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When I despair, I remember that all through history the ways of truth and love have always won. There have been tyrants, and murderers, and for a time they can seem invincible, but in the end they always fall. Think of it - always.
- Mahatma Gandhi

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The Lion asked the Wizard one time, "When does a slave become a king?"

"When You start acting like one! "

Otherwise You remain a slave all Your life.

 3 Fed Road Blocks 
3 Fed Road Blocks 

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Three Federal Road Blocks

Below are two federal district court decisions that address the big three
roadblocks now in place to prevent anyone from being able to sue in
a federal district court to challenge a federal agency's denial of rights or for redress of grievance in reference to taxation, or for what they believe to be
an erroneous claim as to their status, such as not being one who is liable or  subject to the income tax, or to object to the assertion that they are ones who can be brought within the purview of a taxing statute that requires the waiver of fundamental rights. 

 These three federal road blocks are:

       (a)  The Declaratory Judgment Act at 28 USC 2201 grants authority
     for federal courts to determine any issue within its jurisdiction
except those issues dealing with federal taxes.

(b) The Anti-Injunction Act at 26 USC 7421 prevents the federal courts from granting an injunction to restrain the assessment or collection of any tax, whether erroneous or not, and

    (c) The Doctrine of Sovereign Immunity prevents anyone from suing
        the United States of America in the federal district courts unless
            permission to sue is first granted by the United States of America.

This first case below is the August 31st 2005 dismissal by the district court, in Washington DC, of the We The People and Bob Schultz law suit against the United States, the IRS, the Treasury Department and others.   

The second is a 2001 case out of the 2nd District of California entitled Fogel v. United States of America.

As the DC circuit court mentions, the only openings given for suit against those who wrongfully bring you within the taxing statutes are those openings found within the federal statutes where one is already pre-determined to be a "taxpayer" and "person liable."

Recently the press has reported that federal judges are upset with judicial bashing and fearful for their safety because of it.   When the feds screw over people's lives and then those people are denied the opportunity to address their complaints within the federal judicial system,those judges and the congressmen who pass such road blocks, should not only be fearful,  they should be expecting to hear the call to  

Hang em high!!!

bob minarik - 5288 n. 1000 w. rochester indiana 46975 - 574-542-9065

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

WE THE PEOPLE, et al.,                             )

Plaintiffs,                                                       )

v.                                                                   ) Civil Action No. 04-1211) (EGS)            

UNITED STATES, et al.,                              )

Defendants.                                                  )

___________________________________)OPINION & ORDER

Plaintiff , We the People Foundation for Constitutional

Education, Inc. and several individually-named plaintiffs,

including pro se plaintiff Robert L. Schultz, bring this action

against the United States of America, the U.S. Treasury

Department, the Internal Revenue Service, and the U.S. Department

of Justice. Plaintiffs' Complaint "arises from the failure of

the President of the United States and his Attorney General and

his Secretary of the Treasury and his Commissioner of the

Internal Revenue Service, and the failure of the United States

Congress, to properly respond to Plaintiffs' Petitions for

Redress of Grievances against their government, namely:

grievances relating to violations of the U.S. Constitution's war

powers, taxing, money, and "privacy" clauses." See Plaintiffs'

Amended Complaint ("Compl.") at 66. Plaintiffs also allege that

the Executive Branch has retaliated against plaintiffs for

petitioning the government and for "Peaceably Assembling and

Associating with other individuals under the umbrella of the We

the People Foundation for Constitutional Education and the We the

Case 1:04-cv-01211-EGS Document 28 Filed 08/31/2005 Page 1 of 7

2

People Congress." Id.

Pending before the Court are defendants' Motion to Dismiss

and plaintiffs' Motion to Amend the Complaint. Upon

consideration of the motions, the oppositions thereto, and the

replies in support thereof, and for the following reasons, it is

herebyORDERED that the defendants' Motion to Dismiss is GRANTED.

It is furtherORDERED that the plaintiffs' Motion for Leave to File

Amended Complaint is DENIED.I. Motion to Dismiss

A. Standard of ReviewA motion to dismiss for failure to state a claim under

Federal Rule of Civil Procedure 12(b)(6) should be granted when

it appears "beyond doubt" that there is no set of facts that

plaintiffs can prove that will entitle them to relief. See, Inc., 216 F.3d 1111, 1114 (D.C. Cir.

Sparrow v. United Air Lines

2000). "Accordingly, at this stage in the proceedings, the Court

must accept as true all of the complaint's factual allegations."

Johnson v. District of Columbia

2002).B. Discussion

The First Amendment provides that "Congress shall make no

law ... abridging ... the right of the people peaceably to

Case 1:04-cv-01211-EGS Document 28 Filed 08/31/2005 Page 2 of 7

3

assemble, and to petition the Government for a redress of

grievances." U.S. Const. Amend. I. Plaintiffs contend that they

therefore have a constitutional right to a response to the

petitions they have filed with the various defendants, and that

defendants have committed constitutional torts against plaintiffs

in failing to respond to their petitions. See Pl. Opposition to

Def. Motion to Dismiss ("Pl. Opp.") at 9-10. The Supreme Court,

however, has held that "the First Amendment does not impose any

affirmative obligation on the government to listen, to respond

or, in this context, to recognize the association and bargain

with it." See Smith v. Ark. State Highway Employees, Local 1315,

441 U.S. 463, 465 (1979). Plaintiffs' claims that the defendants

are obligated to "properly" respond to plaintiffs' petitions

shall thus be dismissed for failure to state a claim upon which

relief may be granted.

Plaintiffs' claims based on the "retaliatory actions" the

defendants have allegedly taken against plaintiffs for exercising

their First Amendment rights are similarly flawed. The

governmental actions plaintiffs complain of include sending

plaintiffs threatening letters, placing liens on their property,

raiding plaintiffs' homes or offices, and forcing plaintiffs to

appear before administrative or other tribunals. Compl. at ¶ 48.

It appears that because plaintiffs have not received responses to

their petitions, they have "decided to give further expression to

their Rights under the First Amendment to Speech, Assembly and

Case 1:04-cv-01211-EGS Document 28 Filed 08/31/2005 Page 3 of 7

4

Petition, by not withholding and turning over to government

direct, un-apportioned taxes on Plaintiffs' labor - money earned

in direct exchange for their labor (not to be confused with money

"derived from" labor)." Pl. Opp. at 30-31.

Congress has provided methods for challenging the legality

of such enforcement actions and to prevent governmental abuse.

For example, taxpayers have the right to notice and a hearing

before the federal government can file a notice of a tax lien or

levy. 26 U.S.C. §§ 6320, 6330. Citizens have a right of action

for wrongful levies or other collection actions and for wrongful

failure to release liens. Id. at §§ 7426(a). And taxpayers may

sue to recover money erroneously or illegally assessed or

collected by the government. Id. at § 7422(a).

Plaintiffs do not, however, have a First Amendment right to

withhold money owed to the government and to avoid governmental

enforcement actions because they object to government policy.

See, e.g., Adams v. Comm'r

1999)("Plaintiffs engaging in civil disobedience through tax

protests must pay the penalties incurred as a result of engaging

in such disobedience."); United States v. Rowlee, 899 F.2d 1275,

1279 (2d Cir. 1990)("The consensus of this and every other

circuit is that liability for a false or fraudulent return cannot

be avoided by evoking the First Amendment[.]")(citing cases);

United States v. Kelley

, 864 F.2d 569, 576-77 (7 Cir.), cert. th

denied

Case 1:04-cv-01211-EGS Document 28 Filed 08/31/2005 Page 4 of 7

5

mere advocacy not protected by the First Amendment); Welch v., 750 F.2d 1101, 1108 (1 Cir. 1985) st

("[N]oncompliance with the federal tax laws is conduct that is

afforded no protection under the First Amendment[.]"); United, 652 F.2d 890, 892 (9 Cir.), cert. denied, 454 th

U.S. 1126 (1981)("Tax violations are not a protected form of

political dissent."); United States v. Malinowski, 472 F.2d 850,

857 (3d Cir. 1973)("To urge that violating a federal law which

has a direct or indirect bearing on the object of protest is

conduct protected by the First Amendment is to endorse a concept

having no precedent in any form of organized society where

standards of societal conduct are promulgated by some

authority.").

Moreover, the injunctive relief that plaintiffs seek, that

is, "a temporary injunction against the United States Internal

Revenue Service and the Department of Justice and any other

agency of the United States that arguably may act in this matter

under color of law, from taking any further retaliatory actions

against the named plaintiffs in this proceeding," is clearly

barred by the Anti-Injunction Act, 26 U.S.C. § 7421. See, e.g.,, 809 F.2d 842, 844

Foodservice & Lodging Institute, Inc. v. Regan

(D.C. Cir. 1987)("The Anti-Injunction Act provides that ?no suit

for the purpose of restraining the assessment or collection of

any tax shall be maintained in any court by any person.' 26

U.S.C. § 7421(a)(1982). The Declaratory Judgement Act provides

Case 1:04-cv-01211-EGS Document 28 Filed 08/31/2005 Page 5 of 7

6

that ?[i]n 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 seeking such declaration, whether or not

further relief is or could be sought.' 28 U.S.C. § 2201(a)(Supp.

III 1985). By their terms, these statutes clearly bar the

appellant's claims for injunctive and declaratory relief as to

the [challenged IRS regulations].").

For the above cited reasons, plaintiffs' complaint must be

dismissed for failure to state a claim, pursuant to Fed. R. Civ.

P. 12(b)(6).II. Motion for Leave to File Amended Complaint

In light of the preceding discussion and the Court's ruling

granting the defendants' motion to dismiss the complaint,

plaintiffs' motion for leave to amend their complaint to add

additional defendants, including the President of the United

States, the United States Congress, the Commissioner of the

Internal Revenue Service and others, as well as adding 1,600

plaintiffs, shall be DENIED as futile. See James Madison Ltd. v., 82 F.3d 1085, 1099 ("Courts may deny a motion to amend a

Ludwig

complaint as futile ... if the proposed claim would not survive a

motion to dismiss.")(citations omitted); see also Nat'l Wrestling, 263 F. Supp. 2d 82, 103-04

Coaches Ass'n v. U.S. Dept. of Educ.

(2003), aff'd, 366 F.3d 1047 (D.C. Cir. 2004), cert. denied, 125

S.Ct. 2537 (2005)(citing and discussing cases supporting a

Case 1:04-cv-01211-EGS Document 28 Filed 08/31/2005 Page 6 of 7

7

district court's discretion pursuant to Fed. R. Civ. P. 15(a) to

deny a motion for leave to amend complaint on the grounds of

futility).III. Conclusion

For the reasons set forth herein, it is hereby ORDERED that

the defendants' motion to dismiss the complaint is GRANTED and

plaintiffs' motion for leave to amend their complaint is DENIED.

An appropriate order accompanies this Opinion & Order.

Signed: EMMET G. SULLIVAN

U.S. District Judge

August 31, 2005

Case 1:04-cv-01211-EGS Document 28 Filed 08/31/2005 Page 7 of 7

 

States v. Ness

 

United States

, 493 U.S. 811 (1989)(actions that constitute more than
, 170 F.3d 173, 182 (3d Cir.
, 190 F. Supp. 2d 34, 39 (D.D.C.

 

 
 

*******************************

 

FEDERAL JURISDICTION TAX QUESTION ANSWERED

2001 WL 306496

87 A.F.T.R.2d 2001-1233, 2001-1 USTC P 50,366
(Cite as: 2001 WL 306496 (S.D.Cal.))

United States District Court, S.D. California.

Matthew A. FOGEL, Plaintiff,
v.
UNITED STATES of America, Defendant.
No. 00-CV-2293-J (LSP).
Feb. 6, 2001.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS WITH PREJUDICE

JONES, District J.

*1 This matter comes before the Court on the United States OF America's Motion to Dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Because section 2201(a) of the Declaratory Judgment Act [FN1] expressly denies federal courts subject matter jurisdiction over requests for declaratory judgments in federal tax matters, the Government's motion to dismiss for lack of subject matter jurisdiction is GRANTED with prejudice. Because the Court lacks jurisdiction, Defendant's motion to dismiss for failure to state a claim upon which relief may be granted is DENIED as MOOT.

FN1. 28 U.S.C. § 2201(a) (2001).

BACKGROUND

Plaintiff, Matthew A. Fogel, was born in New York and has paid taxes in the United States for several years. (Compl. 6, 10.) On November 14, 2000, Mr. Fogel, in propria persona, filed a complaint against the United States of America, alleging "fraud, slavery and involuntary servitude in the application of the Collective Entity Rule."  (Compl. at 1.) Plaintiff claims that obtaining a Social Security Number from the government amounts to a contractual relationship with the United States and that paying taxes is voluntary under that contractual relationship.   Plaintiff further alleges that because he was not born "within the boundaries of the United States" he is not a "person" or "taxpayer" within the meaning of the United States tax code and thus, his social security "contract" is void. (Compl. 10-13.) Plaintiff now seeks a declaratory judgment which provides him with "non-taxpayer" status and rescinds all "contracts" between him and the United States. (Compl. at 3.)

DISCUSSION

I. Subject Matter Jurisdiction

A. Standard of Review

Under Federal Rule of Civil Procedure l2(b)(1), a motion to dismiss for lack of subject matter jurisdiction may be properly granted if the plaintiff does not meet its burden in establishing that the court has such jurisdiction. Because federal courts are courts of limited jurisdiction, the plaintiff must demonstrate that the court has been authorized to preside over the case either by statute or the constitution. See Willy v. Coastal Corp., 503 U.S. 131, 136-37 (1992). Whenever it appears that the court lacks subject matter jurisdiction, the court is obligated to dismiss the action. Fed.R.Civ.P. 12(h)(3) .In a suit against the United States, a 12(b)(I) motion is proper when sovereign immunity has not been waived. See McCarthy v. United States, 850 F .2d 558, 560 (9th Cir.1988). "[A] waiver cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S.  1,4 (1969).

B. Analysis

The government's motion to dismiss for lack of subject matter jurisdiction must be granted pursuant to 28 U.S.C. § 2201(a), which expressly declares an exception to federal, court jurisdiction in controversies "with respect to Federal taxes" when the plaintiff requests declaratory relief. See Hughes v. United States, 953 F.2d 531, 536-37 (9th Cir. 1991) (where the real issue in the case is whether the plaintiff must pay taxes, the court lacks subject matter jurisdiction under § 2201). Because Plaintiff has requested a declaratory judgment finding that he is a "non-taxpayer" and is not required to file taxes in the United States, this Court lacks subject matter jurisdiction and is obligated to grant the United States' motion to dismiss.

*2 Furthermore, even if Plaintiffs claim validly invoked federal question jurisdiction under 28 U.S.C. § 1331, he has failed to demonstrate that the United States has given consent to be sued and thereby waived its sovereign immunity, a requirement that must be met before this Court may preside over such a case. See United States v. Dalm, 494 U.S. 596,608 (1990). Section 1331 itself does not contain a waiver of sovereign immunity. See Kester v. Campbell, 652 F.2d 13 (9th Cir.1981). Because the Plaintiff has failed to establish that the United States has waved its sovereign immunity, there is undeniably no basis for subject matter jurisdiction in this case. [FN2]

FN2. Plaintiff filed an untimely opposition motion for summary judgment on January 25, 2001. In it he asserts that the United States is not sovereign to him, thus no waiver is necessary. Plaintiff's failure to recognize the U.S. as his sovereign does not obliterate the doctrine of sovereign immunity.

CONCLUSION

Based on the foregoing, Defendant's Motion to Dismiss for lack of subject matter jurisdiction is GRANTED with prejudice pursuant to section 2201(a) of Declaratory Judgment Act. The Defendant's Motion to Dismiss for failure to state a claim upon which relief may be granted is DENIED as MOOT. Plaintiffs Motion for Summary Judgment is also DENIED as MOOT. The Clerk of the Court is ORDERED to close this fIle.

IT IS SO ORDERED.

_________________________________
The Truth Shall Set You Free

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