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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
| WARD DEAN, | ) | |
| ) | ||
| Plaintiff, | ) | |
| ) | ||
| v. | ) | No.3 :03 cv 00065 (LAC/MCR) |
| ) | ||
| UNITED STATES, et al., | ) | |
| ) | ||
| Defendants. | ) | |
| ) | ||
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO THE GOVERNMENTS MOTION FOR SUMMARY JUDGMENT
BACKGROUND
This is an action for unlawful disclosure of return information. The Plaintiff has at all times challenged the procedural correctness of the actions of Special Agent Tanya Burgess, up to, and including whether she is authorized to take the actions she did in making the disclosures to the individuals referred to by the government as witnesses and even to the Grand Jury itself.
Due to the obfuscation in discovery practiced by counsel for the government, and this Court’s recent ruling denying the Plaintiff discovery, there exists a myriad of significant issues of material fact to be tried. These issues would have been significantly narrowed by the production of the requested discovery, however, that was not to be.
SUMMARY JUDGMENT
The purpose of a motion for summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matshushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed.2d 538 (1986). A dispute over an issue of material fact is genuine if the evidence would permit a reasonable jury to return a verdict for the party against whom summary judgment is sought. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed.2d 202 (1986). In order to avoid a motion for summary judgment a nonmoving party with the burden of proof must produce evidence that shows there exists a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). While this evidence need not be in a form that would be admissible at trial, Celotex, 106 S. Ct. at 2553, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986).
ISSUES OF MATERIAL FACT THAT REMAIN IN DISPUTE FOR TRIAL
1. Is Agent Burgess a lawfully appointed agent?
2. Does Agent Burgess have an oath of office on file as required by 5 USC 3331?
3. Is Agent Burgess’ oath of office on file and in custody as required by 5 USC 2906?
4. What is Agent Burgesses job description?
5. Is Agent Burgess actually authorized to proceed as she has in investigating the Plaintiff?
6. Whether the Plaintiff filed a tax return for tax year 2000, contrary to the government’s contention?
7. Is Agent Burgess, in fact, authorized to issue a Summons in a Subtitle A criminal investigation?
8. Was the referral to the Grand Jury procedurally correct? If not, the Grand Jurors are also the recipients of unlawfully disclosed return information (in all likelihood, much more so than the witnesses interviewed.)
9. Was it necessary to disclose the return information to the witnesses?10. Had the witnesses displayed any reluctance to answer questions, or provide documents, prior to Agent Burgess’ disclosure of the return information, an issue the government has yet to address. (See Affidavit of James V. Kelly, Exhibit 1)
11. Was the disclosure to the witnesses that the Plaintiff was under “criminal investigation” necessary to obtain the desired information/documents?
12. Did the IRS Disclosure Litigation Reference Book Rev. 4-2000, Section I.C.4 proscribe the use of the words “criminal investigation division” in the ancillary heading (return address), text, or signature block of circular letters, and should that not be interpreted to mean other disclosure-sensitive correspondences as well?
13. Does a general guideline for agents in the Internal revenue Manual outweigh specific recommendations and proscriptions issued in the IRS Disclosure Litigation Reference Book, a manual specifically provided to guide agents when undertaking disclosure- sensitive inquiries?
14. Did Agent Burgess make a good faith reliance with regard to her disclosures in light of the training she received on disclosure?
CONCLUSION
The issues of material fact cited above are significant issues of material fact to be determined by the trier of fact, each determinative of a different facet of this action, with potentially wide ranging ramifications. The government will have to prove at trial that Agent Burgess in reality has the authority she has exercised to date. The issues of material fact in dispute are such that they can not be termed “metaphysical doubt.”
The government’s motion for Summary Judgment should be denied.
Respectfully submitted,
_______________________
Ward Dean, M.D. / Pro se
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the day of May, 2003, I have placed a true and exact copy of the foregoing in the U. S. Mail, first class postage, prepaid, addressed to:
Lindsey W. Cooper, Jr.
Civil Tax, Eastern Region
U.S. Department of Justice
P .0. Box 227, Ben Franklin Station Washington, DC 20044
______________________
Ward Dean, M.D.
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