Mcqueen v. U.S

264 F.Supp.2d 502

Alvy T. McQUEEN Plaintiff, v. UNITED STATES of America, et al. Defendants.

No. H-01-3868.

United States District Court, S.D. Texas. Houston Division.

March 31, 2003.

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John A. Townsend, Townsend & Jones, Houston, TX, for plaintiff.

Samuel G. Longoria, U.S. Attorney's Office, Houston, TX, for U.S., defendant.

Christopher J. Kayser, U.S. Dept. of Justice, Tax Div., Washington, DC, for U.S. Dept. of Justice, U.S. Dept. of Treasury, defendants.

Joseph A. Pitzinger, III, Dept. of Justice, Tax Div., Dallas, TX, for Susie M. Wong, Mark W. Hughes. Crispin L. Smith, Stuart D. Gibson, Angelo A. Frattarelli, defendants.

MEMORANDUM AND ORDER

WERLEIN, District Judge.

I. Background

Plaintiff Alvy T. McQueen ("McQueen") was indicted in 1992 on 24 counts of diesel fuel tax evasion. He pled guilty to counts 1 and 23 of the Indictment, which charged him with willfully attempting to evade federal diesel fuel excise taxes. McQueen also waived indictment and voluntarily entered a guilty plea to a separate criminal information charging him with one count of conspiracy to impede the collection of federal diesel fuel excise taxes. On March 25, 1993, Judge Melinda Harmon sentenced McQueen to 60 months in prison.

The instant case represents the current engagement in what Judge Hal Cobb termed "an oppressive litigation war [waged by McQueen and his lawyer, John Townsend] against almost everyone connected with McQueen's criminal prosecution." McQueen v. United States, 5 F.Supp.2d 473, 475 (S.D.Tex.1998) (Cobb, J. sitting by designation), aff'd without opinion, 176 F.3d 478 (5th Cir.1999), cert, denied, 528 U.S. 823, 120 S.Ct. 71, 145 L.Ed.2d 60 (1999). The civil cases preceding this one were as follows:

"McQueen I": McQueen sued in the Western District of Texas to enjoin the Comptroller of Public Accounts of the State of Texas from administering the applicable Texas tax scheme, which he claimed was in violation of federal procedural due process requirements. Denial of the injunctive relief was affirmed because the Tax Injunction Act deprived federal court of jurisdiction to consider the complaint. See McQueen v. Bullock, 907 F.2d 1544,1551 (5th Cir.1990).

"McQueen II": McQueen sued in the Southern District of Texas to enjoin the United States and the Texas Comptroller based on tax assessments that McQueen claimed were based on information obtained in violation of Fed.R.Crim.P. 6. Dismissal of this action was affirmed based upon the Doctrine of Sovereign Immunity that precluded federal jurisdiction. Id.¹

"McQueen III": McQueen sued the United States in the Southern District of Texas claiming, inter alia, that the United States Department of Justice had violated the Freedom of Information Act (FOIA). This case, filed as Civil Action No. H-91-0329, ultimately was dismissed with prejudice on McQueen's FOIA claim. McQueen v. United States, 179 F.R.D. 522, 533 (S.D.Tex.1998) (Cobb, J. sitting by designation, aff'd without opinion, 176 F.3d 478 (5th Cir.1999), cert, denied, 528 U.S. 823, 120 S.Ct. 71, 145 L.Ed.2d 60 (1999)).

"McQueen IV": McQueen sued IRS agents, an Assistant United States Attorney, and the United States, seeking damages of nearly $8 million as a result of alleged information sharing between the federal grand jury and a parallel state investigation of evasion of motor fuels taxes, based upon alleged Fed.R.Crim.P. 6(e) violations, and a claim against the United States for alleged prohibited disclosure of taxpayer's federal tax return information under 26 U.S.C. § 6103. This was docketed as Civil Action No. 95-1453, and dismissed with prejudice on summary judgment. McQueen v. United States, 5 F.Supp.2d 473, 489 (S.D.Tex.1998) (Cobb, J. sitting by designation), aff'd without opinion, 176 F.3d 478 (5th Cir.1999), cert. denied, 528 U.S. 823, 120 S.Ct. 71, 145 L.Ed.2d 60 (1999).²

In Judge Cobb's final opinion, which in 1998 disposed of McQueen III, he wrote hopefully that "[t]his ruling should end the oppressive seven-year litigation war that McQueen and his lawyer have waged against nearly everyone connected with McQueen's criminal prosecution." McQueen v. United States, 179 F.R.D. 522, at 525. Alas, it was not to be, and now, at least a dozen years after the war began, the long, hoary history must again be recounted.

In early 1987, the Internal Revenue Service (IRS)'s Criminal Investigation Division (CID) opened an information-gathering project to inquire generally into possible industry wide evasions of motor fuels tax. During the project, the IRS gathered information about Plaintiff McQueen and, in June 1988, opened an administrative investigation of McQueen for possible criminal tax evasion. The Federal Bureau of Investigation (FBI) and the Texas State Comptroller's Office were also involved in inquiries into possible evasions of motor fuels taxes and they, along with the IRS, attempted to coordinate their efforts in what they called a "Task Force."

McQueen was indicted by a federal grand jury in the Southern District of Texas, in July, 1992, charging twenty-four (24) counts of diesel fuel tax evasion. He pled guilty to two counts, and to a separate Criminal Information charging one count of conspiracy to impede the collection of diesel fuel excise taxes. Judge Melinda Harmon sentenced him to sixty (60) months in prison. In McQueen TV, McQueen sought damages from IRS Agents Susie Wong and Mark Hughes, and United States Magistrate Judge Nancy K. Pecht³ for alleged contempt of court for the wrongful disclosure of grand jury documents in violation of Fed.R.Crim.P. 6(e), and for damages from the United States pursuant to 26 U.S.C. § 7431 (civil damages for unauthorized disclosure of return information protected by 26 U.S.C § 6103). In McQueen III, he sought to compel the Department of Justice (DOJ) to release documents requested under the Freedom of Information Act (FOIA), 5 U.S.C. § 552.

McQueen IV was dismissed on motions for summary judgment by Memorandum Opinion and Order dated March 30, 1998. See McQueen v. United States, 5 F.Supp.2d 473 (S.D.Tex.1998) (Cobb, J.). McQueen III, which alleged the FOIA count against the DOJ, was dismissed on motion for summary judgment by Memorandum Opinion and Order dated May 6, 1998. See McQueen v. United States, 179 F.R.D. 522 (S.D.Tex.1998) (Cobb, J.).

The cases were consolidated on appeal, affirmed without opinion by the Fifth Circuit Court of Appeals, see McQueen v. United States, 176 F.3d 478 (5th Cir.1999), and McQueen's petition for writ of certiorari was denied. See McQueen v. United States, 528 U.S. 1013, 120 S.Ct. 520, 145 L.Ed.2d 401 (1999).

McQueen in this his fifth civil action alleges Bivens claims against Defendants Wong, Hughes, Crispin Smith, Stuart Gibson, and Angelo Frattarelli (collectively "Individual Defendants") claiming that they either gave false testimony in McQueen IV and/or conspired to give such testimony and withhold documents in violation of McQueen's constitutional rights. In addition, McQueen alleges that he recently learned that the IRS, on April 19, 1988, had disclosed his tax return information to the FBI in violation of 26 U.S.C. § 6103, thereby giving rise to a civil action for damages against Defendant United States under 26 U.S.C. § 7431(a). Finally, McQueen alleges that Defendants Department of Justice-Tax Division (DOJ Tax), Department of Justice-Criminal Division (Criminal Division), FBI, IRS, Executive Office of the United States Attorney (EOUSA), and the Office of Professional Responsibility (OPR) wrongfully withheld agency records in violation of FOIA.

Defendants have filed the following motions, which are all opposed by McQueen: Individual Defendants' Motion to Dismiss or for Summary Judgment(Document No. 10);⁴ Defendant United States's Motion for Summary Judgment (Document No. 17); Individual Defendants' Supplemental Motion for Summary Judgment (Document No. 25);⁵ Joint Motion for Summary Judgment of the United States Department of Treasury and Department of Justice, Tax Division (Document No. 31); and Federal Defendants' Motion for Summary Judgment on Behalf of FBI, EOUSA, OPR, and Criminal Division, Department of Justice (DOJ) on FOIA Issues (Document No. 34).

II. Summary Judgment Standard of Review

Rule 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. Crv. P. 56(c). The moving party must "demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

Once the movant carries this burden, the burden shifts to the nonmovant to show that summary judgment should not be granted. See id. at 2553-54. A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials in a pleading, and unsubstantiated assertions that a fact issue exists will not suffice. See Morris v. Covan Worldwide Moving, Inc., 144 F.3d 377, 380 (5th Cir.1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2514-15, 91 L.Ed.2d 202 (1986)). "[T]he nonmoving party must set forth specific facts showing the existence of a `genuine' issue concerning every essential component of its case." Id.

In considering a motion for summary judgment, the district court must view the evidence through the prism of the substantive evidentiary burden. See Anderson, 106 S.Ct. at 2513-14, 106 S.Ct. 2505. All justifiable inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "If the...