       In the United States Court of Federal Claims
                                      No. 13-761T

                                (Filed: January 28, 2014)

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                                    *
TODD HEBERT,                        *
                                    *
                                                 Tax Refund Claim; Lack of Subject
                    Plaintiff,      *
                                                 Matter Jurisdiction; Requirement for
                                    *
                                                 Payment of Tax and Filing of
v.                                  *
                                                 Administrative Claim; Failure to Allege
                                    *
                                                 a Money-Mandating Source of Law; No
THE UNITED STATES,                  *
                                                 Jurisdiction of Claims Sounding in Tort.
                                    *
                    Defendant.      *
                                    *
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Todd Hebert, Massena, New York, appearing pro se.

Paul G. Galindo, with whom were Kathryn Keneally, Assistant Attorney General, David
I. Pincus, Chief, and G. Robson Stewart, Assistant Chief, Court of Federal Claims
Section, Tax Division, U.S. Department of Justice, Washington, D.C., for Defendant.

                                OPINION AND ORDER

WHEELER, Judge.

       Plaintiff Todd Hebert filed a pro se complaint in this Court on September 30,
2013. Mr. Hebert alleges that the Internal Revenue Service (“IRS”) violated various
constitutional provisions, civil statutes, civil regulations, and criminal statutes when it
began levying his wages to satisfy his tax liabilities for the 2006 and 2007 tax years. Mr.
Hebert seeks $1 million in damages and the amounts levied on his wages by the IRS to
date. Compl. ¶8.

      On November 27, 2013, Defendant filed a motion to dismiss Mr. Hebert’s
complaint for lack of subject matter jurisdiction, or alternatively, for failure to state a
claim upon which relief may be granted, pursuant to Rules 12(b)(1) and 12(b)(6) of the
Court of Federal Claims. Def’s Mot. to Dismiss 1. The Government contends that: (1)
the complaint fails to identify any source of substantive law creating the right to pursue
money damages in this Court; (2) this Court does not have jurisdiction over tax refund
claims where the plaintiff has not paid his tax liability in full and has not filed a timely
administrative claim with the IRS; and (3) this Court lacks jurisdiction over claims
sounding in tort. For the reasons stated below, Defendant’s motion is GRANTED, and
Plaintiff’s complaint is DISMISSED without prejudice.

                                        Background

        Mr. Hebert is a resident of New York. Compl. ¶8. During 2006 and 2007, while
employed by Comairco Equipment Inc., Mr. Hebert failed to file returns on his 2006 and
2007 taxes. Def’s Mot. to Dismiss Ex. A, B. When the balances on these tax accounts
continued to go unpaid, the IRS issued statutory notices of deficiency. Id. Mr. Hebert
failed to file timely petitions with the Tax Court, so on March 14, 2011 the IRS assessed
taxes, interest, and penalties for Mr. Hebert’s 2006 and 2007 tax years. Id. The IRS
subsequently began levying collection of his 2006 and 2007 tax liabilities. Id. Mr.
Hebert has still not paid his tax liability in full. Id. In fact, he currently owes more than
$8,000 to the United States for the 2006 tax year and more than $5,000 for the 2007 tax
year. Id. Mr. Hebert asks the Court for the following relief: (1) a refund of the amounts
levied on his wages by the IRS in its attempt to collect unpaid taxes; and (2) $1 million in
damages. Compl. ¶8.

                                    Standard of Review

        In reviewing a motion to dismiss, the Court must accept the allegations in the
complaint as true, drawing all reasonable inferences in the plaintiff’s favor. Ainslie v.
United States, 355 F.3d 1371, 1373 (Fed. Cir. 2004) (citing Godwin v. United States, 338
F.3d 1374, 1377 (Fed. Cir. 2003)). Though pro se litigants are held to “less stringent
standards than formal pleadings drafted by lawyers,” failures to comply with the Court’s
jurisdictional requirements are not excused. Hampel v. United States, 97 Fed. Cl. 235,
237 (2011) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Where subject matter
jurisdiction is challenged, the plaintiff must establish the Court’s jurisdiction by a
preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d
746, 748 (Fed. Cir. 1988). If the Court finds that it lacks subject matter jurisdiction, it
must dismiss the claim. Gluck v. United States, 84 Fed. Cl. 609, 614 (2008).

                                         Analysis

        The Court of Federal Claims is a court of limited jurisdiction. RHI Holdings, Inc.
v. United States, 142 F.3d 1459, 1461 (Fed. Cir. 1998). This Court derives its
jurisdiction from the Tucker Act, which confers jurisdiction upon the Court of Federal
Claims over specified categories of actions and waives the Government’s sovereign

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immunity for those actions. Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir.
2005). The Tucker Act provides that the Court of Federal Claims has jurisdiction to
render judgment upon any 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 States, or for liquidated or
unliquidated damages in cases that do not sound in tort. 28 U.S.C. § 1491(a). “The
Tucker Act itself does not create a substantive cause of action; in order to come within
the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a
separate source of substantive law that creates the right to money damages.” Fisher, 402
F.3d at 1172 (citing United States v. Mitchell, 463 U.S. 206, 216 (1983) and United
States v. Testan, 424 U.S. 392, 398 (1976)). In the parlance of Tucker Act cases, the
source must be “money-mandating.” Id. (citing Mitchell, 463 U.S. at 217 and Testan,
424 U.S. at 398).

       A. The Court Lacks Jurisdiction because Plaintiff has not Paid his Tax Liability.

        26 U.S.C. § 7422(a) provides the money-mandating source for bringing a tax
refund claim in this Court. Dumont v. United States, 85 Fed. Cl. 425, 427-28 (2009).
This provision grants the taxpayer the right to sue the United States for recovery of any
internal revenue tax erroneously or illegally assessed or collected. Gregoline v. United
States, 99 Fed. Cl. 161, 166 (2011) (citing § 7422). In so far as Mr. Hebert’s complaint
can be construed as a suit for a federal tax refund under Section 7422 for the tax years
2006 and 2007, he has failed to allege sufficient facts to establish subject matter
jurisdiction. While this Court does have jurisdiction to resolve claims for a refund of
federal taxes under Section 7422, a plaintiff must satisfy two prerequisites prior to filing
suit. Ledford v. United States, 207 F.3d 1378, 1382 (Fed. Cir. 2002). First, a plaintiff
must pay his tax liability in full. Id. (citing Flora v. United States, 362 U.S. 145, 177,
reh’g denied, 362 U.S. 972 (1960)); accord Rocovich v. United States, 933 F.2d 991,
993-94 (Fed. Cir. 1991). Second, a plaintiff must file a timely administrative refund
claim with the IRS. Gregoline, 99 Fed. Cl. at 166. Here, Mr. Hebert does not allege that
he has paid his tax assessments for the years 2006 and 2007 in full or that he has filed a
timely administrative refund claim with the IRS. The Court, therefore, must dismiss Mr.
Hebert’s tax refund claim for lack of subject matter jurisdiction.

       B. The Court Lacks Jurisdiction over Claims Sounding in Tort.

        This Court also does not have jurisdiction over any of Mr. Hebert’s other claims.
Mr. Hebert brought a claim seeking civil damages under 26 U.S.C. § 7433 for the
allegedly “deceit[ful] and fraud[ulent]” collection activities of the IRS. Section 7433
provides that a taxpayer may seek civil damages for specified unlawful IRS collection
activities as follows:
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       If, in connection with any collection of Federal tax with respect to a
       taxpayer, any officer or employee of the Internal Revenue Service
       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.

Cherbanaeff v. United States, 77 Fed. Cl. 490, 501 (2007). However, this Court lacks
jurisdiction under the Tucker Act to hear claims against the United States “sounding in
tort.” Id. (citing 28 U.S.C. § 1491(a)(1)); see also, e.g., Brown v. United States, 105 F.3d
621, 623 (Fed. Cir. 1997) (citing 28 U.S.C. § 1491(a); Keene Corp. v. United States, 508
U.S. 200, 214 (1993)). Mr. Hebert’s assertions that the IRS engaged in “deceit[ful] and
fraud[ulent]” collection activities are claims sounding in tort, and thus this Court lacks
subject matter jurisdiction over them. Brown, 105 F.3d at 623 (citing L’Enfant Plaza
Properties, Inc. v. United States, 227 Fed. Cl. 1 (1981)). Furthermore, Congress has
provided that claims under Section 7433 must be brought exclusively before a district
court of the United States. Cherbanaeff, 77 Fed. Cl. at 501-02. The Court of Federal
Claims is not a district court of the United States, and thus it lacks subject matter
jurisdiction over these claims. Id. (citing Ledford, 207 F.3d at 1382).

        Mr. Hebert’s due process claims under the Fifth and Fourteenth Amendments must
also be dismissed, as the Due Process Clause “does not mandate the payment of money
for its violation, and therefore does not support jurisdiction in this court.” Earnest v.
United States, 33 Fed. Cl. 341, 344 (1995) (citing Murray v. United States, 817 F.2d
1580, 1583 (Fed. Cir. 1987)). Even if Mr. Hebert’s due process claims were construed as
a Fifth Amendment taking claim, this Court would not have jurisdiction. Indeed,
“[w]here, as in this case, a taxpayer disputes an IRS levy on his property, the appropriate
course of action is a direct challenge of the levy, not the prosecution of a fifth amendment
claim.” Castillo Morales v. United States, 19 Fed. Cl. 342, 345 (1990) (citing Bull v.
United States, 295, U.S. 247, 259 (1935)). If, as Mr. Hebert asserts, the IRS acted
improperly, then no taking can have occurred, “for takings result only from authorized
acts of government officials.” Earnest, 33 Fed. Cl. at 344 (citing Tabb Lakes, Ltd. v.
United States, 10 F.3d 796, 802-03 (Fed. Cir. 1993)). By contrast, “claims based on
unauthorized acts (wrongdoing) by government officials sound in tort.” Earnest, 33 Fed.
Cl. at 344 (citing Smithson v. United States, 847 F.2d 791, 794 (Fed. Cir. 1988)). As
already explained, this Court lacks jurisdiction over claims sounding in tort.
Cherbanaeff, 77 Fed. Cl. at 501 (citing 28 U.S.C. § 1491(a)(1)). The Court, therefore,
must dismiss Mr. Hebert’s due process claims for lack of subject matter jurisdiction.


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      C. The Court Lacks Jurisdiction over Claims that are not Money-mandating.

       The Court also does not have subject matter jurisdiction over Mr. Hebert’s claims
under the Fourth and Thirteenth amendments. The jurisdiction of the Court of Federal
Claims is limited to “cases in which the Constitution or a federal statute requires the
payment of money damages as compensation for their violation.” Brown, 105 F.3d at
623 (citing United States v. Mitchell, 463 U.S. 206, 218 (1983)). However, neither the
Fourth Amendment nor the Thirteenth Amendment mandate the payment of money for
their violations. U.S. Const. amend. IV, XIII. Because monetary damages are not
available for violations of the Fourth and Fourteenth amendments, the Court of Federal
Claims does not have jurisdiction over such claims. E.g. Brown, 105 F.3d at 623 (citing
Mitchell, 463 U.S. at 218 and Murray, 817 F.2d at 1582-83).

        The remainder of Mr. Hebert’s claims are also outside the subject matter
jurisdiction of the Court of Federal Claims. These claims relate to internal revenue
procedures and administration (I.R.C. §§ 6201, 6212, 6330, 6331, 7402, 7403; Treas.
Reg. § 601.106), crimes and criminal procedures (18 U.S.C. §§ 241, 872, 1018, 1341,
1581; I.R.C. § 7214), and peonage (18 U.S.C. § 1581; 42 U.S.C. § 1994). None of these
authorities establishes a private right of action for money damages against the United
States creating subject matter jurisdiction in this case.

                                      Conclusion

       The Court does not have subject matter jurisdiction over any of Mr. Hebert’s
claims. Therefore, Defendant’s motion to dismiss under Rule 12(b)(1) is GRANTED,
and the clerk is instructed to DISMISS the complaint without prejudice. Because the
Court has determined that it must dismiss the case pursuant to Rule 12(b)(1), it does not
need to address Defendant’s alternative ground for dismissal under Rule 12(b)(6).

      IT IS SO ORDERED.


                                                      THOMAS C. WHEELER
                                                      Judge




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