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Case 1:08-cv-00280-LEK-DRH Document 16 Filed 06/17/2008 Page 1 of 3

UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF NEW YORK

________________________________________
)
WILLIAM M. GREENE and )
KAREN M. GREENE, )
)
Plaintiffs, )
) Case No. 1:08-cv-0280-LEK-DRH
v. )
)
INTERNAL REVENUE SERVICE, )
)
Defendant. )
_________________________________________ )

UNITED STATES’ RESPONSE TO PLAINTIFFS’ MOTION FOR REFUSAL OF


NOTICE OF APPEARANCE AND TO STRIKE ALL PLEADINGS . . . IN THE NAME
OF THE UNITED STATES BECAUSE THE UNITED STATES IS NOT A DEFENDANT
IN THE CAPTIONED CASE

The United States of America, improperly named and sued as the Internal Revenue

Service (“IRS”), hereby submits its response to plaintiffs’ motion for refusal of notice of

appearance and to strike all pleadings . . . in the name of the United States because the United

States is not a defendant in the captioned case (“Motion to Strike.”) The Court should deny

plaintiffs’ Motion to Strike because its has no merit.

On March 12, 2008, Plaintiffs William M. Greene and Karen M. Greene filed a complaint

styled as a qui tam action. Plaintiffs served their original complaint on the United States

Attorney for the Northern District of New York to provide the government with the opportunity

to determine whether it desired to intervene in this matter. See 31 U.S.C. § 3730(b)(2). The

plaintiffs filed an amended complaint on May 21, 2006, after the government did not take any

action to intervene (Docket Entry No. 6.) Defendant IRS was served with the amended
Case 1:08-cv-00280-LEK-DRH Document 16 Filed 06/17/2008 Page 2 of 3

complaint pursuant to Fed. R. Civ. P. 4(i)(2). The United States, on behalf of its agency the IRS,

filed a motion to dismiss. (Docket Entry No. 13.) Plaintiffs now seek to strike the appearance of

the trial attorney who has entered an appearance on behalf of the IRS, the United States’ agency,

and to strike all pleadings filed by the United States because the United States is not a named

defendant. (See Docket Entry No. 14.)

As stated in the United States’ motion to dismiss, plaintiffs’ action against the IRS cannot

proceed because Congress has not authorized suit against this agency in its own name. See

generally Blackmar v. Guerre, 342 U.S. 512, 515 (1952); Krouse v. United States Gov’t Treas.

Dep’t Internal Revenue Serv., 380 F. Supp. 219, 2221 (C.D. Cal. 1974). Even if plaintiffs had

brought this suit against the United States, plaintiffs fail to allege any basis for a wavier of

sovereign immunity and their suit should therefore be dismissed for lack of jurisdiction.

Accordingly, plaintiffs’ Motion to Strike should be denied.

Respectfully submitted,

GLENN T. SUDDABY
United States Attorney

/s/ Lisa L. Bellamy


LISA L. BELLAMY (514173)
Trial Attorney, Tax Division
U.S. Department of Justice
P.O. Box 55
Washington, D.C. 20044-0055
Telephone: (202) 307-6416
Facsimile: (202) 514-5238
E-mail: lisa.l.bellamy@usdoj.gov

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Case 1:08-cv-00280-LEK-DRH Document 16 Filed 06/17/2008 Page 3 of 3

CERTIFICATE OF SERVICE

I CERTIFY that on June 17, 2008, I electronically filed the foregoing United States’

Response to Plaintiffs’ Motion for Refusal of Notice of Appearance and to Strike All Pleadings .

. . in the Name of the United States Because the United States is Not a Defendant in the

Captioned Case with the Clerk of the Court using the CM/ECF system. Notice of this filing will

be sent by e-mail to all parties registered to receive electronic notification. I have mailed by First

Class United States mail, postage prepaid, the foregoing document to the following non-CM/ECF

participants:

William M. Greene
P.O. Box 279
Voorheesville, NY 12186

Karen M. Greene
P.O. Box 279
Voorheesville, NY 12186

Parties may access this filing through the Court's CM/ECF System.

/s/ Lisa L. Bellamy


LISA L. BELLAMY (514173)
Trial Attorney, Tax Division
U.S. Department of Justice
P.O. Box 55, Ben Franklin Station
Washington, D.C. 20044-0055
Tel.: (202) 307-6416
Fax: (202) 514-5238
e-mail: Lisa.L.Bellamy@USDOJ.gov

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