The other portions of the complaints can be disposed of more briefly. The constitutionality of the negligence penalty of Code § 6653(a) has been upheld previously against similar challenges. See Helvering v. Mitchell, 303 U.S. 391, 402-04, 82 L. Ed. 917, 58 S. Ct. 630 (1938). Moreover, it appears that Brunwasser was not assessed under that section and therefore lacks standing to challenge its constitutionality.
The constitutionality of the distraint provisions of Code § 6331, as applied where, as here, no irreparable harm to the taxpayer results, has also been upheld. See Comm'r Internal Revenue v. Shapiro, supra, at 630-32 & 630 n.12.
Although the complaints in these cases were filed before statutory three-judge courts were abolished on August 12, 1976 (28 U.S.C. § 2281), where no substantial constitutional question exists, as is the case here, convening a three-judge court is inappropriate. Goosby v. Osser, 409 U.S. 512, 518, 35 L. Ed. 2d 36, 93 S. Ct. 854 (1973); California Water Service Co. v. City of Redding, 304 U.S. 252, 254-55, 82 L. Ed. 1323, 58 S. Ct. 865 (1938) (per curiam). We therefore conclude it is unnecessary for either a three-judge court or this court to consider the constitutionality of Code §§ 6653(a) and 6331.
Brunwasser's requests for information pursuant to the Freedom of Information Act, 5 U.S.C. § 552, fail to "reasonably describe such records" as required by subsection (a)(3) thereof. Accordingly, the portions of the complaint seeking such relief will be dismissed, pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim upon which relief can be granted.
Whatever the merits of Brunwasser's claim as to the audits of his tax liability for years 1972 and 1973, the Anti-Injunction Act deprives the court of jurisdiction to enjoin those audits, because Brunwasser fails to meet the two-pronged test of Enochs v. Williams & Navigation Packing Co., supra. United States v. Fensterwald, 180 U.S. App. D.C. 86, 553 F.2d 231 (1977), cited by Brunwasser in support of his motion to permit discovery, lends no support to remedy this jurisdictional defect.
The fifth cause of action in the 1976 suit, which seeks a class action for injunctive and compensatory relief in connection with an alleged conspiracy to discriminate against "small taxpayers and small businessmen and against taxpayers who resist summary and arbitrary procedures" (Complaint, p. 15), fails to allege directly or by implication "some racial, or perhaps otherwise class-based invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971). The fifth cause of action, accordingly, will be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).
As for Brunwasser's contentions that the District Director abused his discretion by not accepting a releasing bond pursuant to Code § 6325(a)(2), this court has no jurisdiction under the facts of this case to order the IRS to accept a bond. Enochs v. Williams Packing & Navigation Co., supra; Tomlinson v. Poller, 220 F.2d 308 (5th Cir.), cert. denied, 350 U.S. 832, 100 L. Ed. 742, 76 S. Ct. 66 (1955).
Brunwasser's fourth cause of action in the 1976 suit, seeking an order in the form of mandamus directing the District Director to initiate disciplinary proceedings against the other three defendants, does not request the court "to compel an . . . employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361 (emphasis added). Mandamus relief is unavailable, moreover, to compel the District Director to commence disciplinary proceedings, since there is some doubt if such proceedings are appropriate. Commonwealth of Pa. v. National Ass'n of Flood Ins., 520 F.2d 11 (3d Cir. 1975). The fourth cause of action, therefore, will be dismissed pursuant to Rule 12(b)(6).
The damages Brunwasser seeks under Code § 7214 in the 1974 suit are unavailable, because § 7214 apparently provides for damages only after a criminal conviction under the section. In any event, the allegations in Brunwasser's Complaint do not bring it within the terms of § 7214.
As for the 1976 suit, whatever the correctness of the IRS's computations of Brunwasser's tax accounts, plainly Brunwasser's fourth amendment rights have not been violated in this case, there being no warrantless entry into Brunwasser's private property. Cf. G.M. Leasing Corp. v. United States, 429 U.S. 338, 50 L. Ed. 2d 530, 97 S. Ct. 619 (1977). In addition, Brunwasser's request for damages for asserted fifth amendment violations, in our view, fails to state a compensable claim for relief under the Constitution. Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894, 2912, 57 L. Ed. 2d 895, 46 U.S.L.W. 4952, 4960 (1978). In light of our resolution of the constitutional attacks mounted in these cases, we feel that Brunwasser has failed to allege conduct on the part of the defendants constituting a substantial infringement of his constitutional rights, as was alleged in Butz and in Paton v. La Prade, 524 F.2d 862 (3d Cir. 1975).
This case was originally assigned to the Honorable Louis Rosenberg of this Court. The parties have, from time to time, made reference to an oral order that Judge Rosenberg entered restraining the IRS from enforcing the levies. Our disposition of the cases necessarily removes the basis of any such order, and we accordingly will include in our order a provision that the IRS is not so restrained.
The remaining claims have no merit.
AND NOW, to-wit, this 29th day of June, 1978, the defendants having filed Motions to Dismiss in the above-captioned cases, the plaintiff, A. N. Brunwasser, having filed in both said cases a Motion to Strike Appearance of John J. McCarthy, Esquire, Donald J. Gavin, Esquire, and Robert L. Gordon, Esquire, and a Motion to Take Judicial Notice of Justice Department Policy, and the plaintiff having filed in C.A. 76-203 a Motion to Permit Discovery, after careful study of the pleadings and affidavits filed and the briefs submitted in said cases, after hearing oral arguments, and in accordance with the accompanying Opinion,
IT IS ORDERED, ADJUDGED AND DECREED that:
1. Both of defendants' Motions to Dismiss be and hererby are granted;
2. Each of plaintiff's motions be and hereby is denied as moot; and
3. Any order previously entered in the above-captioned cases that has restrained the Internal Revenue Service from enforcing the levies that are the subject matter of said cases be and hereby is vacated.
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