890 F.2d 781 (5th Cir. 1989), 89-5508, Calder v. I.R.S.

Docket Nº:89-5508.
Citation:890 F.2d 781
Party Name:James CALDER, Plaintiff-Appellant, v. INTERNAL REVENUE SERVICE, and Lawrence B. Gibbs, Commissioner of Internal Revenue, Defendants-Appellees.
Case Date:December 21, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 781

890 F.2d 781 (5th Cir. 1989)

James CALDER, Plaintiff-Appellant,



Commissioner of Internal Revenue, Defendants-Appellees.

No. 89-5508.

United States Court of Appeals, Fifth Circuit

December 21, 1989

Page 782

David H. Donaldson, Graves, Dougherty, Hearon & Moody, Austin, Tex., for plaintiff-appellant.

Mary Frances Clark, Gary R. Allen, Chief Appellate Section, Karen L. Elias, U.S. Dist. Judge, Tax Div., David I. Pincus, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, JOHNSON and HIGGINBOTHAM, Circuit Judges.

JOHNSON, Circuit Judge:

While researching the development of federal crime control policies, University of Texas at San Antonio Professor James Calder requested certain documents from the Internal Revenue Service (hereinafter IRS) pertaining to tax investigations of Al Capone. The IRS, determining that the request sought nondisclosable "return information," denied Calder's request. 26 U.S.C. Sec. 6103. 1

Calder, after exhausting his administrative remedies, brought suit under the Freedom of Information Act (FOIA) and the first and fifth amendments to the Constitution. Calder later dropped the FOIA claim and proceeded solely on the constitutional issues. Specifically, Calder argued that the IRS's denial of access to the materials violated his asserted constitutional right of access to government information as well as his fifth amendment right to equal protection under the laws. The equal protection claim was based on the pre-1977 access to the files granted several individuals.

The district court granted the IRS's motion for summary judgment on the ground that Calder has no constitutional or statutory right of access to Capone's IRS records. Calder has timely appealed the judgment to this Court. We affirm.

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In his brief to this Court, Calder argues that the first amendment creates a right of access to records in the hands of an administrative agency which have historically been available for public perusal. 2 Calder argues that section 6103 is unconstitutional as applied to him because it limits this alleged right of access to information held by an administrative agency, specifically, the records of Al Capone. Calder bases this argument on Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), and its progeny. 3

Calder acknowledges that the cases in the Richmond line establish and define the scope of the first amendment right of access to criminal trials and certain criminal proceedings. See, e.g., Gannett Co., Inc. v. De Pasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) (pretrial suppression hearing)...

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