Muset v. Comm'r Stuart J. Ishimaru, No. 07–CV–4083 (ENV)(LB).

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtVITALIANO, District Judge.
Citation79 Fed.R.Serv.3d 616,783 F.Supp.2d 360
PartiesMihai MUSET, Plaintiff,v.Commissioner Stuart J. ISHIMARU and Douglas H. Shulman, Defendants.
Decision Date30 April 2011
Docket NumberNo. 07–CV–4083 (ENV)(LB).

783 F.Supp.2d 360
79 Fed.R.Serv.3d 616

Mihai MUSET, Plaintiff,
v.
Commissioner Stuart J. ISHIMARU and Douglas H. Shulman, Defendants.

No. 07–CV–4083 (ENV)(LB).

United States District Court, E.D. New York.

April 30, 2011.


[783 F.Supp.2d 364]

George D. Wachtel, Law Office of Ronald L. Kuby, New York, NY, for Plaintiff.Timothy D. Lynch, United States Attorneys Office, Eastern District of New York, Brooklyn, NY, for Defendants.
MEMORANDUM & ORDER
VITALIANO, District Judge.

Pro se plaintiff Mihai Muset 1 commenced this action on October 1, 2007, against defendants Stuart J. Ishimaru, Commissioner of the Equal Employment Opportunity Commission (“EEOC”) and Douglas H. Shulman 2, Commissioner of the Internal Revenue Service (“IRS”). Defendants now move to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Additionally, plaintiff moves for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court concludes that plaintiff's claims must be dismissed and plaintiff's motion for sanctions must be denied.

I. BACKGROUND

The following facts are drawn from the complaint and the submissions of the parties on defendants' motion, including the statements of undisputed material facts filed by all parties pursuant to Local Civil Rule 56.1. The facts are construed, as they must be in the summary judgment context, in the light most favorable to the nonmoving party. See Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 456 (2d Cir.2007). Any factual disputes are noted.

Muset is originally from Romania and received asylum in the United States as a political refugee in 1983. (Am. Compl. ¶ 1.) He was employed in 1999 as a senior attorney by the IRS, General Legal Services, Manhattan. (Am. Compl. ¶¶ 3–4.) As a senior attorney, Muset defended IRS management against charges of unfair labor practices and advised management on labor relations matters. ( Id. ¶ 7.) Due to

[783 F.Supp.2d 365]

medical conditions allegedly stemming from his employment, Muset voluntarily stopped working on March 25, 2008, but has since returned to work on a part time basis.

Plaintiff's complaint arises from his representation of the IRS at an EEOC settlement conference on September 25, 2006, after a former IRS employee, Donald Pittman, filed a discrimination complaint (“Pittman complaint”) with the EEOC. ( Id. ¶ 19.) As a senior attorney, Muset generally had the authority to negotiate settlement agreements on behalf of the IRS, after which senior management would actually sign and execute the final agreements. (Muset Decl. ¶ 9(b).) 3 More to the point, Muset claims that he obtained full settlement authority to negotiate the Pittman complaint from Melissa Snell, Deputy National Taxpayer Advocate for the IRS, about one week before the September 25, 2006 settlement conference. ( Id. ¶ 17(a).) At that conference, plaintiff conducted the negotiation and conveyed a settlement offer to Pittman. ( Id. ¶ 17(b).) Pittman rejected the offer. ( Id. ¶¶ 17(g), 17(k).)

The Pittman complaint was assigned for adjudication to Susan Flynn, the Chief EEOC Administrative Judge in the Philadelphia District. On October 5, 2006, Chief Judge Flynn issued an order to show cause (“OSC”) grounded in her belief that Muset did not have the settlement authority necessary to conduct the settlement conference. Moreover, Chief Judge Flynn warned that sanctions could be imposed pursuant to 29 C.F.R. § 1614.109(f)(3). (Am. Compl. ¶¶ 37–39.) On or about October 16, 2006, Muset claims that he telephoned Peter Miller, the settlement mediator, at his home to inquire about the factual basis for the OSC issued by Chief Judge Flynn. (Muset Decl. ¶ 9.) He subsequently responded to the OSC and disputed the evidence submitted against him. (Am. Compl. ¶ 42.) Nevertheless, on January 4, 2007, Chief Judge Flynn issued a sanctions order. The order, though it did not impose any monetary penalties, constituted a finding that Muset had no settlement authority for the Pittman complaint and that he also had engaged in “entirely inappropriate conduct, yelling” at Miller when he called to discuss the OSC. ( Id. ¶ 44.) By letter dated January 19, 2007, Muset's supervisor, Elliot Carlin, informed Chief Judge Flynn that Muset had in fact been authorized to make the settlement proposal at the Pittman complaint conference, and further requested that she consider withdrawing the sanctions order against Muset. ( Id. ¶ 48.) Chief Judge Flynn did not respond to Carlin's letter. ( Id. ¶ 49.)

In January 2007, the IRS initiated an investigation into the facts surrounding the sanctions order. The investigation was conducted by Gary Benford, an attorney for the IRS in Dallas. Benford's report stated that “it [was] difficult to find that [Muset] did not have settlement authority.” ( Id. ¶ 53.) Additionally, he found that, although Muset “exercised poor judgment in telephoning Mediator Miller, without discussing it with his supervisor,” he neither “yelled” at Miller nor were his actions “socially inappropriate.” ( Id. ¶ 54.) On February 26, 2007, Chief Counsel, General Legal Services, provided Muset with the results of Benford's investigation. ( Id. ¶ 52.) Muset then filed a notice of appeal with the EEOC's Office of Federal Operations (“OFC”), and, on July 19, 2007, before Muset could provide a statement and evidence in support of his appeal, the OFC responded, advising Muset that Chief

[783 F.Supp.2d 366]

Judge Flynn's order was “not among the matters that [could] be the subject of an appeal.” (Am. Compl. ¶¶ 63, 69.)

After the EEOC denied plaintiff's appeal, he made multiple requests to Carlin and other IRS employees for various documents and records relating to his sanction before filing a formal Freedom of Information Act (“FOIA”) request. ( Id. ¶¶ 78–181.) Then, on July 28, 2007, Muset did file a formal FOIA request with Sharon King, the Chief Disclosure Officer at the IRS. ( Id. ¶ 182.) He sought letters, emails, and records of telephone conversations from January 8, 2007 onward relating to Chief Judge Flynn's sanctions order and his coworkers' subsequent reactions. ( Id.) Muset received three responsive letters from the IRS, the last of which was dated December 19, 2007, indicating that more time was needed to process his request, and that the IRS would inform him if they could not fully respond to his request by March 17, 2008. ( Id. ¶¶ 186–193.) Muset brought the instant action on October 1, 2007. He filed an amended complaint on January 17, 2008.

In his amended complaint, Muset claims that Chief Judge Flynn “acted maliciously and/or grossly disregarded her obligations under Title VII, the EEOC Regulations, 29 C.F.R. § 1614.101, et. seq., and other EEOC internal guidance manuals, ignored the provisions of the Administrative Procedures Act, and in gross deviation of the U.S. Constitution, failed to afford [him] fundamental due process rights.” (Am. Compl. ¶ 73.) He also brings a FOIA claim against the IRS. ( Id. ¶ 201.)

On May 14, 2008, the IRS produced 412 pages of documents in response to Muset's FOIA request. It explained that it located a total of 476 pages of documents that were responsive to the request; it released 87 pages in full, 325 pages with information partially redacted, and withheld the remaining 64 pages. (Lynch Decl. ¶¶ 47–48.) 4 The information was withheld, the IRS advised, pursuant to 5 U.S.C. §§ 552(b)(5), (b)(6), and the IRS provided Muset with a “ Vaughn Index,” 5 describing the information withheld and the applicable FOIA exemptions. ( Id. ¶ 49.) Muset challenged the sufficiency of the Vaughn Index, but, on October, 14 2008, Magistrate Judge Lois Bloom found that the index prepared by the agency was sufficient to determine whether a particular FOIA exemption applied. Judge Bloom also found that the IRS did not withhold large portions of segregable material.

In response to Muset's amended complaint, defendants filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and for failure to state a claim pursuant to Rule 12(b)(6). At the close of discovery, defendants renewed their requests for dismissal and moved for summary judgment pursuant to Rule 56.

II. STANDARD OF REVIEW
A. Rule 12 Standard

When a party moves to dismiss under Federal Rule of Civil Procedure 12(b)(1), “as well as on other grounds, the court should consider the Rule 12(b)(1)

[783 F.Supp.2d 367]

challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined.” Rhulen Agency, Inc. v. Ala. Ins. Guaranty Assoc., 896 F.2d 674, 678 (2d Cir.1990) (internal quotations and citation omitted). A case is properly dismissed under Rule 12(b)(1) where a court “lacks the statutory or constitutional power to adjudicate it.” Luckett v. Bure, 290 F.3d 493, 496 (2d Cir.2002).B. Summary Judgment Standard

In assessing the merits of a summary judgment motion, a court's duty is not to try issues of fact, but rather to “determine whether there are issues of fact to be tried.” Sutera v. Schering Corp., 73 F.3d 13, 15–16 (2d Cir.1995). The moving party bears the burden of showing that there is no genuine issue as to any material fact, see, e.g., Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005), and the court will resolve all ambiguities and draw all permissible factual inferences in favor of the nonmoving party, see, e.g., Sec. Ins. Co. of Hartford v. Old Dominion Freight Line. Inc., 391 F.3d 77, 83 (2d Cir.2004).

If the moving party meets its initial burden of demonstrating the absence of a disputed issue of material fact, the burden shifts to the nonmoving party. See George v. Reisdorf Bros., Inc., 410 Fed.Appx. 382, 383–84 (2d Cir.2011). The nonmoving party may not rely...

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12 practice notes
  • Int'l Refugee Assistance Project, Inc. v. U.S. Citizenship & Immigration Servs., 20-CV-4284 (RWL)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 22 Julio 2021
    ...to produce records that were exact duplicates of records it had already produced in response to the request); Muset v. Ishimaru , 783 F. Supp.2d 360, 372 (E.D.N.Y. 2011) (claim against the IRS moot after "the documents that were the subject of the FOIA request were produced by the IRS"); Kr......
  • International Refugee Assistance Project, Inc. v. United States Citizenship And Immigration Services, 20-CV-4284 (RWL)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 22 Julio 2021
    ...to produce records that were exact duplicates of records it had already produced in response to the request); Muset v. Ishimaru, 783 F.Supp.2d 360, 372 (E.D.N.Y. 2011) (claim against the IRS moot after “the documents that were the subject of the FOIA request were produced by the IRS”); Krop......
  • Teri ex rel. Themselves & All Other Similarly Situated Current & Former Emps. v. Salvatore Spinelli & Salvatore Spinelli Law Office, No. 05–CV–2777 (PKC)(RML).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 28 Octubre 2013
    ...obligated to read his pleadings with the degree of liberality given to non-attorney pro se plaintiffs. See, e.g., Muset v. Ishimaru, 783 F.Supp.2d 360, 364 n. 1 (E.D.N.Y.2011); Bliven v. Hunt, 478 F.Supp.2d 332, 334–35 (E.D.N.Y.2007) (citing Chira v. Columbia Univ. in New York City, 289 F.S......
  • Flanders v. Property, 13-CV-1552 (PKC)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 30 Septiembre 2014
    ...obligated to read his pleadings with the degree of liberality given to non-attorney pro se plaintiffs. See, e.g., Muset v. Ishimaru, 783 F. Supp. 2d 360, 364 n.1 (E.D.N.Y. 2011); Bliven v. Hunt, 478 F. Supp. 2d 332, 334-35 (E.D.N.Y. 2007) (citing Chira v. Columbia Univ, 289 F. Supp. 2d 477,......
  • Request a trial to view additional results
12 cases
  • Int'l Refugee Assistance Project, Inc. v. U.S. Citizenship & Immigration Servs., 20-CV-4284 (RWL)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 22 Julio 2021
    ...to produce records that were exact duplicates of records it had already produced in response to the request); Muset v. Ishimaru , 783 F. Supp.2d 360, 372 (E.D.N.Y. 2011) (claim against the IRS moot after "the documents that were the subject of the FOIA request were produced by the IRS"); Kr......
  • International Refugee Assistance Project, Inc. v. United States Citizenship And Immigration Services, 20-CV-4284 (RWL)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 22 Julio 2021
    ...to produce records that were exact duplicates of records it had already produced in response to the request); Muset v. Ishimaru, 783 F.Supp.2d 360, 372 (E.D.N.Y. 2011) (claim against the IRS moot after “the documents that were the subject of the FOIA request were produced by the IRS”); Krop......
  • Teri ex rel. Themselves & All Other Similarly Situated Current & Former Emps. v. Salvatore Spinelli & Salvatore Spinelli Law Office, No. 05–CV–2777 (PKC)(RML).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 28 Octubre 2013
    ...obligated to read his pleadings with the degree of liberality given to non-attorney pro se plaintiffs. See, e.g., Muset v. Ishimaru, 783 F.Supp.2d 360, 364 n. 1 (E.D.N.Y.2011); Bliven v. Hunt, 478 F.Supp.2d 332, 334–35 (E.D.N.Y.2007) (citing Chira v. Columbia Univ. in New York City, 289 F.S......
  • Flanders v. Property, 13-CV-1552 (PKC)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 30 Septiembre 2014
    ...obligated to read his pleadings with the degree of liberality given to non-attorney pro se plaintiffs. See, e.g., Muset v. Ishimaru, 783 F. Supp. 2d 360, 364 n.1 (E.D.N.Y. 2011); Bliven v. Hunt, 478 F. Supp. 2d 332, 334-35 (E.D.N.Y. 2007) (citing Chira v. Columbia Univ, 289 F. Supp. 2d 477,......
  • Request a trial to view additional results

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