Petition — Siebert v. Baptist

Supreme Court brief1984

Ask Donna

What actually matters in this document.

Text

Office Te |

83-807 FILED

NOV g 1083

ALEXANDER L. STEVAS.

IN THE CLERK

Supreme Court of the Hnited States

RR ceca.

October Term 1983

Cari Michael Siebert,

Petitioner

vs.

D.T. Baptist, District Director

of Internal Revenue Service, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Copy Cat Prewng Co. 3805 Gevernors Dr Huntewile. Al 35805 Phone (205) 536-5133

QUESTIONS PRESENTED FOR REVIEW

Did the District Court err in holding

that plaintiff, in this Constitutional

tort action, was required to disprove

the Defendants' claim of qualified immu-

nity in order to survive their motion

for summary judgment?

Did the District Court err in finding

that the Anti-Injunctive Act, 26 U.S.C.

8 7421(a), which precluded an earlier

action by plaintiff as a case with respect

to Federal taxes, did not toll the statute

of limitations on plaintiff's tort claim

for malicious prosecution of a bad faith

termination assessment against certain

Internal Revenue officials?

Did the District Court err in holding that

Plaintiff's claim for relief under 42 U.S.

c. § 1985, 1986, based on a conspiracy

between Federal and State officials,

did not state a claim for relief where

only violations of Federal rights were

alleged?

Did the District Court err in refusing to

consider evidence of Defendants' tax assess-

ment procedures, as detailed in their offi-

cial Internal Revenue Manuals and sworn

affidavits of former agents, on the issue

of whether defendants should prevail on

their qualified immunity defense?

TABLE OF CONTENTS

Page

Questions Presented for Review ....... i

Table of Authorities ..ccccccccscccces iii

Constitutional Provisions ............ vi

SCACULES wcccccccccvccccccccsvcveseces vi

MOBULACIONE cco ccccccccosevessevecnees vii

RULOS wcccccccccccccccccccgecesesevcess vii

DPAMAONS BELOW oc ccccce cocccsesesone viii

UR OUGACTION wccccccccesecscsecnenees viii

Constitutional Provisions, Statutes,

and Regulations Involved ........... ix

PRETO POR WRIT wcccncviccencesecers 1

Statement of the Case ......ccccecsees 4

REASONS FOR GRANTING THE WRIT

The District Court erred in holding

that plaintiff, in this Constitu-

tional Tort action, was required to

disprove the Defendants' claim of

qualified immunity in order to

survive their motion for summary

SUGSMORE cc vc bs ceecevewsee oeecce 19

The District Court erred in finding

that the Anti-Injunctive Act, 26 U.

‘658 7421(a), which precluded an

earlier action by plaintiff, did not

toll the statute of limitations on

plaintiff's tort claim for malicious

prosecution of a bad faith termina-

tion assessment against certain

Internal Revenue Service officials. 32

The District Court erred in holding

that plaintiff's claim for relief

under 42 U.S.C. § 1985 and 1986

based on a conspiracy between Fed-

eral and State officials, did not

state a claim for relief where only

violations of Federal rights were |

BLIGSOS 6 ccc ccvecocscvescssccceces 42

The District Court erred in re-

fusing to consider evidence of

Defendants' tax assessment pro-

cedures as detailed in their offi-

cial Internal Revenue Manuals and

sworn affidavits of former Agents

on the issue of whether Defendants

should prevail on their qualified

SRLS GOTONSS vnc ddviwescvreese 46

PE Ch Lien eseceenpeceteeecebesen a-1

DE 2 citeaeceevweeececceceenede b-1

SE Te de ib oN Oe ne WES be edniree eae ss c-1

ET th 604 bese baée secu eee cosas d-1

Appendix E

Appendix F

Appendix G

Appendix H ..

Appendix I

Appendix J

Appendix K

Appendix L

Appendix M

Appendix N

Appendix O ..

Appendix P

Appendix Q

Appendix R...

BOUND SEPARATELY

iii

TABLE OF AUTHORITIES

CASES: PAGE

Alexander v. Alexander, 706 F.2d

Fon Ree Gans BOOS) ov ass dseesee ce 43

Alexander v. American United, Inc.,

DE Memh TOR CEOTED Siivcwduceces%s 38

Banker v. Norman, 651 F.2d 1107

Pn. ED «ac bhp és 06% 6:60.00 « 22

Black v. U.S., 534 F.2d 524

7 ge ND oy” ee 38

Bob Jones University v. Simon,

OOS Ge >) ae | gd ) Ee ree 38

Boddie v. Connecticut,

a er’ SR ROOTED ‘sceccdcwcsvaces 41

Brown & Rood, Int. v. Big Rock Coap.,

383 F.2d 662 (Sth Cir. 1969) ..... 37

Butz v. Economou, 438 U.S. 478

Pe eee ied whe Sheek ded dais base 9, 43

Cameron v. Brock, 473 F.2d 608

CR Ca wie OS) 6.00 6 bse te6 0606 44

Davis v. Passman, 995 S.Ct. 2265,

Die BEGe évavbeweoesees cose 16

Dray Creek Lodge, Inc. v. United

States, 515 F.2d 926 (1975) .... 4S

Espanola Way Corp. v. Meyerson,

690 F.2d 827 (llth Cir. 1982) 23, 43

Page

Esplin v. Hinschi, 495 F.Supp. 94

CAOCR Cav. LEGGE) acicccceviccecovece 40

Gomez v. Toledo, 446 U.S. 635

EAD OOh Seco seessccsacceeesiiscevce 22

Graham v. United States, 528 F.Supp.

933 (6.D. Pemm. 1981) wccsccdccece 39

Griffin v. Breckenridge, 403 U.S.

BE CAB7L). cccvoncccecdevccecsvesces 44

Haislah v. Walton, 676 F.2d 208,

(6th Cir. GOGZ) crcccccccveces 24, n.l

Hall v. United States,

Bc BS BLS ci cecccsccccstwes 2, 25, 29

Hall v. United States, 704 F.2d

246 (6th Cir. 1983) ....... 29, 43, 52

Hanlow v. Fitzgerald, 457 U.S. .

73 L.Ed.2d 396 (1982)... 20, 22, 24, 50

Harris v. Roseburg, 664 F.2d 1127

FOGR Cit. I9GD). crcevcsecsecdce 24, n.1

Herbert v. Lando, 441 U.S. 153

(1979) weceeeeecceeeeeeeececs sodee 21

Hobson v. Wilson, S56 F. Supp 1157

Es Ss BOOED \en tw can oe 6 06 000.008 0% 26

Hudson v. Fooompaas 385 So.2d 61

(Civ. App. 1980) ccccccccscccecees 37

Kroger Co. v. Puckett, 351 So.2d 582

CGAW. ROMs BOTT) haw cb écdndincwsss 37

Laing v. United States, 423 U.S.

161 (1976) eeeeeeteeeeneteeeeeeeeeneeeee 29

Page

Logan v. Shealey, 660 F.2d 1007

COCR CAS. 2081) sesadeeeedees 24, n.l

Morris v. Houg, 495 F.Supp. 797

(D.C.W.BD. T9ES) cacccecvccescoseas 40

Poller v. Columbia Broadcasting

System, 368 U.S. 464 (1962) cos Oa ae

Procunier v. Navarette, 434 U.S.

SRW COUT). bcd acdbsdwenedacseevs en 21

Saldana v. Garza, 684 F.2d 1159

CRGn Gals Bee? 642s ctsubekseweens 23

Scheuer v. Rhodes, 416 U.S. 23

te. 268, . 3876) s vdecctadkeeeswennts 21

Seibert v. Baptist, No. 77-PT- .... 26, 29

0951 N.E.D. Ala. 1982 ..... 35, 36, 43

Washington v. Cameron, 411 F.2d

705 (D.C. Cit. 1969) cecrcececcoess 45

Wolfek v. Seyborn, 666 F.2d 1005

(6th Cir. 1982) ..... AR ta 24, n.l

Wood v. Strickland, 420 U.S. 308, 43

L.Ed.2d 214, 95 S.Ct. 992 (1975)...

Constitutional Provisions:

ne Oe Wells GABE. cciccccccccetecs

Sn URS Wes CONDE. cccccccscccces

Amend. VIII, U.S. CONST. ....

Statutes:

Sc @& @@@e@e@gdgdgde#W?e@eedW.@e

mn ne rnhermUOnHmn nH HOH HLH HH DH

> ew ie ae ae. ao a) a), oe ; oe

mimimMmM Mm MMM MM wm

—

ae ee ees at,

42,

38,

36,

45,

44,

vii

Page

Regulations:

IR Manual Document MT 4500-129

Porat 7s ete scseseeaceks 27, 28, 30

IR Manual Document MT 4500-129

FO+EBosas Geeeck.. seaes serene cs obs 28, 30

{IR Manual Document MT 4500-129

SO TSA sa) Seeech. cee Ses ewe o bas o' aces 48

IR Manual Document MT 4500-129

Cote as Geen ca ect eeacncetee eben 28

Rules:

ee, Be - Gav. Bio BRO BW os tdcewiens . 49

mn. 8: Civ. Da, Cle i vkscnse —

es Re Gave Peg BORO BO cccits 25, 31,. 4

viii

OPINIONS BELOW

The Court of Appeals' opinions for the

Fifth Circuit are cited at 594 F.2d 923 and

$99 F.2d 723 (App. A & B). The Court of Appeals

for the Eleventh Circuit did not write an

opinion (App. J-I), rather it simply affirmed

the District Court's opinions and orders.

Those opinions and orders are herein attached

and appendixed at App. D-I of this petition.

JURISDICTION

The Court of Appeals' affirmation bears

the date of May 27, 1983. It was entered on

that day> The present petitioner, Michael

Seibert, hereinafter refered to as "Seibert",

did apply for rehearing which was denied on

August 11, 1983. Seibert invokes the juris-

diction of this Honorable Court under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED

This case involves the following consti-

tutional provisions, statutes, rules and regu-

lations, the relevant parts of which are set

forth in Appendixes hereto:

Art. III, § 2, U.S. CONST.;

Amend. V, U.S. CONST;

Amend. VI, U.S. CONST;

Amend. VIII, U.S. CONST.;

IR Manual Supplement of May 19, 1971,

Sections 1, 2, 3, 4, 6;

IR Manual Document MT 4500-129 (9-15-71)

paragraphs 4584.3, 4584.4, 4584.5, 4584.6,

4584.7, 4584.8, 4585.1, 4585.2, 4585.3;

26 U.S.C. 88 6201, 6212, 6213, 6331, 6851,

6861, 7421;

28 U.S.C. §§ 1331, 2201, 2202;

42 u.S.c. §§ 1983, 1985, 1986;

Fed. R. Civ. P. Rules 26, 33, 34, 56.

NO.

IN THE

OCTOBER TERM, 1983

CARL MICHAEL SEIBERT,

Petitioner

Vv.

DWIGHT T. BAPTIST, et al., 1

Respondants

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

The petitioner, Carl Michael Seibert,

prays that a writ of certiorari issue to review

the judgment of the United States Court of

Appeals for the Eleventh Circuit which affirmed

without opinion the decision of the United

States District Court for the Northern District

Frank Magill, Jr., Acting District Director; Lee

Willingham, Revenue Officer; Frank McCammon, Criminal

Intelligence Division of the Internal Revenue Service;

and secreted party Agent Larry Hyatt if granted permission.

of Alabama.

Petitioner prays that this Court consoli-

date the proceedings in this case with that

of Elizabeth Jane Hall, v. United States, et

al., No. 83-514, presently awaiting action on

her petition for certiorari under facts identi-

cal to those in the instant case.

That upon review of the above proceedings

this Honorable Court will reverse the judgment

of the lower courts and remand the action to

the District Court with directions that respon-

dants are to bear the burden of proof on their

Claim to official qualified immunity, or in the

alternative, if Seibert is to carry the burden

of proof, then he respectfully requests that

he be allowed discovery by interrogatories

and request for admission presently on record,

that petitioner's claim is timely under the

applicable statute of limitations and, that

petitioner's claim based on conspiracy to

violate federal law, states claim for refief

under Title 42 U.S.C. § 1985, 1986.

STATEMENT OF THE CASE

On July 7, 1972, plaintiff Carl Michael

Seibert was arrested by Huntsville City Po-

lice for being in possession of a controlled

substance. At the time of his arrest he was

driving a car bought for his use, but owned

by his father. During a search of the car,

the police found in the front part, a con-

trolled substance which was later proven to

have been planted there by paid informer,

Steve Beshears.- In the trunk were the plain-

tiff's Martin D-35 guitar, an overnight bag

with a change of clothes, and $460.00. While

searching his parents' residence, the police

found $2,262.01 in cash and some additional

foreign currency which they stated they were

taking for evidence. The plaintiff's father

lapfidavit of Steve M. Beshears, paid informer for

the Huntsville Police Department.

informed the officers that the bulk of the

money was old bills that his son had saved

for years, and included some silver certifi-

cates (twelve of which were consecutively nun-

bered). After a discussion with the plaintiff's

father concerning the foreign currency, the

officers decided against taking it in.

Later that evening approximately 7:45

p.m., Randall Duck of the Huntsville Police

Department made a phone call to waiting IRS

agents. The agents arrived at the residence

as the plaintiff was being taken away, at

about 8:00 p.m.

The IRS agents then proceeded to question

Seibert's parents about him and the aforemen-

tioned property being seized. They also asked

for, and received, information concerning the

location of the plaintiff's bank account, but

were told that it was just a small checking

account which he used to buy school books.

a6-

On Monday, July 10, 1972, at about 7:30

a.m., Randall Duck and two IRS agents came to

see Seibert while he was incarcerated. The

agents handed him "notice of seizure" which

listed the property being seized under the

authority of 26 U.S.C, § 6331. They further

informed him that the seizures included all

rights to property. Seibert was handed a

termination of taxable year, pursuant to 26

U.S.C. § 6851, which set his taxes at $6,458.00

for the period of January 1, 1972 to July 7,

1972. As required by the termination letter

under Section 443 of Title 26, Seibert filed

the Form 1040, stating that he had no income

for the period of time in question.

The automobile which the IRS agents

seized was owned and paid for by Seibert's

father, but was purchased for Seibert's use.

Seibert and his father made numerous visits

with IRS agents in attempt to prove that the

automobile seized had been in a bailee-bailor

relationship, Seibert being bailee. They

presented many checks and documents relating

to the automobile, and Seibert offered to

sign a release as to his property interest.

In fact, the IRS subpoenaed State Farm Insur-

ance records. The offers made by the Seiberts

were refused by the IRS agents.

In early August of 1972, Seibert received

a phone call from Veronica (Ronnie) Potter, whom

he had dated in 1970 and 1971. She had heard

through mutual friends about his arrest and IRS

seizures. He told her that one of the seizures

was of the Martin D-35 guitar that she had

given him as a gift. After expressing sympathy

with Seibert's plight, Ms. Potter hung up.

Later that same month, Seibert received a letter

from her explaining that she had gone to the

IRS and, claiming ownership of the guitar, they

had turned it over to her, and she intended to

either keep it or sell it. In fact, however,

the Martin D-35 had been registered in Seibert's

name since early 1971 at Martin and Company

under the serial #269211.

Shortly thereafter Seibert contacted the

IRS agents assigned to his case about the

guitar. They told him ‘it was his problem if

he couldn't keep his love life straight, and as

far as the IRS was concerned it was a matter

between Ms. Potter and himself.

On or about October 12, 1972, Seibert

and his father received notice of auction

which was to take place on October 26, 1972.

On October 19, 1972, they filed an action to

compel an explanation as to how the tax was

computed as the basis for seizure. They

accused the Director's actions as being without

foundation or cause and Seibert claimed viola-

tion of the United States Constitution 's Fifth

Amendment.

a@<

The U.S. Attorney opposed the action by

veibert on the basis of 26 U.S.C. § 7421(a)

and further requested the court dismiss Carl

Michael Seibert and his claims in the action,

and to hear only the issue of the ownership of

the automobile raised by Carl Edward Seibert

(plaintiff's father). The Government further

requested that a bond be posted on the automo-

bile. The trial court followed the Government's

request and allowed only the issue on the auto-

mobile to stand.

After the death of Carl Edward Seibert,

executrix Mary Constance Seibert was substituted

as plaintiff in that civil action. On November

19, 1973, United States District Court Judge

Seyborn Lynn, by preponderence of evidence

ruled for Mrs. Mary C. Seibert. The collection

department of IRS continued to write or call

Seibert weekly about paying the alleged tax.

Seibert continued trying to convince different

$0.

branches and agents to examine evidence com-

piled to prove his innocence, but they would

not turn the first page. His efforts included

visits to the Criminal Intelligence Division

of IRS with information about illegal income

of persons involved in entrapment of others to

cover their own actions and the income made

therefrom. He sent affidavits to the Director

of IRS stating that, under penalty of perjury,

he had not been in the business of selling

drugs or narcotics. He filed amended returns

and wrote for conferences in which agent Robert

Jones refused to receive or examine any of the

evidence offered by Seibert, however, he stated

that if the plaintiff would admit to the right

amount of drugs he sold, they might reduce his

tax liability.

On August 9, 1974, Seibert received his

90-day letter, or Notice of Deficiency (some

25 months after the jeopardy assessment seizure)

o82-

and, on a contingency agreement, hired counsel

to file his petition in tax court which re-

quested the return of the U.S. Currency and

currency collection, bank account and Martin

D-35 guitar. The case was assigned No. 8724-74.

On January 23, 1975, in an appellate con-

ference, with Seibert and his attorney Charles

Ray present, the regional counsel and an appel-

late agent, Herb Law, stated they would review

some evidence. Seibert gave them some trans-

cripts and was tiven a receipt, as he requested.

Then teh case which was set for October

20, 1975, was pulled off the docket by the

regional counsel. Seibert's counsel told him

the amount of money involved was not worth the

time and expense of recovery. Seibert paid

the counsel with money borrowed from his mother,

Mary C. Seibert. He then wrote the tax courts

and had the case redocketed.

After the case was pulled from trial

012

status by regional counsel, Bob West, but

before the request for redocketing, the plain-

tiff, through his attorney, Phil Geddes, re-

quested a review of his file through the Free-

dom of Information Act. After receiving a

standardized letter in which the IRS requested

additional time to comply, Mr. Geddes received

a request for power of attorney, and then,

finally, a third letter was received which

stated that they were unable to locate the file

or the requested information. Assuming he could

rely upon this information given by the IRS,

Mr. Geddes naturally believed there could be

no appeal, but some five years later the plain-

tiff discovered it had been wrongfully and

intentionally withheld.

The plaintiff succeeded in having his case

redocketed in Tax Court, but upon realization

of a trial, the IRS counsel withdrew their

claim of a deficiency and argued that the Court

o1$<

lacked jurisdiction. Upon a stipulation of

the parties, and the claim by the Tax Court

that it lacked jurisdiction on the issues

other than the plaintiff's alleged 'tax liabil-

ity', the order on this case was simply to

allow the dropping of the assessment which

would allow the Federal District Court to have

jurisdiction against a renewed claim to bar

teh action under the Anti-Injunctive Act.

Tax Court Judge William Quealy told the plain-

tiff and his counsel that the IRS wished to

drop their assessment and that the Tax Court

lost its jurisdiction on that basis. When

plaintiff inquired into the effect of any

statute of limitations, Judge Quealy told

them that "the statute of limitations would

start to run from the date of the Tax Court

decision which would end the Commissioner's

Claim against Mr. Seibert."

The decision and stipulation were agreed

-14-

upon and on January 17, 1977, were filed with

the Tax Court.

Warren E. Mason, Attorney at Law, told

Seibert that this case would be too costly to

litigate and it would involve years of effort,

even if he were successful in getting the case

to the jury.

Seibert filed his Complaint in the United

States District Court for the Northern District

of Alabama against the following Federal agents

of the Internal Revenue Service in their own

individual capacities: D.T. Baptist, Columbus

Sanders, Frank W. McCammon, Lee Willingham and

Frank Magill, Jr. and against persons, firms,

or corporations whose names are unknown to

the plaintiff but will be added by amendment

as soon as ascertainment of same is made.

Seibert invoked jurisdiction in the Dis-

trict Court under Sections 1331, 1343, 2201,

and 2202 of Title 28; Sections 1983, 1985, and

ofS.

1986 of Title 42; and the Amendments to the

United States Constitution.

Seibert alleged violations of, and con-

spiracies to violate the Fourth, Fifth, Sixth,

Eighth, and Fourteenth Amendments of the United

States Constitution. Seibert later filed

an Amended Complaint and, for clarification,

filed an Amendment to the Complaint. Seibert

was unable to determine the address of Steven

Beshears or place upon which service could be

made.

Prior to the defendants' motion to dismiss,

or in the alternative motion for summary judg-

ment, being granted, there were some thirty-

four pleadings filed, which included inter-

rogatories and requests for production of

documents, all of which were denied. On August

11, 1978, the District Court granted the Defen-

dants' Motion to Dismiss, or in the Alternative,

Motion for Summary Judgment. Seibert gave

-16-

notice of appeal along with a motion for

appointment of counsel or alternative counsel

in an advisory capacity which were filed on

September 5, 1978. On the 6th day of September,

1978, the Motion for Appointment of Counsel or

Alternative Counsel was denied.

The appeal was taken and Seibert's Appel-

lant Brief was filed on November 19, 1978.

On May 3, 1979, the United States Court

of Appeals for the Fifth Circuit affirmed the

District Court's Opinion of August 11, 1978.

Then on Petition for Rehearing, filed on May

22, 1979, the Court below reversed on what may

have been only the Fifth Amendment jurisdiction

on the basis of Davis v. Passman, 99 S.Ct. 2264,

60 L.Ed.2d 1979. Appellees Petition for

Rehearing was filed on August 27, 1979, but

was denied on September 21, 1979 on the

29s

defendants' immunity. Seibert also petitioned,

but it was denied. Seibert then petitioned the

United Supreme Court for petition for writ of

certiorary, which was opposed by the Solicitor

General as premature. On June 16, 1980 the

petition was denied.

On remand to the District Court, Judge

Propst entered numerous orders, barring dis-

covery by plaintiff's Interrogatories, Request

for Admissions of Fact and Production of Certain

requested IRS Documents and Specific Numbered

Internal Revenue Manuals. However, the court

required the case to be tried against the

"least culpable" ofthe defendants. It found

as a matter of fact that there was not any

improper IRS program involving the IRS agents.

When Seibert offered proof from the Special

Agent Thomas S. McWhorter that, in fact,

Seibert had been one of those targeted fro the

program, the district court excluded that

-18-

evidence from jury (Transcript 179-196).

On March 22, 1982 the court dismissed

Seibert's case against all the respondents.

An appeal was timely taken and on May 27,

1983, the Eleventh Circuit Court of Appeals

affirmed with no opinion. The petition for

rehearing was denied on August 1983.

-19-

REASONS FOR GRANTING THE WRIT

1, The District Court erred in holding

that plkaintiff, in this Constitutional

Tort action, was required to disprove

the Defendants' claim of qualified

immunity in order to survive their

motion for Summary judgment.

Recent developments in the law of quali-

fied immunity now make it necessary to resolve

an issue upon which the various circuits are

divided. This Court's decision in Butz v.

Economou, ingnra, and Harlow v. Fitzgerald, infra,

advocating the use of summary judgment procedure

in resolving claims of qualified immunity in

a Bivens type action, makes it imperitive that

the Court address the issue of which party

bears the burden of proof under the qualified

immunity defense.

In Butz v. Economou, 438 U.S. 478, 507-508,

57 L.Ed.2d 895, 98 S.Ct. 2894 (1978) this Court

-20-

admonished the circuits that official "good

faith" qualified immunity was a proper subject

for summary judgment in 42 U.S.C. § 1983 and

Constitutional Torts actions. The subjective

prong of the defense as it had developed since

Wood v. Strickland, 420 U.S. 308, 43 L.Ed.2d

214, 95 S.Ct. 992 (1975), requiring as it

did an inquiry into the defendant officials'

state of mind,,had proven unwieldly for summary

judgment practice. Therefore the Court in

Harlow v. Fitzgerald, 457 U.S. ___,_ 73 ‘L.Ed.

2d 396, 411, 102 S.Ct. 2727 (1982) abandoned

the subjective prong and adopted an essentially

objective test of good faith. Harlow's most

significant posture however was its sweeping

prohibition against all discovery pending

resolution of the qualified immunity issue.

In those circuits which place upon the plain-

tiff the burden of disproving the plea of

qualified immunity, the denial of all discovery

substantially increases the burden he must

carry. See Herbert v. Lando, 441, U.S. 153,

169, 60 L.Ed. 115, 129, 99 S.Ct. 1635 (1979).

Previous decisions by this Court have been

equivocal with regards to which party carries

the burden of proof on the defense. Scheuer

v. Rhodes, 416 U.S. 232, 249-250, 40 L.Ed.2d

90, 104, 94 S.Ct. 1683 (1974) reversed the

trial court for granting the defendants'

motion to dismiss on the qualified immunity

defense where no evidence warranting a finding

of good faith had been introduced. However,

the courts subsequent decision in Procunier v.

Navarette, 434 U.S. 555, 565-566, 55 L.Ed.2d

24, 33, 98 S.Ct. 855 (1978) reinstated a

summary judgment for defendant officials

Claiming qualified immunity although no evi-

dence was introduced that the officials acted

in good faith or had not violated a ‘clearly

established' constitutional right.

22.

More recently the Court in Gomez v. Tokedo,

446 U.S. 635, 64 L.Ed.2d 572, 100 S.Ct. 1920

(1980) directly held that the burden of pleading

the qualified immunity defense was on the

official claiming the affirmative defense.

Although the Court's rationale for placing the

burden of pleading on the defendant would

argue forcefully for placing the burden of

proof on the defendant as well, Justice Powell

in his footnote 24 to the Harlow opinion speci-

ficalliy stated that the burden of proof question

was still unresolved. Harlow, 73 L.Ed.2d 396

at 408.

The ambiguity of the Court on this matter

is reflected in the decisions of the circuits.

The District Court below applied the ‘shifting

burden' approach which is presently in general

use throughout the Fifth Circuit. That approach

set out in the case of Barker v. Norman, 651

F.2d 1107 (Sth Cir. 1981) and relied on by

=23.

the Court below states:

"Once the official has shown that he

was acting in his official capacity

and within the scope of his discre-

tionary authority, the burden shifts

to the plaintiff to breach the offi-

cials immunity by showing that the

official lacked ‘good faith'." 651 F.2d

at 1121.

Decisions of the Fifth and Eleventh Cir-

cuits after Harlow indicate that the plain-

tiff will retain the burden notwithstanding

the demise of the subjective prong of the

immunity defense. See Saldana v. Garza, 684

F.2d 1159 (Sth Cir. 1982), and see Espanola

Way Corp. v. Meyerson, 690 F.2d 827 (11th Cir.

1982) (citing Barker). This position however

is at variance with that taken by the First,

Fourth, Sixth and Ninth Circuits which uni-

formly placed the burden of proving the defense

squarely on the defendant.?

"Satdana v. Garza, 684 F.2d at 1163, footnote 14.

while the Fifth Circuit rule has not enjoyed orl

«%§-

Moreover, Harlow has equally assured the Sixth

Circuit that the burden lies with the defen-

dant:

"an assertion of qualified immunity is

an affirmative defense which must be

pleaded and proved by the defendant

official . . . This conclusion is

buttressed by the Supreme Court's

recent decision in Harlow v. Fitzgerald

(citations ommited) . . . When dis-

cussing how the new standard whould be

applied, however, the Court inferred

that the burden of proving the qualified

immunity defense should be on the defen-

dant official."

706 F.2d 751, 754 (6th Cir. 1985)

The decision of the District Court in the

instant case to grant summary judgment for the

acceptance, see e.g. Haisfah v. Walton, 676 F.2d 208,

214-215 (6th Cir. 1982) (defendant bears burden of

showing that they have acted in good faith); Wolfel

v. Sanborn, 666 F.2d 1005, 1007 (6th Cir. 1982) (bur-

den on defendant); Harris v. Roseburg, et at., 664

F.2d 1121, 1127 (9th Cir. 1981) (burden on defendant) ;

Logan v. Sheakey, 660 F.2d 1007, 1014 (4th Cir. 1981)

(burden on defendant), this panel is bound by the rule

that places the burden of breaching an asserted immun-

Ity upon the plaintiff."

«2b

several defendants on the grounds that plain-

tiff had not met his burden of rebutting their

ciaim of qualified immunity, presents this

Court with an opportunity to resolve the con-

flict on this issue. Resolution of this issue

by placing the burden of proof of the qualified

immunity defense on the defendant will tie to-

gether conceptually the objective framework for

good faith immunity begun in the Harlow case.

The importance of the problem of allo-

cation, burden and the degree of proof in

addressing summary judgment taken pursuant to

Federal Rules of Civil Procedure, Rule 56b & c

are exemplified by the instant case and Hall

v. United States, No. 83-514. If, as stated

above, the burden of proof is allocated to

Federal or State defendants, it must be assumed

that if there is damaging information under

their exclusive dominion and control, it will

be made available to the reviewing court.

«2G

However, it is questionable whether defendants

would produce inculpatory information. See

Poller v. Columbia Broadcasting System, 82 S.Ct.

486, 491, 368 U.S. 464, 473 (1962); Hobson v.

Wilson, S556 F.Supp. 1157, 1178 (D.D.C. 1982)

and Seibert v. D.T. Baptist, No. 77-PT-0951

(N.E.D. Ala. 1982). If the plaintiff is to

carry the burden of proof, then he or she

should be allowed to complete discovery of the

probative material with the assistance of the

court if unreasonably resisted by defendants

or their Government counsel. In the instant

cases the burden was placed on Seibert and

Hall as plaintiffs, however the most important

and probative part of Seibert's discovery

(request for admissions and interrogatories

promulgated upon Internal Revenue Manuals) was

barred by the District Court.

The significance of these Internal Revenue

Manuals as they relate to intentional violations

29%

by defendant Federal officials and misrepre-

sentations to this Court by those defendants'

counsel cannot be overstated. Several court

rulings were based upon misrepresentations by

Government counsel, in particular, decisions

relating to the Notice of Deficiency. However,

Internal Revenue Manuals, unavailable to the

court at that time,made it clear that Notice

of Deficiency was required within 60 days from

the date of the assessment.

INTERNAL REVENUE MANUAL 4500-129 (9-15-71)

4584.8, Immediate Revnew and Issuance of 90-

Day Letters, provides in pertinent part, that:

(1) Immediately after assessment, all

jeopardy assessment cases will be for-

warded to the office of the Assistant

Regional Commissioner (Audit) for re-

view. Regional review of these cases

will be given highest priority and the

cases will be returned promptly to the

district offices for further administra-

tive action. It should be borane in

mind that in Such cases any necessary

statutory notices not previously issued

must be <SSued within 60 days from the

date of assessment. (emphasis added)

-28-

Section 4585.1, paragraph (2) of the Interna:

Revenue Manual states, in pertinent part, that:

", . . the review procedures in IR Manual

4584.8 relating to jeoparty assessments

apply also to assessments under I.R.C.

6851 . . ." (App. 0, o-11)

Internal Revenue Manual 4585.1(2), when

read in conjunction with IR Manual 4584.8(1)

makes it clear that the statutory Notice of

Deficiency (90-day letter) was to be issued

"within 60 days from the date of assessment."

The respondents and their Government

counsels point to IR Manual 4585.3 in their

endeavor to mislead the unweary. However, the

reader who is armed with IR Manual 4584.8 and

the Internal Revenue Code will discover that

IRM 4585.3 which states that no statutory notice

of deficiency will be issued for the short period

simply refers to the 10-day period (short period)

of I.R.C. 6331 which is only the "waiver" or

elimination of the 10-day statutory notice

requirement of I.R.C. 6331 before seizure of

-29-

property when under I.R.C. 6851 or 6861

jeopardy-termination assessment.

The Government counsel may express their

absence of knowledge during the case of Laing

v. United States, 423 U.S. 161, 96 S.Ct. 473

and 46 L.Ed.2d 416 (1976) as to the existence

of the IR Manuals which required the same due

process in both I.R.C. 6851 and 6861 (e.g.

Notice of Deficiency was required within 60

days of the assessment). However, it is clear

they cannot claim they were ignorant of that

fact in Hall v. United States, 704 F.2d 246

(6th Cir. 1983). In Hall, id., the same

Department of Justice, Tax Division, counsels

which were involved in Seibert v. D.T. Baptist,

induced the 6th Circuit to rule that the IRS

agents lacked knowledge of Notice of Deficiency

requirements by IR Manuals until Laing, 4upaa.

(See Elizabeth Jane Hall, Petitioner, v. United

States, Thomas P. McHugh and Elmer B. Snider,

= $8-

Respondents, No. 83-514, Motion to Defer Ruling

and to Consolidate, Exhibit A.

Whether via mistake or fraud, the respon-

dants prevailed by virtue of their superior

adversary position and the courts reliance

thereon. There can be little question that in

light of the granting of two protective orders

in the case at bar and the court's blocking

answers to very important interrogatories and

request for admission, that there is a great

necessity for clarification to the degree and

allocation of the burden of proof. It is clear

from the IR Manuals 4584.8 and 4585.1(2) that

fundamental due process would have required the

availability of a reasonably prompt access to

a hearing before a taxpayer was deprived of his

property for a period of many years as was

Seibert.

The instant case exemplifies the damage

that a bar of discovery against relevant

«$i.

can do to a case where the burden of proof is

placed on the plaintiff to disprove general

good faith claims of official defendants. If

the plaintiffs and the courts rely on Govern-

ment counsels and government officials ex

mero motu to produce inculpatory evidence,

there is a great probability that a plaintiff

in a constitutional tort case will never sur-

vive a defendant's motion for summary judgment

pursuant to Federal Rules of Civil Procedure,

Rule 56.

For the above stated reasons, this Honor-

able Court should grant this petition for a

writ of certiorari to the United States Court

of Appeals for the Eleventh Circuit to allow

us to further develop this fundamental and

important question of federal law, the allo-

cation of and the degree of burden of proof.

a$2-

2. The District Court erred in finding

that the Anti-Injunctive Act, 26 U.S.C.

§ 7421(a), which precluded an earlier

action by pkaintig¢é, did not tolkk the

statute of Limitations on plaintisg's

tort claim for malicious prosecution

of a bad faith termination assessment

against certain Internal Revenue Serv-

4ce officials.

While the finality of the court below's

judgment on statute of limitations is unclear

by virtue of its refusal to certify for inter-

locutory appeal, it nonetheless implies that

Seibert was barred by a one-year statute of

limitations from bringing any lawsuit against

Federal tax officials and that the original

complaint was not timely filed. (App. D, d-19)

However, denials of the majority of Seibert's

motions were based on statute of limitations

while the court below granted respondants'

«$3-

protective order barring discovery of proba-

tive information exclusively under control of

the defendants on the same grounds. Further,

the District Court placed the burden of proof

on Seibert to prove the defendants knowingly

violated a constitutionally protected interest.

Plaintiff produced additional affidavits

of IRS Agents Dudley M. Weathers and James

Pertree which attested to the unreasonable-

ness of the amount and the termination assess-

ment. The affidavit of IRS Agent Pertree also

attested to the program which seized terminated

taxpayer's assets for purpose of interferring

with their ability to retain "expensive counsel"

and to make bond. As a result of those IRS

Agents' affidavits, on March 22, 1982, the

court below adopted its view on statute of

limitations. Consequently, Seibert is compelled

to address the issue.

The gravamen of Seibert's complaint, as

«34

characterized by Judge Sam Pointer is that of a

malicious prosecution and harassment case via

the initiation and continuation of a bad faith

termination-jeopardy assessment made pursuant

to 26 U.S.C. § 6851 (App. A, a-1). Judge

Propst remarked,

"The court is, quite frankly, surprised

that this case could be pending at this

point without a resolution of the statute

of limitations issue; and the court is of

the opinion that the issue may well be

determinative of the case." (App. D, d-23).

Judge Propst's finding that the statute of

limitations issue had not been addressed was

simply in error.

The issue of statute of limitations arose

during the pendency of defendants' Motions and

Supplemental Motions to Dismiss, or In the

Alternative, Motion for Summary Judgment, filed

September 26, 1977, and both parties had writ-

ten to that issue. (See Supplemental Record,

No. 78-3007, Plaintiff's Supplemental Brief,

Argument and Memorandum of Law in Opposition

a$k.

to Defendants' Motion to Dismiss @p.3, filed

April 12, 1978). Further, oral argument was

granted and from the bench, Judge Pointer told

the parties that the statute of limitations

was not dispositive of jurisdiction or the

case and for the parties not to waste their

time or the court's time by arguing that point.

He stated two grounds for that ruling: 1) that

Mr. Seibert's complaint is couched in the

language of a malicious prosecution, and; 2)

that plaintiff filed an action earlier to

invoke the jurisdiction of the court, and the

issue of an earlier filing had been collaterally

decided by Seibert v. Baptist, CA No. 72-936-NE

(N.D. Ala. 1972). In granting the defendants'

Motion to Dismiss/Alternative Summary Judgment

on August 11, 1978, Judge Pointer added one

additional reason why this specific action could

not be filed. He determined that this is a

case "with respect to Federal taxes." (App. A, a-!

=$6-

Consequently, if a lawsuit is a case "with

respect to Federal taxes," plaintiff may not

acquire jurisdiction through 28 U.S.C. § 2201,

2202. Additionally, if the plaintiff has

outstanding "tax liability" and the court

determined that the plaintiff did not come

under the exception of 26 U.S.C. § 7421, et seq.,

as was the case in Seibert v. Baptist, et al,

Supra, the Federal Court would lack jurisdiction.

Judge Propst reaffirmed Judge Pointer in

his holding that the instant case is one "with

respect to Federal taxes,'"' but ruled that the

lawsuit was barred by the Alabama one-year

statute of limitation because the suit was not

filed before the resolution of the "tax liability'

Such a ruling is absolutely inconsistent with

the facts, legal history, evidence and both

Federal and Alabama law. When Seibert resolved

the "tax liability" in his favor, it removed

the claim of tax liability, and with it, the

bar against jurisdiction imposed by the Anti-

Injunctive Act in Federal Court. Within 6

months of the removal of burden imposed by IRC

§ 7421, this action was again filed.

Alabama, as many other states, requires

that a plaintiff who is alleging malicious

prosecution or malicious abuse of process, as

in the case at bar, must first prevail in the

action upon which he has stated was wrondfully

taken. In Hudson v. Chancey, 385 So.2d 61

(Civ. App. 1980), the court dismissed even a

counterclaim of malicious prosecution for lack

of maturity when defendant had not prevailed.

See also Kroger Co. v. Puckett, 351 So.2d 582

(Civ. App. 1977); Brown & Rood, Int. v. Big

Rock Corporation, 383 F.2d 662, 665 (Sth Cir.

1969) which states:

"No cause of action for malicious

prosecution comes into existence

until the termination of the par-

ticular judicial proceeding which

is the gravamen of the malicious

prosecution action."

-38-

While the law of Alabama, as it relates

to malicious prosecution, barred the filing

of this action any earlier for want of maturity,

this case was burdened with another problem

unique to constitutional violations or mali-

cious prosecution/abuse of process claims:

abuse of process claims arising out of the

assessment and collection of tax are barred by

the Anti-Injunctive Act of I.R.C. 7421(a) and

its counterpart 28 U.S.C. § 2201 and 2202 until

the tax liability is cleared. This prohibition

against Federal Court jurisdiction while

there is alleged (as in Seibert's case) or

potential tax liability flows even to actions

which claim violations of United States Consti-

tutionally protected interest (as in the instant

case). Bob Jones University v. Simon, 416 U.S.

72S (1974); Alexander v. Americans United, Inc.,

416 U.S. 752 (1974); Bkack v. United Sfates,

$34 F.2d 524 (2nd 1976).

- $0-

While it is true that I.R.c. § 7421(a)

can preclude suits for Constitutional viola-

tions and damages for present activities of

IRS agents during the pendency of an alleged

outstanding tax liability, the "Anti-Injunctive

Act" was never intended to be a bar against

review of past wrongful conduct in the form

of a Bivens action. In Graham v. United States,

528 F.Supp. 933, 938 (E.D. Penn. 1981), the dis-

trict court distinguished between the "present

and future activities" and past activities as

they apply to the Tax Anti-Injunctive Act. In

rejecting the defendant's argument that the

"Tax Anti-Injunctive Act bars the award of

damages for tax-assessment activities" the

court held that:

"if a taxpayer utilizes those (tax

review) proceedings and prevails, for

instance, if he is acquitted in a cri-

minal prosecution by showing bad-faith

Fourth Amendment violation, nothing in

the Act prevents a later damage action."

dd. n.7.

-40-

"In addition (to the good faith

qualified immunity defense), if

taxpayer did not prevail at the

earlier proceedings, the officials

could seek to take advantage of

the doctrines of res judicata and

colkaterak edtoppek. Accordingly,

I hold that the Tax Anti-Injunctive

Act does not require dismissal of

damage claims arising from past

activities." id. @ 938.

Analogizing the bar of the Anti-Injunctive Act

to that of malicious prosecution is judicially

economical as it would be in harmony with the

intent of the Anti-Injunctive Act while providing

redress if the taxpayer later prevailed if the

tax assessment was in bad faith. To hold

otherwise is to require superfluous litigation

in an attempt to toll the statute of limita-

tions. Equitable tolling, limits superfluous

litigation. Esplin v. Hinschi, 402 F.2d 94,

103 (10th Cir. 1968); Morrss v. Houg, 495 F.Supp.

797 (D.C.W.D. 1980). A contrary ruling would

afford a constitutional tort remedy only to

those taxpayers who have the wealth to satisfy

s@2e

an alleged tax assessment within statutory

limitations, while those who were required to

first exhaust their tax court review would be

without a remedy at its conclusion. An economic

bar which ultimately deprives an individual a

remedy is not consistent with due process...

a cost requirement, valid on its face, may

offend due process because it operates to fore-

close a particular party's opportunity to be

heard. Boddie v. Connecticut, 401 U.S. 371,

380 (1971).

The issue addressed above is an important

one. As stated, a taxpayer who is wrongfully

excluded from review by the Federal District

Court will ultimately be denied a remedy at

the conclusion of the United States Tax Court

review and the only determinative factors will

be the taxpayer's economic condition versus the

amount of the assessment. Additionally, al-

lowing the court below's ruling to stand is

«$2

to require an aggreived taxpayer to continually

endeavor to usurp the Anti-Injunctive Act in.

an attempt to preserve a remedy by filing super-

fluous litigation.

3. The District Court erred in holding

that pkaintigfg's claim for relies under

42 U.S.C. § 1985 and 1986 based ona

conspiracy between Federal and State

officials, did not state a chaim {0r

nekiek where only violations of

Federal rights were alleged.

In the instant case the allegation against

the respondants is that while in concert with

local officials they conspired with them to

maliciously prosecute a tax case for reasons

other than a good faith interest in revenue

and to insure the continuation of the prose-

cution by withholding procedural due process

- 43-

and thereby prevent subsequent review. While

this Honorable Court has theoretically removed

the distinction between the immunity enjoyed

by State and Federal officials in Butz v.

Economou, 98 S.Ct. 2894, 438 U.S. 489 (1978),

the treatment by the Federal Courts are none-

theless different. Federal Officials enjoy a

much greater success rate in summary judgments

than their State or Local counterparts. Examples

are Hall v. United States, 704 F.2d 246 (6th

Cir. 1983) versus Alexander v. Alexander, 706

F.2d 751 (6th Cir. 1983) and Seibert v. D.T.

Baptist, District Director of Internal Revenue

Service, ____—F.Supp. __—sC (ND. Alla. 1982),

appeal docket, No. 82-7163 (11th Cir. May 27,

1983), rehearing denied Aug. 11, 1983; versus

Espanola Way Corp. v. Meyerson, 690 F.2d 827

(llth Cir. 1982). The many cases in which

Federal Courts have treated Constitutional

Tort claims as an interference with government,

-44-

while the same court treats the same kind of

a claim under 42 U.S.C. § 1983 et seq. with

an eye toward doing substantial justice are

too lengthy to list.

Consequently, Federal Courts regard 42

U.S.C. § 1985 § 1986 with greater respect as

a remedy for redress of conspiracies to vio-

late constitutionally protected rights. Asa

result, the Bivens action in many law review

articles has earned the reputation of being

the "hollow remedy of Bivens."

Contrary to the lower courts holding,

there is no requirement that an alleged con-

spiracy occur under color of State law. This

Honorable Court held in Griffin v. Breckenridge,

403 U.S. 88, 91 (1971), no "State action" is

required in actions brought by black petitioner

in the protection of life, liberty and property.

In Cameron v. Brock, 473 F.2d 608 (6th

Cir. 1973), the court held an actionable private

$§-

conspiracy need not be based on racial discri-

mination, and in Day Creek Lodge, Inc. v.

United States, 515 F.2d 926, 931 (1975), the

presence or absence of state is not a factor.

In Hobson v. Wikson, S56 F.Supp. 1157,

1166-1167 (D.D.C. 1982) the court distinguished

actions taken under 42 U.S.C. 8 1983 from those

taken under 42 U.S.C. § 1985:

". . . conspiracjes that are actionable

under 42 U.S.C. 1985(3) exist whether

or not the participants act under color

of any official authority."

The courts below erred in their determination

that conspiracies by Federal IRS agents were

required to be taken under color of state law

before Seibert could invoke jurisdiction for

alleged conspiracies. The "state action"

requirement for Federal Court jurisdiction

under 42 U.S.C. § 1985 § 1986 is clearly erro-

neous and should be reversed by this Honorable

Court.

=46-

4. The District Court erred in refusing

to consider evidence of Defendants'

tax assessment procedures as detailed

in their official Internal Revenue

Manuals and sworn adfidavits of former

Agents on the issue of whether Defen-

dants should prevail on their qualified

dAmmunity defense.

The Federal Court of Appeals for the Eleventh

Circuit has so far sanctioned such a departure

by the District Court of the Northern District

of Alabama as call for an exercise of this

Court's power of supervision; specifically the

court's complete disregard of the disputes of

material facts and the evidence offered by

Seibert. The fuling of the District Court is

completely contrary to both the spirit and

the purpose of Rule 56(b)(c) of the Federal

Rules of Civil Procedure.

oA7-

The gravamen of Seibert's complaint has

been consistent: during the pertinent period

the Internal Revenue Service operated under an

illegal program that was intended to under-

mine the constitutional rights of certain class

of persons of which Seibert was believed to be

a member. In the case below Seibert was the

object of the unlawful program and has con-

sistently for the last ten years been attempting

to develop the necessary facts to support his

claims and to seek vindication of them.

Seibert alledges that he was maliciously

prosecured by means of a bad faith assessment

under a "program'* which was intended to seize

all assets and precluded review by withholding

the statutory review procedure (e.g. the inten-

tional withholding of the Notice of Deficiency).

The Internal Revenue Manual governing the

procedure in July of 1972 for the termination

assessment of Seibert's taxable year is cited

-4§-

at IRM 4585.2(1). (App. 0, 0-11)

The assessment made against Seibert was

more than twice the amount at which the Internal

Revenue Service valued his assets. Further,

the defendants refused to offer "other facts"

to explain their apparent disregard of the IR

Manual's standard for reasonableness, and

when interrogatories promulgated upon the re-

spondents' compliance therewith, they moved

for protective order.

In the affidavit of retired IRS Audit

Agent James Pertree he shows that even under

the standard for setting assessments in the

illegal program, Seibert's assessment was

unreasonable. The standard referred to by

Agent Petree was the practice of setting the

assessment equal to the amount of money or

other valuable property held by a person at

the time of arrest. This practice is discussed

in IR Manual Supplement, Termination of Taxable

-49-

Periods Under 6851, Section 2, Background

(App. 0, 0-1). See also App. O, o-3 and App.

0, o-10.

A majority of this information came

after the depositions were taken. When Seibert

attempted to challenge the general good faith

claim with requests for admissions and inter-

rogatories based on IR Manuals, the respondants

moved to block discovery via protective order.

As grounds they cited the court order of Aug.

4, 1981, of Absolute Immunity and Statute of

Limitations. The court below, with apparent

disregard for the problems Seibert had been

having with perfecting any discovery of infor-

mation about the IR Manuals and without requiring

defendants to show any specific objections under

Rule 33a of Fed. R. Civ. P., granted respon-

dants' discovery prohibition pursuant to Fed.

R. Civ. P., R. 26(1).

In Washington v. Cameron, 411 F.2d 705

-50-

(D.C. Cir. 1969) the court of appeals held

that the court below erred when it refused to

require superintendent of government hospital

to answer interrogatories because it prevented

plaintiff from formulating genuine issues of

material fact. Moreover, Harlow v. Fitzgerald,

102 S.Ct. 2727, @ 2737 n. 26, noted that sum-

mary judgment shall be rendered forthwith, if

the pleadings, depositions, answers to interro-

gatories, and admissions on file, together with

affidavits, if any, show that there is no gen-

uine issue of material facts and that the

moving party is entitled to a judgment as a

matter of law. However, the court considering

summary judgment is required to view the evi-

dence in the light most favorable to plaintiff,

or the party opposing the motion and where

motive and intent play leading roles, the proof

was largely in the hands of the alleged con-

spirators and hostile witnesses "the plot

‘Sk

thickens." Poller v. Columbia Broadcasting

System, 825 S.Ct. 486, 491, 368 U.S. 464, 473

(1962). So long as there were disputes, sum-

mary judgment was improperly granted. C.F.

Murrele v. Bennett, 615 F.2d 306 (Sth Cir. 1980),

Mackin v. Paulson, 627 F.2d 83 (7th Cir. 1980),

-Roesberg v. Johns-Manville Corp., 85 F.R.D.

292 (1980), and further tin Espanola Way Corp.

v. Meyerson, 690 F.2d 827 (11th Cir. 1982),

Circuit Judge Clark noted in reversing the

District Court:

"(f)inally, there is some question as

to whether summary judgment may be an

appropriate means of resolving a state

of mind issue... ."

However, even if the district court did

not abuse its descretion by barring discovery

as to inquiries about the specific "good faith"

Claimed by respondants, he erred by holding

there was no program to abuse seizure powers

of the IRS. Then for the District Court to

a$9.

grant summary judgment to the most culpable of

the respondants, then change the theory of the

action in the last minute, and prohibit proof

of the program which was the impetus for the

improper assessment and seizure of property,

is an abuse of judicial discretion. See

retired IRS Agent Thomas McWhorter's proferred

testimony @ TR 179-196.

The program's existence has caused the

respondants to be evasive and be defensive with

Seibert throughout the handling of his entire

case. The "program" provides the motive to

fabricate and conceal, as is exemplified in

the instand case, and in Hall v. United States,

704 F.2d 246 (6th Cir. 1983) which is a deci-

sion,at a minimum, based on an unintentional

misrepresentation.

The disputes of material issues are great.

«SS

The respondants could not have answered Seibert':

interrogatories in light of IR Manuals and still

have claimed "good faith"' defense. The affi-

davits of IRS Agents Pertree, Weathers and

McWhorter submitted by Seibert were so damaging

to the respondants' defense that the bar of

discovery was the only method to preserve even

qualified immunity defense.

It would be impossible to expect of any

plaintiff in a 42 U.S.C. § 1983 et seq. and/

or Bivens action to produce a greater suffi-

ciency of evidence than the intentional ignoring

of defendants' own procedure and agents of the

same agency attesting to the wrongful conduct

of the defendants themselves. While factual

in nature, Summary Judgment is a question of

law, it can not be legally fairly stated that

under the evidence, the respondants were as a mat

of law, entitled to Summary Judgment.

As stated above, there was such a departure

«$4

from established federal law that this Honorable

Court should intervene.

CONCLUSION

For the reasons set forth above, Seibert

submits that a writ of certiorari should be

issued to review the opinion of the court below

granting summary judgment and its affirmation

by the Court of Appeals for the Eleventh Circuit

on August 11, 1983.

November 9, 1983.

ns ’ STEPHEN SALTER

GROENENDYKE AND SALTER

2205S Morris Avenue

Birmingham, Alabama 35203

Tel. (205) 251-6666

Attorney for Petitioner

a-]

APPENDIX A.

[594 F.2d 423]

Judgment and Opinion of the Court of Appeals.

In the United States Court of Appeals, for the Fifth

Circuit.

Carl Michael SEIBERT, Plaintiff-Appellant, versus

D. T. BAPTIST, District Director of Internal Revenue

Service, et al., Defendant-Appellees. No. 78-3007,

Summary Calendar.*

United States Court of Appeals, Fifth Circuit.

(May 3, 1979).

Taxpayer sued internal revenue officials seeking

monetary damages based on alleged abuse of authority in

terminating plaintiffs taxable period and in failure to

follow prescribed procedure in making jeopardy assess-

ments of income tax deficiency, with complaint also

alleging that defendants unlawfully seized plaintiff's

property and denied him due process. The United States

District Court for the Northern District of Alabama, Sam

C. Pointer, Jr., J., dismissed, and plaintiff appealed. The

Court of Appeals, affirmed on basis of the district court’s

memorandum opinion holding that: (1) to extent that

complaint was read to assert a claim against United

States, it was barred by sovereign immunity; (2)

declaratory judgment statute is not an independent basis

of jurisdiction; (3) recovery could not be had under civil

rights acts since defendants were federal officials acting

under color of federal law, and (4) no right of action in

damages was to be implied directly under the Fourth and

Fifth Amendments.

Affirmed.

*Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New

York et al., 5 Cir., 1970. 431 F.2d 409, Part I.

a-2

Appeal from the United States District Court for the

Northern District of Alabama.

Before AINSWORTH, GODBOLD and VANCE,

Circuit Judges.

PER CURIAM:

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.

SEIBERT v. BAPTIST

APPENDIX

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

Northeastern Division

CARL MICHAEL SEIBERT

NO. CA77 P0951 NE

vs.

)

D. T. BAPTIST, )

DISTRICT DIRECTOR )

OF INTERNAL REVENUE, )

et al., )

)

Defendants.

MEMORANDUM OF OPINION BACKGROUND

What can only be characterized as an unusual set of

events has led to the defendants’ motion to dismiss the

plaintiffs 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 — of Civil

Procedure.

a-4

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! 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 LR.C. Section 6331.? By

this notice it was indicated that the car and its contents

126 U.S.C.A. § 6851, as it was in force in 1972, reads in applicable part as

follows:

lf the Secretary or his delegate finds that a taxpayer designs quickly to

depart from the United States or to remove his property therefrom, or

to conceal himself or his property therein, .. . the Secretary or hus dele

gate shall declare the taxable period for such taxpayer immediately

terminated, and shall cause nonce of such finding and declaration to be

given the taxpayer, together utha demand for immediate payrnent of

the tax for the taxable period so declored terminated =

226 USCA. § 6331 In applicabl> part, that section reads as follows

“W{ ony person hable to pay any tax neglects or refuses 10 pay the some

wathin 10 days alter nonce and demand, « shall be lawful for the

Secretary or his delegate to collect such tax by levy upon all

vefusal to pay such tax, collection (hereo! by levy shall be lawful wathout

reqard to the 10 day period provided in this section

a-5

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‘ was issued

to the plaintiff.s In response to the notice, plaintiff filed a

'Sedwrtv D T Baptist, CA No. 72:936.NE (N D.Ala.1972). The basis for

the dismussal was apparently 26 US.C.A. § 7421(a) which provides in

maternal part

| N}o sus for the purpose of restramung the assessment or collection

of an tax shall be mamtamed in any court by any person, whether or

not sia h person is the person against whom | the] tax wos assessed

See Frew hs Wihams Packing Co .370U S._1,82S.Ct. 1125, 8L Ed 2d 292

(1962)

26 USC A $6212 provides that a taxpayer be notified in the event any

defn wmv on taxes owed is declared against such taxpayer

SA stipulanon entered into between the plainti§and the Internal Revenue

Serva ¢ pursuant to plaintiff's request for a redetermination of his deficency

indicates that the deficency notice was mailed August 7, 1974. The exact

reason tor the lengthy delay between the onginal termination assessment

and neta e of dehoency 1s not clear

petition for redetermination of his tax deficiency,® 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.’ 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 aguinst

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 right which forms the basis of the present

,» controversy.

THE PENDING LITIGATION

On July 11, 1977, plaintiff proceeding pro se, filed a

complaint against the Distric: Director of the Internal

Revenue Service, four officals of the IRS, two Huntsville

Policemen, and a Madison County Circuit Judge.* The

"26 USCA § 6213a) allows » taxpuwer, wither 90 days alter notice of

deficiency, to file a petition with the Tax Court for a redetermmation of the

defmrency

"Seibert v. Commissioner of Internel Revenue. No 872474 (US TC

Jan. 17, 1977)

"Defendants Randall Duck and Gury Patterson, Huntsville Pobce Depart

ment officers, were dismissed os detendonts by an order of thes court dated

October 4, 1977. Defendant. Dow K Archer, a Madison County Corcut

Judge. was determined to be mulated from hubehty by juche wal immunity on

November 10, 1977 See Pierson » Rew. US 547.87 5.Ci 1213, 18

LE kel 2et 208 (107) enntell Laker! ter creed hes compet to state a ccgen

cable claim agamst Archer withen the W) days granted by the court's order

Thoves, the corahy recrrnsnnerng cheteorechornts core feve: collfee abs cof thee: lnnter eal Rewerue

Serve

a-7

complaint, without alleging any statuatory basis for re-

lief or grounds for jurisdiction of the court, sought

recovery of property seized by the IRS, or compensation

therefor. On defendent’s 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 grava-

men of plaintiff's amended claim is that defendent IRS of-

ficials 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° 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,

"in material pari, 26. U S.C.A. § 6861 reads as follows.

“Wf! the Secretary or his delegate believes that the assessment or

collection of a deficiency, as defined in section 6211. uall be peopardized

by delay, he shall notusthstanding the provisions of section 621 Ha).

immedchately assess such deficiency — and notice and demand shail be

made by the Secretary or hrs delegate for the payment thereof.”

or compensation for, all previously seized property,'® as

well as compensatory and punitive damages, costs, and

attorney’s fees.

JURISDICTION OF THE COURT

The district courts of the United States are courts, the

jurisdiction of which is “limited to those cases within Art.

Ill, Sec. 2 of the Constitution over which an Act of

Congress has given [them] jurisdiction.”' 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 thereiore requires close scrutiny.

CONSTRUCTION OF PLAINTIFF’S CLAIM AS

ONE AGAINST THE SOVEREIGN

Defendents have devoted a substantial portion of their

memorandum to the proposition that the plaintiff's claim,

"As previously indicated, the seized property included an automobile, a

guitar and a currency collection. /.ccording to defendants’ memorandum,

the car was released to plaintiff's father on a showing that he was its owner.

The guitar, defendants state, was also released to a third person, Ms.

Veronica Louise Potter, who demonstrated ownership of it. Plaintiff con-

tends, however, that Ms. Potter had given the guitar to him as a gift, so that

its release to her was improper. The final item seized was a sum of money

which plaintiff claims was a currency collection of sequentially.numbered,

uncirculated bills and silver certificates. Defendants’ memorandum, how-

ever, suggest that when the money was seized there was nothing indicated

by its appearance which distinguished i! as a collection, and further, that a hist

of the serial numbers of the bills made at the time of the seizure indicated that

none of them were sequentially numbered

"Johnson vu Stevenson, 170 F.2d 108 (5th Cir. 1948), cert. denied 336U S.

904,695 Ct 491,93 L Ed 1069

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.'? Defendants also point out

that while the Federal Tort Claims Act’? 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 rising

in respect of the assessment or collection of any tax... "4

"See. e g.. Affiliated Ute Citizens of Utah v.United States, 406 U.S. 128,

141,92 S.Ct. 1456, 31 L.Ed.2d 741 (1972); United States v. Sherwood, 312

U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); United States v. Alabama,

313 US. 274, 281, 61 S.Ct. 1011, 85 L.Ed. 1327 (1941).

“By 28 USC. § 1346(b), the district courts are gven “excluswe

junsdiction of civil action on claims against the United States, for money

damages, accruing on and after January 1, 1945, 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 within the

scope of his office or employment, under circumstances where the United

States, ¢ a prwate person, would be liable to the claimant in accordance

uth the law of the place where the act or omission occurred.” Substantive

provisions of the Tort Claims Act are found at 28 U.S.C. § 2671 ef seq.

“28 U S.C. § 2680(c). Other asserted justifications for the nonapphicability

of the FTCA include plaintiff's apparent failure to exhaust administrative

remedies as required by 28 U.S.C. § 2675(a), the 28 U.S.C. § 2680(a)

exclusion from the Aci of claims arising from the performance by a

government official of discretionary duties, and, finally, the exclusion under

28U S.C §2401(b) of all claims not raised within the period of the Act's two-

year statue of limitations.

a-10

[1] To the extent, then that the plaintiffs complaintis -

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 Su»reme Court held that in

suits for damages arising from unconstitutional action,

federal executive officiais are entitled only to the qualified

immunity set out in Scheuer uv. Rhodes.'5 This decision

suagests the possibility of a claim by the plaintiff against the

defendant officials in their individual capacities. The ques-

tion whether such individuz! liability may in fact be imposed

on the defendants requires consideration at this point.

8416 U.S. 232,94 S.Ct. 1683, 40 L Ed 2d 90 (1975). In Scheuer, the Court

dealt with the degree of immunity to be accorded state executive officals

from civil rights actions under 42 U.S C. § 1983. There the Supreme Court

held that such officials were entitled to a qualified immunity from damage

habihty for constitutional deprivations. The extent of this immunity was seen

to depend upon factors including the “scope of discretion and responsibilities

of the office.” the carcumstances as they reasonably appeared at the time of

the action on which hability is sought to be based,” and the “reasonable

grounds” and “good faith” bebel in hglt of such circumstances by the officials

that thew achons were appropriate. 416 U.S. at 247-48. 94 S Cr at 1692.

a-11

JURISDICTION OF THE DISTRICT COURT OVER

CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS

As noted previously, by the amended compiaint,

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'* requires close scrutiny.

[2] ~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

plaintiffs 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.'?7 Secondly, even if the

deciaratory judgment provisions authorized federal

jurisdiction independently of any other basis, 28 U.S.C. §

2201 by its terms specifically excludes the use of

"28 U.S.C. § 1331(a) provides as follows:

“The distnct courts shall have onginal jurisdiction of all civil actions

wherein the matter in controversy exceeds the sum or value of $10,000.

excluswe of interest and costs, and arises under the Constitution, laws.

or treaties of the United States.”

"See. e.g. Red Lobster Inns of America, Inc. vu New England Oyster

House. Inc, 524 F.2d 968, 969 (Sth Cir. 1975): Brown & Root, Inc. v. Big

Rock Corporation. 383 F.2d 662, 666 (Sth Cir. 1967).

a-12

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 law or by

those who conspire to deprive such rights. In addition to

42 U.S.C. §§ 1983 and 1985 plaintiff further alleges the

applicability of 42 U.S.C. § 1986, under which a person

may be held liable for damages if such person neglects to

attempt to prevent a conspiracy to deprive constitutional

rights as such conspiracy is defined in § 1985.

[3] A recent per curiam decision of the Fifth Circuit

Court of Appeals disposes of this asserted basis for

federal jurisdiction in a manner adverse to plaintiff's

contention. In Mack v. Alexander, 575 F.2d 488 (5th Cir.

1978), the plaintiff filed suit against certain officials of the

Internal Revenue Service based on the defendants’

alleged violations of constitutional rights stemming from

an IRS attempt to levy on a joint bank account held by

plaintiff and another party. Federal jurisdiction was

asserted under 28 U.S.C. § 1343 and 42 U.S.C. §§ 1983

and 1985. In upholding the district court’s dismissal of the

action, the Fifth Circuit spoke in language = to

the controversy sub judice:

“Section 1343 places original jurisdiction in the

district courts when there is a substantive claim for

violation of 42 U.S.C. §§ 1983 and 1985. However, we

agree with the district courts ruling that these statutes

a-13

provide a remedy for deprivation of rights under color

of state law and do not apply when the defendants

are acting under color of federal law.”

575 F.2d at 489 (citation omitted). In the present case,

similarly, plaintiff's only claims are that the defendants

abused their authority under the federal Internal Revenue

Code.

The final basis for jurisdiction asserted by the plaintiff,

and the one which is by far the most complex is the

general federal question jurisdiction of 28 U.S.C. § 1331.

This statute provides the jurisdictional basis for civil

actions which arise under the Constitution, laws, or

treaties of the United States. Since, as indicated

previously, there is no statutory authorization for damage

claims against IRS officials, a cause of action supportable

under § 1331 would have to be one which arises under the

Constitution of the United States. Plaintiff has made such

an “arising under” claim by virtue of his allegation that he

was denied the due process and equal protection

guaranteed to him by the fifth amendment to the

Constitution.'* Further, while the defendants’

memorandum denies that plaintiff has ever alleged any

fourth amendment violations (Memorandum in Support

of Motion to Dismiss at 14), the court concludes that the

plaintiff's complaint can be read to allege an unreasonable

seizure of his property. Whether or not such fourth and

“Unlike the fourteenth amendment, the filth amendment has no

independent equal protection clause. However, the Supreme Court has held

‘nat the fifth amendment’s due process clause “prohibits the Federal

Government from engaging in disc nmunation that is ‘so uryustifiable as to be

uiulotive of due process.” ” Schlesinger v. Ballard, 419 U.S. 498, 500 n.3, 95

S.Ct. $72, 42 L Ed 2d 610 (1975), quoting Bolling v. Sharpe, 347 U.S. 497,

499. 74 S.Ct. 693, 96 L_Ed. 884 (1954).

a-14

fifth amendments claims will support an action based on

28 U.S.C. § 1331 remains to be determined.

BIVENS, BUTZ, AND DAVIS V. PASSMAN

[4,5] As indicated previously, the Supreme Court’s

recent decision in Butz v. Economou'® determined that

federal executive officials are entitled only to a qualified

immunity from suits for damages arising from their

unconstitutional action. The Court was careful to point

out, however, that not all allegations of deprivations of

constitional rights can be made the basis for damage

claims. Rather, “{uJniess the complaint states a

compensable claim for relief under the Federal

Constitution, it should not survive a motion to

dismiss.”*° To this date, the only previously-recognized

“compensable claim for relief under the Federal

Constitution” has come from Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S.

388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In that case, the

Supreme Court held that a violation of the fourth

amendment by federal narcotics officials gave rise to a

cause of action for damages consequent upon the

unconstitutional conduct, and based on the general

federal question jurisdiction of the federal courts.

While presented with an opportunity to do so, the

Court in Butz v. Economou specifically refused to

consider which, if any, other personal interests are

protected by the Constitution.?' Resolution of plaintiff's

"— U.S. —, 98 S. Ct. 2894, 57 L.Ed. 2d 895 (1978).

id. at —, 98 S.Ct. at 2911 (emphasis added).

tid. at —, 98 S.Ct. 2894, n8.

a-15

constitutional claims in the pending litigation then,

depends upon Bivens itself, as well as on the Fifth

Circuit's en banc decision in Davis v. Passman, 571 F.2d

793 {5th Cir. 1978).

Davis v. Passman is an extremely important case from

the standpoint of the matter sub judice for two reasons.

First, based on an analysis of how the Supreme Court had

implied the fourth amendment cause of action in Bivens,

the Fifth Circuit determined that no corresponding

constitutional cause of action existed under the fifti:

amendment for an allegedly discriminatory dismissal of

the plaintiff by her employer, a former member of

Congress. Secondly, and again based on its analysis of

the Supreme Court’s Bivens decison, the Fifth Circuit

also suggested that not even all alleged violations of the

fourth amendment will support the cause of action which

Bivens implied. The consequences of this analysis in

Davis will be seen to be dispositive of the remaining

matters presented in the current litigation.

The Davis case tested the cause of action implied in

Bivens from two standpoints. The first approach

considered the action as implied not solely on

constitutional authority, but rather from the

constitutional protections of the fourth amendment,

buttressed by analogy to statutorily-implied causes of

action where Congress had created federal rights but had

provided no corresponding federal remedy. Since the

right to be secure from unreasonable searches and

seizures was viewed as one of the most fundamental of

federal rights, and since the exclusionary rule of Weeks v.

United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652

(1914). and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6

L.Ed.2d 1081 (1961) had proven to be a less than

a-16

satisfactory remedy, the damages cause of action was

viewed as necessary to effectuate the amendment. The

second approach, distinguished from that found to have

been used by the Supreme Court in Bivens, was

determined to be appropriate only in situations in which

the Constitution compels the existence of a damages

remedy to vindicate the rights asserted.

[6] Having found that the Bivens cause of action

evolved from both constitutional and statutory bases,

the Fifth Circuit tested the propriety of implication of a

fifth amendment cause of action under the principles of

Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26

(1975), “the Supreme Court's most comprehensive

treatment of implied statutory causes of action.””? In that

case, the Supreme Court had listed four factors to be

considered in the decision whether to imply a cause of

action from a statutory right: (1) whether the provision

asserted creates an especial right in the plaintiff; (2)

whether the action of Congress in the field indicates an

intent to allow such a remedy or at least an intent not to

deny the remedy; (3) whether implication of the remedy

would be consistent with the purpose of the right

asserted; and (4) whether the cause of action implied

would be one appropriate for federal law.?3

In light of these factors, the Fifth Circuit attached a

great deal of significance in Davis v. Passman to the fact

that congressional amendments of Title VII had

consistently avoided inclusion of the federal government

within the Civil Rights Act’s definition of the term

22571 F.2d at 796.

24d. at 797, citing Cort v. Ash, U.S at 78,95 5.Ct 2080

a-17

“employer.” Consequently, in Davis, the court

determined that no federal common law cause of action

was due to be implied under the fifth amendment for

alleged employment discrimination by a former Member

of Congress. Similarly, under the second prong of the

two-prong test for implying causes of action, the court of

appeals also held that a fifth amendment cause was not

constitutionally compelled. This determinination was

* ased on the realization that not all rights included within

* 2 yreadth of due process demanded federal protection

through a direct cause of action.

[7] While this discussion of Davis v. Passman has

been somewhat lengthy, the court believes that such

analysis is required since that decision is viewed as

dispositive of the remaining issues in the current

controversy. Fortunately, in applying Davis to the

present facts, the same considerations will be relevant to

the plaintitt’s asserted implied causes of action under

both the fourth and fifth amendments. For the reasons’

which appear below, the court has concluded that such

causes of action are not to be implied in the present

situation. Following the approach adopted in Davis, a

brief analysis of the current controversy in light of the

relevant factors from Cort vu. Ash, for implying causes of

action is required.

[8] The first factor to be considered is whether the

constitutional provisions asserted — here the fourth and

fifth amendments — create an especial right in the

plaintiff. The Fifth Circuit approach to this “especial

right” requires that the injury inflicted on the plaintiff must

directly infringe upon a constitutional guarantee. As

pointed out in Davis, however, due procese encompasses

virtually all civil liberties embodied by the Constitution.

a-18

As such, an allegation of the denial of due process does

not appear to satisfy the requirement of direct infringe-

ment of a constitutional right. Similarly, while in Bivens

infringement of the plaintiff's fourth amendment rights

was clear and direct, in fhe present case, it appears that

appropriate notice of termination and notice of seizure

were given to the plaintiff at the time his property was

taken. This being the case, the seizure was not so unrea-

sonable as that involved in Bivens.

The second factor required to be considered toward

the implication of causes of action is whether congressio-

nal activity in the field indicates an intent to allow sucha

remedy, or at least not to deny the remedy. It is with this

factor that the strongest reasons for not implying a cause

of action under either the fourth or fifth amendments in

the present case are found; for here, congressional

indications that no such remedy is to be allowed are

clearly evident. First, the Federal Tort Claims Act

specifically excludes claim against the United States if

they relate to the assessment or collection of taxes.*4

Second, as further indication of congressional intent that

the assessment and collection of federal taxes are to be

free from judicial intervention, section 7421(a) of the

Internal Revenue Code?’ prohibits any suit to restrain the

assessment or collection of taxes. Finally, the fact that al-

ternative measures for the collecting of tax assessments

"2B USC. § 2080)

™26 USCA § 7421(a)

a19

are provided,”* is indicative of further congressional

intent that individual liability for Internal Revenue officials

is not to be implied.

The third factor required to be considered in

determining whether to imply a federal common

law cause of action is whether implication of such

a remedy would be consistent with the purpose of

the constitutional right asserted. As noted in Davis

the breadth of the fifth amendment due process

clause indicates that implication of a damage remedy

irom its provisions would be judicially unmanageable.?’

Further, while the breadth of the fourth amendment

is more limited, the extensive statutory regulation

of Internal Revenue matters (regulation which was

not existent to the same degree over narcotics

officials in Bivens) suggests that implication of a

private cause of action would be inconsistent with

the statutory scheme enacted by Congress.

[9] The final factor to be considered under Cort v.

Ash is whether the implied action would be one

appropriate for federal law. With regard to the fifth

amendment claim, implication of a cause of action in the

current case would present the same problems as those

recognized by the Fifth Circuit in Davis. As Judge Clark

pointed out in that decision, “Because of the breadth of

due process, a decision implying as action for money

26 US.C A § 62132) allows a taxpayer, within 90 days after notice of

defcsency, to file a petition with the Tax Court for a redetermination of the

defcrency Further, 28 U S.C § 1346(aX1) grants jurisdiction to the district

courts for actions against the United States for the recovery of any tax

allegedly erroneously or illegally assessed or cotlected

"$71 F 2d at 799

a-20

damages from the fifth amendment Due Process Clause

alone would extend an action for damages to any

constitutional guarantee.” Similarly, although the same

problems of breadth of the constitutional provision are

not present with the fourth amendment claims, significant

difficulties are still encountered. While the matter of

abuse of IRS authority is obviously not a matter

“traditionally relegated to state law,’”* the fact that

extensive, specific congressional regulation of federal

taxation already exists indicates that neither is the

matter one appropriate for implied federal law. Rather, it

is a matter which can best be managed by further

congressional refinements as these are deemed

necessary.

The final consideration with regard to whether a

constitutional cause of action is to be implied in this case

is whether, notwithstanding congressional action or

inaction, a damage action is indispensible to the

effectuation of the constitutional rights asserted. Here

again, the court concludes that such an action is not

constitutionally compelled. In the face of assertions of

protected fourth and fifth amendments claims, it is not to

be forgotten that the power of Congress “to lay and

collect taxes” is also constitutionally-mandated.”

Pursuant to this authority, Congress has enacted one of

this nation’s most comprehensive legislative schemes.

Adequate provision is made a part of this scheme for

safeguarding of due process and equal protection, and for

id at 799.800.

™Cort v. Ash, supra. 422 US at 78.95 SC: 2080

"US. Const. amend XVI

a-21

assurances against unreasonable seizures. The court

therefore concludes, that under the facts as here

presented, the plaintiff is entitled to no more.

Accordingly, it appears that the plaintiff has not

asserted a claim “aris[{ing] under the Constitution, laws,

or treaties of the United States.” Therefore, this court

has no jurisdiction to entertain the merits of the litigation.

Absent jurisdiction over the subject matter of plaintiff's

complaint, the action must be dismissed. Judgment to

this effect shall be entered by separate order.

Done this the 11th day of August, 1978.

(s) Sam C. Pointer, Jr.

United States District Judge

Sam C. Pointer, Jr.

b-1

APPENDIX B

(599 F.2d (1979))

Carl Michael SEIBERT, Plaintiff-Appellant,

versus D.T. BAPTIST, District Director of Inter-

nal Revenue Service, et al., Defendant-Appellees.

No. 78-3007.

United States Court of Appeals, Fifth

Circuit. July 30, 1979.

Rehearing Denied Sept. 21, 1979.

Appeal from United States District Court,

Northern District of Alabama; Sam C. Pointer,

Jr., Judge.

Carl Michael Seibert, pro se.

M. Carr Ferguson, Asst. Atty. Gen., Gil-

bert E. Andrews, Act. Chief, Gary R. Allen,

Atty., Tax Division, U.S. Dept. of Justice,

Washington, D.C., for defendants-appellees.

ON PETITION FOR REHEARING

(Opinion May 3, 1979, 5 Cir., 1979,

$94 F.2d 423)

Before AINSWORTH, GODBOLD and VANCE, Cir-

cuit Judges.

b-2

PER CURIAM:

On May 3, 1979, we affirmed Seibert v.

Baptist on the basis of the United States

District Judge's Memorandum of Opinoin. Rely-

ing on our en banc decision, Davis v. Passman,

571 F.2d 793 (Sth Cir. 1978), the lower court

refused to recognize an implied private cause

of action for damages under the due process

clause of the fifth amendment. In Davis v.

Passman, _—Ss U.S. _s_«, «99 S.Ct. 2264, 60 L.Ed.

2d 846 (1979), a ruling announced on June 5S,

1979, however, the United States Supreme Court

reversed our en banc decision and found that

_ @ Cause of action as well as a damage remedy

could be implied under the due process clause

of the fifth amendment. We therefore reverse

and remand to the district court.

c-l

APPENDIX C

(446 U.S. 918, 64 L.Ed.2d 271, 48 L.W. 3651)

Carl Michael SEIBERT, petitioner, v. D.T.

BAPTIST, District Director of Internal Revenue

Service, et al. No. 79-1309.

Rehearing Denied June 16, 1980.

See 447 U.S. 930, 100 S.Ct. 3030.

Facts and opinion, 594 F.2d 423; 599 F.2d

743.

Petition for writ of certiorari to the

United States Court of Appeals for the@ifth

Circuit.

April 28, 1980.

d-1

APPENDIX D

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

CARL MICHAEL SEIBERT, )

)

Plaintiff, )

ji CIVIL ACTION NO.:

7. ) CV 77-PT-0951-NE

)

D.T. BAPTIST, et al.,

Defendants. )

ORDER

In accordance with a contemporaneously

entered memorandum opinion, it is ORDERED that:

1, Plaintiff's motion to add party is

DENIED.

2. Plaintiff's motion for leave to file

amendment to complaint is DENIED. Plaintiff

is granted leave to file an amendment as pro-

vided in the memorandum opinion entered con-

temporaneously herewith.

3. Plaintiff's motion for summary

judgment is DENIED.

DONE and ORDERED this 4th day of August,

1981.

(s) ROBERT B. PROPST

UNITED STATED DISTRICT JUDGE

ROBERT B. PROPST

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

CARL MICHAEL SEIBERT, )

Plaintiff,

CIVIL ACTION NO.:

v. CV 77-PT-0951-NE

D.T. BAPTIST, et al.,

Nee Se Se ee Oe Oe er

Defendants.

MEMORANDUM OPINION

This cause comes on to be heard on plain-

tiff's Motion to Add Party, plaintiff's Motion

for Leave to File Amendment to Complaint, and

plaintiff's Motion for Summary Judgment. De-

fendants, in response to plaintiff's Motion ‘

for Summary Judgment, have attempted to renew

a Motion for Summary Judgment which the court

overruled October 20, 1980. The court notes

that there has been no pleading to that effect.

The court is of the opinion that defendants

cannot renew their Motion for Summary Judgment

in a responsive brief, and has concluded that

the matter is not properly before the court.

At the outset the court is of the opinion

that a recitation of the history of this cause

is needed to place the case in a proper per-

spective. Plaintiff filed a pro se complaint

against the District Director of the Internal

Revenue Service, four officials of the IRS,

two Huntsville Policemen, and a Madison County

Circuit Judge. The facts surrounding this

Cause are set out in Judge Pointer's Memorandum

of Opinion dated August 11, 1978. Judge Pointer,

in an exhaustive review of plaintiff's complaint,

‘granted the defendants' motion to dismiss, which

Judge Pointer had treated as a motion for sum-

mary judgment under Rule 56, Fed. R. Civ. P.

Judge Pointer's final conclusion was that the

court lacked jurisdiction to entertain the

merits of the litigation, and that the action

must, therefore be dismissed.

Judge Pointer divided his analysis of

jurisdiction into asserted statutory and con-

stitutional grounds. He concluded that the

asserted statutory bases of jurisdiction were

without merit, with little accompanying dis-

cussion. With a great deal more discussion

Judge Pointer likewise concluded that the

asserted constitutional bases of jurisdiction,

the fourth amendment and the fifth amendme::::

claim, that the seizure in this case was not

so unreasonable as the seizure involved in

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971) and,

thus, the injury inflicted on the plaintiff

did not directly infringe upon any fourth

amendment guarantee, that congressional acti-

vity. in the field indicated an intent to deny

any remedy against Internal Revenue Service

officials for their actions to collect taxes,

that the extensive statutory regulation of

Internal Revenue matters suggested than an

implication of a private cause of action would

be inconsistent with the statutory scheme en-

acted by Congress, and that an implied cause

of action based upon the fourth amendment in

this case would be inappropriate in view of

the fact that extensive, specific congressional

regulation of federal taxation already exists.

Judge Pointer held, as to the fifth amend-

ment claim, that an allegation of the denial

of due process did not appear to satisfy the

requirement of direct infringement of a con-

stitutional right, that, again, the congres-

sional activity in the field indicated an

intent to deny any remedy against IRS officials

for their actions in assessing and collecting

taxes, that implication of a damage remedy

from the provisions of the fifth anendnent due

process clause would be judicially unmanageable,

and that implication of a cause of action based

upon the fifth amendment in the current case

would extend an action for damages to any con-

stitutional guarantee.

From Judge Pointer's decision, plaintiff

appealed. The Fifth Circuit affirmed, per

curiam, on the basis of Judge Pointer's memo-

randum opinion, and appended a copy of that

opinion to its decision. Seibert v. Baptist,

594 F.2d 423 (Sth Cir. 1979).

The gist of Judge Pointer's decision, as

this court reads it, was to hold that, while

the Supreme Court had recognized that a person

might have a cause of action based upon the

fourth amendment (Bivens, Supra), the same

factors which led the Supreme Court in Bivens

to hold that a cause of action might be based

directly upon the fourth amendment were not

present in this case; and, thus, plaintiff

could not assert a cause of action based dir-

ectly upon the fourth amendment. Further,

Judge Pointer held, in essence, that the

Supreme Court had not, to that date, held

that an implied cause of action might be

based directly upon the Fifth amendment,

that the Fifth Circuit had extensively ad-

dressed the question in Davis v. Passman,

571 F.2d 793 (Sth Cir. 1978), and had ans-

wered in the negative, and that, for simi-

lar reasons the Fifth Circuit had held in

Passman that an implied cause of action

could not be based directly upon the fifth

amendment, the plaintiff in the current case

could not base an implied cause of action

directly upon the fifth amendment.

On June 5S, 1979, the Supreme Court re-

versed the Fifth Circuit's en banc decision

in Passman (Davis v. Passman, 442 U.S. 228

(1979)) and held that an implied cause of

action could be directly based upon the fifth

amendment. Thus, on Petition for Rehearing

d-9

in Seibert v. Baptist, the Fifth Circuit re-

versed and remanded to the district court.

The case was then reassigned from Judge

Pointer to this judge. Plaintiff had, by that

time, engaged legal counsel, who filed an

Amended and Redrafted Complaint, naming five

officers of the IRS and Steven M. Beshears,

who is alleged to have been a paid informer

of the Huntsville Police Department. In his

Amended and Redrafted Complaint, plaintiff

alleged everything he had alleged in his

original complaints before Judge Pointer,

resurrecting claims previously found insuffi-

cient by Judge Pointer in his August 11, 1978

memorandum opinion, and asserting the addi-

tional claim against Steven Beshears. Plain-

tiff subsequently filed a motion to dismiss

one of the IRS officials, which the court

granted. What remained, then, was a blanket

d-10

complaint against four IRS officials and

Steven Beshears.

At about the same time plaintiff had en-

gaged legal counsel, new Justice Department

counsel entered the case, and moved for sum-

mary judgment on the basis of absolute immu-

nity. That motion was denied by the court

October 20, 1980. As can be readily seen,

with the exception of the parties, new players

had entered the drama subsequent to the Fifth

Circuit's remand: a new judge, new counsel

for plaintiff, and new counsel for the federal

defendants.

To further complicate matters, plaintiff

and his newly engaged counsel had irreconcil-

able differences of opinion as to methods of

proceeding in the prosecution of plaintiff's

case. Counsel's Motion to Allow Withdrawal

of Counsel was granted after no objection was

received from plaintiff within 10 days after

d-11

said motion was filed. Plaintiff is, thus,

once again, pro se.

The court has recited the history of

this case to place the case in proper perspec-

tive. The court is of the opinion that this

cause is to proceed, if at all, only on plain-

tiff's claimed implied cause of action based

directly upon the fifth amendment. While the

Fifth Circuit on rehearing reversed and re-

manded the cause to this court, Judge Pointer's

analysis of plaintiff's claims, other than his

analysis of the implied cause of action based

upon the fifth amendment, is accurate. Plain-

tiff's claims, other than his claim based dir-

ectly upon the fifth amendment, cannot be

maintained.

Thus, the case is in this posture: plain-

tiff claims that the federal officials, acting

in their individual capacities, denied plain-

tiff due process of law; jurisdiction is based

d-12

on 28 U.S.C. 8 1331 and the fifth amendment.

The record indicates that Steven Beshears has

never been served a complaint. All other

claims are insufficient.

The court will now address the pending

motions.

MOTION TO ADD PARTY

The motion purports to add Larry R. Hyatt,

who was, at the time of the acts made the basis

of plaintiff's fifth amendment claim, Group

Manager of Special Agents for Huntsville and

Birmingham, under Rule 21, Fed. R. Civ. P.

Since the applicable statute of limitations

has run, however, the same factors in deter-

mining whether an amendment to a complaint

will be allowed to "relate back" to a timely

original or amended complaint must be deter-

mined by the court in the motion under consid-

eration. See generally 7 C. Wright & A. Miller,

stated as follows:

d-13

(1) 'the claim or defense asserted

in the amended pleading arose out

of the conduct, transaction, or

occurence set forth or attempted

to be set forth in the original

pleading'; (2) 'the party to be

brought in by amendment .. . has

received such notice of the insti-

tution of the action that he will

not be prejudiced in maintaining

his defense on the merits'; and

(3) 'the party to be brought in

by amendment .. . knew or should

have known that, but for a mis-

take concerning the identity of

the proper ooo £ the action would

have been brought against him.'

. And the defendant received no-

tice of the action ‘within the pe-

riod provided by law for commencing

the action against him.'

Kink v. Cronvich, 629 F.2d 404, 407 (Sth Cir.

1980).

At the outset, the court emphasizes that

because of the lengthy and somewhat muddled

history of this case, and because this case

has already been on appeal once, the court

has analyzed plaintiff's claim and plaintiff's

motion in the most liberal posture. The court

has construed any doubts in plaintiff's favor.

d-14

The first factor is arguably met. Even

though no new claims are asserted, it is ob-

vious from reading the depositions filed that

Hyatt's involvement was different than the in-

volvement of defendants already named. Never-

theless, the motion, as drafted, simply seeks

to add Hyatt. The second factor is met by

virtue of the identity of interest between

Hyatt and the other parties already named as

defendants in the suit. Kirk, supra, at 408

n.4. Hyatt made a recommendation, or concurred

in a recommendation, that plaintiff's tax year

be terminated. Thus, Hyatt was so closely re-

lated in his business operations or other ac-

tivities with the other parties that the insti-

tution of the action against one served to pro-

vide notice of the litigation to Hyatt under

the idea of interest theory. Moreover, some

defendants named in the original complaint,

"were under the supervision of Hyatt, much like

d-15

the defendants originally named in Kirk were

under the supervision of the Sheriff sought to

be added as a party. Thus, the court will

make the same assumption that the Fifth Circuit

made in Kinrk, namely that the special agents

previously named brought the matter to the

attention of Hyatt, who was in charge of the

department.

While Hyatt claims he would be prejudiced

by being added at this late date, the court

notes that Hyatt is represented by the same

counsel that represents the other defendants,

again a similar factor the Fifth Circuit noted

in Kink. When Hyatt's agents and their attor-

ney learned of the suit against them, "they

should have taken steps to investigate the

Claim, including collecting and preserving

evidence against any forseeable eventuality.

Therefore, Hyatt cannot claim that he has been

prejudiced through the loss of evidence of by

undue surprise." Kirk, supra, at 408.

d-16

Notwithstanding that two of the factors

for relation back are arguably met in the case

4ub judice, the other two factors which were

met in Kirk are not met in the case sub judice.

First there is absolutely nothing to indicate

that Hyatt "knew or should have known that,

but for a mistake concerning the identity of

the proper party, the action would have been

brought against him."' This case is unlike the

situation presented in Kink. There, the party

sought to be added was, at all relevant times,

the Sheriff of Jefferson Parish. It was undis-

puted that the sheriff was the person to be

served with the conplaint and summons. Counsel

conceded that the sheriff and not the sheriff's

office was the proper party. The sheriff,

therefore, knew or should have known that he

was the party who should have been sued. In

the case sub judice, there are no comparable

facts to those present in Kixzk.

d-17

Neither plaintiff's pro 4e complaint, nor

the amended. and redrafted complaint filed by

plaintiff's counsel upon his entry into the

case contains any allegation describing Hyatt's

position or sufficiently placing Hyatt on

notice that plaintitf intended to sue Hyatt.

The court would simply have to read plaintiff's

pro se complaint with far greater reach than

even pro 4e complaints are entitled to reach

the conclusion that Hyatt knew or should have

known that, but for a mistake of his identity,

he is the party who should have been sued.

On the contrary, the complaint in this

case shows that the agents working under Hyatt

and Hyatt's supervisors were named as defen-

dants. Logic compels the conclusion that Hyatt’:

identify would be as easily discovered as those

defendants actually named. There is nothing

in the record to indicate that Hyatt actively

sought to secrete himself or his identity from

d-18

plaintiff's knowledge. In fact, Hyatt's depo-

sition testimony affirmatively shows that the

first he knew about the case was in December,

1980. Instead of knowing that he should have

been sued, or would have been sued had plain-

tiff not been mistaken as to his identity,

Hyatt could well have concluded that plaintiff

had made a conscious decision not to bring the

action against him. There was no mistake as

to Hyatt's identity. There may have been an

oversight, or inadvertance, or a lack of dili-

gence in investigating plaintiff's claim, but

the court finds that such is not excusable.

The mistaken identity factor being absent would,

of itself, require that plaintiff's motion be

denied.

Second, the complaint against the IRS

agents was not filed within one year of accrual

of the claim which at the latest accrued against

Hyatt July 10, 1973, one year after Hyatt either

d-19

recommended or concurred in a recommendation

to terminate plaintiff's taxable year. The

depositions show that the recommendation was

the only contact Hyatt had with plaintiff's

tax problems. The complaint was not filed in

this case until July 11, 1977, and the earliest

service date on any one of the federal offi-

cials was July 20, 1977. Thus, there is no

way Hyatt received notice of the action within

the period provided by law for commencing the

action against. him. Kirk, Supra, at 407.

In view of the fact that the factors for

relation back are not present, plaintiff's

Motion to Add Party is due to be denied.

MOTION FOR LEAVE TO FILE AMENDMENT TO COMPLAINT

Plaintiff seeks to amend his complaint :o

allege a cause of action against defendant

Baptist under 5 U.S.C. § 552(a)(4)(A)(B) for

aiding, sanctioning, ordering or otherwise

d-20

directing the wilful secretion or destruction

of information. The information allegedly so

secreted or destroyed was Seibert's file,

apparently the file maintained in the district

office.

Even a cursory reading of the statute

indicates that it provides no cause of action

in damages against one who fails to disclose

information. Rather the statutory scheme of

the Freedom of Information Act is to provide

a procedure for individuals to obtain infor-

mation from government agencies.

When an individual feels that information

has been wrongfully withheld, the statute

grants a federal district court, upon complaint,

jurisdiction to enjoin the subject agency from

withholding the records sought and to order

the production of any records improperly with-

held from the complainant. 5 u.s.c. § $52(a)

(4) (b) (1976). It does not provide for a direct

d-21

cause of action by the complainant for damages.

Thus, plaintiff's motion, to the extent it

seeks to amend this complaint to include a

cause of action against defendant Baptist for

wilfully secreting information is due to be

dismissed. The court will, however, grant

plaintiff leave to file a proposed amendment

for proper relief provided by the Freedom of

Information Act. The court will hold plain-

tiff's motion in abeyance until plaintiff files

a proposed amendment.

MOTION FOR SUMMARY JUDGMENT

Plaintiff contends that defendants' actions

have deprived him of due process as a matter of

law and that he is, therefore, entitled to

judgment as a matter of law under Rule 56,

Fed. R. Civ. P. In response to plaintiff's

motion, defendants have filed a brief asserting

that they are entitled to summary judgment on

d-22

the basis of immunity and the statute of limi-

tations. As the court has previously noted,

defendants have not filed a second motion for

summary judgment, nor have they filed a motion

to renew their initial motion for summary

judgment. The court is thus, of the opinion

that there are not cross motions for summary

judgment.

While there is authority that summary

judgment may be rendered in favor of the

opposing party even though he has made no for-

mal cross-motion under Rule 56, Bank of

Lexington v. Jack Adams Aircraft Sakes, 416

F. Supp. 17, 19 (N.D. Miss. 1976), 10 C.

Wright §& A. Miller, Federal Paactice and

Procedure 8 2720, op.7 467-471 (1972), the

court is reluctant to grant summary judgment,

if warranted, to defendants absent a formal

motion, especially when the issue of the

statute of limitations has not been addressed

d-23

in any previous proceeding. Judge Pointer

never addressed that issue; and it has not

been addressed by this judge. Defendants

relied solely on absolute immunity in the motion

for summary judgment filed in September, 1980.

Nevertheless, even though defendants

have not filed a formal cross-motion for

summary judgment, the court is of the opinion

that the immunity vel non of defendants and

the statute of limitations are proper issues

for consideration, if not determination, in

determining whether plaintiff is entitled to

judgment as a matter of law.

The court is, quite frankly, surprised

that this case could=be pending at this point

in time without a resolution of the statute

of limitations issue; and the court is of the

opinion that the issue may well be determina-

tive of the case. Plaintiff's complaint is

essentially that the defendants abused their

d-24

authority in terminating plaintiff's taxable

period and that they did not follow the pre-

scribed procedure to make jeopardy assess-

ments of income tax deficiency; by doing so,

the federal defendants are alleged to have

violated plaintiff's right to due process.

These acts occurred between July, 1972

and August, 1974. The question then arises

as to what statute of limitations is appli-

cable. Obviously, there is no statute of

limitations provided by federal common law.

The court must, therefore, look to state law

to determine the most analagous statute of

limitations. The court is of the opinion

that Alabama's one-year statute of limita-

tions, Ala. Code § 6-2-39(5), "Actions for

any injury to the person or rights of another

not arising from contract and not specifically

enumerated in this section; ... ," is the

appropriate statute of limitations.

d-25

Plaintiff makes two contentions. The

first is that these federal defendants were

involved in a conspiracy to deprive plaintiff

of his due process rights and that the con-

spiracy did not end until January 17, 1977

when the United States Tax Court entered an

order in plaintiff's favor. The deposition

of defendant Baptist, however, indicates

that any involvement by his office (and all

these defendants worked under Baptist) ended

in August, 1974 upon issuance of a notice of

deficiency. From that point forward, the case

was handled entirely by the Internal Revenue's

District Counsel, whose duties included trial

work in the Tax Court. There is no allega-

tion of a conspiracy existing between Baptist

and his employees and the IRS's District Counsel

Thus, any conspiracy between the federal defen-

dants named terminated on August 7, 1974. If

the one-year statute of limitations is applicabl

d-26

it is clear that the suit, being filed on July

11, 1977, was filed after the statute had run.

Plaintiff's second contention is that the

10-year statute of limitations, Ala. Code S

6-2-33(3), "Motions and other actions against

sheriffs, coroners, constables and other public

officers for nonfeasance, misfeasance or mal-

feasance in office," is the applicable statute

of limitations. Plaintiff cites no cases

showing that the 10-year statute would be

applicable to federal Internal Revenue Service

officers. The court has found no cases which

would lead to that conclusion, even by analogy.

The court is the opinion that the 10-year stat-

ute of limitations is applicable in cases where

the public official is charged with conversion

or misappropriation of funds entrusted to hin,

not where the public official is charged with

violating a person's constitutional rights.

The Fifth Circuit has specifically held that

d-27

in the analagous 42 U.S.C. § 1983 situation

the Alabama one-year statute of limitations

is applicable. Dumas v. Town of Mount Vernon,

°612 F.2d 974 (Sth Cir. 1980). Thus, it appears

that, upon appropriate motion, this cause may

be due to be dismissed based upon the statute

of limitations.

Turning now to the immunity vel non of

the federal defendants, the court is now of

the opinion that defendants Baptist and Magill

may be absolutely immune from liability for

their actions. Their depositions indicate

that they were "responsible for the decision

to initiate or continue a proceeding subject

to agency adjudication." Batz v. Economou,

438 U.S. 478, 516 (1978); Stankevitz v. IRS,

et al., No. 79-4214 (9th Cir. Jan. 12, 1981);

Dedman v. Vowell, No. J-C-80-103 (E.D. Ark.

Jan. 19, 1981). Baptist was District Director

of the IRS. Magill was Baptist's first

d-28

assistant and was Acting Director when Baptist

was out of the office. The depositions on

file indicate that when the District Director

or the Acting District Director decide to

issue a jeopardy assessment or a notice of

deficiency, he did so exercising his indepen-

dent judgment on whether such action was war-

‘ranted. The decision to issue the jeopardy

assessment and the notice of deficiency in

this case were clearly within the decision-

making process of defendants Baptist and

Magill, and were, therefore, akin to the pro-

secutorial decisionmaking process recognized

absolutely immune in ImbLer v. Pachtman, 424

U.S. 409 (1976), and analogized to Agricul-

ture Department officials in Butz v. Economou,

Supra.

As to the other two federal officials

named as defendants, Lee Willingham is al-

leged to have wrongfully seized plaintiff's

d-29

property, and Frank McCammon is alleged to

have violated plaintiff's right to equal pro-

tection by refusing to investigate Steven

Beshears. It would appear that the only claim

alleged against Willingham, the wrongful sei-

zure of property, was laid to rest by Judge

Pointer's previous decision holding that

plaintiff had no implied cause of action on

the fourth amendment because plaintiff had not

alleged conduct similar to that present in

Bivens. The court again points out that-the

Fifth Circuit did not withdraw its initial

affirmance in Seibert v. Baptist; it is the

court's opinion that the only effect of the

Fifth Circuit's order-on rehearing was to

reverse and remand as to the fifth amendment

claim. In any event, on proper motion, it

appears that the claim against Willingham may

be due to be dismissed.

The court has carefully considered the

d-30

Claim alleged against defendant McCammon to

determine whether a cognizable cause of action

is stated. McCammon's affidavit and deposition

indicate that McCammon has had very minimal

contact with plaintiff. Plaintiff attempted

to present information concerning Steven

Beshears to McCammon. McCammon states that

plaintiff presented no documentary evidence

to support his allegations against Beshears,

that the information plaintiff presented which

was tax related was recorded, and that an in-

vestigation, in McCammon's opinion, was not

warranted. The one meeting between plaintiff .

and McCammon is McCammon's only contact with

the case. For refusing t6 investigate Steven

Beshears, McCammon is alleged to have in some

manner violated plaintiff's constitutional

Tight to equal protection. The allegations

simply fail to state a claim against McCammon.

On proper motion, it would appear that the

- eee

- - et

~ < ’ es Se oe 7 +

d-31

claim against McCammon is due to be dismissed.

As can be readily ascertained from the

foregoing analysis, plaintiff is not entitled

to judgment as a matter of law. There are

serious questions as to whether plaintiff is

even entitled to proceed with his claims. The

court is of the opinion that a combination of

events have thrown this cause into a morass.

Even though the case has been pending for

more than four years, very few substantive

issues have been addressed. As the court has

noted, the statute of limitations issue has

yet to be addressed. The immunity issue was

addressed in October, 1980, but the court has

indicated that it may~have well reached the

wrong conclusion at that time. And finally,

all though the Fifth Circuit reversed and

remanded on the fifth amendment claims, it did

not hold that plaintiff had asserted a cause

of action against every defendant. Even

d-32

though plaintiff's former legal counsel filed

am amended and redrafted complaint, defendants

have not tested the sufficiency of plaintiff's

claims based upon the fifth amendment.

An order denying plaintiff's Motion to

Add Party and Motion for Summary Judgment and

directing plaintiff to file a proposed amend-

Ment based upon theFreedom of Information Act

will be contemporaneously entered with this

Memorandum Opinion.

DONE this 4th day of August, 1981.

(s) ROBERT B. PROPST

UNITED STATES DISTRICT JUDGE

ROBERT B. PROPST

CERTIFICATE OF SERVICE

It is hereby certified that 3 copies of

the foregoing Petition for Writ of Certiorari

were with date deposited with the United States

Postal Service, postage first class prepaid,

and properly addressed to the Honorable Rex

Lee, Solicitor General, 10th Street and Pennsyl-

vania Avenue, N.W., Room $614, Department of

Justice, Washington D.C. 20530. This the 9th

day of November, 1983.

HON. J. STEPHEN SALTER

GROENENDYKE AND SALTER

2205S Morris Avenue

Birmingham, Alabama 35203

Tel. (205) 251-6666

Attorney for Petitioner

(THIS PAGE INTENTIONALLY LEFT BLANK)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.