Heritage Hills Fellowship v. Plouff, 82-40538

Decision Date01 February 1983
Docket NumberNo. 82-40538,82-48382,82-40398 and 82-40537.,82-40538
Citation555 F. Supp. 1290
PartiesHERITAGE HILLS FELLOWSHIP and Mark and Doris Culbertson, Plaintiffs, v. Thomas O. PLOUFF, Defendant, and HERITAGE HILLS FELLOWSHIP, Mark and Doris Culbertson, Plaintiffs, v. UNITED STATES of America, Defendant. and Mark and Doris CULBERTSON, Plaintiffs, v. INTERNAL REVENUE SERVICE and Charles Parks, District Director, Defendants. and HERITAGE HILLS FELLOWSHIP, Heritage Hills Word of Faith Fellowship, Mark and Doris Culbertson, Jennifer Culbertson, a Minor, Plaintiffs, v. EIGHT OR MORE UNKNOWN AGENTS OF INTERNAL REVENUE SERVICE, United States Postal Service Inspection, et al., Defendants.
CourtU.S. District Court — Western District of Michigan

COPYRIGHT MATERIAL OMITTED

Mark Culbertson, in pro. per.

Marc L. Goldman, Asst. U.S. Atty., Flint, Mich., Edward J. Snyder, J. Brian Ferrel, Robert L. Gordon, Attys., Tax Div., U.S. Dept. of Justice, Washington, D.C., for defendant.

MEMORANDUM OPINION AND ORDER

NEWBLATT, District Judge.

I FACTS

Before the Court are motions to dismiss in the following cases: Heritage Hills Fellowship and Mark and Doris Culbertson v. United States of America, # 82-40382; Mark and Doris Culbertson v. Internal Revenue Service and Charles Parks, # 82-40398; Heritage Hills v. Eight Unknown Agents, # 82-40537; Heritage Hills Fellowship v. Thomas O. Plouff, # 82-40538. It is noted that the Plouff case was transferred from Judge Anna Taylor to this Court by order signed January 20, 1983.

Apart from the Plouff case, plaintiffs have advanced the same basic claim for damages for the alleged statutory violations and constitutional torts that occurred when the Justice Department and Internal Revenue Service concluded an investigation of plaintiffs' civil and criminal tax liability for the 1980-1982 period. In Plouff, plaintiffs seek damages for alleged libel committed by Justice Department attorney Thomas Plouff. Plaintiffs allege that Mr. Plouff's pleadings and motion contain libelous statements about plaintiffs. The government has filed motions to dismiss in the four cases. The Court will decide these motions in this opinion.

The Court has noted that plaintiffs' motions and papers are signed by Mark Culbertson. Throughout the various lawsuits, Mr. Culbertson has filed excessive and arguably improper papers with the Court. Accordingly, the Court has asked Mr. Culbertson to show cause as to why he should not be permanently enjoined from filing actions in this court. The Court will also decide the injunction issue in this opinion.

II LEGAL ANALYSIS
A. Motion to Dismiss in Heritage Hills Fellowship v. Thomas O. Plouff, # 82-40538

Plaintiffs' complaint in Plouff alleges that Justice Department attorney Thomas Plouff committed libel against plaintiffs by the inclusion of certain remarks and comments in an Eastern District lawsuit then numbered # 82-72312. It is not relevant to this motion that # 82-72312 was later transferred to Flint and renumbered.

The Court must GRANT the government's motion to dismiss. There is an absolute privilege against libel with respect to statements made by counsel in the conduct of a lawsuit. See Bennett v. Attorney General, 65 Mich.App. 203, 237 N.W.2d 250 (1975); Sanders v. Leeson Air Conditioning, 362 Mich. 692, 108 N.W.2d 761 (1961); Ginsburg v. Black, 192 F.2d 823 (CA7, 1951). Accordingly, whether this action is considered under the Federal Tort Claims Act or pure constitutional tort analysis, it is clear that plaintiff has failed to state a claim upon which relief can be granted. Thus, the Court hereby GRANTS the government's motion to dismiss Heritage Hills Fellowship v. Plouff, # 82-40538.

B. Motion to Dismiss in Heritage Hills Fellowship v. U.S.A., # 82-40382

The government has filed a motion to dismiss in Heritage Hills Fellowship v. U.S.A., # 82-40382 contending that this court lacks subject matter jurisdiction.

Pro per plaintiffs have asserted that defendant United States has engaged in an investigation of plaintiffs' civil and criminal tax liability for the purpose of harassing plaintiffs and depriving plaintiffs of their First Amendment rights to free speech and freedom of religion. Plaintiffs have asserted the following bases of subject matter jurisdiction: the Federal Torts Claim Act (28 U.S.C. § 2671); 28 U.S.C. § 1361; 26 U.S.C. § 7217. The Court will now consider whether the government has successfully attacked the various bases of jurisdiction.

The sovereign immunity of the United States is generally waived with respect to tort actions pursuant to the waiver contained in the Federal Tort Claims Act (FTCA). See 28 U.S.C. § 2674. See also United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). The general waiver, however, is subject to the exceptions contained in 28 U.S.C. § 2680.

The applicable exception in the instant case is 28 U.S.C. § 2680(c). Section 2680(c) provides that the sovereign immunity waiver is inapplicable to "any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law enforcement officer."

The section 2680(c) exception is broad enough to encompass investigations and communications to third parties regarding a person or a group of persons' tax liability. See Cook v. United States, 521 F.2d 875 (CA9, 1975); Capozzoli v. Tracey, 663 F.2d 654 (CA9, 1981); Krouse v. Treasury Department, 380 F.Supp. 219 (C.D.Calif.1974). It thus follows that plaintiffs' action falls within the section 2680(c) exception. Hence, the Federal Tort Claims Act is not a jurisdictional basis for this lawsuit.

The second jurisdictional basis advanced by plaintiffs is 26 U.S.C. 7217. The statute provides as follows: "Whenever any person knowingly, or by reason of negligence, discloses a return or return information (as defined in section 6103(b) with respect to a taxpayer in violation of the provisions of section 6103, such taxpayer may bring a civil action for damages against such person, and the district courts of the United States shall have jurisdiction of any action commenced under the provisions of this section."

The letter and legislative history of this section clearly indicate that the word "person" was not intended to include the United States. See Haggard v. Carter, 30 AFTR 2d 82-5023 (N.D.Ill.) attached to government's brief at docket entry # 5. Thus, since the government has not consented to suit under section 7217, that section cannot be the jurisdictional basis of this action.

The final jurisdictional ground advanced by plaintiffs is the mandamus statute, 28 U.S.C. § 1361. This statute vests the federal courts with jurisdiction over any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to plaintiff. Mandamus is appropriate only where the defendant owes a clear duty to the plaintiff. United States v. Helvering. Obviously, plaintiffs are owed no such duty in the instant case. Accordingly, the mandamus argument is frivolous and must be rejected.

The Court would also note that a Bivens constitutional tort theory is inapplicable to this action. Bivens cannot abrogate the sovereign immunity of the United States nor of a federal agency. See City of Whittier v. Department of Justice, 598 F.2d 561 (CA9, 1979); Gnotta v. United States, 415 F.2d 1271 (CA2, 1964). Instead, Bivens is applicable only where an individual officer or group of officers is sued. See Beller v. Middendorf, 632 F.2d 788 (CA9, 1980).

In light of the above, it is clear that this Court lacks subject matter jurisdiction over this case. Accordingly, the Court hereby GRANTS the government's motion to dismiss # 82-40382.

C. Government's Motion to Dismiss in Culbertson, et al., v. IRS and Charles Parks, # 82-40398

In # 82-40398, plaintiffs Mark and Doris Culbertson have sued the IRS and Charles Parks, District Director of the IRS, asserting four claims: that Plaintiffs' Privacy Act and First Amendment rights were violated by the government's investigation of plaintiffs' civil and criminal tax liability; that the government violated plaintiffs' Privacy Act rights by refusing to amend plaintiffs' IRS records; that plaintiffs are entitled to a refund of their 1981 taxes because of a wrongful IRS deficiency finding; and that plaintiffs have been "damaged" because the IRS asked them to voluntarily extend the statute of limitations on assessment for the year 1979.

The government has moved to dismiss this case. In analyzing the government's motion, the Court will consider each of plaintiffs' claims as directed against each of the two defendants. The claims advanced against the IRS will be considered first.

On August 26, 1982, the Clerk of the Court entered judgment for the IRS in Culbertson v. IRS et al., # 81-40342. See docket entry # 31 in # 81-40342. On September 22, 1982, plaintiffs filed the present action. The factual transactions of # 81-40342 were alleged to be the government's investigation of plaintiffs' civil and criminal tax liability including interviews with members of plaintiffs' religious group conducted by government agents; the IRS's refusal to amend plaintiffs' tax records; and the IRS's retention of various records concerning plaintiffs.

The Court finds that plaintiffs' first two claims against the IRS have already been litigated in # 81-40342. Consequently, these claims and all possible theories arising therefrom are precluded by the judgment entered on August 26, 1982. See generally Westwood Chemical Co. v. Kulick, 656 F.2d 1224 (CA6, 1981). Therefore, the Court grants the government's motion to dismiss plaintiffs' first two claims on the basis of the res judicata doctrine. See also Castorr v. Brundage, 674 F.2d 531 (CA6, 1982).

Plaintiffs' third claim is that they are entitled to a refund of income tax, penalties and interest allegedly paid for 1981. P...

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