Sicignano v. U.S., CIV.A.3:99CV1795 SRU.

CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
Citation127 F.Supp.2d 325
Docket NumberNo. CIV.A.3:99CV1795 SRU.,CIV.A.3:99CV1795 SRU.
PartiesRobert J. SICIGNANO, Jr. v. UNITED STATES of America
Decision Date08 January 2001
127 F.Supp.2d 325
Robert J. SICIGNANO, Jr.
No. CIV.A.3:99CV1795 SRU.
United States District Court, D. Connecticut.
January 8, 2001.

Page 326

John R. Williams, Williams & Pattis, New Haven, CT, for Plaintiff.

James K. Filan, Jr., U.S. Attorney's Office, New Haven, CT, Margaret Krawiec, U.S. Department of Justice, Torts Branch, Civil Division, Washington, DC, for U.S.


UNDERHILL, District Judge.

The plaintiff, Robert J. Sicignano, Jr. ("Sicignano"), brought this action against the United States under the Federal Tort Claims Act ("FTCA"), seeking damages and other relief in connection with the filing of a complaint by the Internal Revenue Service ("IRS") Office of Director of Practice ("ODP") that seeks to terminate Sicignano's right to represent clients before the IRS. Sicignano claims that, by filing the complaint, the ODP chilled his exercise of certain rights protected by the United States Constitution, and caused him to suffer emotional distress and economic loss. Currently pending is the government's Motion to Dismiss (doc. # 8) pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. For the reasons set forth below, the government's motion is GRANTED.


For the purposes of the present motion, the court must assume the following allegations of the complaint to be true. Sicignano was at all relevant times a certified public accountant and the sole practitioner in his Milford, Connecticut office. Compl. ¶ 3. A large portion of the plaintiff's practice involved representation of clients before the IRS on matters including audits, collections and appeals. Compl. ¶ 4.

Sicignano alleges that, during the summer and fall of 1996, he was especially busy with client audit and collections matters and had achieved significant success on behalf of his clients. Compl. ¶ 5. Contemporaneous with these successes, Sicignano

Page 327

was selected for an audit of his own 1992 and 1993 individual income tax returns. Compl. ¶ 6.

In connection with that audit, on October 10, 1996, Sicignano appeared before Revenue Agent Diana Calverley with certain records pertaining to the tax years 1992 and 1993. Compl. ¶ 7. Agent Calverley insisted that Sicignano leave his records with her for later review. Id. Agent Calverley then approached the conference table where Sicignano was seated and indicated that Arnold Mann ("Mann"), Chief of the Examination Branch, wanted to see Sicignano before he left. Compl. ¶ 8.

Sicignano was then escorted to Mann's office and Mann proceeded to show him certain computer printouts reflecting audit and collection data over a four-year period. Compl. ¶ 9. Mann stated that Sicignano had given the IRS a hard time on a number of cases, cited four specific examples, and cautioned Sicignano: "You do not want to get a bad reputation." Id. Mann added that Sicignano could be suspended from practice before the IRS under Circular Number 230. Id. Sicignano nevertheless continued to aggressively represent his clients before the IRS. Compl. ¶ 10.

On June 2, 1997, Sicignano received a letter from the Director of Practice for the IRS questioning Sicignano's eligibility to practice before the IRS. Compl. ¶ 11. Sicignano responded and for a time no further action was taken. Id.

On December 5, 1997, Sicignano faxed a letter regarding a major audit of one of his clients to Richard Massini, Exam Group Manager for the IRS' Bridgeport, Connecticut office. Compl. ¶ 12. Sicignano alleges that, only days after transmitting the fax, an ODP employee telephoned counsel for Sicignano and discussed suspending Sicignano for one year. Compl. ¶ 13.

On June 9, 1998, ODP sent Sicignano a complaint seeking to terminate his right to represent clients before the IRS ("the IRS Complaint").1 Compl. ¶ 14. The IRS Complaint alleged that, pursuant to 31 C.F.R. § 10.50, Sicignano was subject to disbarment or suspension from practice in front of the IRS because he had failed to timely file individual federal income tax returns from 1989 to 1993 and to timely pay his individual tax liability from 1989 to 1996.

Sicignano brings this action "pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80." Compl. ¶ 1. Sicignano alleges that the IRS actions were taken in retaliation for his representing his clients aggressively before that agency. Compl. ¶ 15. Specifically, the plaintiff claims that the IRS retaliated against him

for refusing to compromise [his clients'] rights and for the purpose of causing the plaintiff to suffer extreme emotional distress and economic loss and to chill his exercise of rights protected by the First Amendment to the United States Constitution and the due process and equal protection clauses of the Fifth and Fourteenth Amendments to the Constitution.

Compl. ¶ 15. Sicignano further claims that: (1) "[t]he conduct of the IRS officials ... was extreme and outrageous and was carried out with knowledge that it probably would cause the plaintiff to suffer severe emotional distress" Compl. ¶ 16; (2) "[t]he IRS officials ... knew when they carried out the above-described actions that their conduct probably would cause the plaintiff to suffer emotional distress so severe that it could cause him physical

Page 328

illness ...." Compl. ¶ 17; (3) "[a]s a result, the plaintiff has suffered severe emotional distress and economic loss," Compl. ¶ 18; and (4) "[t]he plaintiff's injuries were the reasonably foreseeable consequence of the actions of the IRS officials named above." Compl. ¶ 19.

The government has moved to dismiss the complaint, arguing that: (1) Sicignano cannot sue the United States under the FTCA for violations of the Constitution; and (2) Sicignano's claims are in any event barred by the discretionary function exception to the FTCA.

Sicignano responds that:

the fact that the conduct of the defendant's agents and employees clearly violated the explicit commands of the United States Constitution, while not separately actionable as a Federal Tort Claims Act matter, establishes that the officials in question did not have the discretion to engage in the conduct alleged and, thus, that the conduct underlying this action does not fall within the "discretionary function" exception to the statute.

Opposition at 4. Sicignano argues that, because the discretionary function exception applies only to actions involving an element of judgment or choice and because the defendant's agents had no discretion to violate the Constitution, the exception does not apply. Id.2

Standard of Review

In considering a motion to dismiss for lack of subject matter jurisdiction, the court must accept as true all material factual allegations in the complaint and refrain from drawing inferences in favor of the party contesting jurisdiction. See Atlantic Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir.1992). The court is not confined to the complaint, however, and "may [also] resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits." Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir.1998), citing Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir.1991), vacated on other grounds, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992). Thus the standard used to evaluate a Rule 12(b)(1) claim is akin to that for summary judgment under Fed.R.Civ.P. 56(e). See Kamen, 791 F.2d at 1011.


Whether or not Sicignano can sue the United States under the FTCA for the claims set forth in his complaint, those claims are barred by the "discretionary function exception" to the FTCA.

The Federal Tort Claims Act and the Discretionary Function Exception

Under traditional principles of sovereign immunity, the United States is immune from suit except to the extent the government has waived its immunity. See, e.g., Coulthurst v. United States, 214 F.3d 106, 108 (2d Cir.2000). The FTCA is a limited waiver of sovereign immunity, providing a remedy against the federal government for claims based on the negligence of its employees. Id.; see also 28 U.S.C. §§ 1346(b), 2671, et seq. In pertinent part, the FTCA authorizes suits against the government to recover damages

for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting

Page 329

within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1).

The discretionary function exception, however, is a significant limitation on the waiver of immunity provided by the Act. See Coulthurst, 214 F.3d at 108. That exception provides, in pertinent part, that Congress's authorization to sue the United States for damages

shall not apply to ... [a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of ... an employee of the Government, whether or not the discretion involved be abused.

28 U.S.C. § 2680(a).

The exemption from liability under the discretionary function exception to the FTCA involves a two-step conjunctive analysis. See 28 U.S.C. § 2680(a); Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988); United States v. Gaubert, 499 U.S. 315, 322-23, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Coulthurst, 214 F.3d at 109. First, the challenged negligent actions must be discretionary, in that they involve an "element of judgment or choice" and are not "controlled by mandatory statutes or regulations." Gaubert, 499 U.S. at 322-23, 328, 111 S.Ct. 1267; see also Coulthurst, 214 F.3d at 109; In re Joint Eastern & Southern Districts Asbestos Litigation, 891 F.2d 31, 36 (2d Cir.1989) ("The discretionary...

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1 cases
  • Unger v. United States, 3:00cv117 (D. Conn. 4/30/2001), 3:00cv117.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • April 30, 2001
    ...providing a remedy against the federal government for claims based on the negligence of its employees. Sicignano v. United States, 127 F. Supp.2d 325, 328 (D. Conn. 2001). This waiver is subject to a number of statutory exceptions, including the provision known as the discretionary function......

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