Henry v. United States of America

Filing 26

ORDER and REASONS - IT IS ORDERED that the Government's motion is GRANTED to the extent that Plaintiff's claims are DISMISSED pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Similarly, to the extent that Plaintiff's opposition memorandum 10 purports to also be a motion for summary judgment, IT IS ORDERED that the motion is DENIED. Further, having carefully considered the parties' submissions, the Court finds that Plaintiff's motions seeking sanction s are without merit. Thus, IT IS FURTHER ORDERED that the motions 9 , 16 , and 17 are DENIED. IT IS FURTHER ORDERED that, within fifteen (15) days of the entry of this Order and Reasons, Plaintiff must explain, in writing, why a monetary sanctio n of $1500.00 should not be imposed against him for this conduct. IT IS FINALLY ORDERED that Plaintiff shall not file any additional motions in this action, or otherwise submit a complaint urging relief in this court, without first seeking leav e of court to do so and certifying, in writing, that the proposed submission is not repetitive or duplicative and does not contain any inappropriate, irrelevant, malicious, and/or insulting comments. Failure to comply with this order may result in fi lings being stricken from the record and/or the imposition of significant financial and/or other sanctions, including payment of excess costs, expenses, and any attorney's fees under 28 U.S.C. 1927 as stated within document. Signed by Judge Kurt D. Engelhardt on 9/20/2011. (NEF: Pro Se) (cab)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL HENRY

CIVIL ACTION

VERSUS

NO. 10-4667

UNITED STATES OF AMERICA,
INTERNAL REVENUE SERVICE

SECTION "N"

ORDER AND REASONS
Presently before the Court is the Government's motion seeking dismissal of the
instant action (Rec. Doc. 6). In considering the motion, the Court has carefully and repeatedly
reviewed Plaintiff's complaint, the parties' submissions relative to this motion, the related motions
that Plaintiff has filed seeking sanctions, and the Court's April 12, 2011 Order. See Rec. Docs. 1,
6, 9, 10, 12, 15-18, and 21. Although Plaintiff's submissions are far from clear, and include various
nebulous references to IRS levies, liens, and seizures of assets, the gravamen of his complaint is the
Government's April 16, 2009 credit (or offset), pursuant to 26 U.S.C. § 6402(a), of the refund
awarded Plaintiff, in Civil Action 02-968, against an unpaid tax assessment for tax year 1999.1
Specifically, Plaintiff contends that the Government did not provide him with the notice required
by 26 U.S.C. § 6303. See Complaint (Rec. Doc. 1).
Neither party's submissions clearly identify and/or explain each and every notice
document that the Government had provided to Plaintiff, or the date(s) thereof, prior to the April 16,
2009 offset. Significantly, however, the Court of Appeals for the Seventh Circuit recently affirmed
1

The Government uses the term "credit"; Plaintiff uses the term "offset." For
simplicity, the Court likewise uses the term "offset."

the Tax Court's determination that Plaintiff cannot challenge his liability for the unpaid assessment
for tax year 1999, that the Government can proceed with collection, and that the offset about which
Plaintiff complains is not a levy. See Henry v. Commissioner, Internal Revenue Service, No. 102165, 403 Fed. Appx. 105, 2010 WL 5018464 (7th Cir.)(affirming the Tax Court's April 26, 2010
decision in docket number 17055-08 L).2 Furthermore, as reflected in the opinions of both the
Seventh Circuit and the Tax Court, as well as this Court's April 30, 2007 judgment and the Fifth
Circuit's May 6, 2008 opinion, Plaintiff clearly was on notice that the IRS sought payment of an
additional $3.1 million for tax year 1999, and was acting to protect its interests, for several months,
if not longer, in advance of the 2009 offset of the $122,839 refund (plus interest) at issue.
Given the foregoing, it is not apparent to this Court, on the showing made, that it can
offer Plaintiff any relief relative to the April 2009 offset. Accordingly, for the reasons stated herein,
IT IS ORDERED that the Government's motion is GRANTED to the extent that Plaintiff's claims
are DISMISSED pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.3 Similarly, to
the extent that Plaintiff's opposition memorandum (Rec. Doc. 10) purports to also be a motion for
summary judgment, IT IS ORDERED that the motion is DENIED. Further, having carefully
considered the parties' submissions, the Court finds that Plaintiff's motions seeking sanctions are
without merit. Thus, IT IS FURTHER ORDERED that the motions (Rec. Docs. 9, 16, and 17) are
DENIED.

2

Both decisions are attached as exhibits to the Government's reply memorandum (Rec.
Doc. 15-1). The Tax Court's decision states, inter alia, that "the Appeals officer met the
requirements of section 6330(c)." See Rec. Doc. 15-1, p. 9 of 9. Plaintiff references that statutory
provision in his complaint. See Rec. Doc. 1, p. 3 of 10, ¶4.
3

The Court additionally notes the Government's assertion, pursuant to 28 U.S.C. §§
1346(a)(1), 1402(a)(2), that venue is not proper in this district. See Rec. Doc. 6., at p. 5, n.7.
2

Additionally, this Court has previously advised Plaintiff that it strongly condemns
the inappropriate, irrelevant, malicious, and insulting comments regarding Government counsel and
others that have been repeated in many of Plaintiff's prior submissions to this Court, and warned
Plaintiff against such conduct. See March 29, 2010 Order (No. 02-968, Rec. Doc. 381, p. 4 of 6);
June 21, 2010 Order and Reasons, (No. 02-968, Rec. Doc. 395, p. 11 of 11). Nevertheless, Plaintiff,
in the memorandum that he submitted in response to the Government's motion, has again used
inappropriate, malicious, and insulting language in referring to Government counsel.4 See Rec.
Doc. 10, pp. 8, 10 of 13. Such language likewise is prohibited by Rule 11 of the Federal Rules of
Civil Procedure, and cannot be tolerated. Accordingly, IT IS FURTHER ORDERED that, within
fifteen (15) days of the entry of this Order and Reasons, Plaintiff must explain, in writing, why a
monetary sanction of $1500.00 should not be imposed against him for this conduct.
Lastly, as previously stated in the Court's March 29, 2010 Order (No. 02-968, Rec.
Doc. 381, p. 4 of 6), June 21, 2010 Order and Reasons (No. 02-968, Rec. Doc. 395, p. 11 of 11),
and April 12, 2011 Order (Rec. Doc. 21), IT IS FINALLY ORDERED that Plaintiff shall not file
any additional motions in this action, or otherwise submit a complaint urging relief in this court,
without first seeking leave of court to do so and certifying, in writing, that the proposed submission
is not repetitive or duplicative and does not contain any inappropriate, irrelevant, malicious, and/or
insulting comments. Failure to comply with this order may result in filings being stricken from the

4

See Rec. Doc. 10, pp. 8 and 10 of 13.
3

record and/or the imposition of significant financial and/or other sanctions, including payment of
excess costs, expenses, and any attorney’s fees under 28 U.S.C. §1927.
New Orleans, Louisiana, this 20th day of September 2011.

__________________________________
KURT D. ENGELHARDT
UNITED STATES DISTRICT JUDGE

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