O'CONNOR v. US
| Decision Date | 21 July 1987 |
| Docket Number | No. CV-N-87-92-ECR.,CV-N-87-92-ECR. |
| Parties | Dennis O'CONNOR and Marilyn O'Connor, Plaintiffs, v. UNITED STATES, Internal Revenue Service, United States Tax Court Trial Judge Norman H. Wolfe, Internal Revenue Service Appeals Officer Lawrence Johnson, United States Deputy Marshal Bob Dean, and United States Justice Department, Defendants. |
| Court | U.S. District Court — District of Nevada |
COPYRIGHT MATERIAL OMITTED
Dennis and Marilyn O'Connor, in pro per.
William A. Maddox, U.S. Atty. by Shirley Smith, Asst. U.S. Atty., Reno, Nev., and William A. Maddox, U.S. Atty. by Frederic J. Baker, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., for defendants.
This action is brought pro se by Dennis and Marilyn O'Connor against the United States, the Internal Revenue Service ("IRS"), the Justice Department, United States Tax Court Judge Norman H. Wolfe, IRS Appeals Officer Lawrence Johnson, and United States Deputy Marshal Bob Dean. The plaintiffs base their claims upon 42 U.S.C. § 1983, 5 U.S.C. § 552 (the Freedom of Information Act), and 5 U.S.C. § 552a (the Privacy Act). The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 as well as 5 U.S.C. §§ 552 and 552a.
The plaintiffs' complaint alleges seven causes of action.
In the first cause of action, plaintiffs allege that the United States and the IRS have seized $1,040.81 in wages from Dennis O'Connor under the guise of civil penalties for the filing of false W-4 forms. The plaintiff argues that the seizures violated his constitutional right to due process of law. Plaintiff seeks the return of the seized wages plus interest.
Second, the plaintiffs allege that the IRS has failed to disclose certain information to them and has failed to allow them to review IRS files in order to formally request the expungement of misinformation all in violation of the Freedom of Information Act and the Privacy Act. The plaintiffs seek injunctive relief as well as damages on these bases.
Third, the plaintiffs allege that the United States and the IRS have "withheld by distraint the wages of plaintiff Dennis O'Connor under the guise that he is a `taxpayer' who is liable to pay the federal income tax." Plaintiff argues that $15,135.49 has been so withheld for the tax years 1981-1986. Plaintiff argues that this "constitutes an unlawful pre-judgment attachment which is violative of the plaintiff's Fifth and Fourteenth Amendment due process rights of equal protection of the state laws pursuant to Fed.R.Civ.P. 64." Plaintiff seeks return of the withheld wages plus interest.
Fourth, plaintiff Dennis O'Connor alleges that defendant United States Tax Court Judge Norman H. Wolfe "knowingly and unlawfully entered an arbitrary and capricious judgment against him in clear absence of all jurisdiction." Dennis O'Connor alleges further that defendant Wolfe "failed and refused to take judicial notice of the provisions of the 1939 Internal Revenue Code and based his negligent and unintelligible decision on the 1954 Internal Revenue Code without making a specific finding of fact that the plaintiff was a `taxpayer.'" The plaintiff argues that defendant Wolfe violated his due process rights under the Fifth Amendment. This cause of action is based on 42 U.S.C. § 1983, and the plaintiff apparently seeks a declaratory judgment and damages. The plaintiff also seeks punitive damages against defendant Wolfe.
Fifth, plaintiff Dennis O'Connor alleges that defendant IRS Appeals Officer Lawrence Johnson "did knowingly, unlawfully, and maliciously violate his Fifth Amendment due process rights when he refused to take notice of the provisions of the 1939 Internal Revenue Code and proceeded to coerce him into filing and paying taxes that he was not liable for." This cause of action is based on 42 U.S.C. § 1983; plaintiff seeks general and punitive damages.
Sixth, plaintiff Marilyn O'Connor alleges that "defendant United States Deputy Marshal Bob Dean infringed upon plaintiff Marilyn O'Connor's political rights of freedom of association and freedom to express dissent when he wrote down the license plate number of her automobile for investigative purposes simply because she had attended a pre-trial hearing for a person who was under a criminal indictment for willful failure to file federal income tax forms." Plaintiff alleges further that "said defendant was acting in bad faith, under color of law, in order to harass and intimidate the plaintiff who was known to him from previous show trials put on by the United States." Plaintiff argues that such conduct violated her rights under the First Amendment. This cause of action is grounded on 42 U.S.C. § 1983; plaintiff seeks general and punitive damages.
Seventh, plaintiff Marilyn O'Connor alleges that the defendant United States Justice Department has failed to disclose information that she requested under the provisions of the Freedom of Information Act and the Privacy Act. The plaintiff seeks injunctive relief as well as damages on this basis.
On April 15, 1987, defendants Wolfe, Johnson, and United States filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (docket # 3). The motion is also clearly made on behalf of defendant IRS and will be so treated by the Court. On April 30, 1987, plaintiffs filed an Opposition to Motion to Dismiss (docket # 6). On June 9, 1987, defendant Johnson filed a Supplemental Memorandum in Support of the Motion (docket # 15).
The defendant parties to the motion, and also the plaintiffs, have treated the motion as one for summary judgment by presenting matters outside the complaint. Therefore, the Motion to Dismiss, or in the Alternative, Motion for Summary Judgment shall be treated as a motion for summary judgment and disposed of as provided in Fed.R.Civ.P. 56. Fed.R.Civ.P. 12(b).
Summary judgment is proper if there is no genuine issue of material fact and the moving parties are entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The facts must be viewed and inferences drawn in the manner most favorable to the nonmoving parties. Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir.1983). The moving parties have the burden of demonstrating that they are entitled to summary judgment Id.
The first argument made by the defendant United States in its motion is that sovereign immunity bars the causes of action asserted by the plaintiffs. The Court finds that this is not so.
The United States, as sovereign, is immune from suit unless it waives its immunity and consents to be sued. United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983); Colony First Federal Sav. and Loan Ass'n. v. Federal Sav. and Loan Ins. Corp., 643 F.Supp. 410, 414 (C.D.Cal.1986). This Court lacks jurisdiction to entertain a suit against the United States unless the action is brought under an act of Congress specifically authorizing the action. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). Statutes authorizing suit against the United States are strictly construed. Hurley v. United States, 624 F.2d 93, 95 (10th Cir.1980).
The plaintiffs bring two kinds of causes of action against the United States: actions to gain access to certain information under the Freedom of Information and Privacy Acts and actions to recover money withheld from wages as taxes and tax related penalties. The United States has clearly waived its sovereign immunity as to actions brought to enforce the Freedom of Information and Privacy Acts. See 5 U.S.C. § 552(a)(4)(B), (E), and (F) (Freedom of Information Act); 5 U.S.C. § 552a(g) (Privacy Act). Also, the United States has waived its sovereign immunity as to actions brought for the recovery of a tax or tax related penalty erroneously or illegally assessed or collected. See 28 U.S.C. § 1346(a)(1).
26 U.S.C. § 7421(a) prohibits the bringing of a "suit for the purpose of restraining the assessment or collection of any tax...." § 7421(a) is strictly enforced. See Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974); Maxfield v. United States Postal Service, 752 F.2d 433, 434 (9th Cir.1984). The purpose of the statute is to allow the United States to assess and collect taxes without judicial intervention. Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292 (1962). The only exception to the anti-injunction provision requires the taxpayer to demonstrate that (1) under no circumstances can the government ultimately prevail; and (2) the taxpayer will be irreparably harmed if the injunction is not granted. Id.; Maxfield, 752 F.2d at 434.
The defendant parties to the present motion have shown that the plaintiffs cannot demonstrate that the government has no chance of prevailing on the issues of tax liability raised in this case. Indeed, as is discussed below, the Court finds that the government has succeeded in showing that as a matter of law it must prevail on the tax liability issues in this case. Moreover, the Court sees no indication that the plaintiffs will be irreparably harmed if the government is not enjoined from assessing or collecting taxes.
Thus, to the extent the plaintiffs seek an injunction against the United States or the IRS to stop the assessment or collection of taxes, their action must be dismissed.
The plaintiffs seek "a finding of fact that the plaintiffs were not `taxpayers' who were required to file returns or pay the federal income tax pursuant to the positive law of the 1939 Internal Revenue Code...." The relief sought by plaintiffs would be in the nature of a declaratory judgment.
28 U.S.C. § 2201(a), a provision of the Declaratory Judgment Act, states in pertinent part:
In a case of actual controversy within its jurisdiction, except with respect to...
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