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LOJESKI v. BOANDL

November 15, 1984

Shirley A. LOJESKI
v.
Richard BOANDL, et al.



The opinion of the court was delivered by: WEINER

 WEINER, District Judge.

 Presently before the court is the motion of defendants, all of whom are employees of the United States, Department of the Treasury, Internal Revenue Service (IRS), to dismiss, pursuant to Fed.R.Civ.P. 12(b)(5) and 12(b)(6) the complaint on the grounds that this court lacks jurisdiction over the defendants. In the alternative, defendants move for summary judgment pursuant to Fed.R.Civ.P. 56 on the grounds that there are no material issues of fact and that this court lacks jurisdiction over the defendants. For the reasons which follow the motions are denied.

 Plaintiff Lojeski currently resides with a Thomas L. Treadway at plaintiff's residence in Pipersville, Pennsylvania. Between 1979 and August 2, 1982, defendant Richard Boandl, a Revenue Agent in the Philadelphia District of the Internal Revenue Service, audited the 1977, 1978, 1979 and 1980 personal income tax returns of Mr. Treadway. Prior to August 2, 1982, defendant Boandl made a determination that Mr. Treadway had a personal income tax liability of $ 157,561.75, inclusive of penalties and interest, for the years 1977, 1978, 1979, and 1980. At the same time, defendant Boandl further determined that Mr. Treadway was attempting to place his property beyond the reach of the government, either through transfers or by dissipating it. On the basis of these determinations, defendant Boandl recommended that a jeopardy assessment be made against Mr. Treadway in the amount of $ 157,561.75 pursuant to Section 6861 of the Internal Revenue Code. On August 2, 1982 defendant Boandl also recommended that a termination assessment be made against Mr. Treadway in the amount of $ 90,330.00 pursuant to Section 6851 of the Internal Revenue Code. The recommended assessments were approved by defendants Larry Rosenblum (Group Manager in the Examination Division, Philadelphia District of IRS), Theodore J. Machowski (Reviewer in the Philadelphia District of IRS), Carl Weiss (Chief of Quality Review Staff, Philadelphia District of IRS), Robert Hilgen (Chief of Examination Division, Philadelphia District of IRS), George Jessup (Revenue Officer, Philadelphia District of IRS), Raymond Pfeiffer (Group Manager in the Collection Division), Jennings West (Chief of Collection Division, Philadelphia District of IRS), Thomas Wise (Chief of Criminal Investigation Division, Philadelphia District of IRS) and James T. Rideoutte (District Director in Philadelphia District of IRS).

 On August 2, 1982, defendant Boandl recommended that an identical assessment be made against plaintiff Lojeski in the amount of $ 247,891.57. Again the recommendation was approved by all of the remaining defendants, and on August 2, 1982, defendant Jessup seized the personal assets of plaintiff Lojeski by filing a nominee lien against her real property in the amount of $ 247,891.57, and by levying against her bank accounts in the amount of $ 247,891.57.

 In a letter dated August 30, 1982 to the Appeals Office of the IRS, Mr. Treadway protested the termination assessment against him in the amount of $ 90,330.00 for the period January 1, 1982 through June 4, 1982, and the jeopardy assessments for the years 1977, 1978, 1979 and 1980 totaling $ 157,567.75. The Appeals Office made a determination that, "under the circumstances existing at the time of the administrative review, the termination and jeopardy assessments are not reasonable." It recommended that the jeopardy and termination assessments against Mr. Treadway be abated in full, the liens and levies released, and the refunds processed.

 Plaintiff Lojeski filed this complaint on July 25, 1984, claiming violations of her constitutional rights pursuant to the Fourth Amendment (unreasonable seizure of her property), the Fifth Amendment (deprivation of property without due process of law and defendants' actions were gender based). She seeks compensatory and punitive damages in an amount in excess of $ 50,000.00, prejudgment interest, costs and attorney's fees.

 For purposes of a Motion to Dismiss under Fed.R.Civ.P. 12(b)(6) the Complaint must be construed in the light most favorable to the plaintiff and each of the allegations must be taken as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Braden v. University of Pittsburgh, 552 F.2d 948 (3d Cir.1977). A Motion to Dismiss is viewed with disfavor and should only be granted when it is clear that the pleadings do not establish a cause of action. Sosa v. Coleman, 646 F.2d 991 (5th Cir.1981); Swartz v. Eberly, 212 F. Supp. 32 (E.D.Pa.1962).

 Defendants first argue that they are immune from suit under the doctrine of sovereign immunity. As a sovereign, the United States cannot be sued without its consent. United States v. Shaw, 309 U.S. 495, 500-501, 60 S. Ct. 659, 661-662, 84 L. Ed. 888 (1940); Hutchinson v. United States, 677 F.2d 1322 (9th Cir.1982). However, plaintiff Lojeski has brought suit against agents of the IRS in their individual capacity and not against the IRS or the United States. Specifically, plaintiff has brought constitutional claims under the Fourth and Fifth Amendments against certain federal government officials and thus may be entitled to recover damages against them under the judicially created tort established by Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). Although Bivens dealt with a violation of the Fourth Amendment, the Supreme Court has expanded the remedy to include a violation of the Fifth Amendment as well. Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979). A "Bivens" claim may be alleged against agents and employees of the IRS. G.M. Leasing Corp. v. United States, 429 U.S. 338, 97 S. Ct. 619, 50 L. Ed. 2d 530 (1977). Therefore, defendants' reliance on the sovereign immunity doctrine is misplaced.

 Defendants next argue that they are entitled to the qualified immunity defense established by the Supreme Court in Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974). As officers of the executive branch, defendants can fall within the qualified immunity defense of Scheuer if they can show that their actions were executed reasonably and in good faith. Thompson v. Burke, 556 F.2d 231, 239 (3rd Cir.1977). However, it is the law of this circuit that the qualified immunity defense cannot be determined on a Fed.R.Civ.P. 12(b)(6) motion. Thompson, supra; Fidtler v. Rundle, 497 F.2d 794 (3rd Cir.1974); Safeguard Mutual Insurance Co. v. Miller, 472 F.2d 732 (3rd Cir.1973). Therefore, defendants' 12(b)(6) motion must be denied.

 Defendants next argue that this court does not have jurisdiction pursuant to 28 U.S.C. § 1331. Where a complaint seeks recovery directly under the Constitution or federal laws, federal jurisdiction is established pursuant to § 1331. Bell v. Hood, 327 U.S. 678, 681-682, 66 S. Ct. 773, 775-776, 90 L. Ed. 939 (1946). Defendants claim, however, that if a claim is found to be "wholly insubstantial and frivolous," a suit under § 1331 may be dismissed for want of jurisdiction. Bell, supra. The test for frivolity is whether the claim is "so insubstantial, implausible, foreclosed by prior decisions of the court, or otherwise completely devoid of merit as not to involve a federal controversy." Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666, 94 S. Ct. 772, 776, 39 L. Ed. 2d 73 (1974); quoted in Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 70-71, 98 S. Ct. 2620, 2628-2629, 57 L. Ed. 2d 595 (1978). The question is whether "the cause of action alleged is so patently without merit as to justify the court's dismissal for want of jurisdiction." Duke Power Co., supra.

 In the case sub judice, there is absolutely no evidence other than defendants' personal affidavits that defendants acted reasonably and in good faith when they executed a nominee lien against plaintiff Lojeski. The agents rationalized their actions merely on the basis that plaintiff Lojeski's residence and bank accounts appeared to be nothing more than a fraudulent transferral undertaken by taxpayer Treadway to avoid attachments for taxes owed. As has already been shown, the Appeals Office of the IRS determined that the defendants' action in executing termination and jeopardy assessments against Mr. Treadway was not reasonable. Specifically, the real estate sales in 1982 were not shown to have been made for the purpose of hiding the sales proceeds; they were transacted in the normal manner with the involvement of realtors and banks; Mr. Treadway furnished details as to the disposition of the proceeds, and similar sales were made by Mr. Treadway throughout the period under audit. Based on this information it can hardly be maintained that plaintiff Lojeski's claim is devoid of merit. "'Where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.' Bell v. Hood, supra, 327 U.S. at 684, (footnote omitted); see Bemis Bros. Bag Co. v. United States, 289 U.S. 28, 36, 66 S. Ct. 454, 457, 77 L. Ed. 1011 (1933) (Cardozo, J.); The Western Maid, 257 U.S. 419, 433, 42 S. Ct. 159, 161, 66 L. Ed. 299 (1922) (Holmes, J.)." Thus, this court has jurisdiction under 28 U.S.C. § 1331.

 Finally, defendants claim that they have not unlawfully discriminated against plaintiff Lojeski on the basis of her sex. We conclude that there is merit to this claim. There is absolutely no evidence to support an allegation that the actions taken by the IRS constitute discrimination against plaintiff based on her gender.

 In the alternative, defendants move for summary judgment pursuant to Fed.R.Civ.P. 56. To prevail upon a motion for summary judgment the moving party must conclusively demonstrate to the court's satisfaction that there exists no genuine issues as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Major's Furniture Mart, Inc. v. Castle Credit Corp., Inc., 602 F.2d 538, 539 (3rd Cir.1979); Drexel v. Union Prescription Centers, Inc., 582 F.2d 781, 784 (3rd Cir.1978). We must view the evidence in the light most favorable to the party opposing the motion. Bishop v. Wood, 426 U.S. 341, 347 n. 11, 96 S. Ct. 2074, 2079 n. 11, 48 ...


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