Rucker v. Miller

MEMORANDUM WANGELIN, Chief Judge. This matter is before the Court upon defendant’s motion to dismiss plaintiff’s complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, and for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On January 18,1980, plaintiff, proceeding pro se, filed a “Notice of Hearing of Motion for Order Remitting Property” and an affidavit in support of the motion. These docu [1033] merits were treated as a complaint by this Court. The only conceivable jurisdictional thread upon which plaintiff’s action might be based is 28 U.S.C. § 1346(a)(1), subject however, to the limitations of 26 U.S.C. § 7422. In such an action, the United States would have to be substituted for the Secretary of the Treasury as defendant pursuant to 26 U.S.C. § 7422(f)(2). More importantly, plaintiff is presently prevented from maintaining such an action by 26 U.S.C. § 7422(a) which provides that he must first file an administrative claim for refund or credit. Bohn v. United States, 467 F.2d 1278, 1279-80 (8th Cir. 1972). Accordingly, there exists no basis of jurisdiction over this action and plaintiff’s complaint must be dismissed. Accordingly, defendant’s motion to dismiss will be granted.