Dean v. U.S., No. 3:03CV65/MCR/MD.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
Writing for the CourtRodgers
Citation330 F.Supp.2d 1318
PartiesWard DEAN, M.D., Plaintiff, v. UNITED STATES of America, Defendant.
Docket NumberNo. 3:03CV65/MCR/MD.
Decision Date25 May 2004
330 F.Supp.2d 1318
Ward DEAN, M.D., Plaintiff,
UNITED STATES of America, Defendant.
No. 3:03CV65/MCR/MD.
United States District Court, N.D. Florida, Pensacola Division.
May 25, 2004.

Page 1319

Lindsey W. Cooper, Jr., US Dept of Justice, Washington, DC, for Defendant.


RODGERS, District Judge.

This cause comes on for consideration upon the magistrate judge's report and recommendation dated May 14, 2004. The plaintiff has been furnished a copy of the report and recommendation and has been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1), and have made a de novo determination of those portions to which an objection has been made.

Having considered the report and recommendation and all objections thereto timely filed, I have determined that the report and recommendation should be adopted.

Accordingly, it is now ORDERED as follows:

1. The magistrate judge's report and recommendation is adopted and incorporated by reference in this order.

2. The defendant's motion for summary judgment (doc. 43) is GRANTED and judgment is entered in favor of the defendant, the United States of America.


DAVIS, United States Magistrate Judge.

This case is before the undersigned magistrate judge in accordance with the court's administrative order of January 27, 2004 concerning non-prisoner pro se cases. Plaintiff, Ward Dean, M.D. (Dr. Dean),

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filed suit against the United States of America and the Internal Revenue Service1 (IRS) on February 20, 2003 claiming damages pursuant to 26 U.S.C. § 7431. That statute allows an individual to seek damages against the government for disclosure of confidential information relating to his tax return. He alleges that on October 3, 2002 IRS Special Agent Tonya Burgess and IRS revenue agent Wayne Jackson arrived at his residence and informed him that he was under criminal investigation. Thereafter Burgess allegedly contacted a number of Dr. Dean's patients and associates and informed them of the investigation. The contacts were made by telephone and by serving one or more summonses. By these and other actions Burgess and the IRS disclosed to third parties information concerning plaintiff's tax returns in violation of 26 U.S.C. § 6103, which provides generally that tax returns are confidential and may not be disclosed. The United States does not dispute that by issuing summonses and interviewing third party witnesses, Special Agent Burgess disclosed that Dr. Dean was under investigation by the Criminal Investigation Division (CID) of the IRS (doc. 44, p. 5). The United States also concedes that informing someone that a taxpayer is being investigated by CID constitutes disclosure of return information within the meaning of 26 U.S.C. § 6103. By way of affirmative defense the United States alleges that such return information concerning Dr. Dean was appropriately disclosed as authorized by 26 U.S.C. § 6103(k), and that to the extent any information was not appropriately disclosed, it was disclosed as a result of a good faith interpretation of 26 U.S.C. § 6013 by the IRS.

Now before the court is a motion for summary judgment filed by the United States (doc. 43), the United States' memorandum in support (doc. 44), and the United States' statement of material facts to which no genuine issue is to be tried (doc. 45). Attached to the statement of facts is a sworn declaration of Special Agent Burgess along with copies of various internal memoranda and IRS rules concerning investigations by special agents. Dr. Dean has filed a memorandum in opposition with attached exhibits and an affidavit (doc. 52).


In order to prevail on its motion for summary judgment, the United States must show that plaintiff has no evidence to support his case, or must present affirmative evidence that plaintiff will be unable to prove his case at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). If the United States successfully negates an essential element of plaintiff's case, the burden shifts to plaintiff to come forward with evidentiary material demonstrating a genuine issue of fact for trial. Id.

In order for plaintiff to meet his burden, he may not rest upon the mere allegations or denials of his pleading; rather, he must produce affidavits or other summary judgment materials which "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis added).2

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Plaintiff must either point to evidence in the record or present additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Celotex Corp., supra; Owen v. Wille, 117 F.3d 1235, 1236 (11th Cir.1997)("Rule 56(e) ... requires the nonmoving party to go beyond the pleading and by h[is] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'"), cert. denied, 522 U.S. 1126, 118 S.Ct. 1074, 140 L.Ed.2d 133 (1998) (quoting Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(c), (e))); Hammer v. Slater, 20 F.3d 1137 (11th Cir.1994). When faced with a motion for summary judgment, while a court must view the evidence in the light most favorable to the non-moving party, the non-moving party still bears the burden of coming forward with sufficient evidence supporting every element that he must prove. Celotex Corp., 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

This court's local rules require that a party opposing a motion for summary judgment file and serve a statement of the material facts which he contends there exists a genuine issue to be tried. N.D. FLA. LOC. R. 56.1(A). Unless the material facts set forth in the moving party's statement are controverted by a statement filed by the opposing party, such facts will be deemed admitted.

In its statement of undisputed facts, which is supported by an attached sworn declaration by Special Agent Burgess (doc. 45), the United States presents the following general narrative: In February 2002, after the IRS had sent a bank (and other institutions or persons) a civil summons seeking documents concerning Dr. Dean, he wrote to at least one bank ordering it not to respond, claiming that the summons was fraudulent and phony, and threatening to sue the bank if it responded to the summons. In October 2002 Special Agent Burgess of the IRS CID initiated a criminal investigation of Dr. Dean concerning tax years 1997, 1998, 1999, and 2001, in which Dr. Dean claimed to have earned no income, and tax year 2000, when Dr. Dean failed to file a tax return. Also in October 2002 Special Agent Burgess, accompanied by Revenue Agent Jackson, went to Dr. Dean's residence, informed him of who she was, and attempted to ask him questions. He refused to answer, and ordered the two agents off his property. Dr. Dean then wrote Special Agent Burgess asking for a conference at which he could present his documents, and Special Agent Burgess responded by telling him that he was free to provide the IRS with any information he thought would be beneficial. Dr. Dean he did not provide anything, then or later. Special Agent Burgess then issued a summons to one Dillon Vickery, which Dr. Dean attempted to quash. Dr. Dean was later summoned to appear before a grand jury for a handwriting exemplar, and he refused to provide it until ordered to do so by the court.

The United States' statement of facts further shows that Special Agent Burgess conducted her Investigation by contacting third party witnesses and by issuing third party summonses as provided by then applicable IRS regulations and guidelines, and any disclosures of return information

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made during the investigation were necessary to the investigation in light of Dr. Dean's lack of cooperation and his open attempts to impede it, and all such disclosures were made in accordance with IRS procedures.

Dr. Dean's response to the motion for summary judgment and the United States' statement of undisputed facts appears at doc. 52, and consists of legal argument, an exhibit of 228 pages that traces the authority of the Secretary of the Treasury to issue summonses and conduct investigations, and a purported affidavit by Dillon Vickery, in which Mr. Vickery states that Special Agent Burgess told him she was conducting a criminal investigation of Dr. Dean. Mr. Vickery further states that Special Agent Burgess did not need to tell him of any criminal investigation, because he would have answered her questions without that information.

Dr. Dean presents two basic grounds in opposition to the United States' motion for summary judgment. The first is a legal ground: Special Agent Burgess had no legal authority to serve summonses or otherwise make disclosures. The second is a factual ground: there are unresolved factual issues on whether the disclosures, which were undisputedly made, were necessary to the investigation.

Did Special Agent Burgess have the legal authority to issue summonses?

As to the first issue, Dr. Dean presents the court with what he says is documented historical proof that the only person authorized by Congress to serve summonses in behalf of the Internal Revenue Service is the Secretary of the Treasury, and only the Secretary of the Treasury. His argument is correct up to a critical point. That is, he is correct in stating that Congress gave the Secretary of the Treasury the authority to issue summonses. Dr. Dean is incorrect in the rest of his argument,...

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