Zigmont v. Jones, CIVIL ACTION NO. 1:11CV134
| Decision Date | 08 September 2011 |
| Docket Number | CIVIL ACTION NO. 1:11CV134 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | JAMES S. ZIGMONT, Plaintiff, v. ANGELA JONES, Defendant. |
James S. Zigmont [Zigmont] filed his "Petition To Release and Expunge The Record Of Erroneous Tax Lien And Holds On Property" [complaint] in the "Court Of Common Pleas For Harrison County West Virginia"1 [state court] on or about 1 August 2011. The United States, on behalf of its agency, the Internal Revenue Service [IRS] filed its "Notice Of Removal" effectively removing Zigmont's civil action complaint from state court to this court on 18 August 2011 [DE2]. Zigmont filed "Plaintiffs' [sic] Forthwith Motion For Remand And Motion For Sanctions Request For Emergency Hearing" 24 August 2011 [DE 7]. By Corrected Order dated 6 September 2011[DE 14] the District Judge referred Zigmont's Motion For Remand And Motion For Sanctions Request For Emergency Hearing to the undersigned Magistrate Judge for appropriate disposition pursuant to 28 U.S.C. §636 (b)(1)(A) and (B) and L.R.Civ.P. 7.02(c).
This matter is not complex. It does not require the taking of evidence. All factual matters required for consideration of the motion are adequately presented in the pleadings of record in thisaction. Accordingly the request for emergency hearing is DENIED.
28 U.S.C. §1441(a) provides:
28 U.S.C. §1442 (a) provides: "A civil action or criminal prosecution commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue." [emphasis added].
The allegations in Zigmont's state court complaint establish this is a suit against Angela Jones in her capacity as an agent of the IRS, an agency of the United States for actions she took in aid of the collection of revenue. Essentially, Zigmont claims Angela Jones: caused "four erroneous Tax Liens" to be filed "in the Prothonotary's Office of the Harrison County Courthouse against James Zigmont ..."[complaint, par 1]; "directly or indirectly levied monies from [Zigmont] ..." [complaint, par 3]; and placed "'holds' on the personal account of [Zigmont] and upon a joint account [Zigmont] had with his ailing 79 year old sister ..." [complaint, par 4].
The premises underlying Zigmont's claims are: 1) that no "verified tax assessment followedby the deficiency notice" were ever filed or produced and therefore, Angela Jones had no "authority from her official position or any other jurisdiction" to file tax liens, levy monies, or place holds on accounts in aid of collection of revenues and 2) because he was dismissed in a prior federal court action, he must have a remedy someplace and that someplace must be in state court in an action against Jones individually. Zigmont is incorrect on both counts.
Zigmont acknowledges in his complaint in this action that these complaints were raised before the United States District Court for this district in a prior action. [complaint, par 7-8]. In that case, Zigmont sued Jones in her official and individual capacities. That case [1:11CV22] was dismissed for lack of subject matter jurisdiction. [DE 42 in 1:11CV22].
In the instant case Zigmont asserts the same claims against Jones. Notwithstanding Zigmont's contorted arguments that he is suing Jones in her individual capacity because allegedly acted outside of her authority, his claims against Jones are still claims for acts she performed as part of her official duties as an Internal Revenue Service employee. [See 26 U.S.C. §6321, 6323(a) and 6331].
This conclusion is consistent with that reached by Mr. Justice Clark in Dugan v. Rank, 372 U.S. 609, 610 83 S.Ct. 999, 1001 (1963) to wit: "the suit against the petitioning local officials of the Reclamation Bureau is in fact against the United States and they must be dismissed therefrom." The Court reasoned:
The general rule is that a suit is against the sovereign if 'the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,' Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947), or if the effect of the judgment would be 'to restrain the Government from acting, or to compel it to act.' Larson v. Domestic & Foreign Corp., supra, 337 U.S. at 704, 69 S.Ct. at 1468, 93 L.Ed. 1628; Ex parte New York, 256 U.S. 490, 502, 41 S.Ct. 588, 591, 65 L.Ed. 1057 (1921). The decree here enjoins the federal officials from impounding, or diverting, or storing for diversion, or otherwise impeding or obstructing the full natural flow of the San Joaquin River. * * *.' Transcript ofRecord, Vol. III, p. 1021. As the Court of Appeals found, the Project 'could not operate without impairing, to some degree, the full natural flow of the river.' Experience of over a decade along the stretch *621 of the San Joaquin involved here indicates clearly that the impairment was most substantial-almost three-fourths of the natural flow of the river. To require the full natural flow of the river to go through the dam would force the abandonment of this portion of a project which has not only been fully authorized by the Congress but paid for through its **1007 continuing appropriations. Moreover, it would prevent the fulfillment of the contracts made by the United States with the Water and Utility Districts, which are petitioning in No. 115. The Government would, indeed, be 'stopped in its tracks * * *.' Larson v. Domestic & Foreign Corp., supra, 337 U.S. at 704, 69 S.Ct. at 1468, 93 L.Ed. 1628.
As noted by the United States, the reasoning in Dugan has been applied with respect to IRS Employees sued as individuals. In ...
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