Brian Kenner v. United States
689 F. App'x 558
| 9th Cir. | 2017Background
- Brian and Kathleen Kenner (pro se) sued over IRS collection actions and named individual IRS employees, judges, and Capital One among defendants.
- District court substituted the United States for individual IRS employees under 28 U.S.C. § 2679(d) certification.
- The district court dismissed the United States for lack of subject-matter jurisdiction because the Kenners had not exhausted administrative remedies under the Federal Tort Claims Act (FTCA).
- The court dismissed claims against Judges Moskowitz and Battaglia on absolute judicial immunity grounds for acts taken in their judicial capacities.
- The court dismissed claims against Capital One for failure to plead plausible claims under applicable state law (including the California Bane Act).
- The district court denied leave to amend as futile; Kenners raised new arguments on appeal which the Ninth Circuit refused to consider.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Substitution under 28 U.S.C. § 2679(d) | Kenners challenged substitution of the U.S. for IRS employees | Certification was proper and Kenners failed to present evidence rebutting it below | Affirmed substitution; Kenners failed to adequately challenge certification |
| FTCA jurisdiction / administrative exhaustion | Kenners argued merits of FTCA claims in court | United States argued jurisdictional bar because administrative claim not presented | Dismissed for lack of subject-matter jurisdiction for failure to exhaust administrative remedies |
| Judicial immunity for state judges | Kenners sought relief against Judges Moskowitz and Battaglia for actions in cases | Judges asserted absolute judicial immunity for judicial acts | Claims barred by absolute judicial immunity; dismissal affirmed |
| Claims against Capital One (California Bane Act and other claims) | Kenners alleged wrongdoing but pleaded few supporting facts | Capital One moved to dismiss for failure to state a plausible claim | Dismissed for failure to plead sufficient facts; amendment would be futile |
Key Cases Cited
- Rundgren v. Wash. Mut. Bank, FA, 760 F.3d 1056 (9th Cir.) (standards for de novo review of subject-matter jurisdiction)
- Hebbe v. Pliler, 627 F.3d 338 (9th Cir.) (pleading standard for pro se plaintiffs)
- Sadoski v. Mosley, 435 F.3d 1076 (9th Cir.) (judicial immunity principles)
- Green v. Hall, 8 F.3d 695 (9th Cir.) (burden to rebut Attorney General certification under § 2679)
- Cadwalder v. United States, 45 F.3d 297 (9th Cir.) (administrative claim requirement under FTCA)
- Ashelman v. Pope, 793 F.2d 1072 (9th Cir.) (absolute judicial immunity for judicial acts)
- Moore v. Brewster, 96 F.3d 1240 (9th Cir.) (judicial immunity extends to equitable relief)
- Weilburg v. Shapiro, 488 F.3d 1202 (9th Cir.) (dismissal without leave to amend when amendment would be futile)