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                                            No. 16-2387
                                     (Filed: October 21 ,2016)
                                    NOT FOR PUBLICATION
                                                                                   FILED
                                                                                 ocT 2 i     2016
                                                )
  roHN r.   DEZMAN,                             )                              r!ot;3^o.'3l|nL
                                                )
                   Pro,Se   Plaintiff,          )
                                                )      Pro Se Plaintiff; Motion to Dismiss for
 v.                                             )      Lack ofJurisdiction; RCFC 12(b)(l);
                                                )      Tax Refund; Wrongful Lery
 THE LINITED       STATES,                      )
                                                )
                        Defendant.              )




                       ORDER GRANTING MOTION TO DISMISS

       Pending before the court is defendant the United States' (.,the govemment,')

motion, filed August 8,2016, to dismiss the above-captioned case for lack ofjurisdiction

pursuant to Rule    l2(b)(l) of the Rules of the Court of Federal Claims (.,RCFC,').

       In his complaint, pro   se   plaintiff John J. Dezman claims that he is entitled to

damages and injunctive relief on the grounds that the govemment has collected more

taxes from him than he owes, the correct amount of which he alleges is zero, in violation

of the united States constitution and 26     u.s.c. $ 7214. }lr. Dezman     also alleges that the

govemment has violated the Racketeer Influenced and corrupt organizations Act

("RICO),    18   U.S.C. $$ 196l-68, and the Hobbs     Ac! l8   U.S.C. g 1951. Mr. Dezman

also alleges that the govemment has violated his privacy rights and his rights to be secure




                                                         ?01,1,   uq?0 00De 5D8q 3?5P
in his house, papers, and effects. Mr. Dezman states that this court has jurisdiction to

hear his claims pursuant to the Tucker Act, 28 U.S.C. $ 1491, and 26 U.S.C. S 7 426,

which permits certain actions based on      a   wrongful levy.l

        In the pending motion to dismiss, the government argues that the court lacks

jurisdiction to hear Mr. Dezman's case, which the government characterizes            as a tax

refund suit, because Mr. Dezman has failed to plead any facts to establish that he fully

paid his assessed tax liability and hled a valid, timely claim for a tax refund. In addition,

the government argues that the court lacks jurisdiction to hear Mr. Dezman's case to the

extent his claims allege violations of criminal law or sound in tort. Finally, the

govemment argues that the court lacks jurisdiction to hear Mr. Dezman's other claims

because the complaint fails to identifu any "money-mandating" source of           law. The court

finds that oral argument is not necessary.

        A plaintiff has the burden of establishing the court's subject matter jurisdiction by         .

a preponderance    ofthe evidence. see Fid. & Guar. Ins. (Jnderwriters, Inc. v. united

States,805 F.3d 1082, 1087 (Fed. Cir.20l5) (citingBrandtv. United States, Tl0 F.3d



I Mr. Dezman
                also names as defendants the United States Attomey General and the
Commissioner of the IRS. Because the only proper defendant for any matter before this court is
the United States, the court construes Mr. Dezman's claims as claims against the United States.
see 28 U.S.c. g 1491; RCFC l0(a) (requiring that the United States be designated as the
defendant in any complaint before this covrt); stephenson v. United states, 5g Fed. cl. lg6, 190
(2003) ('[T]he only proper defendant for any matter before this court is the United States, not its
officers, nor any other individual." (citing United States v. Sherwood,3 12 U.S. 5g4. 5gg
(1941)).
 1369,1373 (Fed. Cir.2013);Reynoldsv. Army & Air Force Exch.\erv.,846F.2d746,

 748 (Fed. Cir. 1988). "In deciding a motion to dismiss for lack of subject matter

jurisdiction, the court accepts as true all uncontroverted factual allegations in the

complaint, and construes them in the light most favorable to the plaintiff." Estes Express

Lines v. United States,739 F.3d 689,692 (Fed. Cir. 2014) (citing Cedars-Sinai Med. Ctr.

v. lVatkins, l1 F.3d 1573, 1583-84 (Fed. Cir. 1993)). If             a   motion to dismiss for lack   of
jurisdiction challenges      the   jurisdictional facts alleged in the complaint, the court may

consider relevant evidence outside the complaint in order to determine whether it has

jurisdiction. Banks v. Uniled States,T4l F.3d 1268, 1277 (Fed. Cir. 2014) (citing

Reynolds,846F.2d at747). Although pro                se   plaintiffs are held to less stringent pleading

standards, they must still demonstrate that the court has jurisdiction to hear their claims.

see Matthews v. united states, 750 F.3d 1320,1322 (Fed.                  cir. 2014) (citation omitted).
           The Tucker Act, 28 U.S.C. g lagl(a)(1), grants this court jurisdiction to hear..any

claim against the united States founded either upon the constitution, or any Act                of
congress or any regulation ofan executive department, or upon any express or implied

contract with the United states, or for liquidated or unliquidated damages in cases not

sounding in      tort." However,     the Tucker Act does not create a substantive cause of action.

Jan's Helicopter Serv., Inc. v. Fed. Aviation Admin.,525 F.3d 1299,1306 (Fed. Cir.

2008). "[I]n order to come within         the   jurisdictional reach and the waiver of the Tucker

Act,   a   plaintiff must identif, a separate source ofsubstantive law that creates the right to

money damages." 1d (quoting Fisher v. United states,402F.3d 1167. rr72 Ged.                       cir.
2005) (en banc in relevant part)).
        Generally, under the Tucker Act, this court has jurisdiction to hear claims for a

refund of tax alleged to have been erroneously or illegally assessed or collected. .!ee,

e.g.,RadioShackCorp.v.UnitedStates,566F.3dl358, 1360(Fed.Cir.2009). One

prerequisite to bringing a tax refund claim in this court is "payment ofthe assessed taxes

intuII." Ledfordv. UnitedStates,297F.3d1378,                    1382 (Fed.   Cir.2002)(citingFlorav.

 Unit ed S tate s, 362 U. S. | 45,   17   7 (19 60); Rocov ic h v. Unite d S tates, 933   F   .2d 99 1, 993 -9 4

(Fed. Cir. 1991)). In addition, under 26 U.S.C. $ 7422(a), "[n]o suit . . . shall be

maintained in any court for the recovery ofany intemal revenue tax alleged to have been

erroneouslyorillegallyassessedorcollected...untilaclaimforrefund...hasbeen

duly filed with" the IRS. See United States v. Clintwood Elkhorn Mining Co., 553 U.S.

1,7 (2008);    see also   RCFC 9(m) (requiring         a   party pleading a claim for a tax refund to

include with the complaint a copy of the claim for refund and a statement identifying,

among other things, the tax year or years for which a refund is sought; ,,the amount, date,

and place ofeach payment to be refunded"; and "the date and place the claim for refund

was filed").

        In response to the government's motion to dismiss his tax refund claims for lack                     of
jurisdiction, Mr. Dezman argues that he "has indeed paid his 'assessed tax tiability' due

to the IRS levy" and that the subsequent release of the            lely   shows that the assessed tax

liabilitywaspaidin full. Pl.'sResp. 1. Mr. Dezman further asserts that he "noticed,,the
IRS, Compl. fl 8, and states that he "did in fact file a claim for refund" consistent with the

requirements of 26 U.S.C. 57a22@). Pl.'s Resp.           1.2


        The court agrees with the government that Mr. Dezman's conclusory statements

are insufficient to establish that this court has jurisdiction to hear his tax refund claim.

See   Banks,741   F   .3d at 1277; see also RCFC 9(m). Mr. Dezman provides no evidence in

support of his statements that he paid the assessed taxes in full or that he filed a refund

claim with the IRS. Moreover, Mr. Dezman provides no indication as to which year or

years he is seeking a refund, which would allow the government to reasonably investigate

his claims. The government, in its reply, states that Mr. Dezman in fact still has an

outstanding balance ofnearly $20,000 in unpaid taxes for tax year 2012. Def.'s Reply 4

(citing Ex. A at A-4).

        The court also agrees with the government that it lacks jurisdiction to hear Mr.

Dezman's wrongful levy claim pursuant to 26 U.S.C. $ 7426 to the extent Mr. Dezman

affeges it separately from his tax refund claim. section 7 a26@)(l) permits a third parry to

bring a civil action against the united States in a district court of the united States, not


2
  In his complaint, Mr. Dezman states that he "noticed the IRS pursuant to 26 USC'7432.-
compl. !f 8. section 7432 of the Intemal Revenue code ("IRC") is titled "civil damages for
failure to release lien" and provides in relevant part that a "taxpayer may bring a civil action for
damages against the United States in a district cou( of the united states." not this court. for
wrongful failure to release a lien on the taxpayer's property.

In his response to the govemment's motion to dismiss, Mr. Dezman states that he filed his
administrative refund claim "under 26 cFR 301.7433-1." pl.'s Resp. L section 301.7433-1 is
titled "civil cause ofaction for certain unauthorized collection actions" and provides in relevant
part that a "taxpayer may bring a civil action for damages against the United States in federal
district court," not this court, in connection with unauthorized tax collection after filins an
administrative refund claim pursuant to 26 C.F.R. $ 301 .7433- I tet
this court, for a wrongful levy. See Dennis v. United States,976F.2d 748 (Fed. Cir.

 1992) (per curiam); Four Rivers Investments, Inc. v. United States,77 Fed. Cl. 592, 604

(2007), aff'd sub nom. Four Rivers Inv., Inc.v. United States,330       F App'x919(Fed.

Cir. 2009) (per curiam); Pacettiv. United States,50 Fed. Cl. 239,252-53 (2001).

       The court further finds that it lacks jurisdiction to hear Mr. Dezman's criminal law

claims and tort claims pursuant to the Tucker Act, 28 U.S.C. g 1a91(a)(l). See Dumont

v. United States, 345 F. App'x 586, 593 (Fed. Cir. 2009) (per curiam) ("[A] felony claim

for extortion is clearly not within the Claims Court's jurisdiction because the Claims

Court has no jurisdiction over claims of criminal misconduct, including [plaintiff s]

further assertion of a claim arising under   RIco." (citing Joshua v. united states, l7 F.3d
378,379 (Fed.Cir. 199a))); seealsoJohnsonv. UnitedStates,127Fed.Cl.529,537,

reconsideration denied, 127 Fed. Cl. 661 (2016) ("The Court also cannot decide

[plaintiff s] Hobbs Act claims because they either involve criminal code violations or

sound in tort." (quoting.llaka v. United States, l0T Fed. Cl. l l   l, l l4 (2012)).
       Finally, the court finds that it lacks jurisdiction to hear Mr. Dezman's other claims

because those claims are not based on a money-mandating source of         law. In particular,

this court is bound by Federal circuit precedent holding that the Fourth Amendment,

which provides for "[t]he right ofthe people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures," does not mandate the pavment
ofmoney foritsviolation.       See   Brownv. UnitedStates, 105 F.3d 621,623 (Fed. Cir.

    1997).3

          For the reasons above, the court finds that it lacks jurisdiction to hear

Mr. Dezman's complaint.a Therefore, the government's motion to dismiss is

GRANTED. The clerk is directed to          enter judgment accordingly.

          IT IS SO ORDERED.




3
 Mr. Dezman also asserts that he has identified a money-mandating source of law based on his
selection of the "suit code" for "miscellaneous - damages" in the cover sheet accompanying his
complaint. Pl.'sResp.2. However, "nature ofsuit" codes are not themselves .ourcer oilu-.
4
 The court also finds that it lacks jurisdiction to grant Mr. Dezman's requested injunction.
                                                                                             ^see,
e.g., Champion v. United States,6l5 F. App'x 690,691(Fed. Cir. 2015) (per curiam) (citation
omitted).



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