Rhonda Reid v. Internal Revenue Service, et al

[DO NOT PUBLISH]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
____________________
USCA11 Case: 21-12087 Date Filed: 12/17/2021 Page: 1 of 8

-- 1 of 8 --

2 Opinion of the Court 21-12087
Before J ORDAN, 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 Nar-
cotics, 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 ac-
tion 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 retali-
ation 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).
USCA11 Case: 21-12087 Date Filed: 12/17/2021 Page: 2 of 8

-- 2 of 8 --

21-12087 Opinion of the Court 3
I. DISCUSSION
A. Official Capacity
The government and its agencies are immune from suit un-
less it waives its sovereign immunity.
F.D.I.C. v. Meyer, 510 U.S.
471, 475 (1994). Because “[o]fficial-capacity suits . . . generally rep-
resent 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 employ-
ment. 28 U.S.C. § 1346(b)(1). It precludes liability absent a show-
ing 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 crim-
inal prosecution, allegedly spurred by Gearhart’s false communica-
tion 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 prose-
cution claim.
See Blue v. Lopez, 901 F.3d 1352, 1357 (11th Cir.
USCA11 Case: 21-12087 Date Filed: 12/17/2021 Page: 3 of 8

-- 3 of 8 --

4 Opinion of the Court 21-12087
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 be-
yond 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
USCA11 Case: 21-12087 Date Filed: 12/17/2021 Page: 4 of 8

-- 4 of 8 --

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 negli-
gently 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 exec-
utive order, declared invalid by a state tribunal authorized to make
such determination, or called into question by a federal court’s is-
suance of a writ of habeas corpus” in order to recover damages for
harm caused by actions whose unlawfulness would render her con-
viction 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.
USCA11 Case: 21-12087 Date Filed: 12/17/2021 Page: 5 of 8

-- 5 of 8 --

6 Opinion of the Court 21-12087
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 sher-
iff’s office, the Administrative Procedure Act’s, 5 U.S.C. § 702,
waiver of sovereign immunity did not apply to Reid’s claim for in-
junctive 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 im-
munity from actions seeking relief other than monetary damages).
The APA’s waiver only applies to challenges to a “final agency ac-
tion” 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 consum-
mation 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 col-
lection of any tax,” including suits to permanently enjoin the IRS from engag-
ing 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).
USCA11 Case: 21-12087 Date Filed: 12/17/2021 Page: 6 of 8

-- 6 of 8 --

21-12087 Opinion of the Court 7
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 be-
cause 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 deci-
sionmaking process. It was an attempt by Gearhart to initiate an
investigation by the sheriff’s office into Reid’s fraudulent tax activ-
ity; 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 unreviewa-
ble.
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 indi-
vidual capacity is
Heck-barred; and the APA’s waiver of sovereign
USCA11 Case: 21-12087 Date Filed: 12/17/2021 Page: 7 of 8

-- 7 of 8 --

8 Opinion of the Court 21-12087
immunity did not apply to Reid’s claim for injunctive relief. Ac-
cordingly, we affirm.
AFFIRMED.
USCA11 Case: 21-12087 Date Filed: 12/17/2021 Page: 8 of 8

-- 8 of 8 --