United States District Court, D. Hawaii
NOSHIR S. GOWADIA, FED. REG. #95518-022, Plaintiff,
INTERNAL REVENUE SERVICE, FLORENCE POON, SUSAN MITSUYOSHI, DEBRA TSUHA, Defendants,
E. KOBAYASHI UNITED STATES DISTRICT JUDGE
the court is pro se Plaintiff Noshir S. Gowadia's civil
rights Complaint seeking money damages under Bivens v.
Six Unknown Named Agents of the Fed. Bur. of Narcotics,
403 U.S. 388 (1971). Gowadia is a former defense contractor
who was convicted in this court of multiple counts for
violations of the Arms Export Control and Espionage Acts, tax
fraud, and money laundering. See United States v.
Gowadia, No. 1:05-cr-00486 (D. Haw. 2005),
aff'd 760 F.3d 989, 990 (9th Cir. 2014). Gowadia
is now incarcerated at the United States Penitentiary in
Florence, Colorado (USP Florence), and has paid the costs of
initiated this action in the District Court for the District
of Columbia, which transferred the suit to this court on
February 21, 2019. Gowadia alleges that the Internal Revenue
Service (IRS) and IRS agents Florence Poon, Susan Mitsuyoshi,
and Debra Tsuha (Defendants) knowingly falsified information
that led to his conviction for tax fraud. He seeks $5
million from the IRS and $3 million each from Poon,
Mitsuyoshi, and Tsuha.
Gowadia cannot state a colorable claim for relief against the
named Defendants regarding his claims, this action is
DISMISSED with prejudice pursuant to 28 U.S.C. §
court is required to screen Gowadia's claims against
government officials pursuant to 28 U.S.C. § 1915A(a).
Claims that are frivolous, malicious, fail to state a claim
for relief, or seek damages from defendants who are immune
from suit must be dismissed. See Rhodes v. Robinson,
621 F.3d 1002, 1004 (9th Cir. 2010) (discussing §
1915A(b)). Section 1915 screening involves the same standard
of review as that under Federal Rule of Civil Procedure
12(b)(6). See Wilhelm v. Rotman, 680 F.3d 1113, 1121
(9th Cir. 2012). That is, a complaint must “contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted); Wilhelm, 680 F.3d at 1121;
Simmons v. Navajo Cty., Ariz., 609 F.3d 1011,
1020-21 (9th Cir. 2010); Ewing v. City of Stockton,
588 F.3d 1218, 1235 (9th Cir. 2009).
litigants' pleadings must be liberally construed and all
doubts should be resolved in their favor. Hebbe v.
Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations
omitted). The court must grant leave to amend if it appears
the plaintiff can correct the defects in the complain.
Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000)
(en banc). If a claim or complaint cannot be saved by
amendment, dismissal with prejudice is appropriate.
Sylvia Landfield Tr. v. City of L.A., 729 F.3d 1189,
1196 (9th Cir. 2013).
may not seek damages against the IRS or its employees
pursuant to Bivens. See Adams. v. Johnson, 355 F.3d
1179, 1184-85 (9th Cir. 2004). He is also barred from
pursuing these claims in a civil action by Heck v.
Humphrey, 512 U.S. 477 (1994), because success on his
claims would necessarily imply that his convictions for tax
fraud are invalid.
Bivens Relief is Unavailable
provides a federal common law basis for individuals to sue
federal government actors if they violate the
individual's constitutional rights while acting under
government authority. 403 U.S. at 396-97. The right to sue
under Bivens is qualified, however, and is not
absolute. Adams, 355 F.3d at 1183.
“Bivens remedies are not available to
compensate plaintiffs for all constitutional torts committed
by federal officials.” W. Ctr. for Journalism v.
Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000) (per
curiam). A Bivens action against governmental
officials cannot lie where there are “special factors
counseling hesitation in the absence of affirmative action by
Congress.” Bivens, 403 U.S. at 396; see
also Ziglar v. Abbasi, 137 S.Ct. 1843, 1854-55, 1860
(2017) (explaining that expanding Bivens relief
beyond the three contexts already recognized by the Supreme
Court is disfavored).
Adams, the Ninth Circuit Court of Appeals expressly
held that, “[B]ecause the Internal Revenue Code gives
taxpayers meaningful protections against government
transgressions in tax assessment and collection, we hold that
Bivens relief is unavailable for plaintiffs'
suit against IRS auditors and officials.” 355 F.3d at
1186. That is, in light of “the comprehensiveness of
the Internal Revenue Code and its remedial provisions for the
benefit of taxpayers, and the specific remedies available . .
. pursuant to TEFRA,  we hold that the taxpayer plaintiffs here
have no right to Bivens relief for any allegedly
unconstitutional actions of IRS officials engaged in tax
assessment and collection. Stated another way, plaintiffs may
not pursue a Bivens action with complaints about the
IRS's audits, assessments, and collection of partnership
taxes and the obligations of partners.” Id. at
cannot maintain a Bivens suit for damages against
Defendants IRS or its agents Poon, Mitsuyoshi, and Tshuha and
these claims are DISMISSED with prejudice for his failure to
state a colorable claim for relief.