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Broos v. Brellenthin

United States District Court, D. Minnesota

September 30, 2014

John L. Broos and Carol J. Broos, Plaintiffs,
v.
Bart Brellenthin, Defendant.

John L. Broos and Carol J. Broos, pro se.

Harris J. Phillips, Esq., United States Department of Justice, Washington, D.C., on behalf of Defendant.

MEMORANDUM OPINION AND ORDER

ANN D. MONTGOMERY, District Judge.

I. INTRODUCTION

This matter is before the undersigned United States District Judge for a ruling on Defendant Bart Brellenthin's ("Brellenthin") Motion to Dismiss [Docket No. 8]. Plaintiffs John and Carol Broos (the "Brooses") allege Brellenthin unlawfully garnished John Broos' wages without a lien. Compl. [Docket No. 1] at 1-1. For the reasons discussed below, Defendant's Motion to Dismiss is granted.

II. BACKGROUND

In March 2014;, the Brooses filed a complaint against Brellenthin in state court. Id . The complaint, in its entirety, states:

The amount of the defendants errors were corrected by bankruptcy. There are no levy [sic] or liens of record in the Secretary of State office or in the County Recorders office. After the bankruptcy and without a lien BART BRELLENTHIN garnished wages of JOHN L. BROOS. Garnishments started April 7, 2014 and are ongoing. BART BRELLENTHIN is garnishing 100% of Johns wages, leaving no income or healthcare. Id . On June 20, 2014, the United States ("Government") removed this case to federal court. Id. at 1. The Government acknowledges that Brellenthin-a duly-appointed officer of the Internal Revenue Service (IRS)-took several steps to collect the Brooses' outstanding federal tax liability, including service of a wage levy. Mem. Supp. Mot. Dismiss [Docket No. 10] at 2. On behalf of Brellenthin, the Government moves to dismiss this matter for lack of subject matter jurisdiction under Rule 12(b)(1) or, in the alternative, for failure to state a claim under Rule 12(b)(6).

III. DISCUSSION

A. Legal Standard

When deciding a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) on the pleadings, a court must accept the claimant's factual allegations as true and view them in the light most favorable to the non-movant. Great Rivers Habitat Alliance v. FEMA , 615 F.3d 985, 988 (8th Cir. 2010). The party invoking federal jurisdiction bears the burden of establishing jurisdiction exists. Lujan v. Defenders of Wildlife , 504 U.S. 555, 561 (1992). The court must ensure it has subject matter jurisdiction before proceeding. Ark. Blue Cross & Blue Shield v. Little Rock Cardiology Clinic, P.A. , 551 F.3d 812, 816 (8th Cir. 2009). And as the court's jurisdiction is fixed by statute, the parties may not enlarge it by waiver or consent. Id . Nor may the court assume hypothetical jurisdiction to proceed when its jurisdiction is in doubt. Id.

B. Subject Matter Jurisdiction

To the extent the Brooses' complaint can be construed to state a claim under 26 U.S.C. § 7433, the Government argues the Complaint should be dismissed for lack of subject matter jurisdiction based on the Brooses' failure to exhaust their administrative remedies as required by U.S.C. § 7433(d)(1).[1] Mem. Supp. Mot. Dismiss at 3-5. Plaintiffs maintain that the United States is not a party to this action and that the Attorney General of the United States has no authority to represent Brellenthin in his personal capacity. Mem. Opp. Mot. Dismiss [Docket No. 15] at 2.

It is well established that suits seeking damages against the IRS or an IRS employee in their official capacity are suits against the United States. Searcy v. Donelson , 204 F.3d 797, 798 (8th Cir. 2000). Plaintiffs' contention that they have sued Brellenthin in his personal capacity fails because Brellenthin's alleged wrongful acts were taken in his official capacity as an IRS Revenue Officer. Therefore, the United States is the proper defendant. Coleman v. Espy , 986 F.2d 1184, 1189 (8th Cir. 1993) ("A suit against the ...


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