                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

 JOHN COON,

                        Plaintiff,
                                                            Civil Action No. 13-1400 (BAH)
                        v.
                                                            Judge Beryl A. Howell
 EDWARD WOOD, et al.,

                        Defendants.

                                     MEMORANDUM OPINION

       The plaintiff, John Coon, proceeding pro se, brought a variety of state law claims arising

from a 2010 real estate transaction for which the defendants acted as the plaintiff’s real estate

agents. On September 18, 2014, this Court granted the defendants’ motion to dismiss all but one

of these claims, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim

for which relief may be granted. Coon v. Wood, 68 F. Supp. 3d 77, 79 (D.D.C. 2014). With

discovery related to the plaintiff’s remaining claim now complete, pending before the Court are

the parties’ cross-motions for summary judgment on the plaintiff’s claim that the defendants

negligently misrepresented the potential tax consequences of the 2010 transaction. ECF Nos. 21,

24. For the reasons set forth below, because the plaintiff fails to demonstrate that he has

standing to pursue his remaining claim, the Court lacks jurisdiction over this matter, which must

be dismissed, and the parties’ cross-motions for summary judgment are therefore denied as moot.

I.     BACKGROUND

       The factual allegations underlying this dispute have been generally summarized in this

Court’s prior decision dismissing three of the plaintiff’s claims against the defendants. See

Coon, 68 F. Supp. 3d at 80–81. The facts pertinent to resolving the instant motions are briefly

summarized below.
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        In 2010, the plaintiff became interested in selling property in the District of Columbia

(“the D.C. Property”), with the intention of using the proceeds from this sale to purchase a new

investment property consisting of farm land near Charles Town, West Virginia. Defs.’ Statement

of Material Facts (“Defs.’ SMF”) ¶ 6, ECF No. 21-2. According to the plaintiff, after speaking

with a tax professional regarding the potential tax ramifications of the proposed transaction, he

sought the representation of Defendant Edward Wood, an “associate broker” at Defendant City

Houses D.C., and inquired whether the sale “could be accomplished in a way to avoid any capital

gains on the D.C. Property.” Id. ¶¶ 7–10; Compl. ¶¶ 1, 11. In response, the plaintiff alleges that

Wood incorrectly advised him that, because the purchase of the D.C. Property was itself

structured to avoid federal capital gains taxes, the sale of that property in 2010 could not also be

structured in a similar manner. Defs.’ SMF ¶ 11. Thereafter, the plaintiff proceeded with the

sale of the D.C. Property without structuring the transaction to avoid incurring a capital gains tax

liability. Id. ¶ 16.

        As a result, the plaintiff alleges that he currently owes in excess of $75,000 in federal

capital gains taxes as a result of the sale. Id. ¶ 17. On the advice of his tax preparer, however,

the plaintiff did not claim any income associated with the sale on his 2010 federal tax return.

Pl.’s Opp’n Defs.’ Mot. Summ. J. (“Pl.’s Opp’n”) ¶ 5, ECF No. 27. Instead, with these taxes

unpaid, the plaintiff filed the instant action on September 19, 2013, seeking to recover damages

and attorneys’ fees on claims of breach of contract, negligent misrepresentation, breach of

fiduciary duty, and violations of D.C. Code §42-1701, et seq., relating to the sale of the D.C.

Property. Coon, 68 F. Supp. 3d at 81. The plaintiff claims in his opposition to the defendants’

instant motion for summary judgment that he intends to amend his 2010 return at the conclusion

of this action to include retroactively the capital gains associated with this sale. Pl.’s Opp’n ¶ 5.



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          Following the resolution of the defendants’ motion to dismiss, which left pending only

the plaintiff’s negligent misrepresentation claim, the parties proceeded to discovery. See Minute

Order, dated Oct. 2, 2014 (issuing a schedule to govern discovery and the filing of dispositive

motions). During the course of discovery, the parties disputed certain issues related to the

production of the plaintiff’s 2010 federal tax return, which the Court resolved during a telephone

conference, see Minute Entry, dated April 1, 2015, by ordering the plaintiff to file regular reports

to the Court regarding his efforts to produce this document to the defendants, Minute Order,

dated April 1, 2015. Soon after the plaintiff’s production of his 2010 federal tax return, see Pl.’s

Status Update of IRS Transcript, ECF No. 20, the defendants moved for summary judgment,

Defs.’ Mot. Summ. J. (“Defs.’ Mot.”), ECF No. 21. The plaintiff subsequently filed a cross-

motion also seeking summary judgment. Pl.’s Mot. Summ. J. (“Pl.’s Mot.”), ECF No. 24.

          With discovery now completed, the parties contest various aspects of the defendants’

work for the plaintiff in connection with the plaintiff’s sale of the D.C. Property, as well as the

plaintiff’s claim that the defendants negligently misadvised him regarding the potential tax

consequences of that sale. Compare Defs.’ SMF, with Pl.’s Mem. Supp. Pl.’s Mot. Summ. J.

(“Pl.’s Mem.”) at 4–5 (“Statement of Material Facts”), ECF No. 27. These disputes aside, the

parties agree that the plaintiff reported no income from the sale on his 2010 federal tax return

and, as yet, has not amended this return to include any such income, let alone pay any taxes on

that sale. Defs.’ Mem. Supp. Mot. Summ. J. (“Defs.’ Mem.”) at 3, 7, ECF No. 21-1; Pl.’s Opp’n

at 2. With this in mind, in seeking summary judgment, the defendants first argue that the

plaintiff has yet to suffer any actual injury as a result of the defendants’ alleged

misrepresentations and, as a result, lacks standing to pursue his claim in this Court. Defs.’ Mem.

at 5–7.



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       Notably, this issue was neither raised nor considered in connection with the defendants’

motion to dismiss, since the plaintiff’s failure to pay any capital gains taxes associated with the

sale of the D.C. Property only became clear during the course of discovery. Nonetheless, unlike

other defenses, which are generally waived if not made in a defendant’s initial response to a

complaint, FED. R. CIV. P. 12(h)(1)–(2), a challenge to federal subject-matter jurisdiction is not

waivable and may be raised at any point in the proceedings, see FED. R. CIV. P. 12(h)(3) (“If the

court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the

action.” (emphasis added)); see also Mwani v. bin Laden, 417 F.3d 1, 11 (D.C. Cir. 2005).

Instead, as discussed below, the question of the plaintiff’s standing to sue goes directly to the

Court’s jurisdiction over this matter. Accordingly, before scrutinizing the merits of the parties’

respective summary judgment motions, the Court first must assure itself of its authority to

adjudicate the plaintiff’s claim.

II.    LEGAL STANDARD

       “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power

authorized by Constitution and statute.’” Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013) (quoting

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Indeed, federal courts

are “forbidden . . . from acting beyond our authority,” NetworkIP, LLC v. FCC, 548 F.3d 116,

120 (D.C. Cir. 2008), and, therefore, have “an affirmative obligation ‘to consider whether the

constitutional and statutory authority exist for us to hear each dispute,’” James Madison Ltd. ex

rel. Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert v. Nat’l Acad. of

Scis., 974 F.2d 192, 196 (D.C. Cir. 1992)). Absent subject-matter jurisdiction over a case, the

court must dismiss it, FED. R. CIV. P. 12(h)(3); Arbaugh v. Y & H Corp., 546 U.S. 500, 506–07

(2006), and the burden of establishing any jurisdictional facts to support the exercise of the



                                                  4
subject matter jurisdiction rests on the plaintiff, see Hertz Corp. v. Friend, 559 U.S. 77, 96–97

(2010); Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007).

       With regard to standing, Article III of the Constitution restricts the power of federal

courts to hear only “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. “The doctrine of

standing gives meaning to these constitutional limits by ‘identify[ing] those disputes which are

appropriately resolved through the judicial process.’” Susan B. Anthony List v. Driehaus, 134 S.

Ct. 2334, 2341 (2014) (alterations in original) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,

560 (1992)); Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146 (2013) (“’One element of the

of the case-or-controversy requirement’ is that plaintiffs ‘must establish that they have standing

to sue.’” (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997))). As the Supreme Court has

explained, “the irreducible constitutional minimum of standing contains three elements.” Defs.

of Wildlife, 504 U.S. at 560. First, the plaintiff must have suffered an “injury in fact,” i.e., “an

invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or

imminent, not conjectural or hypothetical.” Id. (citations and internal quotation marks omitted).

Second, there must be “a causal connection between the injury and the conduct complained of,”

i.e., the injury alleged must be fairly traceable to the challenged action of the defendant. Id.

Finally, it must be likely that the injury will be redressed by a favorable decision. Id. at 561.

       With regard to the injury-in-fact requirement, the Supreme Court has “repeatedly

reiterated that ‘threatened injury must be certainly impending to constitute injury in fact,’ and

that ‘[a]llegations of possible future injury’ are not sufficient” to establish standing. Clapper,

133 S. Ct. at 1147 (emphasis in original) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158

(1990)). Thus, while a showing that an injury is “certainly impending” does not require a

showing that the injury is certain to happen, allegations of a future injury resting on a “highly



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attenuated chain of possibilities” are insufficient to establish standing. Id. at 1147–48. This

concern is particular acute where an asserted injury rests “on speculation about the decisions of

independent actors.” Id. at 1150.

       At the summary judgment stage, the plaintiff “can no longer rest on mere allegations, but

must set forth by affidavit or other evidence specific facts, which for purposes of the summary

judgment motion will be taken to be true.” Swanson Grp. Mfg. LLC v. Jewell, 790 F.3d 235, 240

(D.C. Cir. 2015) (internal quotations and alterations omitted) (quoting Defs. of Wildlife, 504 U.S.

at 561). Thus, while “general factual allegations of injury resulting from the defendant’s conduct

may suffice to show standing at the motion to dismiss stage, at summary judgment a court will

not presume the missing facts necessary to establish an element of standing.” Id. (internal

quotations and citations omitted).

III.   DISCUSSION

       In this case, the gravamen of plaintiff’s claim is that the defendants negligently

misrepresented the potential tax consequences of the plaintiff’s 2010 sale of the D.C. Property to

finance the later purchase of the farm in West Virginia, which led the plaintiff to owe “an

unchangeable tax debt of $76,344 plus penalties and interest that mount daily.” Pl.’s Mot. In

opposing the defendants’ motion for summary judgment, the plaintiff explains that, consistent

with “the advice of his tax preparer,” he did not report income from the sale of the D.C. Property

on his 2010 federal income tax return. Pl.’s Opp’n at 2. The plaintiff’s basis for doing so is

somewhat unclear, and the plaintiff appears to offer conflicting explanations for this decision.

Compare id. at 2 (explaining that the plaintiff did not include this income on his 2010 tax return

“because he did not have the funds to pay [the] tax at [that] time”), with Defs.’ Mem., Ex. A at

81:7-11, ECF No. 21-3 (indicating that that the plaintiff, on the advice of his tax preparer,



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excluded this income “because [he] honestly believe[d] that [he] didn’t owe it and [he could]

amend [the return] later pending” this outcome of this litigation). In any event, however, the

plaintiff avers that his intention “was and still is to amend the [2010 tax return to retroactively

report the 2010 income] at the end of this suit.” Pl.’s Opp’n at 2. 1

        This stated intention notwithstanding, the defendants argue that the plaintiff has yet to

suffer any tangible harm arising from the 2010 transaction and contend that the plaintiff has

therefore failed to demonstrate an injury-in-fact sufficient to establish standing to pursue his

claim in this Court. Defs.’ Mem. at 6–7. In support, the defendants note that the Internal

Revenue Service (“IRS”) “has not imposed any tax liability on [the plaintiff] in connection with

the sale,” and that “available evidence indicates that [the plaintiff] is unlikely to incur any future

IRS liability in connection with” the 2010 transaction. Id. The defendants observe that the

plaintiff has not been audited in the four years since he filed his 2010 tax return and has put

forward no evidence to suggest that he is likely to be audited in the future. Id. at 7. Thus, the

defendants argue, any “future possible injury [alleged by the plaintiff] is speculative at best” and

therefore falls short of an injury-in-fact sufficient to confer standing on the plaintiff. Id.

        In connection with the present cross-motions, the parties have provided, and the Court

has identified, no binding authority addressing the question whether potential tax liability may

constitute a cognizable injury sufficient to support standing under Article III. Nonetheless, out-

of-circuit federal courts confronted with this question have consistently held that the mere

possibility of future tax liability, or any associated penalties imposed by the IRS, is insufficient

to establish standing to sue in federal court. See, e.g., SC Note Acquisitions, LLC v. Wells Fargo

Bank, N.A., 934 F. Supp. 2d 516, 526–28 (E.D.N.Y. 2013), aff’d, 548 F. App’x 741 (2d Cir.



1
        The plaintiff alleges no other injury arising from the defendants’ alleged negligence. See generally Compl.

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2014) (rejecting plaintiff’s claim that the defendant negligently adopted an erroneous

interpretation of tax law where the IRS had not yet imposed any additional tax liability on the

plaintiff); Local No. 773 of the Int’l Ass’n of Firefighters v. City of Bristol, No. 3:11CV1657

MPS, 2013 WL 1442453, at *3–4 (D. Conn. Apr. 9, 2013); Scanlan v. Kodak Retirement Income

Plan, 678 F. Supp. 2d 110, 113–14 (W.D.N.Y. 2010); Cole v. Cook, 2006 WL 3791680, at *3

(N.D. Ohio Dec. 22, 2006) (“There is no allegation that the IRS is seeking back taxes from

Plaintiffs, or that it has assessed any penalties against them. The IRS has issued no adverse

ruling against Plaintiffs. Because there is no actual case or controversy, Plaintiffs’ . . . claim is

premature and any decision . . . would be advisory only.”); Daines v. Alcatel, S.A., 105 F. Supp.

2d 1153, 1155 (E.D. Wash. 2000) (holding that the plaintiff’s request for a court order requiring

the defendants to “advance” the plaintiff money to cover a potential, but as-yet uncertain tax

liability did not satisfy the jurisdictional requirements of Article III).2

         While these decisions are non-binding, this general consensus is unsurprising. Indeed,

the plaintiff’s asserted injury rests on the assumption that at least two future events will come to

pass that, only together, would result in the plaintiff incurring the additional tax liability for

which he now seeks monetary relief. Specifically, first, at some future date, the IRS must initiate

an audit of the plaintiff and, second, as a result of this audit, the IRS must conclude that the

plaintiff owes additional taxes stemming from the sale of the D.C. Property. Beyond the general

reluctance recognized by the Supreme Court to recognize standing based primarily “on

speculation about the decisions of independent actors,” Clapper, 133 S. Ct. at 1150, the plaintiff


2
          At least one federal district court has found standing where a plaintiff sought declaratory relief, as opposed
to actual damages, in connection with any additional tax liability resulting from an ongoing IRS audit. See Nathel v.
Siegal, 592 F. Supp. 2d 452, 473 (S.D.N.Y. 2008). By contrast, here, the plaintiff presents no evidence that he is
currently being audited by the IRS or that any such audit is impending or otherwise likely. Defs.’ Opp’n at 7.
Absent any indication that the plaintiff will soon incur additional tax liability associated with the 2010 sale of the
D.C. Property, the plaintiff’s present request for as-yet hypothetical damages stemming from the defendants’ alleged
negligence is insufficient to constitute an injury-in-fact amenable to resolution by this Court.

                                                           8
has offered no evidence that such an audit is imminent or likely, or that any future audit would

result in the plaintiff owing additional taxes stemming from the 2010 transaction.

         The plaintiff’s conclusory assertion that, as “a matter of federal tax law[,] . . . the

proceeds from a commercial real estate sale incur a tax” is unavailing. Pl.’s Rebuttal Defs.’ Mot.

Summ. J. at 1, ECF No. 23. As another federal court has explained, “were the Court to allow [a]

case to proceed prior to an IRS determination and plaintiff was victorious in [his] lawsuit, but the

IRS later determined that [no back-taxes were owed, the] plaintiff would receive a windfall.” SC

Note Acquisitions, LLC, 934 F. Supp. 2d at 527. For this reason, among others, premature

resolution of the sort of speculative injuries alleged by the plaintiff generally are insufficient to

establish standing in federal court. See Clapper, 133 S. Ct. at 1150. Put simply, the Court

“cannot decide a case with a hypothetical injury that may never occur.” SC Note Acquisitions,

LLC, 934 F. Supp. 2d at 527. 3 Thus, until the injury alleged by the plaintiff is certainly

impending, and not reliant on a chain of possible actions of third parties, the plaintiff has failed

to establish a case or controversy that may be resolved by this Court. See Clapper, 133 S. Ct. at

1147–48.

         In so concluding, the Court is mindful of the plaintiff’s concern that he may, at some

future date, be found to have a substantial tax liability, in addition to any attendant fees or

interest, stemming from the 2010 transaction. Given this uncertainty, the plaintiff’s desire to

seek immediate resolution of his claim against the defendants is certainly understandable.

Though the swift resolution of private disputes may be preferable in many circumstances,




3
          While the Complaint leaves some uncertainty regarding the nature of the plaintiff’s requested relief, the
plaintiff’s request for entry of “final judgment that the violations of law [alleged by the plaintiff] have occurred”
may be construed as a request for declaratory judgment requiring the defendants to pay whatever future tax liability
the plaintiff may incur as a result of the 2010 transaction. Compl. at 6. Even so construed, however, the Complaint
fails to allege any actual or imminent injury that does not rest on hypothetical future events.

                                                          9
however, the Constitution constrains this Court’s ability to resolve disputes that present no

specific injury that may be redressed by a favorable ruling by the Court. For this reason, because

the plaintiff does not allege that any injury arising from his interaction with the defendants is

“certainly impending,” he has failed to establish standing to pursue his claim against the

defendants.

IV.       CONCLUSION

          Having concluded that the plaintiff does not have standing to bring his claim at this time,

the Court lacks subject-matter jurisdiction to resolve the parties’ pending cross-motions and must

instead dismiss the plaintiff’s Complaint without prejudice. See Swanson Grp. Mfg. LLC v.

Jewell, 790 F.3d 235, 246 (D.C. Cir. 2015) (vacating summary judgment where the plaintiff

lacked standing and remanding with instructions to dismiss the complaint); Taylor v. FDIC, 132

F.3d 753, 769 (D.C. Cir. 1997) (same). Dismissing the Complaint without reaching the merits of

the parties’ cross-motions “clears the path for future relitigation of the issues” should the plaintiff

later establish his standing to sue. See Maydak v. United States, 630 F.3d 166, 177 (D.C. Cir.

2010) (internal quotations omitted) (quoting Ramallo v. Reno, 114 F.3d 1210, 1214 (D.C. Cir.

1997)).

          For the foregoing reasons, the plaintiff’s remaining claim against the defendants is

dismissed, without prejudice. Accordingly, the parties’ pending motions for summary judgment

are each denied, as moot.


                                                                        Digitally signed by Hon. Beryl A. Howell,
                                                                        United States District Court Judge

          Date: February 11, 2016                                       DN: cn=Hon. Beryl A. Howell, United States
                                                                        District Court Judge, o=U.S. District Court
                                                                        for the District of Columbia, ou,
                                                                        email=Howell_Chambers@dcd.uscourts.g
                                                                        ov, c=US
                                                                        Date: 2016.02.11 18:13:41 -05'00'
                                                        __________________________
                                                        BERYL A. HOWELL
                                                        United States District Judge



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