Bowser v. First National Bank of Oakland, Maryland

• Citation: 390 F. Supp. 834
• Decision Date: 28 February 1975
• Docket Number: No. K-75-71.,K-75-71.
• Parties: Carlton E. BOWSER, Sr., and Violet M. Bowser v. FIRST NATIONAL BANK OF OAKLAND, MARYLAND and Garrett National Bank of Oakland, Maryland.
• Court: U.S. District Court — District of Maryland

390 F. Supp. 834

Carlton E. BOWSER, Sr., and Violet M. Bowser v. FIRST NATIONAL BANK OF OAKLAND, MARYLAND and Garrett National Bank of Oakland, Maryland.

No. K-75-71.

United States District Court, D. Maryland.

February 28, 1975.

Carlton and Violet Bowser pro se.

William M. Schildt, Asst. U. S. Atty., D. Md., and Gerald C. Miller, Dept. of Justice, for the I. R. S.

Franklin G. Allen, Baltimore, Md., for defendants.

FRANK A. KAUFMAN, District Judge.

Plaintiffs in this case, husband and wife, have instituted this pro se suit, seeking to restrain the two banks, as defendants, from honoring summonses directed to them by the Internal Revenue Service, requiring the production of documents and information pertaining to the plaintiffs. The provisions of the summonses which are set forth in footnote 1 below are quite broad.¹ The Internal Revenue Service was given the opportunity to intervene in this case but has declined to do so after having appeared specially through a government attorney solely for the purpose of presenting the views of the Government to this Court and citing to this Court certain applicable authority. In that context the Government stated that it did not desire formally to assume the role of amicus curiae but simply desired to be of aid to the Court and to make known its views. The defendants have to date declined to comply with the requirements of the summonses unless they are ordered so to do by this Court.

Jurisdiction exists in this case pursuant to 28 U.S.C. § 1340. De Masters v. Arend, 313 F.2d 79, 84-85 (9th Cir. 1963); Cook v. United States, 387 F.Supp. 1103 (D.Nev.1974);² Kirschenbaum v. Beerman, 376 F.Supp. 398 (W. D.Pa.1974). Provided that the jurisdictional amount is met, jurisdiction would seemingly also exist under 28 U.S.C. § 1331 since the plaintiffs have asserted violation of their federal constitutional rights and since, in view of the breadth of the summonses issued by the Internal Revenue Service to the defendants, questions may well be presented under the Federal Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. See United States v. Puntorieri, 379 F.Supp. 332 (E.D.N. Y.1974).

The issue of whether plaintiffs have standing to be heard herein with regard to the summonses addressed to the two banks which are the defendants herein, and if plaintiffs do have such standing, the further issue of whether plaintiffs are entitled to injunctive relief pending a hearing at which the Internal Revenue Service would be required to establish its prima facie right to require compliance with the said summonses, have been rather fully developed by Judge Foley in his recent decision in the Cook case and earlier by Judge Weber in Fitzmartin v. Bingler, 244 F. Supp. 541 (W.D.Pa.1965).³ There is little to be gained by further discussion of those opinions and of their analyses of the language used by the Supreme Court in Reisman v. Caplin, 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964), and of the opinions filed by the Supreme Court in California Bankers Ass'n v. Shultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974); in Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L. Ed.2d 580 (1971); and in other cases.⁴ Any such discussion would, however, require attention not only to the majority opinion in the Shultz case but to the additional concurring opinion of Mr. Justice Powell and to the reservations expressed therein. In that connection, attention is called to Burrows v. Superior Court of San Bernardino County, 13 Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590 (1974). The reason why further discussion of those authorities and of the basic issues in this case will not be further pursued herein is that in Snyder, Bowser, et al. v. United States, et al., 502 F.2d 1163 (4th Cir. 1974), a suit in which one of the two plaintiffs hereto was one of the four plaintiffs therein, and one or two of the defendants herein was named defendant therein,⁵ the United States Court of Appeals for the Fourth Circuit, in a per curiam opinion, in the course of affirming the dismissal of the suit of the plaintiffs therein to restrain the defendants, one of whom was the District Director of Internal Revenue, another of whom was a special agent of the Intelligence Division of that Service, and another of whom was the First National Bank of Oakland, Maryland,⁶ wrote that plaintiffs "could assert any reason why the summonses should not be obeyed to the hearing officer before whom the summonses were returnable; and if their claim was not sustained, they could request noncompliance by the banks and litigate their rights before any court to which application for an order to require compliance was made."⁷ To date, the Internal Revenue Service has not afforded the plaintiffs an opportunity to appear before a hearing officer to assert why the summonses to the banks should not be obeyed, and, furthermore, the defendant banks herein have, as of this date and pending this Court's determination herein, refused voluntary compliance with the summonses in issue until they are ordered so to comply by this Court.⁸ In the light of the language so used by the United States Court of Appeals for the Fourth Circuit,...