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May v. United States

United States District Court, W.D. Missouri, Central Division

December 15, 2017

JOSEPH ALLEN MAY, D.D.S., Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          ORDER

          NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE.

         This is a case brought under 26 U.S.C. § 7431 by Plaintiff Joseph Allen May, D.D.S., pro se, who seeks damages from the Defendants for making allegedly unauthorized disclosures of his tax return information. Defendant United States of America has moved under Fed.R.Civ.P. 12(b)(6) to dismiss the claims against it, on the basis that the claims are untimely and that May has otherwise failed to state a claim that falls under the United States' waiver of sovereign immunity. Doc. 19. The United States further argues that the claims against the remaining Defendants, the Internal Revenue Service, IRS Special Agent Joel Wilson, and Unknown IRS Agents, should be dismissed because the United States is the only entity that may be sued under § 7431[1], and that May's request for non-monetary relief is not permitted under § 7431.

         May moves for leave to file amended suggestions in opposition to the United States' motion to dismiss, and submitted his proposed amended suggestions with his motion for leave. Docs. 29 and 29-1.

         May's motion for leave is granted. The United States' motion to dismiss is granted.

         I. Background [2]

         May states that he “had a history of problems with the IRS for failure to file in 1992.” Doc. 1 (Complaint) p. 3, ¶ 10.

         He alleges that on April 7, 2014, Special Agent Wilson and another IRS agent came to his office “demanding that [he] stop his dental practice of treating patients for an unscheduled visit, ” read him a Miranda warning in front of his patients, told him that he was under criminal investigation, and issued IRS administrative subpoenas to his corporation. Doc. 1 (Complaint) p. 3, ¶ 13(a)-(d). May complied with the administrative subpoenas later in 2014. Id., p. 4, ¶ 15.

         May next alleges that “SA Wilson and other agents made unauthorized disclosures to individuals and persons in other United States agencies in violation of 26 U.S.C. § 7431.” Id., p. 3, ¶ 14.

         Then, “[i]n 2015, SA Wilson issued Federal Grand Jury subpoenas to discover possible tax crimes by the Plaintiff.” Id., p. 3, ¶ 15. May states that he complied with the Grand Jury subpoenas in May of 2015. Id.

         Finally, May alleges that “[a]round sometime in October 2016, an un-identified IRS Special Agent returned all of the Plaintiff's records which had been subpoenaed by the Federal Grand Jury as no crime could be found to support a federal indictment.” Id., p. 5, ¶ 21.

         May filed his Complaint in this case on August 22, 2017. He seeks $1, 000 per unauthorized disclosure, actual damages for lost business income, attorney fees, and punitive damages, as well as an order requiring the IRS to issue him a letter stating that he is no longer under criminal investigation for the tax years 2005 through 2016. Id., p. 12.

         II. Discussion

         “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” FDIC v. Meyer,510 U.S. 471, 475 (1994) (citations omitted). A waiver of sovereign immunity is strictly construed in favor of the United States, and the party bringing suit bears the burden of demonstrating waiver. Snider v. United States, 468 F.3d 500, 509 (8th Cir. 2006); VS Ltd. P'ship v. HUD,235 F.3d 1109, 1112 (8th Cir. 2000); and Murray v. Murray, 558 F.2d 1340, 1341 (8th Cir. 1977). If the party bringing suit fails to do so, then the claim must be dismissed. United States v. Mitchell,445 U.S. 535, 538 (1980). See also United States ...


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