ORIGINAL

lln tbe @nrteD btutes {.ourt of felersl @lsimg

No. l3-511T

Filed: July 23, 2014

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FILED

* Pro Se;

* Subpoena Duces Tecum;

* RCFC 56(d) (when discovery is

* required to defeat a motion for

* summary judgment).

;

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MEMORANDUM OPINION AND ORDER REGARDING SUBPOENA DUCES TECUM

I. RELEVANT FACTS AND PROCEDURAL HISTORY.

On July 25, 2013, Plaintiff filed, a pro se Complaint in the United States Court of Federal

Claims that, liberatly construed,' alleges: (1) a claim for "civil damages for unauthorized

collection practices[,] pursuant to 2[6] U.S.C. $ 7433" (Compl. fl 26); and (2) atax refund claim

under 28 U.S.C. $ 1346(a)(1), for a $2,927.42 overpayment of tax liabilities for the 2010 tax

year. Compl. tf 20.

On February 5,2014, the Government filed an Answer.

On May 9,2014, Plaintiff filed a Motion For Subpoena Duces Tecum ("P1. Mot."),

requesting the production of

(a.) A[n] unredacted copy of the August 20, 2012 Memorandum that is

address[ed] to JOE AUBIN from the Supervisory Tax Examiner of the

Department of Treasury Intemal Service in Washington, D.C.

' The pleadings of a pro se plaintiff are held to a less rigorous standard than those of

litigants represented by counsel. See Haines v. Kerner,404 U.S. 519,520 (1972) (holding that

pro se complaints, "however inartfully pleaded," are held to "less stringent standards than formal

pleadings drafted by lawyers").

, JUL,2 3 2014

U.S. COURT OF

BENJAMIN WHITFIELD, FEDERAL CLAIMS

Plaintiff, pro se,

THE UNITED STATES,

Defendant.
(b.) Any E-mail and faxes that were sent to and received from the IntemaL

Revenue Service conceming Federal Income Tax Refund Check number 3158-

09872961 between August 6th-20th, 2012.

(c.) Any Investigative Reports of the Florida Deparhnent of Corrections that were

written as the chronology of investigative events pursuant to Florida Department

of Corrections Procedure 203.015(2)(9) for the processing of Federal Income Tax

Checks belonging to an inmate.

Pl. Mot.2.

On May 19,2014, the Government filed a Response ("Gov't Resp."). On June 2,2014,

Plaintiff filed a Reply ("P1. Reply").

On July 3, 2014, the Government filed a Motion For Summary Judgment ("Gov't Mot.")

arguing that the refund check intercepted by the Intemal Revenue Service ("IRS") that forms the

basis of this lawsuit was erroneously issued, because Plaintiff supplied false wage and tax

withholding information to the IRS on his 2010 tax retum. Gov't Mot. 1.

On July 18, 2014, Plaintiff filed a Motion For Enlargement, seeking sixry (60) additional

days to respond to the Govemment's July 3, 2014 Motion. On July 21,2014, the Govemment

filed a Response, stating that it does not oppose Plaintiff s requested enlargement.

II. DISCUSSION.

A. Plaintil?s Nlay 9,2014 Motion For Subpoena Duces Tecum.

After careful review, the court has concluded that Plaintiffs May 9,2014 Motion For

Subpoena Duces Tecum must be denied, because none of the requested discovery is relevant to

any of the claims alleged in the July 25,2013 Complaint that the United States Court of Federal

Claims has jurisdiction to adjudicate.

To the extent Plaintiff asserts a claim under 26 U.S.C. $ 7433, that allows a taxpayer to

"bring a civil action for damages against the United States in q district court of the United

States," 26 U.S.C. $ 7433 (emphasis added), the United States Court of Federal Claims does not

have jurisdiction. See Ledford v. United States,297 F.3d 1378, 1382 (Fed. Cir. 2002) (,,The

Court of Federal Claims is not a district court of the United States, and therefore it lacks subject

matter jurisdiction . . . [under 26 U.S.C. $ 7433]."); see also Montagne v. United States, 90 Fed.

Cl. 41, 48 (2009) ("The United States Court of Federal Claims has held that claims for relief

premised on alleged negligent, wrongful, or unauthorized conduct by the IRS are based in tort

and not within the jurisdiction of this court."); Russell v. United States,78 Fed. Cl. 2gl,2g7

(2007) ("Because [section] 7433(a) grants exclusive jurisdiction over claims of damages

stemming from the unauthorized collection of taxes to the United States district court, this court

lacks jurisdiction to hear plaintif8s case.").
To the extent the July 25,2013 Complaint alleges a claim for a tax refund, the United

States Court of Federal Claims has jurisdiction to adjudicate that claim. See 28 U.S.C.

$ 1346(a)(1) (providing that the "district courts shall have original jurisdiction, concurrent with

the United States Court ofFederal Claims, of . . . [a]ny civil action against the United States for

recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or

collected"). But, none of the information requested in Plaintiffs May 9,2014 Motion For

Subpoena Duces Tecum is relevant to "the exact dollar amount to which [Plaintiff] is entitled."

Mo. Pqc. R. Co. v. United States, 168 Ct. Cl. 86, 90 (1964) (requiring a raxpayer to

"affirmatively show that he has overpaid his taxes . . . . [by] proving the exact dollar amount to

which he is entitled"); see also RCFC 26(b)(l) (defining discoverable marerial as ,,any

nonprivileged matter that is relevant to a party's claim or defense"). Likewise, none of the

information requested is relevant to whether the IRS was in enor when it issued Plaintiff a

refund check for 2010, because it was based on allegedly falsified wage and withholding

information.

For these reasons, Plaintiff s May 9,2014 Motion For Subpoena Duces Tecum is denied.

B, Plaintiff s July 18, 2014 Motion For Enlargement.

Pursuant to Rule 6(b), and for good cause shown, Plaintiffs July 18,2014 Motion For

Enlargement is granted. Plaintiffs Response to the Govemment's Motion For Summary

Judgment is due on or before October 3, 2014.

ilI. CONCLUSION.

For these reasons, Plaintiff s May 9,2014 Motion For Subpoena Duces Tecum is denied.

Plaintiffs July 18, 2014 Motion For Enlargement is ganted. In preparing a Response to the

Govemment's JuIy 3, 2014 Motion For Summary Judgment, Plaintiff may wish to consider

RCFC 56(d), providing that if a party opposing summary judgment "shows by affidavit or

the court may defer ruling to allow the party

appropriate order."

IT IS SO ORDERED.

tlme to , or issue "any other

SUSAN

Judge