Meadows v. Explorer Pipeline Company
Filing
23
OPINION AND ORDER by Chief Judge Gregory K Frizzell ; granting 7 Motion to Dismiss and granting motions to dismiss #9 & 11 in Case. No. 13-cv-680-GKF-TLW. (hbo, Dpty Clk) Modified on 4/7/2014 to add text(hbo, Dpty Clk).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
)
)
)
Plaintiff,
)
) Case No. 13-CV-568-GKF-TLW
v.
)
)
EXPLORER PIPELINE COMPANY,
)
a Delaware corporation,
)
)
Defendant.
________________________________________ )
JERRY D. MEADOWS,
)
)
)
Plaintiff,
) Case No. 13-CV-680-GKF-TLW
v.
)
(consolidated)
)
OKLAHOMA TAX COMMISSION, an
)
agency of the State of Oklahoma,
)
)
and
)
EXPLORER PIPELINE COMPANY,
)
a Delaware corporation,
)
)
Defendants.
)
JERRY D. MEADOWS,
OPINION AND ORDER
Before the court are the (1) Motion to Dismiss [Dkt. #7] filed by defendant Explorer
Pipeline Company (“Explorer”) in Case No. 13-CV-568-GKF-TLW; (2) Motion to Dismiss
[Dkt. #11] filed by Explorer in Case No. 13-CV-680-GKF-TLW; and (3) Motion to Dismiss
[Dkt. #9] filed by defendant Oklahoma Tax Commission (“OTC”) in Case No. 13-CV-680-GKFTLW. Plaintiff Jerry D. Meadows (“Meadows”) opposes the motions. The motions all seek
dismissal based on Fed. R. Civ. P. 12(b)(6). Additionally, the OTC, alleging plaintiff has failed
to exhaust his administrative remedies, seeks dismissal under Rule 12(b)(1).
I. Background
Meadows is a former assistant treasurer of Explorer. In 2002, he was charged in this
court with 21 counts of wire fraud and one forfeiture count for embezzling money from Explorer.
[United States v. Meadows, Case No. 2-CR-141-HDC, Dkt. #1]. He pled guilty to three counts
of wire fraud and the forfeiture count, and was sentenced to 50 months imprisonment; ordered to
forfeit $2,750,000 in cash, various financial accounts, real property and vehicles; and ordered to
make restitution of $4,715,359 to Explorer. [Id., Dkt. ##15, 26, 29].
On November 6, 2009, Magistrate Judge Frank H. McCarthy issued a Post-Judgment
Continuing Writ of Garnishment and Subpoena to Wilmington Trust Retirement and Institutional
Services Company as Trustee of the Trust of the Explorer Pipeline Company Retirement Plan,
requiring the Trustee to pay the proceeds of plaintiff’s deferred compensation arrangements such
as pension, profit-sharing, 401(k), SEP’s, IRA’s and similar plans, to the government. [Id., Dkt.
#97]. In response to the Continuing Writ of Garnishment, the Trustee paid $199,835.29 to the
Clerk of this court, withholding federal income taxes, but not Oklahoma state income taxes.
[Case No. 13-CV-568-GKF-TLW, Dkt. #13, Ex. 4, 2009 Form 1099-R].
As set forth in the court’s order of November 5, 2013 [Id., Dkt. #19], plaintiff sued
Explorer in Tulsa County District Court, alleging Explorer wrongfully failed to withhold
Oklahoma income taxes from a distribution of the accumulated value of his retirement pension.
Explorer removed the case (now Case No. 13-CV-568-GKF-TLW) to federal court. Plaintiff
filed a Motion to Remand the case. The next day, he filed another lawsuit in Tulsa County
District Court making similar allegations against Explorer and seeking a writ of mandamus
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compelling the OTC to collect the unpaid state taxes from Explorer. It, too, was removed to
federal court by defendants. [Case No. 13-CV-680-GKF-TLW, Dkt. #2]. The court consolidated
the cases under the lower-numbered case [Dkt. #15, Case No. 13-CV-568-GKF-TLW] and
denied the Motion to Remand. [Id., Dkt. #19].
II. Motion to Dismiss in Case No. 13-CV-568-GKF-TLW
A. Allegations of the Petition
In his Petition in Case No. 13-CV-568-GKF-TLW, Meadows asserts that while employed
by Explorer, he earned a “Retirement Pension Plan amount which was payable to [him] at age 55
or thereafter per the plan document detailing calculations and distribution requirements.” [Dkt.
#2, Ex. A, Verified Petition, ¶6]. He alleges that in 2009 “the accumulated Pension Plan value
was distributed under a garnishment order by the US Attorneys [sic] office in Tulsa, on behalf
and to Explorer, as directed by Explorer to the Fund Administrator/Trustee, in a complete lump
sum distribution, to be applied towards the amount Meadows owes to Explorer.” [Id., ¶7]. A
Form 1099-R attached to the petition reflects a gross distribution of $199,835.29, with federal
income tax withholding of $39,967.06. [Id., Ex. A]. Meadows alleges that “Explorer withheld
Federal Income Tax but did not withhold any Oklahoma Income Tax.” [Id., ¶8]. He contends he
was told state income tax was “intentionally not withheld and Explorer was not required to, as
compared to required federal income tax.” [Id., ¶9]. Further, he alleges “[t]he minimizing of
taxes withheld was done deliberately so [as] to maximize the amount Explorer would receive.”
[Id., ¶10]. Meadows contends “[t]he non-withholding of required taxes has created an
Oklahoma Income Tax Liability situation, with the required filing of the 2009 Income Tax
Return to State of Oklahoma . . . to report the taxable pension distribution, of which Meadows
did file and report as required.” [Id., ¶11]. He states he has been injured by Explorer in the
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amount of $12,600, plus penalties and interest, for a total of $20,002.47 as of June 25, 2013.
[Id., ¶12].
Additionally, Meadows alleges Explorer had a duty to withhold Oklahoma income tax
under the Oklahoma Administrative Code (“OAC”) 710:90-1-13, and that OAC 710:90-5-1
through 90-5-3 imposes liability and penalties on employers who fail to withhold the state tax.
[Id., ¶¶13, 15]. He states that he has made a Request for Letter of Determination to the
Oklahoma Tax Commission regarding the applicability of the cited OAC requirements to this
situation. [Id., ¶16].
Meadows states, “Irrespective of Meadows owing Explorer monies, Explorer
intentionally injured Meadows by not withholding required Oklahoma income taxes, and he is
entitled to recover damages, including costs and fees.” [Id., ¶17]. He seeks damages of $12,600
for Oklahoma income taxes due on the pension distribution, plus all penalties and interest added
by the Oklahoma Tax Commission, “to be paid by Explorer directly to the Oklahoma Tax
Commission.” [Id. at ¶20.a.-c.]. Additionally, he seeks costs and an award of punitive damages
of up to $10,000. [Id., ¶20.d.].
B. Rule 12(b)(6) Standard
Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that a complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
The United States Supreme Court clarified this standard in Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007), ruling that to withstand a motion to dismiss, a
complaint must contain enough allegations of fact “to state a claim to relief that is plausible on
its face.” “A claim has facial plausibility when the pleaded factual content allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
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v. Iqbal, 556 U.S. 662, 663, 129 S. Ct. 1937, 1940 (2009). “While a complaint attacked by a
Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation
to provide the grounds of his entitlement to relief requires more than labels and conclusions, and
a formulaic recitation of a cause of action’s elements will not do.” Twombly, 550 U.S. at 545
(internal quotations omitted). On a motion to dismiss, courts “are not bound to accept as true a
legal conclusion couched as a factual allegation.” Id. at 555. Under the Twombly standard, “the
complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of
mustering factual support for these claims.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th
Cir. 2008) (quoting Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
2007)) (emphasis in original). “The burden is on the plaintiff to frame a complaint with enough
factual matter (taken as true) to suggest that he or she is entitled to relief.” Id. (citing Twombly,
127 S.Ct. at 1965) (internal quotations omitted). “Factual allegations must be enough to raise a
right to relief above the speculative level.” Id.
The Tenth Circuit Court of Appeals has interpreted Twombly as a middle ground between
“heightened fact pleading,” which is expressly rejected, and allowing complaints that are no
more than “labels and conclusions,” which courts should not allow. Id. (citing Twombly, 127
S.Ct. at 1964, 1965, 1974). Accepting the allegations as true, they must establish that the
plaintiff plausibly, not just speculatively, has a claim for relief. Id. “This requirement of
plausibility serves not only to weed out claims that do not (in the absence of additional
allegations) have a reasonable prospect of success, but also to inform the defendants of the actual
grounds of the claim against them.” Id. at 1248. The Tenth Circuit Court of Appeals instructed
in Robbins that “the degree of specificity necessary to establish plausibility and fair notice, and
therefore the need to include sufficient factual allegations, depends on context . . . [and] the type
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of case.” Id. (citing Phillips v. County of Allegheny, 515 F.3d 224, 231-32 (3d Cir. 2008)). A
simple negligence action may require significantly fewer allegations to state a claim under Rule
8 than a case alleging antitrust violations (as in Twombly) or constitutional violations (as in
Robbins). Id.
“When a federal court reviews the sufficiency of a complaint, before the reception of any
evidence either by affidavit or admissions, its task is necessarily a limited one.” Swierkiewicz v.
Sorema N. A., 534 U.S. 506, 511, 122 S. Ct. 992, 997 (2002). The issue on a 12(b)(6) motion
“is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims.” Id. The notice pleading standard “relies on liberal discovery
rules and summary judgment motions to define disputed facts and issues and to dispose of
unmeritorious claims.” Id.
C. Discussion
Plaintiff’s petition alleges (1) Explorer is liable to him under the Oklahoma Tax Code and
regulations for failing to withhold state taxes from the pension distribution; and (2) Explorer
intentionally injured him by failing to withhold Oklahoma income taxes and he is entitled “to
recover damages, including costs and fees” for Explorer’s “intentional tortious actions.”
1. Alleged Violation of Oklahoma Tax Law
Under the Oklahoma Tax Code (“Tax Code”), employers are required to withhold state
taxes owed by employees from their wages, and to “pay over the amount so withheld as taxes to
the Oklahoma Tax Commission.” 68 Okla. Stat. §§ 2385.2(A), 2385.3(A). Any employer who
fails to withhold or pay to the OTC any such sums “shall be personally and individually liable
therefor to the State of Oklahoma.” 68 Okla. Stat. § 2385.3(E) (emphasis added). Likewise,
under the Oklahoma Administrative Code, “[a]ny employer who is under a duty to withhold and
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remit Oklahoma Withholding Taxes shall be personally and individually liable for the failure to
withhold or pay to the Commission any sums required.” OAC 710:90-5-3.
However, neither the Tax Code nor implementing regulations contain any provision
conferring a private right of action by an employee against an employer to enforce an employer’s
withholding obligations. Therefore, Meadows has no cognizable claim against Explorer under
Oklahoma’s income tax laws.
2. Breach of Fiduciary Duty Claim
In its order denying plaintiff’s Motion to Remand, the court concluded plaintiff’s claim
that Explorer intentionally injured him by failing to withhold state income taxes from the pension
distribution was properly characterized as a claim for breach of fiduciary duty. [Dkt. #19 at 6-7].
Fiduciaries can be held liable for breaching any of the responsibilities, obligations or duties
imposed on them by ERISA. 29 U.S.C. § 1109(a). And ERISA confers on participants the right
to sue fiduciaries for breach of their obligations. 29 U.S.C. § 1132(a)(2). However, under 29
U.S.C. § 1113(2), an ERISA breach of fiduciary duty claim must be brought within “three years
after the earliest date on which the plaintiff had actual knowledge of the breach.” See Russell v.
Chase Inv. Servs. Corp., 2010 WL 2562681, at *2 (10th Cir., June 20, 2010) (citing Wyo.
Laborers Health & Wel. Pl. v. Morgen & Oswood, 850 F.2d 613, 618 n.8 (10th Cir. 1988)).
Plaintiff’s Verified Petition in Case No. 13-CV-568-GKF-TLW alleges the accumulated
pension plan value was distributed in 2009 “under a garnishment order by the US Attorneys
office in Tulsa, on behalf and to Explorer” and “[t]he amount distributed was $199,835.29 as
shown on the Form 1099-R copy attached hereto as Exhibit ‘A.’” [Dkt. #2, ¶7]. Further,
plaintiff alleges “Explorer withheld Federal Income Tax but did not withhold any Oklahoma
Income Tax.” [Id., ¶8]. A review of the Form 1099-R attached to the petition clearly shows that
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no state tax was withheld. [Dkt. #2, Verified Petition, Ex. A]. Thus, when plaintiff received the
1099-R form documenting the pension plan distribution and withholdings from the distribution,
he had “actual knowledge” of Explorer’s alleged breach.
Under Treas. Reg. § 1.408-7(d)(2) (1977), the IRS requires a Form 1099 be mailed to the
taxpayer by no later than January 31 of the year subsequent to the year in which the tax liability
was incurred. As a result, by early February 2010, Meadows would have had actual knowledge
that no Oklahoma income tax had been withheld from the retirement proceeds that were
garnished in 2009. Plaintiff filed his Verified Petition in 13-CV-568-GKF-TLW on August 12,
2013—at least three years and six months after he received the Form 1099. Therefore, his
breach of fiduciary duty claim is time-barred under 29 U.S.C. § 1113(2).
“[A] statute of limitations defense . . . may be appropriately resolved on a 12(b) motion
‘when the dates given in the complaint make clear that the right sued upon has been
extinguished.’” Lee v. Rocky Mountain UFCW Unions and Employers Trust Pension Plan, 1993
WL 482951, at *1 (10th Cir. Nov. 23, 1993) (citing Aldrich v. McCulloch Props., Inc., 627 F.2d
1036, 1041 n.4 (10th Cir. 1980)). Further, “[w]hen the dates given in the complaint support
dismissal on statute of limitations grounds, “the plaintiff has the burden of establishing a factual
basis for tolling the statute.” Id. (citing Aldrich, 627 F.2d at 1041 n.4). See also Tri-State Truck
Ins., Ltd. v. First Nat’l Bank of Wamego, 931 F. Supp. 2d 1120, 1136 (D. Kan. 2013) (citing
Aldrich and stating that “where dates in complaint make clear that claim is time-barred, plaintiff
has burden to show facts to toll statute”). Plaintiff has pled no such facts.
Accordingly, plaintiff’s breach of fiduciary duty claim in Case No. 13-CV-568-GKFTLW is time-barred.
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III. Amended Petition for Writ of Mandamus in Case No. 13-CV-680-GKF-TLW
A. Allegations of the Amended Petition
Meadows’ Amended Petition for Writ of Mandamus alleges Explorer provided a Defined
Benefit Retirement Plan of which Meadows was a participant while he was employed by
Explorer. [Case No. 13-CV-680-GKF-TLW, Dkt. #2 at 16, ¶1]. Benefits under the plan were
paid to Explorer under a garnishment order in 2009, as payment toward a liability Meadows
owes. [Id., ¶2]. Explorer intentionally did not withhold Oklahoma Income Tax, as is required
under state statute, so that the amount Explorer received would be maximized. [Id., ¶3]. The
refusal by Explorer to withhold Oklahoma income tax created a tax liability now in excess of
$20,000 with interest and penalties added. [Id., ¶4]. Meadows filed suit against Explorer in
Tulsa County District Court but Explorer removed the action to the United States District Court
for the Northern District of Oklahoma. [Id., Dkt. #2 at 17, ¶5].
Meadows filed an Application for Settlement of Tax Liability with the OTC asking for
settlement of the liability. [Id., ¶6]. Subsequently, the OTC commenced collection activity
against him, even though the application is still pending. [Id., ¶7]. Meadows alleges, “This whole
matter would have been avoided if Explorer had withheld the proper Oklahoma Income Tax
from the retirement plan distribution in the first place as required.” [Id., ¶9].
Meadows asserts that Explorer had a duty to withhold Oklahoma income tax pursuant to
OAC 710:90-1-13, but failed to do so. [Id., ¶¶10-11]. He contends Explorer is liable for the
failure to withhold the required sums, plus penalties and interest, under OAC 710:90-5-1 through
710:90-5-3. [Id., ¶12].
Meadows requested a Letter of Determination from the OTC on July 16, 2013, regarding
the applicability of the above OAC requirements to his tax situation. [Id., ¶13]. As of the filing
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of the Petition, the OTC had not responded to the request. [Id.]. The OTC has a statutory duty to
enforce and collect taxes against all liable parties, but has not enforced any requirements against
Explorer. [Id., ¶14].
B. Discussion
1. Claim Against OTC
Meadows seeks a Writ of Mandamus compelling the OTC to collect from Explorer the
income tax he claims it should have withheld and remitted from the retirement plan distribution.
[Dkt. #2 at 19]. He also seeks a temporary stay against the OTC from collection against him
until the matter is settled. [Id.].
The OTC contends Meadows has failed to exhaust his administrative remedies; therefore
the court lacks subject matter jurisdiction over his claim against it. Additionally, it asserts
dismissal is appropriate because the Amended Petition fails to state a claim upon which relief
may be granted.
a. Failure to Exhaust Administrative Remedies
A Rule 12(b)(1) motion may take the form of either a facial attack or a factual attack.
Muscogee (Creek) Nation v. Okla.Tax Comm’n, 611 F.3d 1222, 1227, n.1 (10th Cir. 2010). “A
facial attack looks only to the factual allegations of the complaint in challenging the court’s
jurisdiction,” while a factual attack “goes beyond the factual allegations of the complaint and
presents evidence in the form of affidavits or otherwise to challenge the court’s jurisdiction.” Id.
Where the motion is a facial challenge, the court applies the same standards under Rule 12(b)(1)
that are applicable to a Rule 12(b)(6) motion. Id. The OTC’s motion is a facial attack
challenging the court’s jurisdiction.
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Federal courts generally require parties to exhaust their administrative remedies before
seeking judicial relief. Massengale v. Okla. Bd. of Examiners in Optometry, 30 F.3d 1325, 1328
(10th Cir. 1994) (citing McCarthy v. Madigan, 503 U.S. 140, 144-45, 112 S.Ct. 1081, 1086-88
(1992)).1 Exhaustion of administrative remedies is not required, however, where (1) pursuing an
administrative remedy would impair an individual’s ability to later seek judicial review; (2) the
administrative remedy is inadequate; or (3) the administrative body is shown to be biased or has
otherwise predetermined the issue before it. Id. at 1328-29 (citations omitted).2
Absent one of these exceptions, “requiring exhaustion will best serve the purposes of
protecting administrative agency authority and promoting judicial efficiency.” Id. at 1330 (citing
McCarthy, 503 U.S. at 145).
Under Oklahoma statutory law, a taxpayer may appeal a final order of the OTC assessing
a tax or an additional tax or denial of a claim for refund directly to the Supreme Court of
Oklahoma or may opt to file an appeal for a trial de novo in the district court of Oklahoma
County or the county in which he resides. 68 Okla. Stat. § 225(A) and (D). Further, the statute
provides:
H. This section shall be construed to provide to the taxpayer a legal remedy by
action at law in any case where a tax, or the method of collection or enforcement
thereof, or any order, ruling, finding, or judgment of the Tax Commission is
complained of, or is sought to be enjoined an any action in any court of this state
or the United States of America.
68 Okla. Stat. § 225(H).
1
In Massengale, the Tenth Circuit explained that the question of whether a plaintiff should be required to exhaust
his state administrative remedies before being allowed into federal court “is not jurisdictional, but involves the
exercise of judicial discretion.” Id. at 1328 (citing Rocky Mountain Oil & Gas Ass’n v. Watt, 696 F.2d 734, 743 n.12
(10th Cir. 1982)).
2
Likewise, under Oklahoma law, exhaustion of statutory administrative remedies is a jurisdictional prerequisite for
resort to the courts. Ledbetter v. Okla. Alcoholic Beverage Laws Enforcement Comm’n, 764 P.2d 172, 180 (Okla.
1988).
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Here, the allegations of the Amended Petition establish that Meadows has filed an
Application for Settlement of Tax Liability with the Oklahoma Tax Commission. [Case No. 13CV-680-GKF-TLW, Dkt. #2 at 17, ¶6]. According to the Amended Petition, the application was
pending review at the time of filing, and in its response brief the OTC confirms the application is
currently pending review. Claiming “[s]everal phone calls, and letters written to the [OTC] on
this matter asking why the [OTC] is not enforcing the Statutes against Explorer, have been
ignored and unanswered, ” plaintiff contends he “has been left no other choice but to ask this
court to order the Respondents to perform their lawful and equitable duties under State Statutes. .
. .” [Id., ¶¶8, 10].
However, Meadows’ Amended Petition for Writ of Mandamus contravenes Oklahoma’s
legislatively mandated administrative procedure for protesting a tax, or the collection or
enforcement thereof. 68 Okla. Stat. §§ 221, 225. The procedure requires a hearing before the
Oklahoma Tax Commission (§ 221) and a direct appeal to the Oklahoma Supreme Court (§ 225).
See Blair v. State ex rel. Okla. Tax Comm’n, 935 P.2d 1197, 1199-1200 (Okla. Civ. App. 1997).
Therefore, dismissal for failure to exhaust administrative remedies is appropriate.
b. Failure to State a Claim
The OTC, citing Oklahoma law, asserts Meadows has failed to state a claim upon which
a writ of mandamus can be issued.3 The court agrees the Amended Petition fails to state a
cognizable claim for issuance of a writ of mandamus, first and foremost because the federal court
lacks jurisdiction to enter an order compelling the OTC to abate collection actions against
Meadows and/or collect the tax at issue from Explorer.
3
The OTC contends plaintiff has failed to allege facts establishing either the elements required for issuance of a writ
of mandamus under 12 Okla. Stat. § 1451, et seq., or a right to abatement of tax liability under 68 Okla. Stat. §
219.1.
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Under the federal Mandamus Act, district courts have original jurisdiction of “any action
in the nature of mandamus to compel an officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361 (emphasis added). However,
“[n]o relief against state officials or state agencies is afforded by § 1361.” Amisub (PSL) v. State
of Colo. DSS, 879 F.2d 789, 790 (10th Cir. 1989). Thus, in Adkins v. Sapien, 2006 WL 1875382,
at *1 (10th Cir. July 7, 2006), the court affirmed the district court’s ruling that it lacked
jurisdiction to issue a writ of mandamus prohibiting state prison officials from placing the
plaintiff on “copy and mailing restrictions.”
Likewise, this court lacks jurisdiction to order the OTC to abate tax collection efforts
against plaintiff or to collect the tax at issue from Explorer.
2. Claim Against Explorer
Meadows asks the court to compel Explorer to pay the amount of taxes it has in its
possession to the OTC “that it should have remitted” plus all interest and penalties assessed by
the OTC. Plaintiff’s Amended Petition for Writ of Mandamus against Explorer fails for three
reasons.
First, based on the plain language of 28 U.S.C. § 1361, the court may only “compel an
officer or employee of the United States or any agency thereof to perform a duty owed to
plaintiff.” Thus, a mandamus action does not lie against a private corporation. See Watts v.
United States, 1996 WL 149326, at *1 (D. Wyo. Jan. 19, 1996) (citing Mueller v. Esselstrom,
1995 U.S. Dist. LEXIS 4343, at *4 (D. Calif. March 13, 1995); AFL-CIO v. Adams, 447 F. Supp.
72, 75 (N.D. Ohio 1977); Thomas v. DeVilbiss, 408 F. Supp. 1357, 1359 (D. Ariz. 1973)).
Second, in the unlikely event a mandamus action may somehow be brought against a
private corporation, mandamus will not lie when the party complaining has an adequate remedy
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at law. Johnson v. Rogers, 917 F.2d 1283, 1285 (10th Cir. 1990). In this case, plaintiff had a
cognizable claim under ERISA for breach of fiduciary duty based on Explorer’s failure to
withhold state income taxes from the pension distribution, but the claim is now time-barred. See
29 U.S.C. § 1113(2). He may not use a writ of mandamus to revive the claim. See Wilder v.
Prokop, 846 F.2d 613, 620-21, 626-27 (10th Cir. 1988) (federal employee plaintiff’s failure to
timely appeal adverse ruling by the Merit Systems Protection Board (“MSPB”) did not serve as a
basis for permitting him to pursue remedies outside those prescribed by federal laws and
regulations governing rights of civil service workers).
Third, as discussed in Section II.C above, plaintiff has no cognizable claim against
Explorer for liability under the Oklahoma Tax Code and its implementing regulations.
IV. Conclusion
For the reasons set forth above, Explorer Pipeline’s Motions to Dismiss [Case No. 13CV-568-GKF-TLW, Dkt. #7; Case No. 13-CV-680-GKF-TLW, Dkt. #11] and the OTC’s
Motion to Dismiss [Case No. 13-CV-680-GKF-TLW, Dkt. #9] are granted.
ENTERED this 7th day of April, 2014.
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