Murray v. IRS

• Decision Date: 04 March 1996
• Docket Number: No. CV 95-0027-N-EJL.,CV 95-0027-N-EJL.
• Citation: 923 F. Supp. 1289
• Parties: Leroy J. MURRAY, Plaintiff, v. INTERNAL REVENUE SERVICE, Defendant.
• Court: U.S. District Court — District of Idaho

923 F. Supp. 1289

Leroy J. MURRAY, Plaintiff, v. INTERNAL REVENUE SERVICE, Defendant.

No. CV 95-0027-N-EJL.

United States District Court, D. Idaho.

February 5, 1996.

Order Denying Reconsideration March 4, 1996.

Leroy J. Murray, Coeur d'Alene, Idaho, for Plaintiff Pro Se.

Warren S. Derbidge, Assistant United States Attorney, Boise, Idaho, Richard Ward, U.S. Department of Justice, Tax Division, Washington, D.C., for Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION

LODGE, Chief Judge.

On July 7, 1995, United States Magistrate Judge Larry M. Boyle issued a Report and Recommendation, recommending that the motion to dismiss filed by the defendant Internal Revenue Service ("IRS") be granted on the ground that the court lacked subject matter jurisdiction over the plaintiff's cause of action.

The plaintiff has filed written objections to Judge Boyle's Report and Recommendation. Pursuant to 28 U.S.C. § 636(b)(1), this court is required to make a de novo determination of those portions of the Report and Recommendations to which the plaintiff has objected. Based on that review, the court may accept, reject or modify, in whole or in part, the findings and recommendations made by the magistrate judge. Id.

Preliminarily, the court observes that the plaintiff has filed this action, and the instant objections, on his own behalf, pro se. In deference to his pro se status, the court has liberally construed his pleadings to encompass any legally cognizable arguments which may be reasonably encompassed therein.

Turning to the objections, it appears that the plaintiff believes the magistrate's refusal to remand the action to state court is inconsistent with the magistrate's recommendation that the case be dismissed for lack of subject matter jurisdiction. In particular, the plaintiff points to 28 U.S.C. § 1447(c), which states that "if at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." The petitioner argues that if the court does not have subject matter jurisdiction then the case must be remanded.

The court has reviewed the legal authority cited by the plaintiff. Based on that review, however, it is clear that the petitioner is conflating two separate jurisdictional requirements. Before the plaintiff can maintain an action against an agency of the United States, the court must find that two prerequisites are present: 1) statutory authority granting subject matter jurisdiction over the claims asserted by the plaintiff, and 2) a waiver of sovereign immunity. E.J. Friedman Co., Inc. v. United States, 6 F.3d 1355, 1357 (9th Cir.1993); Arford v. United States, 934 F.2d 229, 231 (9th Cir.1991). Here, removal of the action from state court was proper under 28 U.S.C. § 1442(a)(1), which provides authority for the removal of any action where a federal agency is a defendant. And 28 U.S.C. § 1340 provides the statutory authority for subject matter jurisdiction over the plaintiff's action. See E.J. Friedman Co., Inc., 6 F.3d at 1357; Arford, 934 F.2d at 231. Thus, subject matter jurisdiction exists to support the removal of the plaintiff's case, and the court is not required to remand the action pursuant to 28 U.S.C. § 1447(c).

The plaintiff can maintain an action against the IRS, however, only if the government has consented to be sued. Arford, 934 F.2d at 231. "Section 1340 ... does not constitute a waiver of sovereign immunity." Id. Thus, the plaintiff "must still clear the second jurisdictional hurdle by pointing to a waiver of sovereign immunity." E.J. Friedman Co., Inc., 6 F.3d at 1357. As the magistrate correctly observed, the plaintiff has failed to point to any authority that provides for such a waiver of immunity. According, the court does not have subject matter jurisdiction over this matter, and dismissal is required. See id. at 1359-60.

The plaintiff also objects to Judge Boyle's order denying the plaintiff's Motion to Recuse. The court has considered the plaintiff's contentions and finds them to be without support in law or fact. Accordingly, the plaintiff's objections are overruled.

Order.

Having conducted a de novo review of the objected-to portions of the Report and Recommendation, this court finds that Judge Boyle's Report and Recommendation is well founded in law and consistent with this court's own view of the evidence in the record. The court therefore accepts in their entirety, and adopts as its own, the findings and conclusion made by Judge Boyle. Acting on the recommendation of Judge Boyle, and this court being fully advised in the premises,

IT IS HEREBY ORDERED that the Report and Recommendation entered on July, 25 1995 (dkt # 23), should be, and is hereby, INCORPORATED by reference and ADOPTED in its entirety.

IT IS FURTHER ORDERED that the defendant's motion to dismiss (dkt # 5) is GRANTED.

IT IS FURTHER ORDERED that this action should be, and hereby is, DISMISSED IN ITS ENTIRETY.

ORDER ON MOTION

On February 5, 1996, this court entered an Order Adopting Report and Recommendation that dismissed this case in its entirety. Thereafter, on February 22, 1996, plaintiff filed a "Motion for Consideration."

Given the court's familiarity with the record herein, and finding no reason to modify the order entered on February 5, 1996, the Motion for Consideration shall be summarily denied.

ORDER

Based on the foregoing, and the court being fully advised in the premises,

IT IS HEREBY ORDERED that the Motion for Consideration (dkt # 28) should be, and is hereby, DENIED.

ORDER, REPORT AND RECOMMENDATION

BOYLE, United States Magistrate Judge.

Currently pending before the Court are the United States' Motion to Dismiss "Petition for Order to Show Cause" (Docket No. 5), Plaintiff's Objection to Removal and Demand for Remand (Docket No. 8), Plaintiff's Motion for Order to Release Notice of Intent to Lien and Levy (Docket No. 17), and Plaintiff's Motion to Recuse (Docket No. 20).

Having carefully reviewed the record, and otherwise being fully advised, the Court enters the following Order, Report and Recommendation pursuant to 28 U.S.C. § 636(b).

I. MOTION FOR RECUSAL

Before considering the dispositive Motion to Dismiss the "Petition for Order to Show Cause" it is necessary to address and resolve Murray's Motion to Recuse (Docket No. 20). The motion will be considered on the existing record.

On June 5, 1995, Plaintiff filed a Motion to Recuse (Docket No. 20). In support of his motion, Plaintiff asserts that he would not be able to receive a fair and impartial hearing from the undersigned because in a previous case, No. CV 93-065-N-HLR, the Court erroneously held that Plaintiff signed a "notice of demand" as an indication that he received it, and that the Court mistakenly characterized Plaintiff as a tax protestor.

After a careful and thorough review of the record, and for the following reasons, the Court concludes that Murray's motion to recuse is without merit and should be denied.

A. Legal Standard For Recusal

The Judiciary Act of 1789, 28 U.S.C. § 1 et seq. as amended, provides two statutory methods for the removal of judges from presiding over actions. Where there is no statutory basis for recusal, a judge has a "duty to sit" pursuant to the rules governing the assignment of cases among judges. Fed. R.Civ.P. 40; D.Id.LR 40.1. See also D.Id.LR 72.1(b)(2) controlling assignment to United States Magistrate Judges.

B. Removal Under 28 U.S.C. § 144

With respect to removal of federal judges from pending actions, Congress has enacted legislation which provides:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only on such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

28 U.S.C. § 144.

This statutory provision has been interpreted to be partially preemptory in nature because it requires a judge to remove himself once a party has complied with the procedural steps of the statute and made a prima facie showing of prejudice or bias. See Idaho v. Freeman, 507 F.Supp. 706, 716 (D.Idaho 1981). The applicable test under the statute, however, requires the judge to evaluate the sufficiency of the affidavit and determine if there is "bias in fact." Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921); Parrish v. Board of Commissioners, 524 F.2d 98 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976).

The semi-peremptory section 144 is initiated by a party affidavit, the contents of which must be taken as true, and a judge after determining its legal sufficiency must disqualify himself. This section is also accompanied by certain safeguards to preserve the integrity of the judicial system.

Freeman, 507 F.Supp. at 722.

Under this section, had either of Murray's affidavits established prima facie grounds for recusal, i.e. bias in fact or prejudice, the undersigned would have recused himself regardless of the objective truth of the allegations. However, Murray has not satisfied the requirement of establishing a prima facie grounds for recusal based on bias in fact or prejudice, or any other basis, as will be discussed more fully below.

C. Recusal Under 28 U.S.C. § 455

As a further basis for removal of federal judges from pending actions, Congress has also enacted additional legislation which provides:

(a) Any justice,

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