* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10 TH C IR
. R. 36.3.

-1- 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 5 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DARLENE R. QUINN,

Plaintiff-Appellant, No. 03-6318
v. (W.D. Oklahoma) UNITED STATES OF AMERICA,

Defendant-Appellee. (D.C. No. 03-CV-192-R)

ORDER AND JUDGMENT *

Before KELLY , HENRY , and TYMKOVICH , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See F ED
. R. A PP
. P. 34(a)(2); 10 TH C IR
. R. 34.1. The case is therefore ordered submitted without oral argument.-2-

Darlene Quinn alleges that the United States Intern al Revenue Service (IRS) allowed at least two other people to use her Social Security number for tax purposes and failed to timely remedy the problem. The district court dismissed her complaint for lack of jurisdiction, pursuant to F ED
. R. C IV
. P. 12(b)(1), and for failure to state a claim for which relief may b e granted, pursuant to F ED
. R. C IV
. P. 12(b)(6). Ms. Quinn now appeals. We exercise juri sdiction pursuant to 28 U.S.C. § 1291 and affirm.

I. BACKGROUND Ms. Quinn first informed the IRS that her Social Se curity number was being used by someone other than herself in 1994. In 1996, the IRS sent a “Notice of Levy on Wages, Salary, and Other Income” to Ms. Quinn’s employer, the Oklahoma City Metropolitan Library System. Ms. Quinn determined that the levy pertained to another individual who was using her Social Security number, leading her to believe that the unauthorized use of her Social Security number was continuing despite her earlier complaint. In Augus t 2001, Ms. Quinn apparently spoke with someone at the Federal Bureau of Investi gation (FBI) and was informed that the FBI database revealed that three individuals were using her Social Security number. Ms. Quinn filed a complaint in the Western District of Oklahoma in February 2003, and an amended complaint in April 20 03, alleging that the IRS-3-

violated her rights under the “Taxpayer Bill of Rig hts,” 26 U.S.C. § 7433, by allowing other individuals to use her Social Securi ty number and refusing to correct the problem and seeking $2.2 million in dam ages for “emotional distress, slandered [sic], libel, malicious abuse, violating my civil rights, time off from work, phone calls, mileage, mis-educational [sic] o pportunities, potential earnings, use of credit card and interest, levies, [and] threaten my job.” Rec. doc. 1, at 3 (Complaint, filed Feb. 13, 2003). The dist rict court dismissed the complaint, finding that 1) the complaint “does not allege any acts which would support a claim of reckless or intentional disregar d of tax code provisions by Internal Revenue Service employees in the course of collecting taxes,” Rec. doc. 18, at 1 (Order, filed Nov. 6, 2003), and 2) the co mplaint does not “identify another cognizable basis for the waiver of sovereig n immunity.” Id. at 1-2.

II. DISCUSSION We review the district court’s grant of the governm ent’s motion to dismiss de novo. Colo. Envtl. Coalition v. Wenker , 353 F.3d 1221, 1227 (10th Cir. 2004) (noting that “the standard of review is de novo whe ther we treat the appeal as seeking review of a Rule 12(b)(1) or 12(b)(6) dismi ssal”). The Taxpayer Bill of Rights, 26 U.S.C. § 7433, prov ides that [i]f, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal R evenue Service recklessly or intentionally, or by reason of neglig ence disregards any-4-

provision of this title, or any regulation promulga ted under this title, such taxpayer may bring a civil action for damages against the United States in a district court of the United States. 26 U.S.C. § 7433(a). “Section 7433’s waiver of sov ereign immunity, like any other, must be strictly observed, and construed in favor of the sovereign.” Gonsalves v. I.R.S. , 975 F.2d 13, 15 (1st Cir. 1992) (internal quotati on marks and citations omitted). We share Ms. Quinn’s concern: As the government ad mits, “it appears that at least three other people have used [her] Social Security number.” Aple’s Br. at 5 n.4. However, it is not entirely clear how these individuals gained access to Ms. Quinn’s Social Security number, nor is there an y reason to believe that the IRS was necessarily at fault. Furthermore, even as suming, as Ms. Quinn argues, that the IRS’s Individual Taxpayer Identification N umber program was the cause of the problem, Ms. Quinn has failed to establish a violation of § 7433. The IRS has apparently responded to Ms. Quinn’s com plaints by correcting her tax records and referring her to other agencies, in cluding the Social Security Administration, for further assistance. While we a cknowledge that resolving this problem must have been very frustrating for Ms. Qui nn, we agree with the district court that Ms. Quinn’s “amended complaint does not allege any acts which would support a claim of reckless or intentional disregar d of tax code provisions by Internal Revenue Service employees in the course of collecting taxes.” Rec. doc.-5-

18, at 1. As Ms. Quinn has failed to provide an al ternative basis for waiver of the government’s sovereign immunity, her claim must fai l.

III. CONCLUSION Accordingly, and for substantially the same reasons as the district court, we AFFIRM the dismissal of Ms. Quinn’s complaint.

Entered for the Court,

Robert H. Henry, Circuit Judge