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BELL v. ROSSOTTI

September 30, 2002

THURSTON P. BELL, PLAINTIFF,
V.
CHARLES ROSSOTTI, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Yvette Kane, United States District Judge

MEMORANDUM AND ORDER

Before this Court is Defendants' motion to dismiss and/or for summary judgment (Doc. No. 12). The motion has been fully briefed, and is ripe for disposition. For the reasons that follow, the motion will be granted.

I. Background

On September 10, 2001, Plaintiff Thurston Bell, proceeding pro se, filed a complaint against IRS Commissioner Charles Rossotti in his official capacity, and IRS agents Chris Roginsky and Kathleen Lennon in their official and individual capacities. In his suit, Bell seeks (1) a declaratory judgment that his websites and their content are protected by the First Amendment to the United States Constitution, (2) an injunction against Defendants preventing them from approaching him and his family, and (3) compensatory damages in the amount of $30,000 and punitive damages of $1,000,000 from each of the Defendants sued in their individual capacities for violations of his First Amendment rights.

Bell founded the National Institute for Taxation Education ("NITE") in November, 1997. Through NITE, Plaintiff owns and maintains two websites which expound Plaintiff's views of tax law: http://www.nite.org and http://www.tax-gate.com. Plaintiff asserts that the content on these websites is protected by the First Amendment. In addition to providing the information on the websites, Plaintiff assists NITE members by drafting letters on their behalf and attending meetings with IRS personnel.

Ultimately, Plaintiff's complaint alleges that an IRS investigation of his websites violates his First Amendment rights. However, the complaint first details a number of alleged wrongs to others that have heightened Plaintiff's fear of imminent IRS action against him.*fn1 These events include raiding the business office of Plaintiff's former associate, Nick Jesson, and the investigation of Plaintiff's associates Darlow Thomas Madge and Hal Hearn. Plaintiff offers these events as evidence of his fear that the IRS will undertake similar actions against him.

On September 4, 2001, Plaintiff received a letter from the IRS stating that he and his websites were under investigation for possible violation of 26 U.S.C. § 6700*fn2 and 7408.*fn3 The letter stated that a possible consequence of the investigation would be an injunction. Furthermore, the letter notified Plaintiff that he was required to cooperate with the investigation. Plaintiff asserts that the IRS investigative activity violates his First Amendment right to free speech.

II. Discussion

A. Standard of Review

The Court will consider the pending motion as a motion to dismiss. Defendants move to dismiss Plaintiff's complaint under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). A Rule 12(b)(1) motion may be treated either as a facial or factual challenge to the court's subject matter jurisdiction. Gould Electronics, Inc. v. United States, 220 F.3d 169, 177 (3d Cir. 2000). When reviewing a facial attack, the Court considers only the allegations in the complaint, documents referenced therein, and documents attached thereto. Id. These must be read in the light most favorable to the plaintiff. Id. Only when reviewing a factual attack may the court consider evidence outside the pleadings. Id.

B. Injunction

On the face of his complaint, Plaintiff seeks to enjoin the IRS investigation of whether his websites violate United States law. Plaintiff also seeks an injunction

prohibiting Defendant Commissioner and all of his agents (defined as those executing the orders of Defendant Commissioner or operating in any form of cooperation or collusion) from physically approaching Plaintiff, His Family, and the Offices of NITE, at a distance of less than 300 feet, ...

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