# Petition — Siebert v. Baptist > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0599%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1099 ## 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 ii 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 iv 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 v 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)... vi Constitutional Provisions: ne Oe Wells GABE. cciccccccccetecs Sn URS Wes CONDE. cccccccscccces Amend. VIII, U.S. CONST. .... Statutes: 26 26 26 26 26 28 28 28 28 42 42 42 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 — Ww -_ Ww ae ee ees at, 42, 38, 36, 36, 45, 44, 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). ix 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@ 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 a6 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.” a8 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 a9 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 + a? - 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) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0599%3A1. Public record. Not legal advice.