United States District Court, D. South Carolina, Columbia Division
RICHARD E. BOGGS, Plaintiff,
PETER RAE, Defendant.
ORDER ADOPTING THE REPORT AND RECOMMENDATION,
SUBSTITUTING THE UNITED STATES OF AMERICA AS THE DEFENDANT,
AND DISMISSING PLAINTIFF'S COMPLAINT
GEIGER LEWIS, UNITED STATES DISTRICT JUDGE.
Richard E. Boggs (Boggs), proceeding pro se, filed this
action seeking an injunction against Peter Rae (Rae). The
matter is before the Court for review of the Report and
Recommendation (Report) of the United States Magistrate Judge
suggesting the United States of America (USA) be substituted
as the defendant for Rae and the USA's motion to dismiss
for lack of subject matter jurisdiction be granted. The
Report was made in accordance with 28 U.S.C. § 636 and
Local Civil Rule 73.02 for the District of South Carolina.
Magistrate Judge makes only a recommendation to the Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976).
The Court is charged with making a de novo
determination of those portions of the Report to which a
specific objection is made, and the Court may accept, reject,
or modify, in whole or in part, the recommendation of the
Magistrate Judge or recommit the matter with instructions. 28
U.S.C. § 636(b)(1). The Court need not conduct a de novo
review, however, “when a party makes general and
conclusory objections that do not direct the court to a
specific error in the [Magistrate Judge's] proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982); see
Fed. R. Civ. P. 72(b).
Magistrate Judge filed the Report on November 19, 2019. Boggs
filed his Objections to the Report (Objections) on November
25, 2019. The USA filed its response to the Objections on
December 9, 2019 (Response). The Court has reviewed the
objections but holds them to be without merit. It will
therefore enter judgment accordingly.
majority of Boggs's objections are restatements of facts
alleged, purportedly supporting his action. Because these do
not address the reasoning of the Report, they will be treated
as conclusory objections and, thus, only require review for
clear error. Orpiano, 687 F.2d at 47. The Court
finds no error in the Report and therefore will overrule
however, does raise three objections directly applicable to
the Magistrate Judge's legal reasoning. All three are
without merit and will be addressed in turn.
Boggs objects to the invocation of the Anti-Injunction Act
(AIA), asserting the AIA's bar on tax cases is limited to
cases involving exactions. This misstates the scope of the
AIA tax exception. The AIA exception “extends beyond
the mere assessment and collection of taxes to embrace other
activities, such as an audit to determine tax liability, that
may culminate in the assessment or collection of
taxes.” Judicial Watch, Inc. v. Rossotti, 317
F.3d 401, 405 (4th Cir. 2003). This would include any
investigation undertaken by the Internal Revenue Service.
Thus, the AIA specifically disallows the suit Boggs attempts
to bring. Accordingly, the Court will overrule this
Boggs objects to the Report disclaiming the applicability of
the Declaratory Judgment Act (DJA). Boggs provides no legal
basis for his objection, merely asserting the DJA is
applicable because “the defendant(s) lacked the
authority to do what he / they did.” Objections at 9.
This is merely a conclusory objection and, thus, requires
review for only clear error. Orpiano, 687 F.2d at
47. As the Court stated above, it finds no error in the
Report and therefore will overrule this objection.
Boggs asserts the Report incorrectly asserts sovereign
immunity, claiming immunity was waived by the government in 5
U.S.C. § 702, the Administrative Procedures Act (APA).
The APA, however, “is not a grant of jurisdiction,
” and “merely suggest[s] that sovereign immunity
will not be a defense in an action in which jurisdiction
already exists.” Lonsdale v. United States,
919 F.2d 1440, 1444 (10th Cir. 1990). The APA alone is
insufficient to demonstrate a clear waiver of sovereign
immunity applicable to this case. Consequently, the Court
will overrule this objection.
thorough review of the Report and the record in this case
pursuant to the standard set forth above, the Court overrules
Boggs's objections, adopts the Report, and incorporates
it herein. Therefore, it is the judgment of the Court the USA
is substituted as the defendant for Rae, the USA's motion
to dismiss is GRANTED, and Boggs's
complaint is DISMISSED WITHOUT PREJUDICE for
lack of subject matter jurisdiction.