Schiff v. Internal Revenue Services et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
PETER DAVID SCHIFF,
Plaintiff,
v.
INTERNAL REVENUE SERVICE, et al.,
Defendants.
CIVIL NO.: 24-1511 (CVR)
REPORT AND RECOMMENDATION
I. 	PROCEDURAL B ACKGROUND
On June 5, 2025, plaintiff Peter David Schiff (“Plaintiff”) filed a Second Amended
Complaint (the “complaint”), alleging various claims against the United States of America (“United
States”), the Internal Revenue Services (“IRS”), Jim Lee (“Mr. Lee”) in his individual and official
capacities as former IRS Chief of Criminal Investigations, as well as IRS Employees Justin Cole
(“Mr. Cole”), Matt Line (“Mr. Line”), Mike Batdorf (“Mr. Batdorf”) and unnamed IRS employees
(with Mr. Line, Mr. Lee, Mr. Cole and Mr. Batdorf the “Individual Defendants”, collectively
“Defendants”), among others. ECF No. 121 at 2-3. Specifically, Plaintiff brings claims against the
Defendants under 42 U.S.C. § 1983 (“Section 1983”), 42 U.S.C. § 1985(3) (“Section 1985(3)”), an
independent claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971) (“Bivens”) and claims for tortious interference with business relations, and
defamation under Article 1536 of the Puerto Rico Civil Code of 2020, 31 L.P.R.A. § 10801.1 Id. at
4-6.
1 In the alternative of the Bivens claim, Plaintiff also brings a claim for violation of his due process rights and unlawful
seizure of property under the Fifth Amendment. ECF No. 121 at 6.
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On August 12, 2025, the United States, filed a motion to dismiss Plaintiff’s claims against
the IRS and claims against Individual Defendants in their official capacity pursuant to Federal Rule
of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.2 ECF No. 188. On August 17,
2025, Plaintiff filed a response in opposition. ECF No. 208. The United States replied. ECF No.
222. For the reasons that follow, it is recommended that the United States’ motion to dismiss (ECF
No. 188) be GRANTED.
II. 	S UMMARY OF ALLEGATIONS OF THE COMPLAINT
Plaintiff owned a financial institution called Euro Pacific International Bank ("the Bank").
ECF No. 10 at 3, ¶ 1. The Bank was subject to scrutiny by the IRS and Commissioner of Financial
Institutions of the Commonwealth of Puerto Rico (“OCIF” per its Spanish-language acronym) as
part of a joint tax enforcement investigation called "Operation Atlantis" conducted by the Joint
Chiefs of Global Tax Enforcement (known as “J5”). Id. The J5 combats transnational tax crime
through gathering information, sharing intelligence, conducting operations, and building the
capacity of tax crime enforcement. Id. at ¶ 2(b)(viii). The J5 consists of five individual members,
all named defendants in this case: the IRS, Mr. Will Day, Mr. Eric Ferron, Mr. Niels Obbink, and
Mr. Simon York (the “J5 Defendants”). Id. at 3.3
“Operation Atlantis” was initiated when Plaintiff arranged for the sale of the Bank's stock to
a company called Qenta for $17.5 million. Id. at ¶ 3. OCIF initially supported the sale but ultimately
blocked it on May 16, 2022, at the request of the J5 Defendants. Id. Instead, OCIF approved an asset
sale to Qenta for $1.25 million after the Bank entered receivership, resulting in a considerable loss
2 Defendants also include reference to dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim upon which relief can be granted; however, Defendants do not develop any arguments for dismissal on these
grounds. Therefore, such grounds for dismissal are not addressed.
3 This allegation and that of the previous sentence do not appear in the Second Amended Complaint but rather appear
in the First Amended Complaint. ECF No. 10. They are provided as context for the reader and are not essential to the
conclusion of this Report and Recommendation. However, nothing in the motions to dismiss or related filings suggest
that the role and membership of the J5 is contested.
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to Plaintiff. Id. Plaintiff’s offer to inject $7 million in capital was rejected by the OCIF
Commissioner, who assured Plaintiff that the Bank’s capital level, though below the statutory
required minimum, was sufficient for the bank to operate prior to the completion of the sale to Qenta.
Id. As of June 5, 2025, OCIF’s appointed Trustee had not completed the Bank’s liquidation. Id. at
5.
On June 30, 2022, Mr. Lee, made statements during a press conference in Puerto Rico to
announce the investigation into the Bank. Id. ¶ 2; Id. at 5. All J5 Defendants and OCIF
representatives were present. Id. In this press conference, the reasons given for the investigation
implied that Plaintiff was involved in illegal tax evasion and money laundering. Id. Plaintiff found
out in April of 2024, after receiving information from the IRS, that the J5 Defendants had agreed to
leak confidential investigation information to the media, specifically to defendants Mr. Goldstein,
Ms. Grieve, and Mr. McKenzie, who then disseminated the allegations of tax evasion and money
laundering regarding Plaintiff and the Bank, despite knowing these claims were unsubstantiated. Id.
at ¶¶ 5-6. As result of these false statements and as result of the delay in completing the Bank’s
liquidation, Plaintiff's reputation was damaged, and Plaintiff suffered significant financial harm. Id.
at ¶ 3; Id. at 5-6.
III. 	APPLICABLE L EGAL S TANDARD
Pursuant to Federal Rule of Civil Procedure 12(b)(1) (“Rule 12(b)(1)”), a defendant may
move to dismiss an action for lack of subject matter jurisdiction. “As courts of limited jurisdiction,
federal courts have the duty to construe their jurisdictional grants narrowly.” Fina Air, Inc. v. United
States, 555 F. Supp. 2d 321, 323 (D.P.R. 2008) (citing Alicea Rivera v. SIMED, 12 F. Supp. 2d 243,
245 (D.P.R. 1998)). Since federal courts have limited jurisdiction, the party asserting jurisdiction
has the burden of demonstrating the existence of federal jurisdiction. See Murphy v. United States,
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45 F. 3d 520, 522 (1st Cir. 1995); Droz-Serrano v. Caribbean Records Inc., 270 F. Supp. 2d 217
(D.P.R. 2003).
Challenges to subject matter jurisdiction through a Rule 12(b)(1) motion may constitute
either a facial or factual challenge. Valentín v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir.
2001); Mercado Arocho v. United States, 455 F. Supp. 2d 15, 18 (D.P.R. 2006); Rivera de León
v. Maxon Engineering Servs., Inc., 283 F. Supp. 2d 550, 554 (D.P.R. 2003). To decide whether
a 12(b)(1) motion is a facial or factual challenge, a court must determine whether the motion
disputes the complaint's allegations regarding subject matter jurisdiction. Torres-Negrón v. J & N
Records, LLC, 504 F.3d 151, 162 fn.8 (1st Cir. 2007). If the 12(b)(1) motion does not dispute subject
matter allegations, then it challenges only the facial sufficiency of the complaint. Id. If the 12(b)(1)
motion disputes the subject matter allegations, then it challenges the factual basis for subject matter
jurisdiction. Id.
Under a facial challenge, the moving party challenges jurisdiction based on the allegations
in the complaint. See Valentín, 254 F.3d at 363; Mercado Arocho, 455 F. Supp. 2d at 18; Rivera de
León, 283 F. Supp. 2d at 554. Thus, “the court must consider all the allegations in the complaint as
true and will not look beyond the face of the complaint to determine jurisdiction.” Mercado Arocho,
455 F. Supp. 2d at 18. A facial attack only requires a court to examine the complaint and determine
whether the plaintiff “has sufficiently alleged a basis of subject matter jurisdiction.” Torres-Negrón,
504 F.3d at 162 (quoting Scarfo v. Ginsburg, 175 F.3d 957, 960 (11th Cir. 1999)); see, e.g., Fina
Air Inc., 555 F. Supp. 2d at 325–28 (examining a facial attack and applying the standard articulated
in Torres-Negrón).
On the other hand, under a factual challenge, “the allegations have no presumptive
truthfulness, and the court ... has discretion to allow affidavits, documents, and even a limited
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evidentiary hearing to resolve disputed jurisdictional facts.” Mercado Arocho, 455 F. Supp. 2d at
18 (citations omitted). The analysis changes depending on whether the challenged facts would also
decide issues relating to the merits of the case. Torres-Negrón, 504 F.3d at 163. If the challenged
facts do involve the merits of the case, the court must use a summary judgment standard and dismiss
“‘only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail
as a matter of law.’ ” Id. (quoting Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553,
1558 (9th Cir. 1987)). If the challenged facts do not involve the merits of the case, then the court is
free to consider evidence and decide the question of its subject matter jurisdiction over the case. Id.
IV. 	ANALYSIS
Before beginning the sovereign immunity analysis, it is necessary to briefly address whether
the Plaintiff brings his causes of action against the various IRS employees in their individual
capacity, their official capacity, or both. The complaint specifies that the claims brought against
Mr. Lee are brought against him in his personal and official capacity. ECF 121 at 2. However,
regarding those claims made against Mr. Cole, Mr. Line, Mr. Batdorf and the unnamed IRS
employees, the complaint does not specify in which capacity Plaintiff is suing them. Plaintiff argues
in opposition to the United States’ motion to dismiss that he has pled personal capacity claims
against the Individual Defendants. See ECF No. 208 at 2-3. Where the capacity a defendant has been
sued in is not clear, the “course of proceedings” test is used. Powell v. Alexander, 391 F.3d 1, 22
(1st Cir. 2004). Under this test “courts may examine ‘the substance of the pleadings and the course
of proceedings in order to determine whether the suit is for individual or official liability.’” Id.
(quoting Pride v. Does, 997 F.2d 712, 715 (10th Cir. 1993)).
Here, the complaint suggests, that the Individual Defendant are sued only in their official
capacity. First, the Plaintiff clearly specified that he has sued Mr. Lee in his personal capacity, yet
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in the very next line of the complaint he fails to specify the capacity in which he sues the other
Individual Defendants. Id. at 2. Additionally, he refers to each IRS defendant by their position in
the agency (e.g. “Matt Line, Deputy Chief, IRS-CI”). Id. This suggests that his cause of action is
based on their actions taken in their official capacities. This is further bolstered by the rest of the
complaint, which alleges that the IRS agents “us[ed] the bank’s closure as a publicity tool for J5’s
agenda”. Id. In fact, the complaint does not allude to any action taken by the Individual Defendants
that reasonably falls outside their work as IRS agents. See generally id. See also Rodriguez v.
Brennan, No. 18-1489 (ADC), 2019 U.S. Dist. LEXIS 160998 (D.P.R. Sep. 18, 2019) (holding that
failure to allege action outside the scope of an officer’s duties is evidentiary to the suit being against
a defendant only in their official capacity). Plaintiff’s choice to bring only claims for money
damages and not for injunctive relief does plausibly suggest that he intended to bring an individual
capacity suit, since the federal government is generally immune to suits for money damages for
constitutional violations. See Futura Dev. of P.R., Inc. v. Estado Libre Asociado de P.R., No. CIVIL
92-2534 (SEC), 2002 U.S. Dist. LEXIS 26618 at *35 (D.P.R. Oct. 28, 2002). However, this factor
does not overcome the “defendant’s need for fair notice”. Powell, 391 F.3d at 22. A claim for money
without more fails to place Individual Defendants on notice that they could be held personally liable.
The course of proceedings therefore suggests that the claims against the Individual Defendants are
only being alleged in their official capacity.4
However, the Plaintiff does succeed in providing fair notice against the Individual
Defendants under Bivens. Bivens actions are only permitted against federal officers in their
individual capacity. Bivens, 403 U.S. at 395-97. Given that it is impossible to make an official
4 The United States has clarified in its reply brief that it makes no arguments as to any individual capacity claim, as it
only appears on behalf of defendants in their official capacity. See ECF 188 at n.1. Therefore, insofar as the Court
determines that the Plaintiff makes claims against the Individual Defendants in their individual capacity, this Report
and Recommendation make no findings as to the whether those claims should be dismissed.
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capacity claim under Bivens, the complaint is understood as an individual capacity claim. However,
this determination does not decide whether the complaint sufficiently states a claim under Bivens
because no parties have made motions to dismiss the personal capacity Bivens claims against the
Individual Defendants.
In its motion, the United States moves to dismiss Plaintiff’s claims against itself, the IRS,
Mr. Lee, Mr. Cole, Mr. Line, Mr. Batdorf, and all unnamed IRS agents in their official capacities
under Rule 12(b)(1). ECF No. 188. First, Defendants argue that the IRS and its agents in their official
capacity are not proper defendants here.5 Id. at 5. Accordingly, Defendants asks the Court to
substitute the United States for these federal defendants. Id. Second, Defendants argues that
Plaintiff’s Section 1983, Section 1985(3), and Bivens claims are barred by sovereign immunity. Id.
at 6-7. Lastly, Defendants argue that Plaintiff’s tortious interference with business relations and
defamation claims are barred by the Federal Torts Claim Act (“FTCA”). Id. at 7-8. The Court first
addresses who is the proper defendant, then moves to discuss the sovereign immunity and FTCA
arguments.
A. Proper Defendant
No suit may proceed against the IRS either for a refund of tax allegedly improperly collected
or for monetary or injunctive relief because Congress has not authorized suit against the agency in
its own name. See generally Blackmar v. Guerre, 342 U.S. 512, 515, 72 S.Ct. 410, 96 L.Ed. 534
(1952) (“When Congress authorizes one of its agencies to be sued eo nomine, it does so in explicit
5 Plaintiff sued Mr. Lee in his personal capacity and so specified in the complaint. However, the Plaintiff failed to serve
the complaint and summons on Mr. Lee. The Court ordered Plaintiff to show cause as to why the claims against Mr.
Lee, in his personal capacity, should not be dismissed. ECF No. 79. Plaintiff filed a response to the Court’s order to
show cause on April 4, 2025. ECF No. 83. However, in Plaintiff’s motion showing cause as to why the action should
not be dismissed against Mr. Lee, Plaintiff failed to articulate with specificity what efforts, if any, he has undertaken to
effectuate service. Accordingly, it was recommended that all claims as to Mr. Lee in his personal be dismissed. ECF
No. 125. The report and recommendation recommending dismissal of all claims as to Mr. Lee in his personal capacity
was adopted January 22, 2026 and, hence, said claims were dismissed. ECF No. 242.
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language, or impliedly because the agency is the offspring of such a suable entity.”); see also Clegg
v. United States Treasury Dep't, 70 F.R.D. 486, 488–89 (D.Mass. 1976) (“In order to sue a federal
agency in its own name, Congressional consent must clearly be found ... No such statutory
authorization provides jurisdictional grounds for this suit as against either the United States Treasury
Department or the United States Secret Service.”); Krouse v. United States Gov't Treas. Dep't
Internal Revenue Serv., 380 F.Supp. 219, 221 (C.D.Cal. 1974) (finding that the Department of the
Treasury and the Internal Revenue Service are not suable entities). Even if the IRS could be a proper
defendant, the IRS is an agency of the United States under the Secretary of the Treasury. See 26
U.S.C. 7801(a)(1) (“the administration and enforcement of [Title 26 of the United States Code] shall
be performed under the supervision of the Secretary of the Treasury.”); see also McNeil v. United
States, 78 Fed Cl. 211, 220–21 (Fed.Cl. 2007). A suit against the IRS is, therefore, a suit against the
United States and a sovereign immunity analysis would apply. See Infra at page 8 (“Section B”).
Thus, it is recommended that the Court accept the United States’ substitution for the IRS and its
employees in their official capacities.
Plaintiff’s complaint includes claims against unnamed IRS employees that will be named
upon further discovery, as well as claims against individual officers Mr. Lee, Mr. Cole, Mr. Line,
and Mr. Batdorf. ECF No. 188 at 2. As discussed, the course of proceedings indicates that these
claims are made against the Individual Defendants in their official capacity, with only the Bivens
action also being against them in their personal capacity as well. A suit against federal employees
sued in their official capacities should also be considered a suit against the United States rather than
against the federal employees. See Sánchez-Mariani v. Ellingwood, 691 F.2d 592, 596 (1st Cir.
1982). The forthcoming analysis therefore focuses on the complaint’s attempt to make official
capacity claims against the Individual Defendants for all claims.
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B. Sovereign Immunity
Although the United States is the proper party rather than its agency, the IRS, the United
States as sovereign may be sued only to the extent that it has consented to suit by statute. United
States v. Testan, 424 U.S. 392, 399 (1976); United States v. Sherwood, 312 U.S. 584, 586 (1941).
“It is axiomatic that the United States may not be sued without its consent and that the existence of
consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). The
federal government may waive its sovereign immunity, but there must be a “clear statement from
the United States waiving sovereign immunity, together with a claim falling within the terms of the
waiver.” United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003) (citations
omitted). Such waiver cannot be implied but must be “unequivocally expressed in statutory text.”
Lane v. Pena, 518 U.S. 187, 192 (1996). “In the absence of explicit statutory consent, the United
States is immune from suit; the federal district court lacks jurisdiction in such circumstances; and
the claim must be dismissed.” Gonsalves v. United States, 782 F. Supp. 164, 168 (D. Me. 1992).
Here, Plaintiff alleges that the Defendants blocked the sale of his financial institution and
disseminated false allegations of tax evasion and money laundering about him to the media in
violation of Section 1983, Section 1985(3), Bivens, and in the alternative of Bivens, a violation of
his Fifth Amendment rights. ECF No. 121 at 3-6.
First, there is no evidence in either Section 1983 or Section 1985(3) that Congress intended
to subject federal agencies or the United States itself to liability. To the contrary, Sections 1983 and
1985 impose liability upon a “person,” and neither a federal agency nor the United States is a
“person” within the meaning of these provisions.” See e.g., Jachetta v. United States, 653 F.3d 898,
908 (9th Cir. 2011); Hindes v. FDIC, 137 F.3d 148, 158 (3d Cir. 1998); Hoffman v. HUD, 519 F.2d
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1160, 1165 (5th Cir. 1975); Accardi v. United States, 435 F.2d 1239, 1241 (3d Cir. 1970); Dye v.
United States, 516 F.Supp.2d 61, 71 (D.D.C. 2007); Affiliated Professional Home Health Care
Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999). Therefore, Plaintiff’s claims against the
Defendants under Sections 1983 and 1985(3) should be dismissed.
Second, there is a judicially created analog to Section 1983 cases for federal defendants
under Bivens. As discussed however, a Bivens action may only be brought against federal employees
in their personal capacity for constitutional torts. Bivens, 403 U.S. at 395-97. In other words, a
Bivens action cannot be brought against the United States. Federal Dep. Ins. Corp. v. Meyer, 510
U.S. 471, 485 (1994) (stating that “we implied a cause of action against federal officials in Bivens
in part because a direct action against the Government was not available.”); Carlson v. Green, 446
U.S. 14, 21 (1980) (finding that a Bivens action may be brought only against individuals, not federal
agencies). Therefore, this claim against Defendants should also be dismissed.
The same analysis applies to Plaintiff’s alternative to his Bivens claim. Plaintiff asserts that
Defendant’s violated his Fifth Amendment due process rights through the unlawful seizure of his
property. It is true that Bivens has been extended to causes of action arising under the constitution
for deprivation of one’s Fifth Amendment rights. Davis v. Passman, 442 U.S. 228 (1979). However,
this cause of action, being an extension of Bivens, is likewise limited to individual capacity suits.
Bivens actions do not lie against federal agencies or federal officials sued in their official capacities.
Rivera v. Riley, 209 F.3d 24, 28 (1st Cir. 2000). Therefore, this claim should also be dismissed.
C. FTCA
Plaintiff also brings tortious interference with business relations and defamation claims
against Defendants. ECF No. 121 at 5-6. The FTCA waives sovereign immunity of the United States
in many suits in tort, establishing the FTCA as the exclusive remedy for tort claims brought against
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the United States for money damages in those suits. See United States v. Smith, 499 U.S. 160, 161-
62 (1991). However, the FTCA does not permit all tort-based suits. For example, the FTCA provides
that its waiver of immunity shall not apply to “[a]ny claim arising out of … libel, slander, …. or
interference with contract rights.” See 28 U.S.C. § 2680(h).
“The Federal Tort Claims Act […] explicitly exempts ‘libel’ and ‘slander’ – what amounts
to ‘defamation’.” Jiménez-Nieves v. U.S., 682 F.2d 1, 6 (1st Cir. 1982). Therefore, Plaintiff’s
defamation claims, which “involve the injury to his reputation and the consequent harm suffered by
him…are therefore barred by the Federal Tort Claims Act.” Id. Plaintiff’s tortious interference with
contractual relations is similarly barred. Plaintiff alleges that the United States, through its
employees of the IRS, tortiously interfered with Plaintiffs’ business relationships. As noted above,
the FTCA provides that the United States has not waived its sovereign immunity for claims that
arise out of any interference with contract rights. 28 U.S.C. § 2680(h). As Plaintiff’s claim alleges
that the IRS employees and government officials interfered with Plaintiff’s business opportunities,
the claim is barred by the FTCA’s exclusion of such claims. See Dynamic Image Technologies, Inc.
v. U.S., 18 F.Supp.2d 146, 150 (D.P.R. 1998). Accordingly, Plaintiff’s claims for tortious
interference and for defamation should be dismissed.6
V. 	CONCLUSION
In sum, for the aforementioned reasons, it is recommended that the Court grant the United
States’ request for substitution. Moreover, it is recommended that the Section 1983, Section 1985(3),
6 Defendants also argue that Plaintiff did not file an administrative claim regarding his two tort claims as required by
the FTCA prior to filing the case or allege that he did, and therefore, the tort claims should be dismissed. ECF No. 188
at 8-9 (citing Santiago-Ramírez v. Secretary of Dep’t of Defense, 984 F.2d 16, 18-19 (1st Cir.1993) (stating that
failure to exhaust results in dismissal of plaintiff’s action)). See also ECF No. 188-1. “Plaintiff acknowledges that no
administrative claim was filed prior to suit – a reflection of the fact that this action is fundamentally a civil rights case
focused on willful misconduct and constitutional violations, not a garden-variety negligence claim that the agency
could amicably resolve.” ECF No. 208 at 6. Plaintiff’s admitted failure to exhaust administrative remedies represents
and independent ground for dismissal of his Tortious Interference and Defamation claims.
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and Bivens claims against the United States be dismissed as the United States is entitled to sovereign
immunity. As to the claims for tortious interference with business relations and for defamation, such
claims are barred by the FTCA and should be dismissed. Thus, the United States’ request to dismiss
the complaint against it under Rule 12(b)(1) (ECF No. 188) should be GRANTED.
The parties have fourteen (14) days to file any objections to this report and recommendation
unless otherwise ordered by the court. Failure to file the same within the specified time waives the
right to object to this report and recommendation. Fed. R. Civ. P. 72(b)(2); Fed. R. Civ. P.
6(c)(1)(B); D.P.R. Civ. R. 72(d); see also 28 U.S.C. § 636(b)(1); Henley Drilling Co. v. McGee, 36
F.3d 143, 150–51 (1st Cir. 1994); United States v. Valencia, 792 F.2d 4 (1st Cir. 1986).
IT IS SO RECOMMENDED.
In San Juan, Puerto Rico, this 6th day of February, 2026.
s/Marcos E. López
U.S. Magistrate Judge
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