* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50067

Summary Calendar

DAVID S. TAYLOR; TOBY C. TAYLOR

Petitioners- Appellants

v.

UNITED STATES OF AMERICA; INTERNAL REVENUE SERVICE

Respondents- Appellees

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 1:07-CV-680

Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Petitioners-Appellants David S. Taylor and Toby C. Taylor (“the Taylors”)

petitioned the district court to quash an Internal Revenue Service (“IRS”)

summons served on the custodian of records of the local Church of Jesus Christ

of Latter Day Saints (“LDS Church”) for records relating to possible criminaltax

violations by the Taylors. The district court granted the IRS’s motion to dismiss

United States Court of Appeals

Fifth Circuit

F I L E D

September 16, 2008

Charles R. Fulbruge III

Clerk
No. 08-50067

1 26 U.S.C. § 7602(a) gives the IRS the authority to summon persons, including third

parties, having books, papers, records or other data bearing on a determination of a taxpayer’s

tax liability to appear and produce such records and to give relevant testimony. A summons

may be issued in connection with an inquiry into any offense connected with the

administration or enforcement of the internal revenue laws. See 26 U.S.C. § 7602(b). 

2

In their petition, the Taylors alternatively requested the following relief: (1) an

evidentiary hearing to determine the legitimacy of the IRS’s summons; (2) a preliminary

injunction prohibiting the IRS from obtaining or using any financial information, records or

testimony acquired from LDS Church relating to petitioners by having the IRS direct LDS not

to comply with the summons until resolution of the underlying issues by the district court; (3)

an order temporarily enjoining the IRS from continuing its criminal investigation of the

Taylors until resolution of the underlying issues by the district court; and (4) an order

requiring the IRS to provide a complete list of all contacts that had been issued with or without

notice to the Taylors.

2

for lack of jurisdiction. The Taylors appeal arguing that the district court erred

in dismissing their petition. For the following reasons, we AFFIRM. 

I.

On August 1, 2007, Special Agent David Booth, an IRS criminal

investigator, served a summons on the LDS Church seeking records relating to

possible criminaltax violations by the Taylors for the tax years 2002-2005.1 The

summons required LDS to comply by August 13, 2007. Relying on an exception

to the notice requirement for such third-party summonses, Agent Booth did not

serve notice upon the Taylors. However, LDS Church notified them of the

summons and its willingness to comply. On August 7, 2007, LDS Church sent

the summoned information to the IRS. On August 9, 2007, relying on 26 U.S.C.

§ 7609(b)(2), the Taylors filed a petition to quash the IRS’s summons. They also

sought various forms of equitable relief in the district court pursuant to 28

U.S.C. §§ 1331, 1340, 1343(a)(3), 1346 and Article III of the United States

Constitution.2

The IRS moved to dismiss the petition to quash arguing that the district

courtlacked subject matter jurisdiction over an action againstthe United States

where the government’s sovereign immunity had not been waived. The
No. 08-50067

3

magistrate judge agreed thatthe district court lacked jurisdiction. Specifically,

the magistrate judge determined that: (1) although 26 U.S.C. § 7609 provides for

a waiver of the government’s sovereign immunity in certain actions brought by

persons named in an IRS summons issued to a third-party, an exception to that

waiver applied and barred the Taylors from bringing an action to quash the

summons served on LDS Church; and (2) general jurisdictional statutes such as

28 U.S.C. §§ 1331, 1340, 1343(a)(3), 1346 and Article III of the United States

Constitution do not waive the government’s sovereign immunity without an

explicit statement from Congress. On November 16, 2007, the district court

adopted the report and recommendations of the magistrate judge and issued a

final judgment granting the IRS’s motion to dismiss. The Taylors timely

appealed.

II.

A district court’s decision to grant a motion to dismiss for lack of subject

matter jurisdiction, is a jurisdictional question that we review de novo. See

Jones v. Grinnell Corp., 235 F.3d 972, 974 (5th Cir. 2001). Our analysis begins

with the fundamental principle that the United States cannot be sued unless its

sovereign immunity has been explicitly and unequivocally waived through

Congressional statute. See United States v. Dalm, 494 U.S. 596, 608 (1990); see

also Wilkerson v. United States, 67 F.3d 112, 188 (5th Cir. 1995). Where

Congress has statutorily waived the United States’s sovereign immunity, an

action against the government will be strictly construed, and a court will lack

subject matter jurisdiction over any action that does not fit within the scope of

the Congressional waiver. See Wilkerson, 67 F.3d at 118. Courts have held that

an action to quash a summons issued by the IRS is a suit against the United

States requiring a waiver of its sovereign immunity. See Barmes v. United

States, 199 F.3d 386, 388 (7th Cir. 1999) (citations omitted). Thus, resolution of
No. 08-50067

4

the Taylors’s appeal turns on whether the government has waived its sovereign

immunity with respect to the action they brought in the district court.

On appeal, the Taylors contend that the district court retained jurisdiction

to grant the relief requested in their petition for two reasons: (1) the statutory

exception that the district court believed stripped it of jurisdiction is inapplicable

to their case; and (2) other federal statutes confer jurisdiction on the district

court because Agent Booth’s actions were unconstitutional, exceeded the scope

of his statutory authority and were taken in his official capacity as an officer of

the government and under color of law. We will address each of these

arguments in turn.

A.

In their first point of error, the Taylors allege that the district court had

jurisdiction over their petition to quash because Congress waived the

government’s sovereign immunity within the statutory framework of 26 U.S.C.

§ 7609.

As a general rule, § 7609 requires the IRS to serve anyone whose financial

records are sought pursuant to a third-party summons with a notice copy of the

summons. See 26 U.S.C. § 7609(a)(1). Persons entitled to notice may then bring

a petition in federal district court to quash the summons. See 26 U.S.C. §§

7609(b)(2) and (h)(1). The Taylors and the IRS agree that § 7609(b)(2) provides

for waiver of the government’s sovereign immunity with respect to a petition to

quash brought by persons whose financial records are sought in an IRS

summons issued to a third-party. However, the government urges that an

exception to that waiver of sovereign immunity found at 26 U.S.C. §

7609(c)(2)(E), bars the Taylors from bringing a petition to quash.

In accordance with § 7602(b,) which gives the IRS the authority to issue

a summons in connection with an inquiry into any “offense connected with the

administration or enforcement of the internal revenue laws,” § 7609(c)(2)(E)
No. 08-50067

3 26 U.S.C. § 7603(b)(2) provides the following list of third-party record keepers:

(A) any mutual savings bank, cooperative, domestic building and loan

association, or other savings institution chartered and supervised as a savings

and loan or similar association under Federal or State law, any bank. . . or any

credit union . . . ;

(B) any consumer reporting agency . . . ;

(C) any person extending credit through the use of credit cards or similar

devices;

(D) any broker . . . ;

(E) any attorney;

(F) any accountant; 

(G) any barter exchange . . . ;

(H) any regulated investment company . . . and any agent of such regulated

investment company when acting as an agent thereof; 

(I) any enrolled agent; and

(J) any owner or developer of a computer software source code . . . . 

5

excepts certain of those summonses from challenge in the district court if they

are:

(i) issued by a criminal investigator of the Internal Revenue Service

in connection with the investigation of an offense connected with the

administration or enforcement of the internal revenue laws; and 

(ii) served on any person who is not a third-party record keeper (as

defined in § 7603(b). 

See 26 U.S.C. § 7609(c)(2)(E)(i) - (ii). In turn, § 7603(b) lists a number of entities

as third-party record keepers; however, LDS Church does not fit into any of

those categories, a point conceded by the Taylors.3

Nevertheless, they maintain that 26 U.S.C. § 7609(c)(2)(E) is inapplicable

to them. According to the Taylors, that section only applies to persons who may

be employees or agents of the IRS, as such persons are tasked with the

administration or enforcement ofthe internal revenue laws. Therefore, because

the Taylors are not IRS employees or agents, they contend they cannot commit

any offenses “connected with the administration or enforcement of the internal

revenue laws” per §§ 7602(b) or 7609(c)(2)(E)(i). We disagree with the Taylors’s

reading of these statutory provisions. 
No. 08-50067

6

A plain reading of §§ 7602(b) and 7609(c)(2)(E) demonstrates that these

provisions relate to possible criminal offenses by a taxpayer that interfere with

the IRS’s administration or enforcement ofthe internal revenue laws, as opposed

to offenses committed by IRS agents, as urged by the Taylors. Section 7602(b),

added in 1982 to the statutory framework for IRS summonses, simply codified

the extension of the IRS’s summons power to investigations of a taxpayer’s

criminal tax-related liability. See Pub. L. No. 97-248, 96. Stat. 622. Further

support for this reading of §§ 7602(b) and 7609(c)(2)(E) is found in the federal

regulatory guidelines relating to the IRS’s summons authority which explains

that “[t]his summons power may be used in an investigation of either civil or

criminal tax-related liability.” See 26 C.F.R. § 301.7602-1(b)(1). Therefore,

§ 7602(b) gives the IRS the authority to issue summonses to investigate whether

a taxpayer has criminally violated the internal revenue laws. 

Here, Agent Booth submitted an affidavit attesting to the fact that the

summons issued to LDS Church related to the Taylors’s possible criminal taxrelated liability for the years 2002-2005. Further, the Taylors acknowledge that

LDS Church is not a third-party record keeper. Therefore, the exception of

§ 7609(c)(2)(E) fully applies to bar their petition to quash. Accordingly, the

government’s sovereign immunity has not been waived with respectto Taylors’s

petition, and the district court was withoutjurisdiction to adjudicate their claim.

B.

In their second point of error, the Taylors allege that the district court

retained jurisdiction to grant the equitable relief alternatively sought in their

petition to quash. The Taylors now concede that general jurisdictional statutes

such as 28 U.S.C. §§ 1331, 1340, 1343(a)(3), 1346, and Article III of the United

States Constitution are insufficient in themselves to confer such authority on the

district court. However, they argue that other federal statutes give the district

court power to grant their requested relief. Based on our review, none of the
No. 08-50067

7

statutes upon which the Taylors rely abrogate the government’s sovereign

immunity.

First, the Taylors rely on a line of cases that created the so-called “LarsonDugan exception” to sovereign immunity to argue that because their petition

alleged that the actions of an officer of the United States exceeded the scope of

his statutory authority, the district court had jurisdiction to grant them relief.

See Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949); Dugan

v. Rank, 372 U.S. 609 (1963). 

The Supreme Court has stated:

There may be . . . suits for specific relief against officers of the

sovereign which are not suits against the sovereign . . . . Where the

officer’s powers are limited by statute, his actions beyond those

limitations are considered individual and not sovereign actions.The

officer is not doing the business which the sovereign has empowered

him to do or he is doing it in a way which the sovereign has

forbidden. His actions are ultra vires his authority and therefore

may be the object of specific relief.

See Larson, 337 U.S. at 690; Dugan, 372 U.S. at 621-22. However, the Taylors

do not provide any facts to supporttheir assertion that Agent Booth exceeded his

statutory authority in issuing the summons to LDS Church. Rather, they make

only the conclusory statement that Agent Booth’s actions “egregiously exceed

[the] limitations” of his statutory authority. As discussed above, § 7602(b)

grants the IRS the power to issue summonses to third parties, like LDS Church,

to investigate possible criminal tax violations of taxpayers, such as the Taylors.

Therefore, Agent Booth’s issuing of the summons to LDS Church was within the

statutory grant of power, and the Taylors have not demonstrated that his actions

overstepped the bounds of § 7602(b). Consequently, the Taylors have not

demonstrated that they are entitled to relief under the Larson-Dugan exception

to sovereign immunity. 
No. 08-50067

8

Second, the Taylors contend that they are entitled to relief in the district

court because Agent Booth violated the United States Constitution and “relevant

statutes” in issuing the summons. Without providing any facts for this

assertion, the Taylors argue that while 28 U.S.C. § 2679(b)(1) exempts

government officers from suit individually for common law torts committed

within the scope of their employment, that exemption does not apply where a

civil action is brought against a government employee for violation of the United

States Constitution or a federal statute. See 28 U.S.C. § 2679(b)(2). 

As best we can determine, the Taylors seek relief from the summons by

characterizing their petition to quash as a Bivens action whereby a person may

seek damages and other relief when a federal agent has allegedly violated that

person’s constitutional rights. See Brown v. Nationsbank Corp., 188 F.3d 579,

590 (5th Cir. 1999) (citing Bivens v. Six Unknown Named Agents of Fed. Bur. of

Narcotics, 403 U.S. 388 (1971)). However, their petition to quash falls short of

stating a Bivens claim as, significantly, they do not name Agent Booth, in his

individual capacity, as a defendant in their action. See Williamson v. U.S. Dept.

of Agriculture, 815 F.2d 368, 380-81 (5th Cir. 1987) (explaining that a Bivens

action only applies against individual federal officers, in their individual

capacities . . . [while] “[t]he United States and its officers in pursuit of their

official duties remain protected by sovereign immunity.”). Consequently, the

Taylors cannot rely upon the waiver of sovereign immunity in 28 U.S.C.

2679(b)(2) to seek relief in the district court against the IRS.

Finally, the Taylors allege that § 702 of the Administrative Procedure Act

(“APA”) gives the district court power to grant them equitable relief from the

IRS’s summons. Section 702 waives sovereign immunity in regard to actions

seeking nonmonetary relief and claiming “that an agency or an officer or

employee thereof acted or failed to act in an official capacity or under color of
No. 08-50067

4 5 U.S.C. §702 provides in relevant part: 

An action in a court of the United States seeking relief other than monetary

damages and stating a claim that an agency or an officer or employee thereof

acted or failed to act in an official capacity or under color of legal authority shall

not be dismissed nor relief therein be denied on the ground that it is against the

United States or that the United States is an indispensable party . . . .

5 28 U.S.C. § 2201 provides: “In a case of actual controversy within its jurisdiction,

except with respect to Federal taxes, any court of the United States . . . may declare the rights

and other legal relations of any interested party . . . .” 

9

legal authority.”4 5 U.S.C. § 702. However, § 702 further provides: “Nothing

herein . . . confers authority to grant relief if any other statute that grants

consent to suit expressly or impliedly forbids the relief sought.” Id. Therefore,

a petitioner cannot bring an action against the United States under the APA if

another statute prohibits his claim. See McCarty v. United States, 929 F.2d

1085, 1088 (5th Cir. 1991). 

Here, the Anti-Injunction Act, 26 U.S.C. § 7421, specifically prohibits the

injunctive relief the Taylors seek, as that statute provides that “no suit for the

purpose of restraining the assessment or collection of any tax shall be

maintained in any court.” See 26 U.S.C. § 7421(a). Courts have held that this

prohibition applies equally to actions to enjoin IRS investigations. See Hobson

v. Fischbeck, 758 F.2d 579, 580-81 (11th Cir. 1985); United States v. Dema, 544

F.2d 1373, 1376 (7th Cir. 1976); accord Brittingham v. United States, 451 F.2d

315, 317-18 (5th Cir. 1971). Additionally, to the extent that the Taylors sought

declaratory relief in the district court, the Declaratory Judgment Act, 28 U.S.C.

§ 2201, bars claims with respect to a dispute over federal taxes.5 See Bob Jones

Univ. v. Simon, 416 U.S. 725, 732 n.7 (1974) (explaining that Congress’s

enactment of 28 U.S.C. § 2201 evidences its “antipathy for premature

interference with the assessment or collection of any federal tax.”); accord

Brittingham, 451 F.2d at 317-18. Therefore, as both the Anti-Injunction Act and

the Declaratory Judgment Act bar the equitable relief sought by the Taylors,
No. 08-50067

10

they cannot avail themselves of the APA’s waiver of sovereign immunity to seek

that relief in the district court. 

III.

For the foregoing reasons, we AFFIRM the ruling of the district

court.