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GRAHAM v. UNITED STATES

December 22, 1981

Robert B. GRAHAM, Sr.
v.
UNITED STATES of America, et al.



The opinion of the court was delivered by: GILES

MEMORANDUM

This suit arises out of the allegedly unconstitutional actions of the defendants relating to enforcement of third-party IRS summonses. *fn1" The defendants move to dismiss. For the reasons which follow, the motion is granted in part and denied in part.

 I. BACKGROUND

 A. Complaint

 Mr. Graham's pro se complaint *fn2" names three defendants: the United States; James R. Hilferty, an IRS Special Agent; and Peter R. Vaira, the United States Attorney for this district. The complaint alleges two broad areas of wrongdoing. The first amounts to a claim of malicious or selective prosecution for the institution of the summons-enforcement proceedings cited in note 1 supra. See Complaint PP 5-19. In particular, Mr. Graham points to five proceedings where summonses were issued to banks in which he had no accounts. The government dismissed these actions. See United States v. First Pennsylvania Bank, C.A. No. 81-327, slip op. at 1-3 (E.D.Pa. Apr. 28, 1981) (Shapiro, J.). *fn3" Second, plaintiff complains about allegedly unconstitutional acts on the part of Hilferty and the IRS which are connected to, but not a part of the lawsuits. See Complaint PP 20-23. These acts include alleged interference with Mr. Graham's mail, illegal electronic surveillance, harassment and intimidation of Mr. Graham's family, and libel. Id. P 20. As remedies, plaintiff asks for one-billion dollars damages and injunctive relief.

 B. Defendants' Arguments

 Defendants make four arguments for dismissal. First, they contend that the suit is barred by the doctrine of sovereign immunity. Second, they argue that the Tax Anti-Injunction Act, I.R.C. ยง 7421(a), bars injunctive relief. Third, they maintain that the complaint fails to state a cause of action in that the pleaded "facts are insufficient to establish that defendants took any unlawful action," and that no cause of action can be implied directly under the Constitution "for investigative conduct for which direct means of redress are available." Finally they argue that the defendants are immune from suit either by virtue of absolute prosecutorial immunity, quasi-prosecutorial immunity, see Butz v. Economou, 438 U.S. 478, 508-17, 98 S. Ct. 2894, 2911-16, 57 L. Ed. 2d 895 (1978), or qualified good-faith immunity.

 C. Plaintiff's Response

 Plaintiff's answer to defendants' motion makes two arguments. The first is that no immunities exist in constitutional civil-rights suits: "Judicial immunity and/or official immunity are myths and judge-made doctrine in violation of the Constitution ...." Plaintiff's Answer at 6. Second he contends that the Tax Anti-Injunction Act either does not apply to illegal taxes and tax investigation, or that the Act is irrelevant to this case. Id.

 While the first argument may reflect plaintiff's sincere and strong beliefs, and it may even have academic or theoretical merit, but it is wholly misdirected legally. The Supreme Court and the courts of appeals long have held that a variety of sovereign, absolute, and qualified immunities protect defendants in constitutional civil-rights actions. *fn4" I therefore am obliged to reject this argument.

 II. DISCUSSION

 Simply because plaintiff's legal arguments are incorrect does not mean that defendants' motion must be granted. I may not grant a motion to dismiss a pro se complaint *fn5" unless "it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 596, 30 L. Ed. 2d 236 (1972) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101, 2 L. Ed. 2d 80 (1957)). Although some of plaintiff's claims must be dismissed, there are others for which it is not now "beyond doubt" he may prevail. The decision as to which claims should be dismissed can best be explained in the context of each of defendants' four remaining arguments.

 A. Sovereign Immunity

 Defendants correctly assert that United States may not be sued except where expressly authorized by statute. E.g., Dugan v. Rank, 372 U.S. 609, 620, 83 S. Ct. 999, 1006, 10 L. Ed. 2d 15 (1963); see Black v. United States, 534 F.2d 524, 527 (2d Cir. 1976). Therefore, it ...


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