Cole v. Hunter

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Brandon Cole,
Plaintiff,
v.
Teresa Hunter,
Defendant.
No. CV-25-01989-PHX-JAT
ORDER
Pending before the Court is Defendant Teresa Hunter’s Motion to Dismiss.1 (Doc.
21). Plaintiff Brandon Cole did not respond. The Court now rules.
I. BACKGROUND2
1 Teresa Hunter is the Chief Financial Officer of the Internal Revenue Service
(“IRS”). (Doc. 21 at 1). Although Plaintiff has named Hunter as the Defendant in this
matter, the proper Defendant is the United States. Gilbert v. DaGrossa, 756 F.2d 1455,
1458 (9th Cir. 1985) (“[A] suit against IRS employees in their official capacity is
essentially a suit against the United States.”). Accordingly, Hunter is dismissed from this
case, and the United States will be treated as the proper Defendant. See Braswell v. Unger,
CV-14-02574-TUC-JAS, 2015 WL 13810123, at *1 (D. Ariz. Aug. 11, 2015); see also 26
U.S.C. § 7422(f)(1) (a tax refund suit “may be maintained only against the United States
and not against any officer or employee of the United States (or former officer or employee)
or his personal representative”).
2 The following summary of facts is taken from the Complaint (as amended) and the
attachments to Defendant’s Motion to Dismiss. Although Plaintiff references various
documents in his Complaint—including his 2021 tax return and various documents he sent
to or received from the IRS—he did not attach them. Defendant, however, attached the
appropriate documents to its Motion to Dismiss. The Court thus references those
documents in this section to accurately summarize the relevant facts of the case and only
considers them to resolve Defendant’s subject-matter-jurisdiction arguments pursuant to
Federal Rule of Civil Procedure 12(b)(1). See McCarthy v. United States, 850 F.2d 558,
560 (9th Cir. 1988) (“[W]hen considering a motion to dismiss pursuant to Rule 12(b)(1)
the district court is not restricted to the face of the pleadings, but may review any evidence,
such as affidavits and testimony, to resolve factual disputes concerning the existence of
Case 2:25-cv-01989-JAT Document 22 Filed 04/03/26 Page 1 of 15

- 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
In deciding a motion to dismiss for failure to state a claim, the Court must construe
the facts alleged in the Complaint in the light most favorable to the Plaintiff and the Court
must accept all well-pleaded factual allegations as true. See Shwarz v. United States, 234
F.3d 428, 435 (9th Cir. 2000).
Plaintiff timely filed an income tax return for 2021, which showed an adjusted gross
income of $4,781, taxable income of $0, $211 in withheld taxes, and $9,615 in “other
payments and refundable credits.” (Doc. 7 at 5; Doc. 21-3; Doc. 21-1 at 3 ¶ 11). On May
2, 2023, Plaintiff filed an amended tax return for 2021, alleging an adjusted gross income
of $137,458, tax liability of $20,975, and $66,851 in withheld taxes. (Doc. 21-4 at 2). The
amended return reflected a refund in the amount of $48,626. (Doc. 21-4 at 2). On
November 27, 2023, the IRS mailed Plaintiff a notice indicating that it “made the changes
[Plaintiff] requested to [his] 2021 Form 1040” and that a refund was due in the amount of
$39,300 (the “November 2023 Notice”). (Doc. 21-5 at 2).
Plaintiff alleges he never received the refund. On September 26, 2024, Plaintiff
attempted to recover the refund by sending a “Conditional Acceptance (CA)” to the IRS.3
(Doc. 7 at 5; Doc. 21-7). In the Conditional Acceptance document, Plaintiff noted that he
had received the IRS’s November 2023 Notice “with an expected refund in 4-6 weeks from
[the] date of [the] letter.” (Doc. 21-7 at 3). Plaintiff further explained that it had been
“nearly a year” without a resolution regarding his refund. (Doc. 21-7 at 3).
Plaintiff claims the IRS never responded to the Conditional Acceptance. (Doc. 7 at
5). He alleges that that he provided the IRS with a Notice of Fault on October 7, 2024,
which it received on October 18, 2024, but that the IRS “failed to cure their fault within 14
days.” (Doc. 7 at 5). Plaintiff’s Complaint, filed July 9, 2025, alleges he has suffered
financial harm “in the amount of $39,000 plus 8% from Nov[ember] 27, 2023 until
Sep[tember] 26, 2024” due to Defendant’s “wrongful retention of the refund.” (Doc. 7 at
jurisdiction.”).
3 Plaintiff interpreted the IRS’s November 2023 Notice as an “offer” to pay him a
$39,300 refund for the 2021 tax year. By sending the Conditional Acceptance in September
2024, Plaintiff seems to think that he “accepted” the IRS’s “offer” and formed a common-
law contract. (Doc. 21-7 at 3).
Case 2:25-cv-01989-JAT Document 22 Filed 04/03/26 Page 2 of 15

- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5). Beyond this financial injury, Plaintiff alleges he has (a) been denied fundamental
procedural rights “in violation of constitutional and statutory protections” due to the IRS’s
non-responsiveness to his Conditional Acceptance and his Notice of Fault, (b) suffered
reputational and emotional harm, and (c) experienced mental and emotional distress. (Doc.
7 at 6). Plaintiff claims “these harms are ongoing and exacerbated by the failure of federal
actors to acknowledge or rectify the matters raised.” (Doc. 7 at 6).
On January 21, 2026, Defendant moved to dismiss Plaintiff’s Complaint for lack of
subject matter jurisdiction and failure to state a claim. (Doc. 21 at 2).
II. LEGAL STANDARD
The following legal standards will be applied by the Court in connection with the
Motion to Dismiss.
A. Rule 12(b)(1)
Rule 12(b)(1) allows litigants to seek the dismissal of an action from federal court
for lack of subject matter jurisdiction. Federal courts are courts of limited subject matter
jurisdiction and “possess only that power authorized by Constitution and statute.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). District courts
presume that “a cause lies outside this limited jurisdiction” and the burden of establishing
the court’s jurisdiction rests with the plaintiff. Id.; Berdeaux v. U.S. Dept. of Educ. Loan
Discharge Unit, San Francisco CA, CV 10-1737-PHX-JAT, 2011 WL 3876001, at *2 (D.
Ariz. Sept. 2, 2011) (“On a motion to dismiss for lack of subject matter jurisdiction, the
plaintiff must demonstrate that subject matter jurisdiction exists to defeat dismissal.”).
As a general rule, the United States may not be sued unless it has waived its
sovereign immunity. Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804, 806 (9th Cir.
2003). Accordingly, the Court lacks subject matter jurisdiction over claims against the
United States unless the government consents to be sued. United States v. Sherwood, 312
U.S. 584, 586 (1941); Consejo de Desarrollo Economico de Mexicali, A.C. v. United
States, 482 F.3d 1157, 1173 (9th Cir. 2007) (“A court lacks subject matter jurisdiction over
a claim against the United States if it has not consented to be sued on that claim.”). “The
Case 2:25-cv-01989-JAT Document 22 Filed 04/03/26 Page 3 of 15

- 4 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
doctrine of sovereign immunity applies to federal agencies and to federal employees acting
within their official capacities.” Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir. 1997).
“A waiver of the Federal Government’s sovereign immunity must be unequivocally
expressed in statutory text and will not be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996)
(internal citations omitted). Any limitations and conditions upon the waiver must be strictly
observed, Hodge, 107 F.3d at 707, and the Court will construe any ambiguities regarding
the scope of the government’s sovereign immunity “in favor of the sovereign,” Lane, 518
U.S. at 192. If a plaintiff cannot establish that its action against the United States falls
within a waiver of sovereign immunity, the action must be dismissed. See Dunn & Black,
P.S. v. United States, 492 F.3d 1084, 1088 (9th Cir. 2007).
B. Rule 12(b)(6)
A pleading must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although Federal Rule of Civil
Procedure (“Rule”) 8 does not demand detailed factual allegations, “it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 678
(2009). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. “[A] complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id.
The United States Court of Appeals for the Ninth Circuit has instructed that courts
must “construe pro se filings liberally” and give such plaintiffs the “benefit of any doubt.”
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010 (internal quotations and citation omitted).
A complaint filed by a pro se litigant “must be held to less stringent standards than formal
pleadings drafted by lawyers.” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam)).
Case 2:25-cv-01989-JAT Document 22 Filed 04/03/26 Page 4 of 15

- 5 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
III. DISCUSSION
It is not clear from the face of Plaintiff’s Complaint what claims he is asserting.
Construing the Complaint liberally, as the Court must, it appears that Plaintiff has alleged
a tax refund claim, violations of 26 U.S.C. §§ 7433 and 7804, and violations under the
Administrative Procedure Act, False Claims Act, and Due Process Clause. 4
Defendant argues that Plaintiff’s Complaint should be dismissed for lack of subject
matter jurisdiction under Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6).
The dismissal of claims under Rule 12(b)(1) should be addressed before reasons for
dismissal under Rule 12(b)(6). Berdeaux, 2011 WL 3876001, at *4 (citing 5 Wright,
Federal Practice and Procedure § 1350, at 138–39 (“[W]hen the motion is based on more
than one ground, the cases are legion stating the district court should consider the Rule
12(b)(1) challenge first because if it must dismiss the complaint for lack of subject matter
jurisdiction, the accompanying defenses and objections become moot and do not need to
be determined by the judge.”)). Accordingly, the Court begins with Defendant’s subject-
matter-jurisdiction arguments.
A. Rule 12(b)(1): Lack of Subject Matter Jurisdiction
Defendant argues that the Court lacks subject matter jurisdiction to adjudicate
Platiniff’s tax refund claim, unlawful tax collection claim, and claims arising under the
Administrative Procedure and False Claims Acts. The Court addresses each argument in
turn.
i. Tax Refund Claim
Plaintiff alleges he is owed a $39,300 tax refund that he never received.
District courts have original jurisdiction over an action “against the United States
for the recovery of any internal-revenue tax alleged to have been erroneously or illegally
assessed or collected, or any penalty claimed to have been collected without authority or
4 The form Complaint document instructs filers asserting more than one claim to
“number each claim and write a short and plain statement of each claim in a separate
paragraph.” (Doc. 7 at 5). Plaintiff did not number his claims. However, he cites the
following statutes and constitutional provisions as being “at issue in this case” in the “Basis
for Jurisdiction” section of the Complaint: 26 U.S.C. §§ 7433 and 7804, 5 U.S.C. 702, 31
U.S.C. 3729, and U.S. Const. Amend. V.
Case 2:25-cv-01989-JAT Document 22 Filed 04/03/26 Page 5 of 15

- 6 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
any sum alleged to have been excessive or in any manner wrongfully collected under the
internal-revenue laws.” 28 U.S.C. § 1346(a)(1). However, this statute “must be read in
conformity with other statutory provisions which qualify a taxpayer’s right to bring a
refund suit upon compliance with certain conditions.” United States v. Dalm, 494 U.S. 596,
601 (1990).
The relevant qualifying provision here is 26 U.S.C. § 7422(a), which limits the right
to bring a tax refund suit under § 1346(a)(1) “until a claim for refund or credit has been
duly filed with the Secretary, according to the provisions of law in that regard, and the
regulations of the Secretary established in pursuance thereof.” 26 U.S.C. § 7422(a);
Catholic Answers, Inc. v. United States, No. 09-CV-670-IEG (AJB), 2009 WL 3320498,
at *6 (S.D. Cal. Oct. 14, 2009) (“Filing a claim for refund in compliance with 26 U.S.C. §
7422(a) and Treasury Regulation § 301.6402-2(b)(1) is a jurisdictional prerequisite to a
suit for a refund.”). Another prerequisite to a tax refund suit is that the challenged tax
assessment must be paid in full. Flora v. United States, 362 U.S. 145, 150–51 (1960)
(holding that section 1346(a)(1) “requires full payment of the assessment before an income
tax refund suit can be maintained in a Federal District Court”).
Defendant contends the Court lacks jurisdiction over Plaintiff’s tax refund claim
because the United States has not waived its sovereign immunity. (Doc. 21 at 5).
Specifically, Defendant argues that Plaintiff fails to satisfy (1) 26 U.S.C. § 7422(a)’s
requirements and (2) Flora’s paid-in-full requirement. The Court addresses each of these
jurisdictional prerequisites below.
1. 26 U.S.C. § 7422(a)
As stated, a taxpayer may not file a tax refund suit until they have filed a claim for
refund with the IRS. See 26 U.S.C. § 7422(a); Thomas v. United States, 755 F.2d 728, 729
(9th Cir. 1985). “[T]he claim, together with appropriate supporting evidence, shall be filed
in a manner consistent with such form, form instructions, publications, or other guidance
found on the IRS.gov Web site,” and must satisfy the following conditions:
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
Case 2:25-cv-01989-JAT Document 22 Filed 04/03/26 Page 6 of 15

- 7 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
thereof. The statement of the grounds and facts must be verified by a written
declaration that it is made under the penalties of perjury. A claim which does
not comply with this paragraph will not be considered for any purpose as a
claim for refund or credit.
Treas. Reg. §§ 301.6402-2(a)(2), (b).
Plaintiff completed and filed a 1040-X amended tax return, which he signed under
the penalty of perjury. (Doc. 21-4 at 3). The 1040-X form instructed filers to explain why
they were filing an amended return and “attach any supporting documents and new or
changed forms and schedules.” (Doc. 21-4 at 3). Plaintiff attached 1099-A, 1099-B, and
1099-OID forms to the return, but did not otherwise provide a written statement explaining
the basis for the requested refund. (Doc. 21-4 at 3, 5–8).
Defendant acknowledges that Plaintiff “included several enclosures with his
administrative refund claim”—i.e., the 1099 forms—but argues Plaintiff “failed to provide
the basis for the revised figures or furnish underlying facts to substantiate [the] figures”
reflected in the 1040-X form, as required by 26 U.S.C. § 7422(a) and Treasury Regulation
§ 301.6402–2(b)(1). (Doc. 21 at 7). Defendant attached a declaration from Michael
Rodriguez, an IRS revenue officer, who declared the following under penalty of perjury:
[T]he IRS lacks records to support the numbers that appear in Mr. Cole’s
amended return, including the withholding amount.5 In addition, IRS lacks
records that can support the Forms 1099 and other related attachments to Mr.
Cole’s original and amended tax return. Such Forms 1099 and related
attachments are therefore frivolous.6
(Doc. 21-1 at 3, ¶ 7). Because Plaintiff “failed to supply any clarifying documentation or
explanation to the IRS to support the specific withholding and claimed refund amounts,”
Defendant contends the Court lacks jurisdiction over Plaintiff’s tax refund claim. (Doc. 21
at 8). The Court agrees.
A refund claim must “set forth in detail each ground upon which a . . . refund is
claimed and facts sufficient to apprise the Commissioner of the exact basis thereof.” Treas.
Reg. § 301.6402-2(b). Plaintiff’s amended return failed to meet this standard. His refund
5 Plaintiff’s original return states he withheld $211, (Doc. 21-3 at 3), and his amended
return reflects $66,851 in withheld taxes, (Doc. 21-4 at 2).
6 The IRS assessed a $5,000 penalty against Plaintiff due to the “frivolous positions”
advanced in his amended return. (Doc. 21-6 at 2; Doc. 21-2 at 4).
Case 2:25-cv-01989-JAT Document 22 Filed 04/03/26 Page 7 of 15

- 8 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
claim failed to offer any explanation or supporting documentation to substantiate his claim
that he withheld $66,851 in taxes—an amount that exceeded his originally disclosed
amount in withheld taxes by $66,640. A sworn declaration from an IRS officer stated that
the attached 1099 forms were frivolous, which Plaintiff—as evidenced by his lack of
response to Defendant’s Motion to Dismiss—does not dispute. Because Plaintiff’s
amended return was devoid of any factual details, the IRS was unable to determine the
basis of his claimed refund. Plaintiff’s noncompliance with the Internal Revenue Code and
Treasury Regulations thus divests this Court of jurisdiction over the claim. See 26 U.S.C.
§ 7422(a); Treas. Reg. § 301.6402-2; Boyd v. United States, 762 F.2d 1369, 1371 (9th Cir.
1985) (“If the refund claim does not meet the requirements of the [Internal Revenue] Code
and the regulations, the suit must be dismissed because filing pursuant to the rules is a
jurisdictional prerequisite.”) (internal citations omitted); see also Provenzano v. United
States, 123 F. Supp. 2d 554, 557–58 (S.D. Cal. 2020) (dismissing plaintiff’s suit for refund
for failure to comply with jurisdictional prerequisites, including a failure to “provide
sufficient detail” in the claim submitted to the IRS); Taylor v. IRS, 1:22-CV-01246-SAB,
2023 WL 2895441, at *3 (E.D. Cal. Apr. 11, 2023), report and recommendation adopted,
1:22-CV-1246 JLT SAB, 2023 WL 3224160 (E.D. Cal. May 3, 2023) (finding the court
lacked jurisdiction over plaintiff’s tax claim because plaintiff’s letter of intent to sue did
not articulate the grounds supporting his claim).
2. Flora’s Full-Payment of the Assessed Tax Requirement
Defendant asserts that the IRS assessed a $20 tax obligation on November 27, 2023,7
(Doc. 21 at 3), and claims Plaintiff never paid this amount, (Doc. 21 at 7). Defendant claims
that Plaintiff’s failure to pay the assessed tax violates Flora’s “full payment rule” and
serves as another jurisdictional barrier to his claim. (Doc. 21 at 7). The Court need not
consider whether Plaintiff did or did not pay his assessed tax obligation because, as
7 In support of this statement, Defendant cites to Exhibit D. (Doc. 21-5). Exhibit D
reflects the refund notice the IRS sent to Plaintiff on November 27, 2023—this notice states
that a refund is due in the amount of $39,300, but the $20 figure Defendant references is
nowhere to be found in the cited document. (Doc. 21-5 at 2). The Court reviewed the other
attachments to Defendant’s Motion to Dismiss, but was unable to determine where the $20
assessment comes from.
Case 2:25-cv-01989-JAT Document 22 Filed 04/03/26 Page 8 of 15

- 9 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
discussed above, there is another independent ground divesting this Court of jurisdiction
over Plaintiff’s tax refund claim.
ii. Violations Under 26 U.S.C. §§ 7432 and 7433
Plaintiff alleges he has suffered “direct financial injury including improper or
excessive tax assessment and collection attempts” and “unauthorized or unexplained liens
and levies placed upon personal property and income.” (Doc. 7 at 6). Liberally construed,
it appears that Plaintiff alleges a claim for unlawful tax collection under 26 U.S.C. § 7433
and a claim for failure to release a lien under 26 U.S.C. § 7432.
26 U.S.C. §§ 7432 and 7433 waive the United States’ sovereign immunity with
regard to civil actions for damages where any officer or employee of the IRS knowingly or
negligently fails to release a lien on the property of a taxpayer, 26 U.S.C. § 7432(a), or
recklessly, intentionally or negligently disregards any provision of the Internal Revenue
Code in connection with any collection of federal tax with respect to a taxpayer, id. §
7433(a).
However, the United States’ sovereign immunity from such a suit is not waived
unless the taxpayer-plaintiff first exhausts the administrative remedies available to them
within the Internal Revenue Service. See 26 U.S.C. § 7432(d)(1); 26 U.S.C. § 7433(d)(1).
To exhaust the administrative remedies available to them, taxpayer-plaintiffs must submit
a written damages claim—containing the information required by regulation—to the “Area
Director” in the “area in which the taxpayer currently resides.” Treas. Reg. § 301.7433–
1(e)(2)(i)–(v) (outlining required contents of administrative claim). Accordingly, any
failure to exhaust the administrative remedies mandated by 26 U.S.C. §§ 7432 and 7433
deprives this Court of jurisdiction. See Conforte v. United States, 979 F.2d 1375, 1377 (9th
Cir. 1992) (district court lacked jurisdiction to hear action under 26 U.S.C. § 7433 because
plaintiff failed to exhaust her administrative remedies).
Defendant contends that Plaintiff never submitted an administrative claim to the IRS
raising violations of 26 U.S.C. §§ 7432 and 7433, and argues this failure deprives the Court
of jurisdiction. (Doc. 21 at 9; Doc. 21-1 at 3). The Court agrees. Plaintiff’s Complaint does
Case 2:25-cv-01989-JAT Document 22 Filed 04/03/26 Page 9 of 15

- 10 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
not allege that he submitted an administrative claim in accordance with the requirements
of Treasury Regulation § 301.7433–1(e). Further, Michael Rodriguez’s sworn declaration,
attached to Defendant’s Motion to Dismiss, states that “his review of the IRS records does
not show any evidence that Mr. Cole ever filed an administrative claim for refund based
on . . . 26 U.S.C. § 7432 or § 7433.” (Doc. 21-1 at 3, ¶ 8). Plaintiff does not dispute this
statement. Because Plaintiff has failed to submit an administrative claim for damages
within the meaning of 26 U.S.C. §§ 7432 and 7433, he has not exhausted his administrative
remedies and the Court lacks jurisdiction over these claims.
iii. The Administrative Procedure Act
Plaintiff’s Complaint cites to a section of the Administrative Procedure Act
(“APA”), but provides no argument or explanation regarding the statute’s relevancy to his
case. (Doc. 7 at 4 (citing 5 U.S.C. § 702 as a statute “at issue in this case”). Liberally
construed, Plaintiff appears to allege that the IRS violated the APA.
The APA “provides for judicial review of agency action where there is law limiting
agency discretion.” S. Delta Water Agency v. U.S., Dept. of Interior, Bureau of
Reclamation, 767 F.2d 531, 535 (9th Cir. 1985). The APA explicitly waives the United
States’ sovereign immunity, 5 U.S.C. § 702, but the Ninth Circuit Court of Appeals has
held that claims brought against the United States pursuant to the Act must satisfy the
requirements under § 704 of the APA, Navajo Nation v. Dep’t of the Interior, 876 F.3d
1144, 1169–70 (9th Cir. 2017). Section 704 states that only “[a]gency action made
reviewable by statute and final agency action for which there is no other adequate remedy
in a court are subject to judicial review.” 5 U.S.C. § 704 (emphasis added). In other words,
the APA—and the United States’ waiver of sovereign immunity—applies only when there
is no other adequate remedy in court. W. Watersheds Project v. Kraayenbrink, 632 F.3d
472, 497 (9th Cir. 2011). If Congress “has enacted a special statutory review process for
administrative action, that process applies to the exclusion of the APA.” Wilson v. Comm’r,
705 F.3d 980, 990 (9th Cir. 2013).
Congress has enacted special provisions providing judicial remedies in tax refund
Case 2:25-cv-01989-JAT Document 22 Filed 04/03/26 Page 10 of 15

- 11 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
cases. Indeed, parties may bring suit under § 7422 of the Internal Revenue Code. 26 U.S.C.
§ 7422(a); see Scholl v. Mnuchin, 494 F.Supp.3d 661, 681 (N.D. Cal. 2020) (a tax refund
suit is an adequate remedy for plaintiffs seeking a tax refund). Because taxpayers can
pursue a remedy in federal court, the APA does not apply and the United States has not
waived its sovereign immunity. Absent such a waiver, this Court lacks jurisdiction over a
suit against the Government. Accordingly, the Court will dismiss Plaintiff’s claim under
the APA.
iv. The False Claims Act
Plaintiff’s Complaint cites to the False Claims Act (“FCA”), but similarly fails to
explain the Act’s applicability to this case. (Doc. 7 at 4 (citing 31 U.S.C. § 3729 as a statute
“at issue in this case”)). Liberally construed, Plaintiff appears to allege that the IRS violated
the FCA.
The FCA establishes a scheme permitting the Attorney General or a private party,
31 U.S.C. § 3730(a)–(b), to maintain a civil action and impose penalties against those who
defraud the Government, id. § 3729; Universal Health Servs., Inc. v. United States, 579
U.S. 176, 180 (2016). “When brought by a private party, an enforcement action under the
FCA is called a qui tam action, with the private party referred to as the relator.” United
States ex rel. Welch v. My Left Foot Children’s Therapy, LLC, 871 F.3d 791, 793 (9th Cir.
2017) (internal quotations and citation omitted). The Ninth Circuit Court of Appeals has
explained that the purpose of the FCA’s qui tam provisions “is to employ the help of
individuals to uncover fraud against the government.” Stoner v. Santa Clara Cnty. Office
of Educ., 502 F.3d 1116, 1126 (9th Cir. 2007) (internal quotations and citation omitted).
The FCA thus motivates private individuals “to bring suit in federal court on behalf of the
United States by effecting a partial assignment of the government’s damages claim to the
realtor.” Id. (cleaned up) (emphasis in original); see also Braswell v. Unger, CV-14-02574-
TUC-JAS, 2015 WL 13810123, at *3 (D. Ariz. Aug. 11, 2015) (noting that the FCA “is
for the benefit of the United States”) (emphasis added). “Beyond this limited provision for
a qui tam action, the [FCA] does not authorize the pro se prosecution of Section 3729
Case 2:25-cv-01989-JAT Document 22 Filed 04/03/26 Page 11 of 15

- 12 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
violations.” Poorsina v. Bank of Am., N.A., 23-CV-06644-PHK, 2024 WL 3012803, at *3
(N.D. Cal. June 14, 2024) (citing Stoner, 502 F.3d at 1127).
Plaintiff, proceeding pro se, is not bringing an action on behalf of the Government
for its benefit; he is bringing an action against the Government for his own benefit. The
FCA is thus inapplicable to this action. In any event, the FCA’s “tax bar”—stating that the
FCA “does not apply to claims, records, or statements made under the Internal Revenue
Code of 1986”—serves as an additional bar to Plaintiff’s claim. 31 U.S.C. § 3729(d). The
Court will dismiss Plaintiff’s FCA claim. See Braswell, 2015 WL 13810123, at *3
(dismissing plaintiff’s FCA claim because the claim was “adverse to the Government’s
interests,” was “impermissibly advanced by a pro se litigant,” and “would nevertheless be
prohibited by the FCA’s tax bar”).
B. Rule 12(b)(6): Failure to State a Claim
i. IRS’s Failure to Act or Respond in Violation of 26 U.S.C. § 7804
Plaintiff appears to allege a violation of 26 U.S.C. § 7804.
Section 7804 vests the IRS with authority to hire and supervise its employees, and
details procedures to deal with delinquent IRS officers and employees. Some courts have
interpreted challenges under this section as plaintiffs’ attempts to seek termination of or
other “employment action” against IRS employees. See Mackinnon v. Fredrickson, 04-
598-KI, 2005 WL 708337, at *4 (D. Or. Mar. 29, 2005) (plaintiff seeking termination of
two IRS appeals officers); Valladares v. I.R.S., CV-F-00-4041-AWI/SMS, 2001 WL
670629, at *7 (E.D. Cal. May 2, 2001) (“It appears Plaintiff’s cite to [26 U.S.C. § 7804] .
. . is an attempt to request the IRS and/or IRS Commissioner take some employment action
against Defendant Reece.”). Those courts have held there is no private cause of action
under 26 U.S.C. § 7804. Mackinnon, 2005 WL 708337, at *4; Valladares, 2001 WL
670629, at *7.
Plaintiff’s Complaint alleges that the IRS failed to (1) respond to his Conditional
Acceptance “within the required timeframe” and (2) “cure their fault within 14 days” of
receiving Plaintiff’s Notice of Fault. (Doc. 7 at 5). Plaintiff alleges he has suffered harm
Case 2:25-cv-01989-JAT Document 22 Filed 04/03/26 Page 12 of 15

- 13 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
from the IRS’s “unresponsiveness to lawful requests for record correction reconciliation or
formal accounting.” (Doc. 7 at 6).
To the extent that Plaintiff attempts to argue that the IRS’s conduct or lack of
responsiveness constituted “delinquent” behavior in violation of 26 U.S.C. § 7804, the
Court will dismiss such a claim because § 7804 does not confer a private right of action for
the IRS’s lack of response to a refund request. Kehmeier v. United States, No. CV-24-
03211-PHX-SHD, 2025 WL 2719939, at *4 (D. Ariz. Sept. 24, 2025) (noting that “the
IRS’s failure to respond to a refund claim does not itself entitle [plaintiff] to a refund” and
explaining that the proper recourse “is to file suit in court if [plaintiff] receives no response
to his refund claim after six months”). Because Plaintiff fails to state a claim for which
relief can be granted, his § 7804 claim is dismissed under Rule 12(b)(6).
ii. Due Process
Plaintiff claims he “has been denied fundamental procedural rights . . . with lack of
timely and sufficient notice regarding determinations affecting property or tax status,” and
that he has not been afforded a “meaningful opportunity to be heard or to challenge adverse
actions.” (Doc. 7 at 6). Liberally construed, Plaintiff seems to assert that the IRS’s lack of
responsiveness to his Conditional Acceptance and Notice of Fault violated his right to due
process under the Fifth Amendment to the United States Constitution. (See Doc. 7 at 4
(noting the “U.S. Const. Amend. V – Due Process Clause” is “at issue in this case”)).
This argument has no merit. The Ninth Circuit Court of Appeals has denied due
process challenges in tax-related matters because a taxpayer-plaintiff’s “due process rights
are adequately protected by the statutory scheme which allows [such plaintiffs] to . . . sue
for a refund in federal district court or in the Court of Claims.” Stonecipher v. Bray, 653
F.2d 398, 401–03 (9th Cir. 1981) (finding the IRS did not deny plaintiff due process by not
holding a hearing before ordering him to withhold taxes); see also Maxfield v. U.S. Postal
Serv., 752 F.2d 433, 434 (9th Cir. 1984) (finding plaintiff “made no showing that he has
been deprived of his property without due process” because he “has an adequate remedy at
law if withholding exceeds his tax liability”); Boday v. United States, 759 F.2d 1472, 1475
Case 2:25-cv-01989-JAT Document 22 Filed 04/03/26 Page 13 of 15

- 14 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(9th Cir. 1985) (citing Stonecipher and rejecting taxpayer’s contention that they were
deprived of due process because a tax penalty was assessed before they were afforded a
judicial hearing).
Accordingly, Plaintiff fails to state a due process claim.
IV. Leave to Amend
“If a complaint is dismissed for failure to state a claim, leave to amend should be
granted unless the court determines that the allegation of other facts consistent with the
challenged pleading could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-
Well Furniture Co., Inc., 806 F.2d 1393, 1401 (9th Cir. 1986); see Fed. R. Civ. P. 15(a).
Because the Court is dismissing five of Plaintiff’s claims—i.e., claim for tax refund,
violations under 26 U.S.C. §§ 7432 and 7433, and violations of the APA and FCA—for
lack of subject matter jurisdiction, rather than failure to state a claim, the Court will not
grant Plaintiff leave to amend his Complaint as to those claims. Mitchell v. Nat’l Sec.
Agency, CV 09-1659-PHX-JAT, 2009 WL 5175053, at *2, n.3 (D. Ariz. Dec. 18, 2009)
(refusing to grant leave to amend because the Court’s dismissal was based on lack of
subject matter jurisdiction).
The Court evaluated Plaintiff’s due process and 26 U.S.C. § 7804 claims under the
12(b)(6) standard and found dismissal was warranted. The Court further finds that
amendment under Rule 15(a) would be futile. Plaintiff cannot allege new facts that will
transform § 7804 into a viable claim because a private cause of action under this statute
does not exist. Plaintiff also cannot allege facts that would alter the settled law in this
Circuit barring due process claims in tax liability actions. See Stonecipher, 653 F.2d at 403.
Accordingly, the Court will not grant leave to amend and will dismiss this action with
prejudice.
V. CONCLUSION
Accordingly,
/ / /
/ / /
Case 2:25-cv-01989-JAT Document 22 Filed 04/03/26 Page 14 of 15

- 15 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IT IS ORDERED that Defendant’s Motion to Dismiss (Doc. 21) is granted and
this case is dismissed, with prejudice, for lack of subject matter jurisdiction and failure to
state a claim upon which relief can be granted, as specified above. The Clerk of the Court
shall enter judgment accordingly.
Dated this 3rd day of April, 2026.
Case 2:25-cv-01989-JAT Document 22 Filed 04/03/26 Page 15 of 15