the Court does not possess
subject-matter jurisdiction to consider such claims under the Tucker Act. Indeed, it is well-
established that this Court may not consider constitutional claims based upon a violation of the
Due Process Clause of the Fifth and Foutieenth Amendments, because these constitutional
provisions are not money-mandating. Kenyon v. United States, 127 Fed. Cl. 767, 773 (2016),
ajf'd, 683 F. App'x 945 (Fed. Cir. 2017); see also Bailey v. United States, No. 15-09C, 2015 WL
4505915, at *3 (Fed. Cl. July 23, 2015) (stating that due process claims are not considered to be
money-mandating because they are outside of the scope of the jurisdiction granted to the Court
of Federal Claims by the Tucker Act).

          The Comi may also not consider plaintiffs Fourth Amendment claim. In his sur-reply,
plaintiff alleges that the government violated his rights under the Fourth Amendment. Pl. Sur-
Reply at 1. But, the Court does not possess subject-matter jurisdiction to consider this
constitutional claim, because the Fourth Amendment is not a money-mandating provision of law.



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Brown v. United States, I 05 F Jd 621, 623 (Fed. Cir. 1997) ("Because monetary damages are not
available for a Fourth Amendment violation, the Court of Federal Claims does not have
jurisdiction over such a violation."). Given this, the Court must dismiss plaintiffs Due Process
and Fourth Amendment claims for lack of subject-matter jurisdiction. RCFC 12(b)(! ).

       B.      The Court May Not Consider Plaintiff's Wrongful Collection Claims

       To the extent that plaintiff alleges wrongful levy or wrongful collection claims, the Court
must also dismiss these claims for want to subject-matter jurisdiction.

       In the complaint, plaintiff alleges that he is entitled to recover monetary damages from
the government because the govermnent improperly seized his assets in connection with the
collection of certain federal income tax. Comp!. at 1-2. But, the United States Court of Appeals
for the Federal Circuit has held that this Court is without jurisdiction to entertain a claim for
damages flowing from the allegedly unlawful collection activities of the IRS. Ledford v. United
States, 297 F.3d. 13 78, 1382 (Fed. Cir. 2002); see also Zolman v. United States, Nos. 17-190 IT,
17-1902T, 2018 WL 1664690, at* 1-2 (Fed. Cl. April 6, 2018) (holding that the Court does not
possess subject-matter jurisdiction to consider damages claims resulting from unauthorized
collection actions, or failure to release a lien under either 26 U.S.C. §§ 7432(a) or 7433(a)).

        This Court is similarly without jurisdiction to entertain plaintiffs claim challenging the
imposition of tax liens, because such claims must be brought before a United States district court
by a third party, and not by plaintiff. Zolman, 2018 WL 1664690, at * 1-2. And so, the Court
must also dismiss plaintiffs wrongful levy and wrongful collection claims for lack of subject-
matter jurisdiction.

        Because plaintiff has not established that the Court possesses subject-matter jurisdiction
to consider any of his claims, the Court GRANTS the govermnent's motion to dismiss and
DISMISSES the complaint. RCFC (12)(b)(l).

        C.      Plaintiff May Proceed In Forma Pauperis

        As a final matter, plaintiff has moved to proceed in this matter without paying the Comt's
filing fee. See generally Pl. Mot. for IFP. In his application to proceed informapauperis,
plaintiff states that he is not employed and that he is unable to pay the Court's filing fee. Id. at 1.
This Comt may authorize commencement of a suit without prepayment of fees when a person



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submits an affidavit including a statement of all assets, a declaration that he or she is unable to
pay the fees and a statement of the nature of the action and a belief that he or she is entitled to
redress. See 28 U.S.C. § 1915(a); see also 28 U.S.C. § 2503(d). Due to the Comt' s summary
disposition of this case, and plaintiffs pro se status, the Comt finds that plaintiff satisfies the
statutory requirements to proceed informa pauperis. And so, the Comt GRANTS plaintiffs
motion to proceed informa pauperis.

V.      CONCLUSION

        In sum, the most generous reading of the complaint makes clear that the Court does not
possess subject-matter jurisdiction to consider any of plaintiffs claims. Plaintiff has, however,
satisfied the statutory requirements to proceed in this matter without paying the Court's filing
fee.

        And so, for the foregoing reasons, the Court:

        1. GRANTS the government's motion to dismiss;

        2. GRANTS plaintiffs motion to proceed informa pauperis; and

        3. DISMISSES the complaint.

        The Clerk shall enter judgment accordingly.

        Each pa1ty shall bear its own costs.

        IT IS SO ORDERED.




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