Unpublished Dispositiondwight Purk, Plaintiff-appellant, v. United States of America; Internal Revenue Service; Philipw. Huecker, Agent, Defendants-appellees.dwight Purk, Plaintiff-appellant, v. Hartzell Propeller Inc.; Shirley Fuller, Personnel Manager;trw, Defendants-appellees, 895 F.2d 1414 (6th Cir. 1990)

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US Court of Appeals for the Sixth Circuit - 895 F.2d 1414 (6th Cir. 1990) Feb. 13, 1990

Before KRUPANSKY and DAVID A. NELSON, Circuit Judges, and JOHN W. PECK, Senior Circuit Judge.


ORDER

This pro se tax protester has filed a motion for recusal of federal judges, a motion for an explanation of his tax liability, and a motion for review in these appeals from the district court's judgments dismissing his complaints for lack of subject matter jurisdiction. The appeals have been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. The panel unanimously agrees that oral argument is not necessary. Fed. R. App. P. 34(a).

In Case No. 89-3789, Purk v. United States, Dwight Purk sought to compel defendant United States and its agent to appear in court in order to produce the information on which his alleged tax liability was based. Purk asserted that any assessment or lien imposed by defendants is unlawful. He sought compensatory damages and a temporary restraining order.

In Case No. 89-3790, Purk v. Hartzell Propeller Inc., Purk sought compensatory damages against his employer for its allegedly wrongful compliance with an Internal Revenue Service (IRS) levy against his wages. Additionally, Purk sought injunctive relief suspending the levy.

The district court rejected Purk's assertion of "equitable jurisdiction" in each case. Upon review we conclude that dismissal for lack of subject matter jurisdiction was proper.

The district court lacked jurisdiction to review claims against the United States, and claims against the IRS are essentially claims against the United States, see Rochefort v. Gibbs, 696 F. Supp. 1151, 1152 (W.D. Mich. 1988). First, to establish grounds for jurisdiction in federal district court, a taxpayer must pay an alleged assessment in full and seek an administrative remedy. 26 U.S.C. § 7422. Because Purk did not comply with this statute, the court lacked jurisdiction over his claims. Second, Purk is barred from bringing a suit for damages under the Federal Tort Claims Act for injuries arising from the assessment or collection of taxes. See 28 U.S.C. § 2680(c).

Purk is not entitled to equitable relief on grounds of the hardships which his family must endure. First, because other courts have rejected similar claims, see, e.g., Martin v. Commissioner, 756 F.2d 38, 40 (6th Cir. 1985) (rejecting the "not a taxpayer" argument), he is unable to demonstrate that the government would not ultimately prevail. See Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7 (1962). Purk's refusal to seek a remedy in Tax Court does not demonstrate the lack of a judicial forum. See Bob Jones Univ. v. Simon, 416 U.S. 725, 746 (1974).

Purk's claims against the revenue agent were also properly dismissed. Purk did not allege conduct outside the scope of the agent's official duties, a prerequisite to establishing individual liability. See 28 U.S.C. § 2679(b) (1). The act of which Purk complained, the signing of the Notice of Levy, was within the scope of the agent's employment.

Claims against defendant employer Hartzell Propeller and the defendant supervisor were properly rejected because an employer who honors a notice of levy is not liable to the allegedly delinquent taxpayer. 26 U.S.C. § 6332(d); State Bank of Fraser v. United States, 861 F.2d 954, 958 (6th Cir. 1988).

Finally, Purk's motion to recuse all federal judges is not well taken. His concerns fail to meet the standard for recusal. Easley v. University of Mich. Bd. of Regents, 853 F.2d 1351, 1355-56 (6th Cir. 1988).

Accordingly, all pending motions are denied and the district court's judgments are hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit. We find this appeal to be frivolous and therefore impose double costs upon the appellant under Rule 38, Federal Rules of Appellate Procedure.