O'NEAL v. United States

• Decision Date: 30 January 1985
• Docket Number: Civ. No. F 84-191.
• Citation: 601 F. Supp. 874
• Parties: David L. O'NEAL and Connie L. O'Neal, Petitioners, v. UNITED STATES of America, Steven Weida and Phillip Clelland, Agents, Internal Revenue Service, and Internal Revenue Service, Respondents.
• Court: U.S. District Court — Northern District of Indiana

601 F. Supp. 874

David L. O'NEAL and Connie L. O'Neal, Petitioners, v. UNITED STATES of America, Steven Weida and Phillip Clelland, Agents, Internal Revenue Service, and Internal Revenue Service, Respondents.

Civ. No. F 84-191.

United States District Court, N.D. Indiana, Fort Wayne Division.

January 30, 1985.

David L. O'Neal, petitioner, pro se.

Peter Sklarew, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., David H. Miller, Asst. U.S. Atty., Fort Wayne, Ind., for respondents.

ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on respondents' motion to dismiss the petition to quash an Internal Revenue Service ("IRS") summons issued to the General Telephone Company ("GTE"). For the following reasons, the motion to dismiss will be granted.

Petitioners are proceeding pro se. Pro se pleadings are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). The district court's role is to ensure that the claims of pro se litigants are given "fair and meaningful consideration." Matzker v. Herr, 748 F.2d 1142 at 1146 (7th Cir. 1984); Caruth v. Pinkney, 683 F.2d 1044, 1050 (7th Cir.1982). This court also recognizes that federal courts have historically exercised great tolerance to ensure that an impartial forum remains available to plaintiffs invoking the jurisdiction of the court without the guidance of trained counsel. Pro se motions and petitions such as the petitioners' are held to less stringent pleading requirements; rigor in the examination of such motions, petitions and pleadings is inappropriate.

The facts of this case appear to be as follows. On May 11, 1984, the IRS issued a summons to GTE requesting the production of

All books and records, which include information relative to the installation, subscriber credit reports, payment records, location and number of telephones and toll records for all telephone service at 506 North Posey Street, Windfall, Indiana 46076 (317) 945-7698.

The toll records are requested for the six month period prior to the service of this summons. It is also requested that the telephone numbers on the toll records be identified as to the name and address of the subscriber.

The address and phone number listed in the summons belong to the petitioners ("O'Neals"). The O'Neals claim that they are members of the Constitutional Rights Protection Association ("CRPA") which is a group of "like-minded individuals who have been outspoken, but legal critics of the tyranny, abuse and infringement of the First Amendment Rights of Individuals commonly practiced by agents of the Internal Revenue Service." Complaint, ¶ 6.3 (emphasis in the original). The O'Neals believe that the summons was issued "for the sole and improper purpose of obtaining a list or partial list of `possible' members of the CRPA, so that the I.R.S. can then selectively harass and intimidate individual members or people they suspect may be members of the CRPA," id. at ¶ 6.5, as the phone at the number listed in the summons has been used for CRPA purposes. Disclosure of the members' names would have a chilling effect on the first amendment rights of the CRPA members. The O'Neals therefore seek to quash the summons.

The respondents have moved to dismiss the petition to quash, contending that the O'Neals have failed to allege the necessary elements of a first amendment claim. It is this motion to dismiss which the court now addresses.

Although the respondents have characterized their motion as a motion to dismiss, it is clear that the issues presented by this motion are best addressed after reference is made to the exhibits and other pleadings in this case. When matters outside the pleadings are presented to and not excluded by the court, a motion to dismiss will be converted into a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. See F.R.Civ.P. 12(b).

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may only be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Thus, summary judgment serves as a vehicle with which the court "can determine whether further exploration of the facts is necessary." Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975).

In making this determination, the court must keep in mind that the entry of summary judgment terminates the litigation, or an aspect thereof, and must draw all inferences from the established or asserted facts in favor of the non-moving party. Peoples Outfitting Co. v. General Electric Credit Corp., 549 F.2d 42 (7th Cir.1977). A party may not rest on the mere allegations of his pleadings or the bare contention that an issue of fact exists. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). See also Atchison, Topeka & Santa Fe Railway Co. v. United Transportation Union, 734 F.2d 317 (7th Cir.1984); Korf v. Ball State University, 726 F.2d 1222 (7th Cir.1983). See generally C. Wright, Law of Federal Courts, § 99 (4th ed. 1983); 6 Moore's Federal Practice, § 56.15 (2d ed. 1984).

Thus, the moving party must demonstrate the absence of a genuine issue of material fact. The court views all evidence submitted in favor of the non-moving party. Even if there are some disputed facts, where the undisputed facts are the material facts involved and those facts show one party is entitled to judgment as a matter of law, summary judgment is appropriate. Egger v. Phillips, 710 F.2d 292, 296-97 (7th Cir.1983); Collins v. American Optometric Assn., 693 F.2d 636, 639 (7th Cir.1982). Further, if the court resolves all factual disputes in favor of the non-moving party and still finds summary judgment in favor of the moving party is correct as a matter of law, then the moving party is entitled to summary judgment in his favor. Egger, 710 F.2d at 297. See also Bishop v. Wood, 426 U.S. 341, 348, 348 n. 11, 96 S.Ct. 2074, 2079, 2079 n. 11, 48 L.Ed.2d 684 (1976).

With these principles in mind, the court turns to the question of whether the O'Neals' assertion of a chilling of CRPA members' first amendment rights can withstand the motion for summary judgment in light of the facts presented.

The power to issue IRS summonses is governed by chapter 78 of the Internal Revenue Code of 1954, 26 U.S.C. §§ 7601-7609. In 26 U.S.C. § 7601, the Code imposes a duty on the Secretary of the Treasury to "inquire after and concerning all persons ... who may be liable to pay any internal revenue tax." Pursuant to that duty, § 7602 provides that

For the purpose of ascertaining the correctness of any return, making a return where none is made, determining the liability of any person for any internal revenue tax ... or collecting any such liability, the Secretary or his delegate is authorized—

(1) To examine any books, papers, records, or other data which may be relevant to such inquiry;

(2) To summon ... any ... person the Secretary or his delegate may deem proper, to appear before the Secretary or his delegate at a time and place named in the summons and to produce such books, papers, records, or other data ... as may be relevant or material to such inquiry....

According to the respondents' memoranda, GTE stands ready and willing to comply with the summons, pending this court's determination of the validity of the petition to quash. Thus, the court does not perceive the issue in this case to be whether the statutory provisions for issuance of an IRS summons have been followed.¹ The O'Neals do not seriously contest the ability of the IRS to subpoena telephone records in most cases. Rather, the issue here is whether a properly issued IRS summons may be quashed when it is alleged to chill the first amendment associational rights of CRPA members.

The first amendment right to freedom of association has been recognized in a long line of Supreme Court cases beginning with NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). Since that seminal case, the Court has "repeatedly found that compelled disclosure of membership lists, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment." Buckley v. Valeo, 424 U.S. 1, 64, 96 S.Ct. 612, 656, 46 L.Ed.2d 659 (1976). Thus, in order to justify a compelled disclosure, the interests of the state in seeking such disclosure must bear a "relevant correlation," Bates v. City of Little Rock, 361 U.S. 516, 525, 80 S.Ct. 412, 417, 4 L.Ed.2d 480 (1960), or a "substantial relation," Gibson v. Florida Legislative Comm., 372 U.S. 539, 546, 83 S.Ct. 889, 893, 9 L.Ed.2d 929 (1963), to the information required to be disclosed. Despite this strict test, "we have acknowledged that there are governmental interests sufficiently important to outweigh the possibility of infringement, particularly when the `free functioning of our national institutions' is involved." Buckley, 424 U.S. at 66, 96 S.Ct. at 657, quoting Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 97, 81 S.Ct. 1357, 1411, 61 L.Ed.2d 625 (1961).

However, this strict test is not to be applied in every case of alleged infringement of associational rights. Rather, a plaintiff must make a showing of a demonstrable injury. In NAACP v. Alabama, for example, the NAACP "made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members had exposed these members to economic reprisals, loss of employment, threat of physical coercion, and other manifestations of public hostility." 357 U.S. at 462, 78 S.Ct. at 1172. In Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960), the Court cited to ...