Douglas v. Herrin et al

Filing 21

ORDER GRANTING 8 Motion to Dismiss. Signed by Judge Xavier Rodriguez. (tm)

In the United States District Court
for the
Western District of Texas
Robert W. Douglas
v.
Thomas Herrin, et al.

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SA-11-CV-766-XR

ORDER

On this day came on to be considered Defendant’ motion to dismiss (dkt.
no. 8).
Background
On or about May 31, 2006, a notice of federal tax lien was filed in the
Bexar County property records against Plaintiff’s residence. On or about May
14, 2007, Heriberto Almodovar, an IRS Revenue Officer, sent Plaintiff a “Letter
3174" notifying Plaintiff that he owed $168,139.99 for tax periods 1998, 2000,
2001, 2002 and 2003. On that same date, notice of levies were sent to Southtrust
Bank and Frost National Bank. In response Plaintiff sent Mr. Almodovar and
the Commissioner of the IRS a letter titled “Validation and Verification of
Requirement, Duty, Obligation, Debt or Liability Inquiry.” In that letter he
argued that he has “never been established as a taxpayer.”
On August 19, 2010, Bruce M. Wilpon, an attorney with the Department

of the Treasury sought authorization to foreclose the tax lien against Plaintiff’s
property.
On October 22, 2010, the United States brought suit against Plaintiff in
10-cv-00856 to reduce to judgment federal tax liabilities assessed against
Douglas and to foreclose federal tax liens encumbering certain real property
owned by him. That Complaint was signed by Thomas M. Herrin, an attorney
in the Tax Division of the Department of Justice. Cause Number 10-cv-00856
was initially assigned to United States District Judge Orlando L. Garcia. After
denying Douglas’s motions to dismiss, the case (and nine others) were reassigned
to the Hon. Harry Lee Hudspeth.1 On August 9, 2011, Judge Hudspeth granted
a pending Government motion for summary judgment against Douglas. In that
Order, Judge Hudspeth concluded that no genuine issue of material fact existed,
that summary judgment should be granted to the Government, that the tax liens
should be reduced to judgment, and authorized foreclosure on the real property.2
A judgment was entered on August 9, 2011. Douglas did not file any appeal to
the Fifth Circuit.
On September 6, 2011, Plaintiff filed an Original Complaint and
Application for Injunctive Relief in the 288th Judicial District Court of Bexar
County, Texas. In this complaint Douglas named Judges Garcia and Hudspeth
as defendants. In addition, he brought claims against DOJ attorney Herrin, IRS

1

10-cv-00856, dkt. no. 34.

2

Id. at dkt. no. 35.

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Revenue Officer Almodovar, and Treasury Department attorney Wilpon.
With regard to Judge Garcia, Douglas complains that he violated his oath
of office, violated Plaintiff’s First Amendment right to “freely associate only with
the state of Texas outside federal jurisdiction”, violated his Fourth, Fifth and
Thirteenth Amendment rights by denying dismissal, and violated 26 U.S.C.
§7403 and 18 U.S.C. §208 by attempting to steal private property and by
engaging in a criminal conspiracy.

Among additional allegations, Douglas

describes Judge Garcia as a terrorist for “using judicial force against person or
property to intimidate the civilian population.”3 Douglas essentially makes the
same allegations against Judge Hudspeth.4
With regard to Mr. Herrin, Douglas claims that Herrin violated his oath
of office, violated Plaintiff’s First Amendment association rights, violated his
Fourth Amendment rights by filing suit to foreclose and requesting private
records, and violated his Fifth Amendment rights by “filing suit that would steal
private property.” Among additional allegations, Douglas describes Mr. Herrin
as a terrorist for "using judicial force against person or property to intimidate
the civilian population." 5
With regard to IRS Revenue Officer Almodovar, Plaintiff alleges that Mr.
Almodovar committed fraud by mailing illegal levies in violation of 26 U.S.C.
§6331, filed notices of lien in violation of Plaintiff’s Fourth and Fifth Amendment

3

See 11-cv-00766, dkt. no. 1 at ¶¶125-152.

4

Id. at ¶¶ 153-180.

5

Id. at ¶¶102-124.

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rights, and attempted to steal private property in violation of 18 U.S.C. §208.
Plaintiff alleges numerous other claims against Mr. Almodovar.6
With regard to Treasury Department attorney Wilpon, Plaintiff alleges
that he violated Plaintiff’s Fourth Amendment rights by recommending that a
suit to foreclose be filed “on a fraudulent lien outside of his authority.” He also
alleges that Mr. Wilpon violated his Fifth Amendment rights by recommending
that the foreclosure suit be filed. He also alleges that Mr. Wilpon attempted to
steal his private property in violation of 18 U.S.C. §208.

Plaintiff alleges

numerous other claims against Mr. Wilpon.7
On September 26, 2011, Douglas filed a motion to remand this case to
state court. Douglas argued that he filed a Bivens action, that this Court was an
“Article IV court” that lacked jurisdiction to hear this case, and that he was a
“non-taxpayer until proven otherwise and evidence provided on the record justly
determined.” This Court denied the motion to remand by text order dated
November 29, 201, noting that removal was appropriate under 28 U.S.C. §§
1441, 1442, 1331 and 1340.
Defendants’ Motion to Dismiss
and/or Motion for Summary Judgment
Defendants assert that Plaintiff’s Complaint must be dismissed, with
prejudice, because: (1) plaintiff’s suit is an impermissible collateral attack on a
final judgment; (2) the individually named defendants are protected by either

6

Id. at ¶¶55-82.

7

Id. at ¶¶83-101.

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absolute immunity or by qualified immunity; (3) plaintiff’s claims, at least with
respect to Wilpon and Almodovar, are barred by 26 U.S.C. § 7433; and (4)
plaintiff’s claims against Almodovar are barred by limitations.
1.

Impermissible Collateral Attack

The Court agrees that this lawsuit is an impermissible collateral attack
on a final judgment. Douglas initially filed a complaint, on July 13, 2007,
seeking damages for alleged unauthorized collection actions in connection with
the levy on his bank accounts, for refunds of federal income tax, and for
injunctive relief.8 This Court granted summary judgment to the United States,
which the Fifth Circuit subsequently affirmed.9 The Fifth Circuit disposed of
most of Plaintiff’s arguments holding that the “Supreme Court has held that the
administrative collection scheme by means of levy is Constitutional. Further,
Douglas is mistaken in arguing that there have been no implementing
regulations passed that would empower the government to make assessments
or collections under the Internal Revenue Code. In fact ‘[n]umerous regulations
have been promulgated concerning [the IRS's] assessment and collection
authority.’ Further, courts have consistently held that provisions of the Code do
not have to be implemented by regulation in order to be effective.” Id. at 321
(internal citations omitted). In addition, the Fifth Circuit rejected Plaintiff’s
argument that he is a “non-taxpayer.” Finally, the Fifth Circuit concluded that
the IRS acted properly in levying his funds and Douglas was not entitled to a

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9

See SA-07-cv-00593.
See Douglas v. United States, 324 Fed. Appx. 320 (5th Cir. April 15, 2009).

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refund. Id. at 322.
Thereafter, as discussed above, the United States reduced to judgment
plaintiff’s federal tax liabilities (for tax years 2000-2003) and foreclosed its
federal tax liens against plaintiff’s residence.10 Plaintiff never filed an appeal of
that judgment. In this case, Plaintiff is seeking injunctive relief to prevent the
foreclosure of his residence. To that extent, this lawsuit is an impermissible
collateral attack on the prior judgments.
2.

Absolute Immunity

Judges Garcia and Hudspeth are entitled to absolute immunity because
Plaintiff’s claims for damages arose out of acts they performed in the exercise of
their judicial functions. See Mitchell v. McBryde, 944 F.2d 229, 230 (5th Cir.
1991).
DOJ Tax Attorney Herrin is also entitled to absolute immunity.
“[O]fficials who are responsible for the decision to initiate or continue a
proceeding subject to agency adjudication are entitled to absolute immunity from
damages liability for their parts in that decision.” Butz v. Economou, 438 U.S.
478, 516, 98 S.Ct. 2894, 2916, 57 L.Ed.2d 895 (1978). See also Saunders v. Bush,
15 F.3d 64, 67 (5th Cir. 1994).
3.

Qualified Immunity

IRS Revenue Officer Almodovar, Treasury Department attorney Wilpon
and DOJ Tax Attorney Herrin are entitled to qualified immunity. Because these

10

See 10-cv-00856.

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defendants have asserted qualified immunity, the first question that must be
considered is whether their conduct violated a clearly established statutory or
constitutional right of which a reasonable person would have known. See
Longoria v. Texas, 473 F.3d 586, 592 (5th Cir. 2006). To be clearly established
for purposes of qualified immunity, the contours of the right must be sufficiently
clear that a reasonable official would understand that what he is doing violates
the defendant's rights. Johnson v. Johnson, 385 F.3d 503, 524 (5th Cir. 2004).
“Of course, the defendant's conduct cannot constitute a violation of clearly
established law if, on the plaintiff's version of the facts, there is no violation at
all.” Id. at 525. This court must thus initially ask whether the challenged
conduct actually presents a violation of federal law. Id. (citing Siegert v. Gilley,
500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)).
The first question is whether the facts alleged, “[t]aken in the light most
favorable to the party asserting the injury ... show the [official’s] conduct violated
a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201 (2001); see also
Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007). Although Plaintiff has pled
allegations that various constitutional and statutory rights were violated, the
allegations have no legal merit.
However, even assuming arguendo that Plaintiff has satisfied this first
step, the qualified immunity inquiry continues and examines whether the
constitutional rights violated were clearly established to the extent that a
reasonable person would be aware of those rights. Plaintiff fails to overcome this
obstacle. The alleged violations were not “clearly established” at the time of the
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incidents. Indeed, as noted above, the Fifth Circuit has rejected Plaintiff’s
contentions.
Conclusion
Defendant’s motion to dismiss (doc. no. 8) is granted. Inasmuch as the
Court has concluded that Plaintiff’s claims are barred by either absolute
privilege, qualified privilege, or constitute an impermissible collateral attack, the
Court does not address the alternative arguments that the claims are barred by
limitations or by 26 U.S.C. §7433(a).
Inasmuch as no claims remain pending, the Clerk is instructed to Clerk
to issue judgment pursuant to Fed. R. Civ. P. 58 and close this case.
It is so ORDERED.
SIGNED this 20th day of January, 2012.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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