Kim v. United States, 394 U.S. App. D.C. 149

Kim and Kim are tax protesters who sued the IRS and related officials seeking damages under Bivens and the Taxpayer Bill of Rights (26 U.S.C. § 7433) based on alleged deficiencies in IRS record-keeping and failure to comply with tax laws.
From 1998–2003 the Kims did not regularly file tax returns, and when they did file, their returns lacked required information, prompting IRS correspondence in 2002.
The district court dismissed Counts 1–18 (Bivens claims) for lack of jurisdiction and failure to state a claim, and dismissed Counts 19–21 on various grounds including exhaustion and standing.
On appeal, the D.C. Circuit affirmed dismissal of Counts 1–18 but reversed as to Counts 19–21 in part, finding Counts 20–21 should proceed and Count 19 lacked standing, and remanding for further proceedings on exhaustion questions.
The court held Counts 20 and 21 not to be barred by exhaustion at the pleading stage and remanded to address exhaustion under Rule 12(d) and Rule 56 procedures, while keeping Counts 1–18 dismissed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Bivens claims can be asserted against federal officials in their official capacities.	Kim argues Bivens claims exist against officials in their official capacities.	Defendants contend no Bivens remedy exists against officials in official capacities.	Counts 1–18 dismissed; no Bivens remedy in official capacity.
Whether Counts 19 and 20 fall within the Taxpayer Bill of Rights collection activities.	Counts 19–20 arise from collection-related actions by the IRS.	§ 7433 only covers collection-related misconduct; Counts 19–20 must be dismissed for lack of jurisdiction or scope.	Count 20 relates to collection and belongs in § 7433 context; Count 19 lacks standing and is dismissed.
Whether the Kims lacked standing for Count 19.	Kims seek relief from improper lien/levy actions; standing is met by injury-in-fact.	No injury alleged by the Kims from improper lien, levy, or seizure; standing lacking.	Count 19 dismissed for lack of standing.
Whether exhaustion of administrative remedies is required under § 7433 and how it should be raised on a Rule 12(b)(6) motion.	Jones v. Bock requires not pleading exhaustion as a pleading requirement; exhaustion can be raised as an affirmative defense.	Exhaustion must be pleaded and proven on the face of the complaint.	Exhaustion is not a pleading requirement under § 7433; remand to address exhaustion via proper Rule 12(d)/56 procedure.

Jones v. Bock, 549 U.S. 199 (Supreme Court) (exhaustion not required to be pleaded under PLRA; exhaustion defense analyzed as affirmative defense)
Miller v. United States, 66 F.3d 220 (9th Cir. 1995) (§ 7433 applies only to collection-related actions)
Shaw v. United States, 20 F.3d 182 (5th Cir. 1994) (§ 7433 requires collection-related misconduct; not all IRS actions actionable)
Gonsalves v. IRS, 975 F.2d 13 (1st Cir. 1992) (limits on damages actions under § 7433)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (Supreme Court) (standing requirements and injury in fact)
Wilson v. Libby, 535 F.3d 697 (D.C. Cir. 2008) (addresses Bivens remedies and remedial schemes)