Perkins v. US

• Decision Date: 07 April 1994
• Docket Number: Civ. A. No. 1:92-1176.
• Citation: 848 F. Supp. 1236
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Susie Myers PERKINS, Administratrix of the Estate of John David Perkins, Jr., Deceased, Plaintiff, v. UNITED STATES of America, Defendant.

848 F. Supp. 1236

Susie Myers PERKINS, Administratrix of the Estate of John David Perkins, Jr., Deceased, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 1:92-1176.

United States District Court, S.D. West Virginia, Bluefield Division.

April 7, 1994.

Norris Kantor, Bluefield, WV, for plaintiff.

Stephen Horn, Charleston, WV, for defendant.

MEMORANDUM OPINION AND ORDER

FABER, District Judge.

This civil action was filed under the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq., (FTCA). The plaintiff seeks damages for the alleged wrongful death of her husband, John D. Perkins ("Perkins"), who was asphyxiated during the early morning hours of July 21 or 22, 1991, at the Double E Mining No. 1 Mine, Coal Mountain, Wyoming County, West Virginia.

Prior to April 12, 1991, the Double E Mining No. 1 Mine had been operated by Double E Mining, Inc. under a lease from Island Creek Coal Company. The mine ceased production at that time and the property reverted to Island Creek. Island Creek began operations to seal the mine, but was halted in this endeavor by Internal Revenue Service (hereinafter "IRS") Agent Thaddeus Smyth, who indicated that the IRS had obtained a seizure order for mining equipment located underground and had engaged someone to retrieve the equipment so it could be sold in payment of delinquent federal taxes.

In July 1991, Smyth, ostensibly acting within the scope of his employment, entered into a verbal contract with Perkins and Robert Neal to remove the equipment. Perkins, Neal and others began dewatering operations at the mine in an effort to recover the equipment. At approximately 2:00 a.m. on July 21 or 22, 1991, Perkins went into the mine alone after turning off the mine fan, apparently to check on pumps, and was overcome by contaminated air causing his death.

The plaintiff claims that the death of Perkins was due to the negligence of the United States and its agents in numerous particulars, including various violations of federal regulations governing coal mining, 30 C.F.R. §§ 75.300, et seq., and in failure to notify the Mine Safety and Health Administration of operations at the mine designed to recover the mining equipment.

The United States moved to dismiss this action on two grounds. First, that this action is a claim in respect of the assessment or collection of taxes and, therefore, is excepted from waiver of sovereign immunity under the FTCA. Second, that Perkins was an employee of the United States whose sole remedy is under the Federal Employees' Compensation Act, 5 U.S.C. §§ 8101, et seq.

By its Opinion and Judgment Order entered on September 22, 1993, the court granted defendant's Motion to Dismiss, reasoning that this action is a claim in respect of the assessment or collection of taxes which is excepted by 28 U.S.C. § 2680(c) from the waiver of sovereign immunity contained in the FTCA.

Thereafter, within the ten-day period for motions to alter or amend judgments permitted by Rule 59(e) of the Federal Rules of Civil Procedure, plaintiff filed a "motion for reconsideration" and a motion for leave to file an amended complaint.¹

Although the Federal Rules of Civil Procedure do not refer specifically to motions for reconsideration, the cases make clear that such a motion filed within ten days of the entry of judgment is to be considered as a motion to alter or amend that judgment under Rule 59(e). Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167 (5th Cir.1990), cert. denied, ___ U.S. ___, 114 S.Ct. 171, 126 L.Ed.2d 131 (1993); Theodoropoulos v. Thompson-Starrett Co., 418 F.2d 350 (2d Cir.), cert. denied, 398 U.S. 905, 90 S.Ct. 1697, 26 L.Ed.2d 65 (1969); Foman v. Davis, 292 F.2d 85 (1st Cir.1961); rev'd on other grounds, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

Plaintiff's motion to reconsider assigned numerous grounds among which were the following: (1) the motion to dismiss was not ripe for decision since discovery was not complete and was continuing; (2) plaintiff had been promised the opportunity to argue orally upon the motion to dismiss before it was decided; (3) plaintiff had learned subsequent to the court's decision that IRS Agent Smyth had been retired "for mental reasons as a result of his conduct in this matter" and "other matters occurring prior to this incident;" (4) plaintiff had also learned that Smyth's immediate supervisor had been retired or demoted as a result of the incident giving rise to this case; and (5) plaintiff now had witnesses² who would testify under oath that Smyth and his supervisor had violated numerous IRS procedures in this matter and taken actions which were "clearly outside the scope of assessment and collection" of taxes as contemplated by 28 U.S.C. § 2680(c).

Plaintiff's motion for leave to amend her complaint was for the purposes of adding counts based upon the specific alleged misconduct of Smyth and his supervisor and to add as additional plaintiffs Susie Myers Perkins, individually, and her child, Julia Ann Perkins.

On February 14, 1994, the court heard oral argument on plaintiff's motions and upon the merits of defendant's underlying motion to dismiss, thereby removing one of plaintiff's objections to the court's prior ruling.³ Having thoroughly considered plaintiff's post-judgment motions giving plaintiff the benefit of all new matters assigned in support thereof, the court perceives no reason to change its ruling of September 22, 1993, granting defendant's original Motion to Dismiss on the ground that 28 U.S.C. § 2680(c) exempts this case from the waiver of sovereign immunity contained in the FTCA.

The United States enjoys sovereign immunity from suits for damages at common law. The Federal Tort Claims Act is a limited statutory waiver of this sovereign immunity. Specifically excepted from the waiver of sovereign immunity under the FTCA is "any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law enforcement officer." 28 U.S.C. § 2680(c). Cases decided under this provision in the courts of the United States make clear that this exception is not limited to actions by persons against whom the tax collection efforts are directed. The exception to FTCA jurisdiction applies to taxpayers and third parties alike. Murray v. United States, 686 F.2d 1320, 1324 (8th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 (1983). In Capozzoli v. Tracey, 663 F.2d 654, 658 (5th Cir.1981), the court pointed out that under 28 U.S.C. § 2680(c), Congress retains sovereign immunity of the United States for any claim "in respect of" the assessment or collection of taxes. "This language," the court said, "is broad enough to encompass any activities of an IRS agent even remotely related to his or her official duties."

The United States Court of Appeals for the Fourth Circuit dealt with this subject in Broadway Open Air Theater, Inc. v. United States, 208 F.2d 257 (4th Cir.1953), a case which, while dated, appears not to have been significantly changed by subsequent rulings. In that case, the court held that an action by a corporation and its preferred shareholders to recover assets of the corporation alleged to have been wrongfully paid to the United States in satisfaction of personal tax liabilities of the corporation's principal officers, controlling directors and principal holders of common stock, was barred by 28 U.S.C. § 2680(c). Citing several decisions of the United States Supreme Court on sovereign immunity, the court of appeals pointed out that the sovereignty of the United States raises a presumption against its suability unless such suability is clearly shown. The court held that the liability to suit of the federal government should not be enlarged beyond the specific language of the Act. Thus, the Broadway Open Air Theater case, upon its facts, supports the proposition in the Murray case that third-party actions, as well as direct actions by the affected taxpayer, fall within the exception contained in section 2680(c). See also, Interfirst Bank Dallas, N.A. v. United States, 769 F.2d 299 (5th Cir.1985), cert. denied, 475 U.S. 1081, 106 S.Ct. 1458, 89 L.Ed.2d 716 (1986).

The plaintiff would seek to distinguish such cases on the ground that in each of them some property interest of the third party is intertwined with the actual tax collection procedure, and would treat differently situations such as the present where the injured party has no such involvement in, or connection with, the actual collection process. No case has been cited by the plaintiff or found by the court which supports such a distinction. The broad proposition that waiver of sovereign immunity is to be strictly construed and that third-party claims are covered by the exemption from such waiver for assessment and collection of taxes contained in 28 U.S.C. § 2680(c) leads the court to conclude that this action is barred by the government's sovereign immunity. The fact that Perkins contracted with the IRS to assist in the collection procedure by removing seized machinery from the mine in question and was directly engaged in this activity at the time of his death is sufficient connection with the assessment and collection of a tax to satisfy the requirement of 28 U.S.C. § 2680(c). Furthermore, all of the allegations of fault on the part of the United States in plaintiff's Complaint relate to alleged acts or omissions of Agent Smyth while directly engaged in efforts to collect taxes by completing the seizure and sale of mine machinery.⁴ Under the cases cited above, this would appear sufficient to preserve the immunity from suit of the United States under the section 2680(c) exception to waiver of sovereign immunity contained in FTCA.

Section 2680(c) applies by its express terms to customs agents as well as revenue agents, and cases decided under the statute which involve customs agents...