Seibert v. Baptist, 78-3007

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation594 F.2d 423
Docket NumberNo. 78-3007,78-3007
PartiesCarl Michael SEIBERT, Plaintiff-Appellant, v. D. T. BAPTIST, District Director of Internal Revenue Service, et al., Defendants-Appellees. Summary Calendar. *
Decision Date03 May 1979

Carl Michael Seibert, pro se.

J. R. Brooks, U. S. Atty., Birmingham, Ala., M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews, Act. Chief, Gary R. Allen, Atty., Tax Div., U. S. Dept. of Justice, Washington, D. C., for Duck & Patterson.

Watts, Salmon, Roberts, Manning & Noojin, Huntsville, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before AINSWORTH, GODBOLD and VANCE, Circuit Judges.


AFFIRMED on the basis of the Memorandum of Opinion of United States District Judge Sam C. Pointer, Jr., a copy of which is an appendix hereto.


What can only be characterized as an unusual set of events has led to the defendants' motion to dismiss the plaintiff's complaint. It is this motion which is currently before the court. Since both parties have submitted memoranda and affidavits in support of their respective positions, the motion will be treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.

On July 7, 1972, plaintiff Carl Michael Seibert was arrested by the Huntsville Police Department for possession of LSD. At the time of his arrest plaintiff was apparently driving his father's car. The Huntsville Police seized the car and its contents, which included a guitar and a currency collection.

On July 10, 1972, agents of the Internal Revenue Service served plaintiff with a Notice of Termination of Taxable Period pursuant to Section 6851 of the Internal Revenue Code 1 by which plaintiff's income tax liability for the period January 1, 1972, to July 7, 1972, was made immediately due and payable. Plaintiff was also served with a Notice of Seizure under I.R.C. Section 6331. 2 By this notice it was indicated that

the car and its contents previously impounded by the Huntsville police were being seized by the IRS in partial payment of tax deficiencies proposed against plaintiff in the amount of $6,458.00. Plaintiff was never given information about how the deficiency was computed

At this point, it becomes difficult to determine just what events transpired, and in what order. According to plaintiff's amended complaint, on October 19, 1972, plaintiff and his father initiated suit in federal court to enjoin the IRS from selling the seized property at auction, and to compel an explanation of the basis for the seizure. That suit was dismissed by the district court as to all material issues on November 1, 1972. 3

At some point during this sequence of events, defendants' memorandum in support of its motion to dismiss indicates that the termination assessment against plaintiff was abated and a notice of deficiency 4 was issued to the plaintiff. 5 In response to the notice, plaintiff filed a petition for redetermination of his tax deficiency, 6 with the United States Tax Court. Upon a stipulation of the parties, the Tax Court entered an order on January 17, 1977, to the effect that there had been an overpayment in income taxes by plaintiff for the 1972 tax year in the amount of $2,893.15. 7 By the terms of the stipulation incorporated into the Tax Court's order, plaintiff did not waive "any rights he may now have to proceed against the Internal Revenue Service or any employee for damages or restitution on account of the seizure and release of certain personal property . . ." It is this reservation of rights which forms the basis of the present controversy.


On July 11, 1977, plaintiff proceeding Pro se, filed a complaint against the District Director of the Internal Revenue Service, four officials of the IRS, two Huntsville Policemen, and a Madison County Circuit Judge. 8 The complaint, without alleging any statutory basis for relief or grounds for jurisdiction of the court, sought recovery of property seized by the IRS, or compensation therefor. On defendants' motion, the court dismissed this complaint and granted the plaintiff thirty (30) days to amend the complaint to state a jurisdictional basis for the cause of action. Pursuant to this order, on January 3, 1978, plaintiff filed an amended complaint which the defendants' pending motion seeks to have dismissed.

By his amended complaint, the plaintiff alleged jurisdiction of this court pursuant to the fifth and fourteenth amendments to the United States Constitution, and under 28 U.S.C. §§ 2201-02, § 1331, § 1343, and 42 U.S.C. §§ 1983, 1985, and 1986. The gravamen of plaintiff's amended claim is that defendant IRS officials have abused their authority under 26 U.S.C.A. § 6851 to terminate plaintiff's taxable period, and that they did not follow the prescribed procedure under 26 U.S.C.A. § 6861 9 to make jeopardy assessments of income tax deficiency. Broadly read, plaintiff's complaint also alleges that the defendants subjected him to malicious prosecution and harassment, that they unlawfully seized his property, caused him and his family mental anguish, and denied him due process and the equal protection of the laws. In his prayer for relief plaintiff requests return of, or compensation for, all previously seized property, 10 as well as compensatory and punitive damages, costs, and attorney's fees.


The district courts of the United States are courts, the jurisdiction of which is "limited to those cases within Art. III, Sec. 2 of the Constitution over which an Act of Congress has given (them) jurisdiction." 11 Serious questions are presented here with respect to whether this court has the authority to decide the potential merits of this case. Each of the jurisdictional allegations asserted by the plaintiff therefore requires close scrutiny.


Defendants have devoted a substantial portion of their memorandum to the proposition that the plaintiff's claim, while nominally filed against officials of the Internal Revenue Service, is in actuality a suit against the United States as real party in interest. As such, defendants argue, plaintiff's claims are barred by the doctrine of sovereign immunity, by which the United States may not be sued without its consent. 12 Defendants also point out that while the Federal Tort Claims Act 13 swept aside a large portion of the government's immunity for the tortious conduct of its employees, the plaintiff may not seek recovery under the Act for a number of reasons. Most notable among these reasons asserted for the nonapplicability of the FTCA is the 28 U.S.C. § 2680(c) exclusion from the Act's provisions of "(a)ny claim arising in respect of the assessment or collection of any tax . . ." 14

To the extent, then, that the plaintiff's complaint is read to assert a claim against the United States, it would appear that this claim is barred by the doctrine of sovereign immunity, and the absence of any statutory exceptions for actions of the kind presented here. The court is of the opinion, however, that this determination does not dispose of the litigation. Presumably, defendants' sovereign immunity theories resulted from their expectation that the United States Supreme Court would clothe all federal executive department officials in the protection of absolute immunity from damages for injuries caused by their unconstitutional conduct. Had the Court adopted such an approach, the plaintiff's only possibility for recovery would have been against the United States. Contrary to defendants' expectations, however, in Butz v. Economou, --- U.S. ----, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), the Supreme Court held that in suits for damages arising from unconstitutional action, federal executive officials are entitled only to the qualified immunity set out in Scheuer v. Rhodes. 15 This decision suggests the possibility of a claim by the plaintiff against the defendant officials in their individual capacities. The question whether such individual liability may in fact be imposed on the defendants requires consideration at this point.


As noted previously, by the amended complaint, plaintiff alleged jurisdiction of this court over his claims against the defendants under several statutory and constitutional provisions. It appears clear that the statutory bases are without merit, and can be considered without extensive discussion. The possibility, however, of a direct action under the fourth or fifth amendments, based on the court's general 28 U.S.C. § 1331 "arising under" jurisdiction 16 requires close scrutiny.

The first statutory basis for jurisdiction asserted by the plaintiff is the declaratory judgment provision of 28 U.S.C. §§ 2201-02. That this statute alone will not support plaintiff's cause of action is apparent for two reasons. First, the declaratory judgment sections do not establish an independent basis for federal jurisdiction, but rather only establish a separate remedy available in cases where jurisdiction otherwise exists. 17 Secondly, even if the declaratory judgment provisions authorized federal jurisdiction independently of any other basis, 28 U.S.C. § 2201 by its terms specifically excludes the use of declaratory judgments "with respect to Federal taxes." Clearly, then, this court has no jurisdiction over plaintiff's claim by virtue of 28 U.S.C. § 2201-02.

The plaintiff also alleges that federal jurisdiction is conferred over the present controversy by 28 U.S.C. § 1343. This statute is the jurisdictional basis for suits under 42 U.S.C. §§ 1983 and 1985. These sections allow a plaintiff to redress the deprivation of civil rights by authorities who act under the color of state...

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