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No. 12-56358
IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT
BRIAN KENNER; KATHLEEN KENNER,Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA, DOES, 1-50 inclusive, et al.,Defendants-Appellees.
ON APPEAL FROM THE JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF CALIFORNIA
BRIEF FOR THE UNITED STATESAS APPELLEE
KATHRYN KENEALLY Assistant Attorney GeneralBRIDGET M. ROWAN (202) 514-1840GRETCHEN M. WOLFINGER (202) 616-7611 Attorneys Tax Division, Department of Justice Post Office Box 502 Washington, D.C. 20044
Of Counsel: LAURA E. DUFFY United States Attorney
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TABLE OF CONTENTS
Page
Table of authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ivGlossary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viiStatement of subject matter and appellate jurisdiction. . . . . . . . . . . . . 1
A. District Court jurisdiction.. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Appellate jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Statement of the issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Statement of the case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Statement of facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. Overview of the Kenners’ District Court damages actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1. Previous District Court litigation. . . . . . . . . . . . . . . . . 7
a. Kenner v. Kelly et al. (S.D. Cal. No. 3:10-cv-2105) (Kenner I or RICO lawsuit). . . . . . . . . . . . . . . . . 7
b. Kenner v. Kelly et al. (S.D. Cal. No. 3:11-cv-1538) (Kenner II). . . . . . . 8
2. The instant District Court litigation, Kenner v. Kelly et al. (S.D. Cal. No. 3:11-cv-2520) (Kenner III). . . . . . . . . . . 9
B. The proceedings in District Court in the instant case. . . . . 12
1. Substitution of the United States as defendant. . . . . 12
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Page
2. The United States filed a motion to dismiss. . . . . . . . 13
3. The District Court granted the motion to dismiss. . . 16
Summary of argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Argument:
The District Court correctly granted the Government’s motion to dismiss for lack of jurisdiction under the Federal Tort Claims Act, after correctly substituting the United States for the individual IRS defendants. . . . . . . . . . . . . 23
Standard of review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
A. The Kenners did not file an administrative claim. . . . . . . . 24
B. The “tax exception” to the FTCA bars the Kenners’ suit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
C. The Kenners’ allegations are otherwise without merit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
1. Service of notice of substitution.. . . . . . . . . . . . . . . . . 30
2. Substitution of the United States as defendant. . . . . 31
3. The Kenners’ miscellaneous arguments. . . . . . . . . . . 33
D. The IRS’s alternative arguments also provide a basis for dismissal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
1. The complaint fails to state a claim upon which relief may be granted.. . . . . . . . . . . . . . . . . . . . . . . . . 36
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Page
2. The United States was not properly served. . . . . . . . 38
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39Statement of related cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41Certificate of service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
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TABLE OF AUTHORITIES
Cases: Page(s)
Alaska Center for Environment v. United States Forest Service, 189 F.3d 851 (9th Cir. 1999). . . . . . . . . 23-24
Ashcroft v. Iqbal, 556 U.S. 662 (2009). . . . . . . . . . . . . . . . . . . . . . 36Atel Financial Corp. v. Quaker Coal Co.,
321 F.3d 924 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . 35Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). . . . . . . . . . 36Brown. v. Kennard, 94 Cal. App. 4th 40,
113 Cal. Rptr. 2d 891 (2001). . . . . . . . . . . . . . . . . . . . . . . . . 37Chappel v. Laboratory Corp. of America,
232 F.3d 719 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . 34-35Direct Mail Specialists, Inc. v. Eclat Computerized
Technologies, Inc., 840 F.2d 685 (9th Cir. 1988). . . . . . . . . 38Entertainment Research Group, Inc. v. Genesis
Creative Group, Inc., 122 F.3d 1211 (9th Cir. 1997). . . . . . 29Green v. Hall, 8 F.3d 695 (9th Cir.1993). . . . . . . . . . . . . . . . . . . . 33Greenwood v. FAA, 28 F.3d 971 (9th Cir. 1994). . . . . . . . . . . . . . 30Hillis v. Heineman, 626 F.3d 1014 (9th Cir. 2010). . . . . . . . . . . . 34Kenner v. Holder et al. (S.D. Cal. No. 3:12-cv-1011) . . . . . . . . . . 12Kenner v. Kelly et al. (9th Cir. No. 11-56062). . . . . . . . . . . . . . . 2, 7Kenner v. Kelly et al. (S.D. Cal. No. 3:10-cv-2105). . . . . . . . . . . 7-8Kenner v. Kelly et al. (S.D. Cal. No. 3:11-cv-1538). . . . . . . . . . . 8-9Kenner v. Kelly et al. (S.D. Cal. No. 3:11-cv-2520). . . . . . . . . . 9-12Landham v. Taylor, 68 Fed. Appx. 608 (6th Cir. 2003). . . . . . . . 34Meridian International Logistics, Inc. v. United States,
939 F.2d 740 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . 24, 25Orsay v. United States Department of Justice,
289 F.3d 1125 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . 25Osborn v. Haley, 549 U.S. 225 (2007). . . . . . . . . . . . . . . . . . . . . . 33United States v. Williamson, 439 F.3d 1125 (9th Cir. 2006).. . . . 29Valadez-Lopez v. Chertoff, 656 F.3d 851 (9th Cir. 2011). . . . . . . 24Viewtech, Inc. v. United States, 653 F.3d 1102 (9th Cir. 2011). . 23
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Page(s)
Constitution and Statutes:
U.S. Constitution:
Amendment I ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 34Amendment V ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 34
18 U.S.C. § 1961 et. seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7
Internal Revenue Code (26 U.S.C.) § 7433. . . . . . 20, 22, 28, 33, 34
28 U.S.C.:
§ 1291.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4§ 1346(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3§ 2671.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3§ 2675.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4§ 2675(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 18, 24, 35§ 2679(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-22, 32§ 2679(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 17§ 2679(d)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-22, 33§ 2679(d)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 21-22, 33§ 2680(c).. . . . . . . . . . . . . . . . . . . . 4, 14, 17, 19, 25, 27-28, 35§ 2680(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 28-29
Miscellaneous: Page(s)
California Civil Code:
§ 52.1 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10§ 52.1(b) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Federal Rule of Appellate Procedure 4(a)(1)(B). . . . . . . . . . . . . . . 4
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Miscellaneous(cont’d): Page(s)
Federal Rules of Civil Procedure
Rule 4.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 38Rule 4(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38Rule 12(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 14, 23Rule 12(b)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 14Rule 12(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 14
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GLOSSARY
FTCA Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq.
RICO Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq.
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IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT
No. 12-56358
BRIAN KENNER; KATHLEEN KENNER,
Plaintiffs-Appellants,v.
UNITED STATES OF AMERICA, DOES, 1-50 inclusive, et al.,
Defendants-Appellees.
ON APPEAL FROM THE JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF CALIFORNIA
BRIEF FOR THE UNITED STATESAS APPELLEE
STATEMENT OF SUBJECT MATTER ANDAPPELLATE JURISDICTION
This appeal arises from the third lawsuit appellants Brian
Kenner and his wife Kathleen (Kenners) have filed seeking damages
and naming employees of the Internal Revenue Service (IRS) and
others as defendants. The Kenners appear to have filed the lawsuits in
an effort to thwart collection of their outstanding multi-million dollar
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As discussed in more detail below, an appeal in the Kenners’1
RICO suit against various IRS employees, among others, is pendingbefore this Court. Kenner v. Kelly et al. (9th Cir. No. 11-56062).
income tax liabilities, as well as to hold the IRS employees involved in
the collection of those unpaid liabilities personally liable for the alleged
damages. The lawsuits have their genesis in the Kenners’ objection to
the payment of a lawsuit’s settlement proceeds to the IRS with respect
to their outstanding tax liabilities, and the IRS’s return of the Kenners’
offer in compromise. 1
A. District Court jurisdiction
In October 2011, the Kenners filed a complaint in San Diego
Superior Court seeking damages against IRS employees Erin Kelly,
Jennifer Plasky, Carol Rose, Mary K. Pittner, C. John Crawford,
Patricia Blizzard, Charlotte A. Becerra, Sylvia L. Shaughnessy, David
Alito, and Mindy Meigs; Capital One; federal District Judges Anthony
Battaglia and Barry Moskowitz, in their official capacities (federal
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Capital One and the federal judges have separate2
representation, with the United States Attorney’s Office for theSouthern District of California representing the judges.
References used in this brief are: “Br.” (appellants’ brief), “Doc.”3
(documents comprising the original record of the case as numbered bythe clerk of the District Court), and “SER” (United States’supplemental excerpts of record).
judges); and Does 1-50. (SER 5-31.) The complaint alleged violations2 3
of, and conspiracy to violate, California state law, as well as abuse of
process, conversion, and interference with economic relationships. (Id.)
The United States and the IRS employees filed a notice of
removal to federal district court. (SER 1-4.) Subsequently, in response
to the Government’s notification that the complaint contained common
law tort claims against the individual IRS defendants for actions taken
within the scope of their official duties, the District Court ordered that
the United States be substituted as the defendant in place of the IRS
employees, pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C.
§§ 1346(b), 2671 et seq. (SER 32-33.)
The District Court then determined, correctly, that it lacked
subject matter jurisdiction over the claims relating to the United
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States. The court determined that, pursuant to the FTCA (28 U.S.C.
§ 2675), the Kenners had failed to exhaust their administrative
remedies and, further, that suit was barred under the “tax collection”
exception to the FTCA (28 U.S.C. § 2680(c)).
B. Appellate jurisdiction
On June 20, 2012, the District Court granted the Government’s
motion to dismiss for, inter alia, lack of jurisdiction under the FTCA
(Doc. 35, SER 34-37), and entered judgment for the United States on
June 29, 2012 (SER 38). Previously, the District Court had granted the
motions to dismiss filed by the federal judges (Doc. 31) and Capital One
(Doc. 36). Thus, the judgment is final and appealable, the District
Court having disposed of all claims of all parties.
On July 20, 2012, the Kenners filed a timely notice of appeal.
Fed. R. App. P. 4(a)(1)(B). (SER 39-40.) This Court has jurisdiction
pursuant to 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES
1. Whether the District Court correctly substituted the United
States for the individual IRS employee defendants.
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Case No. 37-2011-00070473.4
Initially, the IRS employees filed a motion to dismiss. (Doc. 15.) 5
Upon ordering that the United States be substituted as the defendantin place of the IRS employees (SER 32-33), the District Court deniedthe IRS employees’ motion as moot (Doc. 30).
2. Whether the District Court correctly granted the motion of the
United States to dismiss because the court lacked subject matter
jurisdiction over the United States pursuant to the Federal Tort Claims
Act (FTCA).
STATEMENT OF THE CASE
In October 2011, the Kenners filed a complaint in the Superior
Court of the State of California seeking damages against several IRS
employees, Capital One, and federal judges. (SER 5-31.) The United4
States and the IRS employees filed a notice of removal to federal
district court. (SER 1-4.) Subsequently, the District Court ordered
that the United States be substituted as the defendant in place of the
IRS employees. (SER 32-33.)
The United States thereupon filed a motion to dismiss pursuant5
to Federal Rules of Civil Procedure 12(b)(1), (b)(5), and (b)(6). (Doc. 35.)
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The Government contended that the District Court lacked subject
matter jurisdiction over the common law tort claims because the
Kenners had not demonstrated a waiver of sovereign immunity. (Id. at
5-7.) In addition, the Government noted that the FTCA is the exclusive
remedy for common law torts committed by federal employees acting
within the scope of their authority, and that the United States is the
defendant in such a suit. The Government maintained that, pursuant
to the FTCA, suit was barred because the Kenners had failed to file an
administrative claim and because suit was barred under the “tax
exception” to the FTCA. (Id. at 7-8.) The Government further alleged
that the Kenners had failed to state a claim upon which relief may be
granted. (Id. at 7-13.) Finally, the Government alleged that it had not
been properly served. (Id. at 14.) The Kenners opposed the motion
(Doc. 41), and the United States filed a reply (Doc. 42).
On June 20, 2012, the District Court granted the Government’s
motion to dismiss (SER 34-37), and entered judgment accordingly on
June 29, 2012 (SER 38).
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STATEMENT OF FACTS
As a result of the Kenners’ several lawsuits regarding their tax
liabilities, this appeal arises in the context of a complicated factual and
procedural background, which is briefly described below.
A. Overview of the Kenners’ District Court damagesactions
1. Previous District Court litigation
The Kenners filed two previous lawsuits against the IRS
employees and others seeking to hold the defendants personally liable
for “damages” based on various theories involving the Racketeer
Influenced and Corrupt Organizations Act, common law torts, and
conspiracy theories.
a. Kenner v. Kelly et al. (S.D. Cal. No. 3:10-cv-2105) (Kenner I orRICO lawsuit)
In October 2010, the Kenners filed a complaint pursuant to the
Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.
§ 1961 et seq., seeking, inter alia, $64.5 million in treble damages and
attorneys’ fees and expenses from the IRS employees. The suit also
named Barbara Dunn and Lacy Dunn and Do, a professional
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corporation, and Does 1-25. As noted above, the basis for the complaint
was the Kenners’ objection to the payment of a lawsuit’s settlement
proceeds to the IRS with respect to their tax liabilities, and the IRS’s
return of the Kenners’ offer in compromise. The case was originally
assigned to Judge Moskowitz, but later was transferred to Judge
Battaglia, who were, thus, both named as defendants in the instant
suit. (See Br. 3-4.)
The IRS employees filed a motion to dismiss. In May 2011, Judge
Battaglia issued an order granting the motion. The Kenners’ appeal is
pending before this Court. Kenner v. Kelly et al. (No. 11-56062).
b. Kenner v. Kelly et al. (S.D. Cal. No. 3:11-cv-1538) (Kenner II)
In July 2011, the Kenners filed a second action in the District
Court. The complaint in that case was essentially identical to their
previous RICO complaint, Kenner I. The Kenners also requested a
temporary restraining order (TRO) against the IRS employees, and
filed an Ex Parte Motion for Approval of Plaintiffs’ Lis Pendens’ Notice.
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In August 2011, Judge Battaglia denied the Kenners’ TRO
motion, issued an order signing the Kenners’ Notice of Lis Pendens,
and stayed the case pending resolution of the appeal in Kenner I.
2. The instant District Court litigation, Kenner v. Kelly et al. (S.D. Cal. No. 3:11-cv-2520) (Kenner III)
On October 11, 2011, the Kenners filed the instant complaint in
the Superior Court of the State of California naming IRS employees in
their individual capacities, Capital One, and federal District Judges
Anthony Battaglia and Barry Moskowitz. The case was removed to the
federal District Court on October 31, 2011. The complaint alleged that
the “presiding Federal Court has acted with the defendant parties as
conspirators to defeat the RICO lawsuits. The presiding Federal Court
and its conspirators have used threats, intimidation, and coercion to
force KENNER to abandon their rights.” (SER 8.)
Although the complaint is somewhat difficult to decipher, it
appeared to assert 14 causes of action, nine of which were alleged
against the IRS employees. These were:
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(1) the Second Cause of Action, conspiring with Judge Moskowitz
to violate California Civil Code § 52.1 (the Bane Act), by preventing the
Kenners from pursuing a RICO claim (SER 10-12);
(2) the Fourth Cause of Action, conspiring with Judge Battaglia
and Capital One to violate the Bane Act, by preventing the Kenners
from pursuing an appeal of the Judge’s “flawed” RICO dismissal (SER
15-17);
(3) the Fifth Cause of Action, violation of the Bane Act, by
attempting to prevent the Kenners from pursuing their appeal of the
RICO dismissal (SER 17-18);
(4) the Seventh Cause of Action, conspiring with Judge Moskowitz
“to a violation of Abuse of Process,” by furthering the Judge’s attempts
to dismiss the RICO complaint (SER 19-20);
(5) the Ninth Cause of Action, conspiring with Judge Battaglia
and Capital One to violate abuse of process, by improperly forcing the
Kenners to “quit” their RICO lawsuit and abandon their appeal (SER
21-22);
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(6) the Tenth Cause of Action, abuse of process, by “defeat[ing]”
the Kenners’ offer in compromise and unlawfully obtaining settlement
funds from a Kenner lawsuit (SER 22-27);
(7) the Eleventh Cause of Action, abuse of process, by “defeat[ing]”
the Kenners’ RICO lawsuit and the appeal, and by willfully misusing
the IRS to attempt an illegal seizure of the Kenners’ assets (SER 27-
28);
(8) the Thirteenth Cause of Action, conspiring with Capital One
“for a violation of Conversion” of the Kenners’ (unidentified) real
property (SER 29-30); and
(9) the Fourteenth Cause of Action, interfering with economic
relationships together with Capital One, by willfully acting to seize or
disrupt the Kenners in their business “run . . . off[]” the Kenner Horse
Ranch (SER 30).
The Kenners sought damages in the amounts of $64.5 million (the
same treble damages they sought in Kenner I) for the second, fourth,
fifth, seventh, ninth and eleventh causes of action (SER 12, 13, 14, 16,
22, 28); $19.02 million for the tenth cause of action (SER 27); $2.5
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On April 25, 2012, the Kenners filed a fourth lawsuit, which did6
not name IRS employees, but rather named Attorney General Holder,among others. This complaint alleges that the dismissals in theprevious three cases, discussed above, violated the Kenners’ First andFifth Amendment rights. Kenner v. Holder, et al. (S.D.Cal. No. 3:12-cv-1011).
million for the thirteenth cause of action (SER 30); and $500,000 for the
fourteenth cause of action (SER 30). 6
B. The proceedings in District Court in the instant case
1. Substitution of the United States as defendant
As noted above, the IRS employees initially filed a motion to
dismiss. (Doc. 15.) Subsequently, however, the United States,
pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2679(d),
notified the District Court that it should be substituted for the IRS
employees for all common law tort claims alleged against the
employees. (Doc. 21.) As explained in that notice, the FTCA provides
that a suit against the United States is the exclusive remedy for
damages claims resulting from the negligent or wrongful actions of
federal employees taken within the scope of their employment. The
United States provided a Certificate of Scope of Employment verifying
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The District Court therefore denied the IRS employees’ motion7
to dismiss as moot. (Doc. 30.) The Kenners did not move forreconsideration of the substitution order.
that the IRS employees were acting within the scope of their
employment with regard to the events described in the Kenners’
complaint. Accordingly, because the tort claims were properly deemed
an action under the FTCA, the United States maintained that it should
be substituted as a defendant in place of the IRS employees. The
Kenners did not challenge the substitution.
The District Court issued an order to substitute the United States
as the defendant in place of the IRS employees. (SER 32-33.) The
court concluded that the complaint contained common law tort claims
arising from actions taken by the employees within the scope of their
employment– specifically the second, fourth, fifth, seventh, ninth,
tenth, eleventh, thirteenth, and fourteenth causes of action.
Accordingly, as to the individual defendants, the court dismissed those
causes of action with prejudice, pursuant to 28 U.S.C. § 2679(d)(2). 7
(SER 33.)
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2. The United States filed a motion to dismiss
Subsequently, the United States filed a motion to dismiss,
pursuant to Federal Rules of Civil Procedure 12(b)(1), (b)(5), and (b)(6).
(Doc. 35.) The Government argued that the District Court generally
lacked subject matter jurisdiction because the Kenners had cited no
federal statutes in the complaint (or other authority) that established a
waiver of sovereign immunity. (Id. at 5-7.) Further, in seeking tort
damages against the United States, pursuant to the FTCA, 28 U.S.C.
§ 2675(a), a plaintiff must exhaust his administrative remedies by first
filing a claim with the relevant agency prior to filing suit, something
the Kenners did not do. Even if they had filed such a claim, the
Government maintained that the court would lack jurisdiction under
the exception to the FTCA that bars suit on any claim arising from the
assessment or collection of taxes. 28 U.S.C. § 2680(c). (Id. at 7-8.)
The Government also alleged that the complaint failed to state a
claim upon which relief may be granted because the Kenners’ claims
were not pleaded with particularity or specificity, but, instead,
consisted of conclusory and group-oriented allegations that did not
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establish the elements of the causes of action that were pleaded. (Doc.
35 at 8-13.) Finally, the Government asserted that it had not been
properly served. (Id. at 14-15.)
The Kenners opposed the motion. (Doc. 41.) The opposition
included general charges of “Systemic lawlessness.” (Id. at 3.) The
Kenners also alleged that they were not served with the notice of
substitution until January 17, 2012, after the District Court had acted
on the notice. In support of this allegation, the Kenners produced an
envelope sent from the Department of Justice to them that was
postmarked January 17. (Id.)
The Kenners further argued that the Government’s position on
sovereign immunity was inconsistent, in that the United States claimed
that suit could be brought under the FTCA, but that suit was barred
under an exception. Apparently, for this reason, they contended that
the United States should not have been substituted as the defendant.
(Doc. 41 at 4-6.) In addition, the Kenners maintained that they had
sufficiently pleaded the elements of a Bane Act violation and their
other causes of action. (Doc. 41 at 6-10.)
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The United States filed a reply. (Doc. 42.) The Government
stated that the Kenners had been properly served with a copy of all
filings, including the notice of substitution, which was served on
January 5, 2012. The Government explained that two separate
mailings were made to the Kenners during that time-frame – the notice
of substitution and the reply to the Kenners’ opposition to the
individual defendants’ motion to dismiss. A copy of the reply to the
Kenners’ opposition to the motion to dismiss had been placed in the
mail on January 13, 2012, but because of a federal holiday it likely was
not postmarked until January 17, 2012. (Id. at 5.)
3. The District Court granted the motion to dismiss
The District Court granted the Government’s motion, and
dismissed all of the claims against the United States with prejudice.
(SER 34-37.) The court began its opinion by noting that the United
States was the proper party defendant, but that it could not be sued
without a waiver of sovereign immunity. (SER 35.) The court observed
that although the FTCA was the exclusive remedy for damages claims
resulting from the negligent or wrongful actions of federal employees
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taken within the scope of their employment, it contained limitations
and exceptions. One of the limitations on suit was the requirement
that the plaintiff file an administrative claim with the agency, which,
the court stated, there was no record that the Kenners had done. (SER
36.) Further, the court noted that the FTCA does not extend to any
claim arising out of the assessment or collection of taxes. 28 U.S.C.
§ 2680(c). The court held that the tax exception to the FTCA applied
here. (Id.)
The District Court rejected the Kenners’ arguments made in
opposition. The court stated that the United States was properly
substituted as the defendant under 28 U.S.C. § 2679(d). Next, the
court stated that, although the Kenners had filed an appeal of the
substitution order (No. 12-55287), this Court had held that the order
was not a final order and thus was not appealable at that time.
Finally, the court rejected the Kenners’ contention that they had not
received notice of the notice of substitution, upon determining that the
document that was mailed to the Kenners on January 17, 2012, was not
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the certification of scope of employment, but the Government’s reply to
the Kenners’ opposition to the dismissal motion. (SER 36-37.)
The court concluded that it lacked jurisdiction over the Kenners’
claims. Consequently, as this conclusion was dispositive, it did not
address the Government’s other arguments. (SER 37.)
This appeal by the Kenners followed.
SUMMARY OF ARGUMENT
1. The District Court correctly granted the Government’s motion
to dismiss because the court lacked subject matter jurisdiction
pursuant to the FTCA. On appeal, the Kenners have not challenged
the District Court’s conclusion that it lacked jurisdiction because they
failed to file an administrative complaint, and this Court could affirm
on this basis alone. In any event, the District Court’s decision was
correct.
To pursue a valid claim under the FTCA, a plaintiff must first file
an administrative claim with the relevant agency. 28 U.S.C. § 2675(a).
There is no evidence that the Kenners filed an administrative claim
with regard to their claims against the IRS employees, and they do not
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maintain that they did. Accordingly, the District Court correctly
dismissed the complaint.
Even if the Kenners had filed an administrative claim, suit would
be barred under the exception to the FTCA that makes the Act
inapplicable to any claim arising with respect to the assessment or
collection of taxes. 28 U.S.C. § 2680(c). This exception is jurisdictional
as well.
The Kenners’ claims against the individual IRS defendants arise
with respect to the assessment and collection of their unpaid federal
tax liabilities. Their current complaint is grounded in the dismissal of
their RICO lawsuit (Kenner I), which complained of the payment of a
lawsuit’s settlement proceeds to the IRS with respect to the Kenners’
tax liabilities, and the IRS’s return of the Kenners’ offer in compromise.
The complaint also references alleged attempts by the IRS to “seize”
the Kenners’ assets, apparently to satisfy their outstanding tax
liabilities. The activity thus clearly falls within the scope of the tax
exception to the FTCA.
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The Kenners argument on this issue, to the extent that it is
comprehensible, is that the Government purportedly contended that
claims regarding improper tax collection activity are actionable under
26 U.S.C. § 7433, not the FTCA. Because, according to the Kenners,
their abuse-of-process claim does not relate to collection activity or “a
Title 26 statute,” dismissal of the abuse-of-process claims was error.
The Kenners’ argument is meritless. Although they may have labeled
their claims as ones for abuse of process, the claims, in fact, related to
tax assessment and collection. Further, claims of abuse of process also
are exempt from coverage under the FTCA. 28 U.S.C. § 2680(h).
2. The Kenners make numerous claims in their brief with regard
to the IRS employees. However, the mere mention of an issue,
unsupported by an argument and supporting authorities, is not
sufficient to present these issues for review. In any event, the
arguments, to the extent they can be deciphered, are without merit.
The Kenners claim that the District Court substituted the United
States as defendant without proper notice to them; i.e., they maintain
that the notice of substitution was served on January 17, 2012, not on
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January 5, 2012. The District Court correctly determined that the
document that the Kenners were mailed on January 17, 2012, was the
Government’s reply to the Kenners’ opposition to the individual IRS
defendants’ motion to dismiss, and that the Kenners timely received
notice of the substitution. In any event, once the Kenners received the
order of substitution, they did not move for reconsideration of the
court’s order.
Thus, before the District Court, and on appeal, the Kenners claim
that the substitution of the United States as defendant was improper
and unlawful. But the substitution of the United States for the
individual IRS employees was entirely appropriate. The District Court
correctly concluded that the Kenners were alleging common law tort
claims – such as abuse of process and conversion – against the
individual IRS defendants, and that those employees had been certified
as acting within the scope of their employment. Federal employees
receive absolute immunity from common law tort claims arising out of
acts they undertake “while acting within the scope of [their] office or
employment,” as certified by the Attorney General. 28 U.S.C.
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§ 2679(b)(1),(d)(1), (d)(2). The Kenners did not challenge the scope of
certification in the District Court by asking for reconsideration of the
court’s substitution order, and thus the certification is conclusive.
The Kenners further appear to argue that because 26 U.S.C.
§ 7433 and the FTCA provide for recovery of damages from the United
States, thereby protecting the individual IRS employees from personal
liability, they should be permitted to bring their RICO lawsuit. In
addition, they request that this Court declare as unconstitutional
certain provisions of the FTCA and 26 U.S.C. § 7433, allegedly because
those provisions violate the First and Fifth Amendments of the
Constitution.
First, the viability of the Kenners’ RICO lawsuit is at issue in the
pending appeal of that lawsuit, not the instant appeal. Second, because
the Kenners did not raise their constitutional argument below, it is
waived. At all events, the constitutional argument is meritless.
Finally, although the District Court did not address the
Government’s alternative arguments for dismissal, this Court may
nonetheless consider them. The Kenners have failed to plead their
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causes of action with the particularity necessary to state a claim upon
which relief may be granted. The Kenners also did not properly serve
the complaint pursuant to Federal Rule of Civil Procedure 4.
The judgment of the District Court is correct and should be
affirmed.
ARGUMENT
THE DISTRICT COURT CORRECTLY GRANTED THEGOVERNMENT’S MOTION TO DISMISS FOR LACKOF JURISDICTION UNDER THE FEDERAL TORTCLAIMS ACT, AFTER CORRECTLY SUBSTITUTINGTHE UNITED STATES FOR THE INDIVIDUAL IRSDEFENDANTS
Standard of review
This Court reviews de novo a dismissal pursuant to Rule 12(b)(1).
See Viewtech, Inc. v. United States, 653 F.3d 1102, 1103-04
(9th Cir. 2011).
The Kenners have failed to challenge one of the bases of the
District Court’s decision – that the court lacked jurisdiction under the
FTCA because the Kenners had failed to file an administrative claim.
They therefore have waived that issue (Alaska Center for Environment
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v. United States Forest Service, 189 F.3d 851, 858 n.4 (9th Cir. 1999)
(arguments not raised in the opening brief are waived)), and this Court
could summarily affirm on that basis alone. In any event, as discussed
below, the District Court’s decision was correct.
A. The Kenners did not file an administrative claim
To pursue a valid claim under the FTCA, a plaintiff must first file
an administrative claim with the relevant agency. The Act provides
that “[a]n action shall not be instituted upon a claim against the United
States for money damages . . . unless the claimant shall have first
presented the claim to the appropriate Federal agency and his claim
shall have been finally denied by the agency in writing . . . .” 28 U.S.C.
§ 2675(a). The requirement to exhaust administrative remedies is
jurisdictional. Absent exhaustion, the District Court lacks subject
matter jurisdiction over the case. See Valadez-Lopez v. Chertoff, 656
F.3d 851, 855 (9th Cir. 2011); Meridian International Logistics, Inc. v.
United States, 939 F.2d 740, 743 (9th Cir. 1991). There is no evidence
that the Kenners filed an administrative claim with regard to their
claims against the IRS employees, and they do not maintain that they
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did. Accordingly, the District Court correctly dismissed the complaint
for failure to file an administrative claim.
B. The “tax exception” to the FTCA bars the Kenners’suit
Even if the Kenners had filed an administrative claim, suit would
be barred under the “tax exception” to the FTCA. The Act provides:
“The provisions of this chapter and section 1346(b) of this title shall not
apply to – . . . Any claim arising in respect of the assessment or
collection of any tax . . .” 28 U.S.C. § 2680(c). As with the requirement
to file an administrative claim, the exception is jurisdictional. See
Orsay v. United States Department of Justice, 289 F.3d 1125, 1136 (9th
Cir. 2002); Meridian International Logistics, 939 F.2d at 742-43.
The Kenners’ claims against the individual IRS defendants arise
with respect to the assessment and collection of their unpaid federal
tax liabilities. The Kenners’ current complaint is grounded in the
dismissal of their RICO lawsuit (Kenner I), which complained of the
payment of a lawsuit’s settlement proceeds to the IRS with respect to
those tax liabilities, and the IRS’s return of the Kenners’ offer in
compromise. Thus, the current lawsuit is intertwined with the subject
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matter of the RICO lawsuit, which was, in essence, about the collection
of taxes. See, e.g., SER 8, ¶ 8 (describing RICO lawsuit); SER 17,
¶ 44(e) (“The IRS threatened all KENNER property in order to
intimidate and coerce KENNER into quitting the RICO lawsuit and
abandoning the appeal.”); SER 23, ¶ 50 [sic] (IRS Defendants “took part
in the conduct of the IRS enterprise to carry out . . . RICO predicate
crimes in order to unlawfully obtain settlement funds from a KENNER
lawsuit against their tax professionals, while a proper KENNER/IRS
Offer in Compromise . . . was pending.”)
The complaint also references alleged attempts by the IRS to
“seize,” “confiscate,” or “convert” the Kenners’ assets, apparently to
satisfy the Kenners’ outstanding tax liabilities. See, e.g., SER 16,
¶ 38(a) (“Conspirators attempted bank foreclosure of KENNER real
property assets”); SER 17, ¶ 44(d) (“persons at IRS illegally responded
with a Notice of Levy threatening confiscation of all KENNER property
and business assets”); SER 21, ¶ 69(b) (“conspirators threatened IRS
seizure of all KENNER assets, including their real property[,] in direct
violation of the IRC”); SER 23, ¶ 52 [sic] (“Illegal collection of the
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KENNER-SHAF settlement directly destroyed KENNER’s ability to
compromise and settle their tax debt with the IRS.”); SER 28, ¶ 85
(“IRS RICO Defendants willfully misused the IRS and other IRS
employees to attempt illegal seizure of KENNER assets.”); SER 29,
¶ 101 (“The IRS RICO Defendants . . . knowingly and willfully agreed
to the conversion of KENNER real property”); SER 30, ¶ 108 (“RICO
Defendants . . . have willfully acted to seize or disrupt KENNER from
that [Kenner Horse Ranch] business.”).
The offer in compromise alluded to in the Kenners’ complaint was
made to resolve the Kenners’ outstanding tax liabilities, and the
alleged “seizure” or “conversion” of assets was the result of the IRS’s
attempt to collect those liabilities. The activity thus clearly falls within
the scope of the FTCA exception for “claims arising in respect of the
assessment or collection of any tax.” 28 U.S.C. § 2680(c). Indeed, the
Kenners appear to have conceded the applicability of this exception, at
least in part, because in arguing against the substitution of the United
States for the individual IRS employees, the Kenners stated that
“causes of action 5, 6, 7, 8, 9, 10, and 11 are causes in action based in
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deceit, misrepresentation, or abuse of process or ostensibly arise in
respect of the assessment or collection of a tax.” (Doc. 56 at 6.)
Accordingly, the claims alleged against the United States, as a
substituted defendant, were properly dismissed by the District Court
because the FTCA does not extend to any claim involving the
assessment or collection of tax.
The Kenners argument on this issue, to the extent that it is
comprehensible, is that the Government purportedly contended that
claims regarding improper tax collection activity are actionable under
26 U.S.C. § 7433, not the FTCA. Because, according to the Kenners,
their abuse-of-process claims do not relate to collection activity or “a
Title 26 statute,” dismissal of those claims was error. (Br. 37.)
The Kenners are mistaken. As discussed above, although they
may have labeled their claims as ones for abuse of process, the claims,
in fact “[arose] in respect of the assessment or collection of any tax
. . . .” 28 U.S.C. § 2680(c). Further, claims of abuse of process also are
exempt from coverage under the FTCA. 28 U.S.C. § 2680(h) (FTCA
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This exception also appears to be applicable to other claims8
made by the Kenners. To the extent that causes of action 2, 4 (claimsunder the Bane Act for essentially abuse of process) and claims 5, 7, 9,10, and 11 are based in “deceit, misrepresentation, or abuse of process”(Doc. 56 at 6), suit would be barred pursuant to 28 U.S.C. § 2680(h).
does not apply to any claim arising out of abuse of process,
misrepresentation, deceit).8
C. The Kenners’ allegations are otherwise without merit
The Kenners make numerous claims in their brief with regard to
the IRS employees. The majority of these claims are simply that –
claims – and not arguments. The mere mention of an issue,
unsupported by a developed, comprehensible argument, and supporting
authorities, is not sufficient to present it for review. See, e.g., United
States v. Williamson, 439 F.3d 1125, 1137 (9th Cir. 2006) (“Williamson
does not cite any law, provide any legal theory, or request any
particular relief with respect to such alleged error, but merely recites
it.”); Entertainment Research Group, Inc. v. Genesis Creative Group,
Inc., 122 F.3d 1211, 1217 (9th Cir. 1997)(Court reviews “only issues
which are argued specifically and distinctly” in the opening brief;
appellant must “present a specific, cogent argument”) (internal
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quotations and citation omitted); Greenwood v. FAA, 28 F.3d 971, 977
(9th Cir. 1994) (“We will not manufacture arguments for an appellant,
and a bare assertion does not preserve a claim, particularly when, as
here, a host of other issues are presented for review.”) In any event, to
the extent that the Kenners’ claims can be deciphered, they are without
merit.
1. Service of notice of substitution
In their statement of the case, the Kenners claim that the United
States requested to be substituted as the defendant in place of the IRS
employees, and the District Court granted substitution without proper
notice to the Kenners. (Br. 8.) To buttress this argument, the Kenners
accuse the Department of Justice attorney of perjury, and accuse Judge
Benitez of collaboration with that attorney. (Br. 8, 9; see also Br. 31.)
The Kenners maintain that the notice of substitution was served
on January 17, 2012, not on January 5, 2012. (Br. 8.) The District
Court correctly determined that the document that was mailed on
January 17, 2012, was the Government’s reply to the Kenners’
opposition to the individual IRS defendants’ motion to dismiss, and that
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the Kenners therefore timely received notice of the substitution. (SER
36-37.) In any event, once the Kenners received the order of
substitution, they did not move for reconsideration of the court’s order.
2. Substitution of the United States as defendant
The Kenners state: “The lawsuit is not a Federal Tort Claims Act
action. Moreover, KENNER argues here the substitution was improper
and unlawful.” (Br. 11.) The District Court, however, properly
substituted the United States for the IRS employee defendants.
As a threshold matter, the District Court correctly concluded that
the Kenners were alleging common law tort claims – such as abuse of
process and conversion – against the individual IRS defendants. (SER
32-33).
We note that in causes of action 2, 4, and 5, the Kenners alleged
violations of the Bane Act, which provides that “[a]ny individual whose
exercise or enjoyment of rights secured by the Constitution or laws of
the United States . . . has been interfered with” may bring an action for
civil damages may be brought in California state court. Ca. Civ. Code.
§ 52.1(b). Those causes of action only nominally alleged violations of
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the Kenners’ “due process” and “constitutional” rights, and their
“constitutional right to appeal.” (See, e.g., SER 12, ¶¶ 21, 22; 16-17,
¶¶ 39-40; 17, ¶ 44.) Those claims were, in fact, simply a recasting of
the abuse-of-process claims in causes of action 7, 9, and 11, sometimes
using the identical language. (Compare SER 15-17 (cause of action 4)
with SER 21-22 (cause of action 9).) Thus, the Attorney General’s
certification and the District Court’s order that the complaint only
encompassed common law tort claims were correct.
Under the Federal Employees Liability Reform and Tort
Compensation Act of 1988 (commonly known as the Westfall Act),
federal employees receive absolute immunity from common law tort
claims arising out of acts they undertake “while acting within the scope
of [their] office or employment.” 28 U.S.C. § 2679(b)(1). When a federal
employee is sued for damages for wrongful or negligent conduct, the
statute “grants the Attorney General authority to certify that a federal
employee named defendant in a tort action was acting within the scope
of his or her employment at the time in question,” and if the Attorney
General makes such a certification, then “the United States must be
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substituted as the defendant.” Osborn v. Haley, 549 U.S. 225, 240–41
(2007); see 28 U.S.C. § 2679(d)(1), (d)(2). The litigation then proceeds
pursuant to the FTCA.
As this Court has observed, “[t]he Attorney General’s decision
regarding scope of employment certification is conclusive unless
challenged.” Green v. Hall, 8 F.3d 695, 698 (9th Cir.1993) (per curiam).
Here, the Kenners did not challenge the scope of certification in the
District Court by asking for reconsideration of the court’s substitution
order, and thus the certification is conclusive. In short, the Kenners’
lawsuit against the individual IRS defendants here was properly
construed as a common law tort damages action, and the United States
was properly substituted as the defendant pursuant to the FTCA.
3. The Kenners’ miscellaneous arguments
The Kenners also appear to argue that because 26 U.S.C. § 7433
and the FTCA provide for recovery of damages from the United States,
thereby protecting the individual IRS employees from personal
liability, they should be permitted to bring their RICO lawsuit. (Br. 21-
24.) In addition, they request that this Court declare as
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unconstitutional “provisions of the FTCA and 26 USC § 7433 whereby
federal employees are provided personal immunity for intentional
violation of the law” (Br. 24), allegedly because those provisions violate
the First and Fifth Amendments of the Constitution. (See Br. 20-21.)
First, the viability of the Kenners’ RICO lawsuit is at issue in the
pending appeal of that lawsuit, and is not an issue presented for review
in the instant appeal. Second, because the Kenners did not raise their
constitutional argument below, it is waived. See Hillis v. Heineman,
626 F.3d 1014, 1019 (9th Cir. 2010) (argument raised for first time on
appeal is waived). Finally, the arguments are simply meritless. See,
e.g., Landham v. Taylor, 68 Fed. Appx. 608, 611 (6th Cir. 2003)
(alternatively stating that arguments that FTCA violated Fourth, Fifth,
and Eighth Amendment were “entirely without merit.”)
Finally, apparently in respect to the Government’s asserting that
their complaint failed to assert a claim upon which relief could be
granted (Br. 37-38), the Kenners complain that they should have been
granted leave to amend their complaint. Amendment in this case
would, however, have been legally and factually futile (see Chappel v.
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Laboratory Corp. of America, 232 F.3d 719, 725-26 (9th Cir. 2000)),
because the District Court plainly lacked subject matter jurisdiction
under the FTCA. The Kenners did not file an administrative claim, as
required by 28 U.S.C. § 2675(a), prior to filing suit, and do not contend
that they did. Moreover, their suit is plainly a reaction to, and an effort
to challenge, the assessment and collection of federal taxes, and it is,
therefore, barred by the tax exception to the FTCA. 28 U.S.C.
§ 2680(c).
D. The IRS’s alternative arguments also provide a basisfor dismissal
Although the District Court did not address the Government’s
other arguments because the FTCA ruling was dispositive, the Court
may nonetheless consider those arguments as further grounds for
dismissal. See Atel Financial Corp. v. Quaker Coal Co., 321 F.3d 924,
926 (9th Cir. 2003) (this court may affirm a district court’s decision on
any ground supported by the record).
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1. The complaint fails to state a claim upon whichrelief may be granted.
The Kenners have failed to plead their case with the particularity
necessary to state a claim upon which relief may be granted. None of
the causes of action alleges specific facts sufficient, inter alia, to provide
the United States (or the court) with notice why the conduct was
actionable. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (complaint
must have sufficient factual allegations to make cause of action
“plausible on its face”) (internal quotations and citation omitted); Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (complaint must
have a short and plain statement of the claim to give the defendant
“fair notice,” which provides more than “labels and conclusions” and a
“formulaic recitation” of the cause of action).
With regard to causes of action 2, 4, and 5 (Bane Act/abuse-of-
process claims) (SER 10-12, 15-18), the Kenners make “group”
allegations. Their claims are devoid of any specific allegations with
regard to any of the individual IRS defendants.
Similar deficiencies plague the remaining causes of action. With
regard to the abuse-of-process causes of action (SER 19-20, 21-28), this
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tort “arises when one uses the court’s process for a purpose other than
that for which the process was designed.” To succeed in an action for
abuse of process, a litigant must show “that the defendant
(1) contemplated an ulterior motive in using the process; and
(2) committed a willful act in the use of the process not proper in the
regular conduct of the proceedings.” See Brown v. Kennard, 94 Cal.
App. 4th 40, 44, 113 Cal. Rptr. 2d 891, 894 (2001) (internal quotations
and citations omitted). Again, the Kenners have failed to allege how
any actions of the IRS employees constituted an abuse of process – that
is, how they were not proper in the regular course of proceedings –
and, indeed the Kenners often fail to attribute actions to a specific IRS
defendant.
With regard to the cause of action for conversion (SER 29-30), the
Kenners failed to allege the particulars of conspiracy – what actions
were taken by each defendant and when the activity occurred. They
also fail to allege exactly what “real property” was the subject of the
purported “conversion.”
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Finally, with regard to the cause of action for interference with
economic relationships (SER 30), the Kenners again failed to attribute
actions to a specific IRS defendant, or, even to allege a time period
when the actions occurred.
2. The United States was not properly served
The Kenners did not properly serve the complaint. “A federal
court does not have jurisdiction over a defendant unless the defendant
has been served properly under Fed. R. Civ. P. 4.” Direct Mail
Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685,
688 (9th Cir. 1988). Under Rule 4(i), service upon an agency’s
employees and on the United States requires service upon both the
United States Attorney’s Office and the Attorney General. The
Kenners did not provide evidence that they served the United States
Attorney’s Office and the Attorney General. (See Doc. 22 at 23
(Kenners stated that because the lawsuit was filed in state court, they
did not serve the United States as required by Rule 4(i)).)
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CONCLUSION
For the reasons given above, the judgment of the District Court is
correct and should be affirmed.
Respectfully submitted,
KATHRYN KENEALLY Assistant Attorney General
/s/Gretchen M. Wolfinger
BRIDGET M. ROWAN (202) 514-1840GRETCHEN M. WOLFINGER (202) 616-7611 Attorneys
Tax Division, U.S. Department of Justice Post Office Box 502 Washington, D.C. 20044
Of Counsel:
LAURA E. DUFFY United States Attorney
NOVEMBER 2012
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STATEMENT OF RELATED CASES
Pursuant to Ninth Circuit Rule 28-2.6, counsel for the appellee
state that they are aware of the following related cases:
Kenner v. Kelly et al. (9th Cir. No. 11-56062) - appeal pending
Kenner v. Kelly et al. (9th Cir. No. 12-55287) - appeal dismissed onMarch 12, 2012
Kenner v. Kelly et al. (9th Cir. No. 12-55758) - appeal dismissed onMay 8, 2012
/s/Gretchen M. Wolfinger GRETCHEN M. WOLFINGER Attorney
Case: 12-56358 11/27/2012 ID: 8415869 DktEntry: 14 Page: 48 of 50
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Certificate of Compliance With Type-Volume Limitation,Typeface Requirements, and Type Style Requirements
1. This brief complies with the type-volume limitation of Fed. R.App. P. 32(a)(7)(B) because:
[X] this brief contains 6,835 words, excluding the parts of thebrief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or
[ ] this brief uses a monospaced typeface and contains [state thenumber of] lines of text, excluding the parts of the briefexempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R.App. P. 32(a)(5) and the type style requirements of Fed. R. App. P.32(a)(6) because:
[X] this brief has been prepared in a proportionally spacedtypeface using Corel Word Perfect X3 in Century Schoolbook14 pt. type, or
[ ] this brief has been prepared in a monospaced typeface using[state name and version of word processing program] with[state font size and name of type style].
(s) Gretchen M. Wolfinger_______________________________________Attorney
for Appellee
Dated: November 27, 2012
Case: 12-56358 11/27/2012 ID: 8415869 DktEntry: 14 Page: 49 of 50
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CERTIFICATE OF SERVICEWhen Not All Case participants are Registered for the
Appellate CM/ECF System
I hereby certify that on November 27, 2012, I electronically filed theforegoing brief with the Clerk of the Court for the United States Courtof Appeals for the Ninth Circuit by using the appellate CM/ECFsystem.
Participants in the case who are registered CM/ECF users will beserved by the appellate CM/ECF system.
I further certify that the pro se appellants, the only other participant inthe case, is not a registered CM/ECF user. I have mailed the foregoingdocument by First-Class Mail, postage prepaid, or have dispatched it toa third party commercial carrier for delivery within 3 calendar days tothem at the following address:
Brian and Kathleen Kenner17550 Harrison Park RoadP.O. Box 427Julian, California 92036
Signature /s/ Gretchen M. Wolfinger
Case: 12-56358 11/27/2012 ID: 8415869 DktEntry: 14 Page: 50 of 50