United States District Court, D. Colorado
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND
DISMISSING THIS CASE IN ITS ENTIRETY
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant United States
Government's Motion to Dismiss (Doc. # 15) pursuant to
Federal Rules of Civil Procedure 4(c), 4(i), 12(b)(5),
12(b)(1), and 12(b)(6). Defendant specifically requests
dismissal of Plaintiff Donna Lynn Goodwin's Complaint,
wherein she claims entitlement to a refund from the Internal
Revenue Service (IRS) in the amount of $208, 995.00 for
alleged wrongfully withheld private earnings in 2013, 2014,
2015, and 2016. Plaintiff did not respond to the Motion, and
for the following reasons, the Court grants it and dismiss
Service of Process
4(c)(2) provides that only nonparties may serve a summons and
complaint. Even when service is effected by use of the mail,
only a nonparty can place the summons and complaint in the
mail. Constien v. United States, 628 F.3d 1207, 1213
(10th Cir. 2010). Moreover, a party seeking to serve the
United States, its agencies, and employees must comply with
Rule 4(i), which requires the party to “deliver a copy
of the summons and of the complaint to the United States
attorney for the district where the action is brought”
or send a copy of these documents “by registered or
certified mail to the civil-process clerk at the United
States attorney's office.” If service of process is
insufficient, a defendant may move for dismissal under Rule
on the certified mailing receipt filed in this case, it
appears that Plaintiff, herself, placed the Summons and
Complaint in the mail. (Doc. # 6.) Plaintiff has accordingly
failed to comply with Rule 4(c)(2). It further appears that
Plaintiff sent copies of the summons and Complaint to the
United States Attorney General in Washington, D.C. but she
did not serve the United States Attorney for the District of
Colorado. Plaintiff has, therefore, also failed to comply
with Rule 4(i). For these reasons, dismissal for insufficient
service of process under Rule 12(b)(5) is warranted.
Subject Matter Jurisdiction
pursuant to Rule 12(b)(1) is appropriate if the Court lacks
subject matter jurisdiction over claims for relief asserted
in the complaint. “The burden of establishing subject
matter jurisdiction is on the party asserting
jurisdiction.” Port City Props. v. Union Pac. R.R.
Co.24, 518 F.3d 1186, 1189 (10th Cir. 2008). Rule
12(b)(1) challenges are generally presented in one of two
forms: “[t]he moving party may (1) facially attack the
complaint's allegations as to the existence of subject
matter jurisdiction, or (2) go beyond allegations contained
in the complaint by presenting evidence to challenge the
factual basis upon which subject matter jurisdiction
rests.” Merrill Lynch Bus. Fin. Servs., Inc. v.
Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (quoting
Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir.
2003)); see Ruiz v. McDonnell, 299 F.3d 1173, 1180
(10th Cir. 2002). The instant motion launches a factual
attack on this Court's subject matter jurisdiction.
order to bring a lawsuit against the United States, a party
must identify an express waiver of sovereign immunity and
statutory authority granting subject matter jurisdiction.
See U.S. v. Mitchell, 445 U.S. 535, 538 (1980);
U.S. v. Sherwood, 312 U.S. 584, 586 (1941);
Smith v. Krieger, 389 Fed.Appx. 789, 795 (10th Cir.
July 27, 2010) (unpublished). Waivers of sovereign immunity
must be express and cannot be implied. See Mitchell,
455 U.S. at 538; Smith, 389 Fed.Appx. at 795.
specifically, a taxpayer bringing an action against the
United States bears the burden of establishing an unequivocal
waiver of sovereign immunity. Fostvedt v. U.S., 978
F.2d 1201, 1203 (10th Cir. 1992). Even if a lawsuit, like
this one, is brought pursuant to a statute in which the
United States expressly waives its sovereign immunity, the
suit must strictly comply with the terms of the statute or
else it is subject to dismissal. Sherwood, 312 U.S.
pertinent here, 26 U.S.C. § 7422(a) of the Internal
Revenue Code provides:
No suit or proceeding shall be maintained in any court for
the recovery of any internal revenue tax alleged to have been
erroneously or illegally assessed ... until a claim for
refund or credit has been duly filed with the Secretary or
his delegate, according to the provisions of law in that
regard, and the regulations of the Secretary or his delegate
established in pursuance thereof.
regulations promulgated under § 7422(a) state,
“The claim must set forth in detail each ground upon
which a credit or refund is claimed and facts sufficient to
apprise the Commissioner of the exact basis thereof.”
Treas.Reg. § 301.6402-2(b)(1). If the refund claim does
not meet the requirements of the Code and the regulations,
the suit must be dismissed, L.E. Myers Co. v. United
States, 673 F.2d 1366, 1367, 230 Ct.Cl. 142 (1982),
because filing pursuant to the rules is a jurisdictional
prerequisite, Martinez v. United States, 595 F.2d
1147, 1148 (9th Cir. 1979). In other words, “[t]o
qualify as a refund claim, the tax return must not only be
properly executed, but it also must at a minimum
‘identify . . . ‘the essential requirements'
of each and every refund demand.'” Thompson v.
United States, 1999 WL 302453, *2 (N.D.Ga. 1999) (Story,
J.) (citing In re Ryan, 64 F.3d 1516, 1521 (11th
Cir. 1995)); Ruble v. U.S. Gov't, Dep't of
Treasury, I.R.S., 159 F.Supp.2d 1381, 1383 (N.D.Ga.