[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-12087

Non-Argument Calendar

____________________

RHONDA REID, 

Plaintiff-Appellant,

versus

INTERNAL REVENUE SERVICE, 

ROBERT GEARHART, 

Investigator, 

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 3:20-cv-00069-CDL

____________________

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2 Opinion of the Court 21-12087

Before JORDAN, NEWSOM, and BLACK, Circuit Judges.

PER CURIAM:

Rhonda Reid, proceeding pro se, filed a complaint pursuant 

to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b)(1), and 

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against the Internal Revenue Service 

(IRS) and IRS investigator Robert Gearhart, alleging the latter 

falsely told the Greene County Sheriff’s Office she was engaged in 

fraudulent tax activity, which led to her state court conviction for 

racketeering. The district court dismissed her complaint for lack of 

subject matter jurisdiction because Reid failed to allege facts that 

would support a waiver of sovereign immunity; Reid’s Bivens action against Gearhart in his individual capacity was Heck1 -barred; 

and the Anti-Injunction Act (AIA), 26 U.S.C. § 7421, prohibited 

Reid’s claim for injunctive relief. Reid argues the district court had 

subject matter jurisdiction and its order to the contrary was retaliation for having previously initiated a habeas suit. After review,2

we affirm the district court. 

1 Heck v. Humphrey, 512 U.S. 477 (1994).

2 We review de novo the dismissal of a complaint for lack of subject matter 

jurisdiction. Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1328 (11th 

Cir. 2013). The plaintiff has the burden of proving that jurisdiction exists. 

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

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I. DISCUSSION 

A. Official Capacity

The government and its agencies are immune from suit unless it waives its sovereign immunity. F.D.I.C. v. Meyer, 510 U.S. 

471, 475 (1994). Because “[o]fficial-capacity suits . . . generally represent only another way of pleading an action against an entity of 

which an officer is an agent,” suits against an officer in his official 

capacity are treated as being against the entity, as it is the entity 

that would pay damages. Kentucky v. Graham, 473 U.S. 159, 

165-66 (1985) (quotation marks omitted). 

Subject to exceptions set forth in 28 U.S.C. § 2680, the FTCA 

waives sovereign immunity as to claims against the United States 

for injuries caused by the negligent or wrongful act or omission of 

a federal employee acting within the scope of his office or employment. 28 U.S.C. § 1346(b)(1). It precludes liability absent a showing by the plaintiff that a private individual who had acted as did 

the federal employee would be liable for the particular tort under 

governing state law where the tort occurred. Id. 

The district court did not err in finding Reid failed to allege 

a waiver of sovereign immunity. Reid did not assert that her criminal prosecution, allegedly spurred by Gearhart’s false communication to the sheriff’s office that Reid had filed a fraudulent tax return, 

ended in her favor; in fact, she asserted she was convicted and spent 

seven years in prison. Thus, Reid did not state a malicious prosecution claim. See Blue v. Lopez, 901 F.3d 1352, 1357 (11th Cir. 

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2018) (explaining to prove a malicious prosecution claim under 

Georgia law, a plaintiff must establish that a criminal prosecution 

terminated in her favor, among other elements). And even if Reid 

had properly stated the elements of a slander claim under Georgia 

law, the FTCA does not waive sovereign immunity for slander 

suits against the United States and its officers acting in their official 

capacity. 28 U.S.C. § 2680(h) (providing an exception to FTCA 

waiver is “[a]ny claim arising out of . . . malicious prosecution, . . . , 

[or] slander, . . . ,” although immunity continues to be waived for 

malicious prosecution with regard to acts or omissions of federal 

law enforcement officers).

Moreover, Reid did not allege she filed an administrative 

claim with the IRS regarding Gearhart’s communication, which 

she was required to do prior to filing suit in federal court. See 28 

U.S.C. § 2675(a) (providing a district court lacks jurisdiction over 

an FTCA claim until a claimant has exhausted her administrative 

remedies by filing a claim with the appropriate agency and waiting 

until the claim is denied or six months have passed). Finally, to the 

extent Reid’s complaint can be liberally read as asserting a 26 U.S.C. 

§ 7431 wrongful disclosure claim, Reid’s complaint and the sheriff’s 

office incident report attached to her complaint do not allege or 

indicate Gearhart communicated anything to the sheriff’s office beyond that Reid had filed a fraudulent tax return. Reid did not assert 

that Gearhart gave that tax return to the sheriff’s office or disclosed 

any information that the return contained. Therefore, Reid also 

failed to plead waiver under § 7431. 26 U.S.C. §§ 6103(b)(2), 7431

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21-12087 Opinion of the Court 5

(providing, in section 7431, that sovereign immunity is waived as 

to claims that an officer of the United States knowingly or negligently disclosed any tax return or tax return information that can 

be associated with an individual taxpayer). 

B. Individual Capacity

Under Heck, a Bivens plaintiff must prove her “conviction 

or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make 

such determination, or called into question by a federal court’s issuance of a writ of habeas corpus” in order to recover damages for 

harm caused by actions whose unlawfulness would render her conviction or sentence invalid. Abella v. Rubino, 63 F.3d 1063, 1065 

(11th Cir. 1995). If such an action is brought prior to invalidation 

of the conviction or sentence challenged, it must be dismissed. Id.

The district court did not err in finding that Reid’s Bivens 

claim against Gearhart, in his individual capacity, is Heck-barred. 

Reid alleged Gearhart falsely told the sheriff’s office she filed a 

fraudulent federal tax return, which led to her conviction for using 

return checks that she received based on fraudulent tax returns. 

Reid’s recovery would necessarily render her conviction invalid 

since she alleges she did not actually file any fraudulent tax returns, 

and her conviction establishes the opposite. Thus, the district court 

did not err in dismissing her claim against Gearhart in his individual 

capacity.

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C. Injunctive Relief

Even assuming the district court erred by finding the AIA3

barred it from ordering the IRS to withdraw its report to the sheriff’s office, the Administrative Procedure Act’s, 5 U.S.C. § 702, 

waiver of sovereign immunity did not apply to Reid’s claim for injunctive relief, which precludes subject matter jurisdiction over this 

claim. See Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255, 260-61 

(1999) (stating the APA waives the government’s sovereign immunity from actions seeking relief other than monetary damages).

The APA’s waiver only applies to challenges to a “final agency action” that is not “committed to agency discretion by law.” 5 U.S.C. 

§§ 701(a)(2), 704. To be “final,” an action must mark the consummation of an agency decisionmaking process and must be one by 

which rights or obligations have been determined, or from which 

legal consequences will flow. U.S. Army Corps of Eng’rs v. 

Hawkes Co., 578 U.S. 590, 597 (2016). The decision as to whether 

an agency should commence an investigation is committed to the 

agency’s discretion and therefore not reviewable, unless Congress 

has indicated otherwise. Heckler v. Chaney, 470 U.S. 821, 838 

(1985). Congress has decided to permit disclosure of returns and 

return information to local law enforcement agencies only upon 

3 The AIA prohibits suits “for the purpose of restraining the assessment or collection of any tax,” including suits to permanently enjoin the IRS from engaging in activities which are intended to or may culminate in the assessment or 

collection of taxes. Kemlon Prods. & Dev. Co. v. United States, 638 F.2d 1315, 

1321 (5th Cir. 1981).

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written request by the head of the requesting agency. 26 U.S.C. 

§ 6103(d)(1).

The APA’s waiver of sovereign immunity does not apply because Gearhart’s phone call to the sheriff’s office was not a final 

agency action that is not committed to agency discretion by law. 5 

U.S.C. §§ 701(a)(2), 704. First, the call was not an initial agency 

action because it did not formally consummate any IRS decisionmaking process. It was an attempt by Gearhart to initiate an 

investigation by the sheriff’s office into Reid’s fraudulent tax activity; the call was part of a larger investigation into Tammy Bettis, 

who had issued the tax return checks to Reid; and the call did not 

by itself have any legal significance. US Army Corps of Eng’rs, 578 

U.S. at 597. Second, the call was a discretionary action by Gearhart 

in the course of his investigatory duties, thus making it unreviewable. Heckler, 470 U.S. at 838. Although Gearhart was permitted to 

disclose returns and return information to the sheriff’s office only 

upon written request by the Greene County Sheriff, Reid did not 

allege that Gearhart gave the fraudulent tax return to the sheriff’s 

office or disclosed any information the return contained. 26 U.S.C. 

§ 6103(d)(1).

II. CONCLUSION 

 The district court did not err in dismissing Reid’s complaint 

for lack of subject matter jurisdiction because Reid failed to allege 

a waiver of sovereign immunity as to the IRS or Gearhart in his 

official capacity; Reid’s Bivens claim against Gearhart in his individual capacity is Heck-barred; and the APA’s waiver of sovereign 

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immunity did not apply to Reid’s claim for injunctive relief. Accordingly, we affirm.

AFFIRMED.

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