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02-3049 Clark v. U.S. (58979)

By: dmc-admin//April 28, 2003//

02-3049 Clark v. U.S. (58979)

By: dmc-admin//April 28, 2003//

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“[W]e need not resolve whether sec. 2680(c)’s exemption encompasses Clark’s FTCA claim, because he could not avail himself of the Act in any event-‘The Tort Claims Act applies only to torts.’ Paul, 929 F.2d at 1204. … Clark’s allegations against the government do not add up to any state-law tort. He merely alleges that the IRS violated federal law by failing to promptly issue him a replacement check under 31 U.S.C. sec. 3343. An alleged violation of a federal statutory duty cannot form the basis of a FTCA claim. Ochran v. United States, 273 F.3d 1315, 1317 (11th Cir. 2001) (‘[T]he FTCA was not intended as a mechanism for enforcing federal statutory duties.’); Johnson v. Sawyer, 47 F.3d 716, 728 (5th Cir. 1995) (en banc) (FTCA does not apply where the alleged negligence ‘arises out of the failure of the United States to carry out a [federal] statutory duty’). Moreover, sec. 3343 does not create any duty on the part of the IRS to issue replacement checks; that responsibility lies with other officials of the Treasury Department-namely, the Financial Management Service, which has now issued Clark a new check after completing its investigation. See 31 C.F.R. sec. 245.1; see also Your Ins. Needs Agency Inc. v. United States, 274 F.3d 1001, 1006 (5th Cir. 2002) (government fulfilled obligation to pay tax refund by sending refund check to the address shown on the taxpayer’s return; sec. 3343 provides mechanism for replacement check claims). So, whether or not we would agree with Clark about sec. 2680(c), the FTCA provides no basis for his claim for damages against the United States.”

Affirmed.

Appeal from the United States District Court for the Northern District of Indiana, Sharp, J., Per Curiam.

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