Opinion
Case No. C-3-02-559
August 20, 2003
JUDGMENT IN A CIVIL CASE
[ ] Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
[X] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED
that Plaintiffs Darrell D. Billheimer and Joan Billheimer take nothing and judgment is entered in favor of Defendant United States of America and against Plaintiffs.
DECISION AND ENTRY SUSTAINING DEFENDANT'S MOTION TO DISMISS (DOC. #8); DECISION AND ENTRY OVERRULING PLAINTIFFS' MOTIONS TO STRIKE (DOCS. #10 AND #15); DECISION AND ENTRY OVERRULING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (DOC. #17); DECISION AND ENTRY OVERRULING PLAINTIFFS' MOTION FOR RECONSIDERATION (DOCS. #23); DECISION AND ENTRY OVERRULING PLAINTIFFS' AMENDED MOTION FOR RECONSIDERATION (DOC. #24); DECISION AND ENTRY OVERRULING PLAINTIFFS' OBJECTION TO REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE (DOC. #25); REPORT AND RECOMMENDATIONS OF MAGISTRATE JUDGE ADOPTED; JUDGMENT TO BE ENTERED IN FAVOR OF DEFENDANT AND AGAINST PLAINTIFFS; TERMINATION ENTRY
The Plaintiffs, Darrell and Joan Billheimer, bring this litigation, alleging that the Government has violated numerous statutes by attempting to collect unpaid income taxes from them. See Doc. #1. Rather than seeking an award of damages, the Plaintiffs request an injunction, preventing further efforts by the United States to collect those unpaid income taxes. Id. at ¶ 8. The Government has filed a motion seeking dismissal of the Plaintiffs' Complaint.See Doc. #8. The Plaintiffs responded to that filing by two Motions to Strike (Docs. #10 and #15) and a Motion for Summary Judgment (Doc. #17).
This Court referred this matter to United States Magistrate Judge Sharon Ovington for a Report and Recommendations. On July 31, 2003, Judge Ovington issued her Report and Recommendations, recommending that the Court sustain the Government's Motion to Dismiss (Doc. #8), that it overrule the Plaintiffs Motions to Strike (Docs. #10 and #15) and Motion for Summary Judgment (Doc. #17) and that it dismiss Plaintiffs' Complaint with prejudice. See Doc. #21. This case is now before the Court on the Plaintiffs' Objections to the Report and Recommendations of the Magistrate Judge. See Doc. #25. In addition, the Plaintiffs have filed a Motion and Amended Motion for Reconsideration (Docs. #23 and #24), to which the Court initially turns.
I. Plaintiffs' Motion and Amended Motion for Reconsideration (Docs. #23 and #24)
The Court initially addresses Plaintiffs' Motion and Amended Motion for Reconsideration (Docs. #23 and #24), because, with them, Plaintiffs challenge the ability of the undersigned to continue to preside over this lawsuit. With their requests for reconsideration, Plaintiffs argue that the Court erroneously overruled their previous motion seeking disqualification of the undersigned. The Court overrules Plaintiffs' Motion and Amended Motion for Reconsideration (Docs. #23 and #24) for the reasons which this Court overruled the Plaintiffs' previous request for disqualification (see Doc. #20), as well as for the following reasons. In support of their request for reconsideration, the Plaintiffs argue that this Court committed numerous errors when it presided over United States v. Darrell D. Billheimer, et al., Case No C-3-99-402. Even assuming for sake of argument that this Court made an erroneous ruling in that lawsuit, such would not constitute a grounds for disqualification. In Litesky v. United States, 510 U.S. 540 (1994), the Supreme Court rejected the petitioners7 assertion that the District Judge should have disqualified himself on the basis of his rulings in a previous trial against one of their number. Thus, it has been held that the remedy for alleged trial errors is an appeal and not seeking the disqualification of the trial judge. In re Winslow, 107 B.R. 752 (D.Colo. 1989).
In Litesky, the petitioners had been prosecuted for protesting American military involvement in El Salvador. One of their number had previously found guilty of a similar offense, after a bench trial before the same judge. The petitioners argued that the judge had demonstrated his bias during the prior trial.
II. Plaintiffs' Objections (Doc. #25) to the Report and Recommendations of the United States Magistrate Judge (Doc. #21)
As an initial matter, the Court will discuss the standard by which it must review the Report and Recommendations of the Magistrate Judge. Since the Government's Motion to Dismiss (Doc. #8) and the Plaintiffs' Motion for Summary Judgment (Doc. #17) are dispositive motions, this Court, pursuant to 28 U.S.C. § 636(b)(1), must conduct a de novo review of the Report and Recommendations. See United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001) (reiterating that a District Court must conduct a de novo review of dispositive motions, while the clearly erroneous standard of review is applicable to non-dispositive motions).
The Plaintiffs have not objected to Judge Ovington's recommendation that the Court overrule their Motions to Strike (Doc. #10 and #15). Applying a de novostandard of review, this Court adopts the Report and Recommendations of the United States Magistrate Judge, as they relate to those motions and, as a consequence, overrules Plaintiffs' Motions to Strike (Docs. #10 and #15).
Judge Ovington recommended that the Court sustain the Government's Motion to Dismiss (Doc. #8), since the Government has not waived its sovereign immunity and, further, the remedy sought by the Plaintiffs, an injunction preventing further efforts to collect income taxes from them, is barred by the Anti-Injunction Act, 26 U.S.C. § 7421. In their Objections, the Plaintiffs have neglected to address Judge Ovington's conclusion that the Anti-Injunction Act bars the Plaintiffs' only requested remedy. Such an objection would have been fruitless, given that § 7421 provides, in pertinent part, that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed." Having conducted a de novo review of the question, this Court concurs with Judge Ovington's conclusion that the Anti-Injunction Act bars the remedy which the Plaintiffs have requested in this litigation, to wit: an injunction preventing further efforts to collect their unpaid income taxes.
In their Objections, the Plaintiffs argue that Judge Ovington erroneously gave a res judicata effect to this Court's decision inUnited States v. Darrell D. Billheimer, etal., Case No C-3-99-402 (S.D.Ohio). Although Judge Ovington cited and quoted from that decision, she did not rely upon that decision when she concluded that the Plaintiffs' Complaint is barred sovereign immunity and that the Plaintiffs' requested remedy is barred by the Anti-Injunction Act. The Plaintiffs also argue in the Objections that the efforts to collect their unpaid income taxes is illegal, because the Government has failed to provide a Form 23C, that the Government waited too long to initiate Case No. C-3-99-402, that this Court did not have subject matter jurisdiction over that lawsuit and that this Court could not exercise jurisdiction over land located in Clark County because the state of Ohio has not provided any manner of accepting such jurisdiction. None of those arguments remotely suggests that the Government has waived its sovereign immunity or that the Anti-Injunction Act fails to bar the Plaintiffs' requested remedy.
The Plaintiffs do, however, challenge the Magistrate Judge's conclusion that their Complaint is barred by sovereign immunity because the United States has not waived the protection of that doctrine. See Doc. #25 at 3. Therein, the Plaintiffs cite a number of cases, none of which remotely suggests that the United States has waived its sovereign immunity for the claims the Plaintiffs have asserted in this litigation. Although the United States has waived its sovereign immunity for actions seeking refunds of taxes erroneously paid and for damages for certain improper actions of revenue agents (see 26 U.S.C. § 7422, 7430, 7431, 7432, 7433 and 7435), the Plaintiffs have cited to no statute in which the United States waived its sovereign immunity to permit the enjoining of efforts to collect unpaid income taxes. In addition, the Plaintiffs cite the Fourteenth Amendment, explaining that "[t]he 14th Amendment protects us from intrusion on our God given Rights by individuals who act under color of law." Doc. #25 at 3. This argument does not convince the Court that Judge Ovington's conclusion concerning sovereign immunity is incorrect. As an initial matter, the sovereign immunity of the United States is at issue, while the Fourteenth Amendment is applicable only to the states rather than to the federal government.Scott v. Clay County, Tenn., 205 F.3d 867, 873 n. 8 (6th Cir.), cert. denied, 531 U.S. 874 (2000). Moreover, to the extent that the Plaintiffs are arguing that the Fourteenth Amendment trumps the Government's reliance upon sovereign immunity, this Court cannot agree. The doctrine of sovereign immunity has been so well-established by the Supreme Court that this Court is without the authority to declare it unconstitutional.
In addition, to the extent that the Plaintiffs are objecting to the Magistrate Judge's recommendation that the Court overrule their Motion for Summary Judgment (Doc. #17), the Court rejects such an objection, since the Plaintiffs' Complaint is barred by sovereign immunity and their requested remedy is barred by the Anti-Injunction Act.
Based upon the foregoing, the Court overrules the Plaintiffs' Objections (Doc. #25) to the Report and Recommendations of the United States Magistrate Judge and adopts that Report and Recommendations (Doc. #21). As a consequence, the Court sustains the Defendant's Motion to Dismiss (Doc. #8) and overrules Plaintiffs' Motion for Summary Judgment (Doc. #17). The Court directs that judgment be entered, dismissing the Plaintiffs' Complaint with prejudice.
The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.
NOTICE OF DISPOSAL PER SOUTHERN DISTRICT OF OHIO LOCAL RULES 79.2(a)(b) AND 79.3(e)
The above captioned matter has been terminated on August 21, 2003.If applicable to this case, the disposal date will be six (6) months from the above termination date.
Rule79.2(a) Withdrawal by Counsel:
All models, diagrams, depositions, photographs, x-rays and other exhibits and materials filed in an action or offered in evidence shall not be considered part of the pleadings in the action, and unless otherwise ordered by the Court, shall be withdrawn by counsel without further Order within six (6) months after final termination of this action.Rule79.2(b) Disposal by the Clerk:
All models, diagrams, depositions, x-rays and other exhibits and materials not withdrawn by counsel shall be disposed of by the Clerk as waste at the expiration of the withdrawal period.Rule79.3(e)
Sealed or confidential documents shall be disposed of in accordance with Rule 79.2