Executive Office 864-225-3061
(10:00 a.m. to 8 p.m. EST Mon — Sat)
|Nelson Waller 864-356-9966|
Table of Contents
OVERVIEW OF THE PRIVACY ACT OF 1974, 2004 EDITION Section 7 of the Privacy Act (found at 5 U.S.C. �552a note (Disclosure of Social Security Number) provides that:
"It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number." Sec. 7(a)(1).
Note that although this provision applies beyond federal agencies, it does not apply to: (1) any disclosure which is required by federal statute; or (2) any disclosure of a social security number to any federal, state, or local agency maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under statute or regulation adopted prior to such date to verify the identity of an individual. See Sec. 7(a)(2)(A)-(B).
Note also that the Tax Reform Act of 1976, 42 U.S.C. �405(c)(2)(C)(i), (iv) (2000), expressly exempts state agencies from this restriction to the extent that social security numbers are used "in the administration of any tax, general public assistance, driver's license, or motor vehicle registration law within its jurisdiction." See, e.g. , Stoianoff v. Comm'r of the Dep't of Motor Vehicles , 12 Fed. Appx. 33, 35 (2d Cir. 2001) (finding that plaintiff's Privacy Act claim would fail because �405(c)(2)(C)(i) "expressly authorizes states to require the disclosure of social security numbers in the administration of driver's license programs" and further provides that "any federal law that conflicts with this section is 'null, void, and of no effect'"); Claugus v. Roosevelt Island Hous. Mgmt. Corp. , No. 96CIV8155, 1999 WL 258275, at *4 (S.D.N.Y. Apr. 29, 1999) (considering housing management corporation to be state actor for Privacy Act purposes but finding that Privacy Act does not apply to income verification process for public housing program because of exception created by 42 U.S.C. �405(c)(2)(C)(i)). Exemption from the social security number provisions of the Privacy Act is also provided for certain other government uses. See, e.g. , 42 U.S.C. �405(c)(2)(C)(ii) (authorizing state use of social security numbers in issuance of birth certificates and for purposes of enforcement of child support orders); 42U.S.C. �405(c)(2)(C)(iii) (authorizing use of social security numbers by Secretary of Agriculture in administration of Food Stamp Act of 1977 and by Federal Crop Insurance Corporation in administration of Federal Crop Insurance Act).
"Any Federal, State or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it." Sec. 7(b).
Jurisdiction to enforce the social security number provision might appear questionable inasmuch as the Privacy Act does not expressly provide for a civil remedy against a nonfederal agency, or for injunctive relief outside of the access and amendment contexts. In fact, the Court of Appeals for the Ninth Circuit has held that the Privacy Act provides no cause of action against a state licensing entity with regard to its requirement that individuals provide their social security number in order to obtain license renewal, inasmuch as the private right of civil action created by the Privacy Act "'is specifically limited to actions against agencies of the United States Government.'" Dittman v. California , 191 F.3d 1020, 1026 (9th Cir. 1999) (quoting Unt v. Aerospace Corp. , 765 F.2d 1440, 1447 (9th Cir. 1981)). In a more recent decision, the Court of Appeals for the Eleventh Circuit when faced with this issue held that the remedial scheme of section 3 of the Privacy Act, which applies strictly to federal agencies, does not apply to section 7, which governs social security number usage. Schwier v. Cox , 340 F.3d 1284, 1292 (11th Cir. 2003). Rather, the Eleventh Circuit concluded "that Congress created an 'unambiguously conferred right' in section 7 of the Privacy Act," and it reasoned that section 7 may be enforced under 42 U.S.C. �1983, which "provides a private right of action whenever an individual has been deprived of any constitutional or statutory federal right under color of state law" as "the remedial scheme of section 3 provides no basis for concluding that Congress intended to preclude private remedies under � 1983 for violations of section 7." Id. at 1289-90, 1292; cf. Lawson v. Shelby County, Tenn. , 211 F.3d 311, 335 (6th Cir. 2000) (holding that "Congress never expressly abrogated state sovereign immunity under the Privacy Act"; however, permitting plaintiffs' request for prospective injunctive relief [to enforce section 7 of the Privacy Act] against [state] officials" under Ex Parte Young , 209 U.S. 123 (1908)); Schmitt v. City of Detroit , 267 F. Supp. 2d 718, 722, 724 (E.D. Mich. 2003) (finding that a city "is not properly subject to the requirements of � 7(b) of the Privacy Act" for "damages or other relief . . . other than for prospective declaratory relief," because "[a]lthough the Privacy Act affords a private right of action to enforce its provisions, the statute does not provide a private remedy against a municipal corporation, or any other state actor for that matter"; granting prospective declaratory relief and ordering the city to include a mandatory disclosure statement in its income tax return forms) (appeal pending).
However, other courts have recognized implied remedies for violations of this provision's requirements. See Ky. Rest. Concepts, Inc. v. City of Louisville, Jefferson County, Ky. , 209 F. Supp. 2d 672, 687 (W.D. Ky. 2002) (appeal pending); McKay v. Altobello , No. 96-3458, 1997 WL 266717, at **1-3, 5 (E.D. La. May 16, 1997); Yeager v. Hackensack Water Co. , 615 F. Supp. 1087, 1090-92 (D.N.J. 1985); Wolman v. United States , 501 F. Supp. 310, 311 (D.D.C. 1980), remanded , 675 F.2d 1341 (D.C. Cir. 1982) (unpublished table decision), on remand , 542 F. Supp. 84, 85-86 (D.D.C. 1982); Greater Cleveland Welfare Rights Org. v. Bauer , 462 F. Supp. 1313, 1319-21 (N.D. Ohio 1978).
For other discussions of this provision, see: Schwier , 340 F.3d at 1288-89 (explaining that although section 7 is uncodified, it is still present in the Statutes at Large and therefore is not "a dead letter"); McKay v. Thompson , 226 F.3d 752, 755 (6th Cir. 2000) (finding that Tennessee law requiring disclosure of social security number for voter registration fell within section 7(a)(2)'s exception for systems of records in existence prior to January 1, 1975, where disclosure was required under statute or regulation); Crawford v. United States Tr. , 194 F.3d 954, 961-62 (9th Cir. 1999) (rejecting government's argument that because disclosure of plaintiff's social security number was expressly required by federal statute, section 7 was wholly inapplicable, stating that "�7(a)(2)(A)'s exclusion for federal statutes only pertains to the limitation recited in �7(a)(1)"; holding that section7(b) had "no bearing on the public disclosure of [plaintiff's] social security number by the government," which was the only issue in dispute); Alcaraz v. Block , 746 F.2d 593, 608-09 (9th Cir. 1984) (section 7(b)'s notice provision satisfied where agency informed "participants of the voluntariness of the disclosure, the source of authority for it and the possible uses to which the disclosed numbers may be put"); Brookens v. United States , 627 F.2d 494, 496-99 (D.C. Cir. 1980) (agency did not violate Privacy Act because it maintained system of records "before January 1, 1975 and disclosure of a social security number to identify individuals was required under [executive order]"); McElrath v. Califano , 615 F.2d 434, 440 (7th Cir. 1980) (because disclosure of social security number required by Aid to Families with Dependent Children program under 42 U.S.C. �602(a)(25) (2000), regulations that give effect to that requirement are not violative of Privacy Act); Green v. Philbrook , 576 F.2d 440, 445-46 (2d Cir. 1978) (same); Lynn v. Comm'r , 80 T.C.M. (CCH) 31 (2000) (holding that agency did not violate Privacy Act, because section 151(e) of the IRS code "is a Federal statute that requires the disclosure of a dependent's Social Security number"); Russell v. Bd. of Plumbing Exam'rs , 74 F. Supp. 2d 339, 347 (S.D.N.Y. 1999) (finding violation of section 7 and ordering injunctive relief where defendants neither informed applicants that providing social security number was optional nor provided statutory authority by which number was solicited, and no statutory authority existed); Johnson v. Fleming , No. 95 Civ. 1891, 1996 WL 502410, at **1, 3-4 (S.D.N.Y. Sept. 4, 1996) (no violation of either section 7(a)(1) or section 7(b) where, during course of seizure of property from plaintiff, an unlicensed streetvendor, plaintiff refused to provide police officer with his social security number and officer "seized all of Plaintiff's records rather than only 'a bagful' as other officers allegedly had done" on previous occasions); In re Rausch , No. BK-S-95-23707, 1996 WL 333685, at *7 (Bankr. D. Nev. May 20, 1996) (Privacy Act "inapplicable" because 11 U.S.C. �110 (2000) "requires placing the SSN upon 'documents for filing'"); In re Floyd , 193 B.R. 548, 552-53 (Bankr. N.D. Cal. 1996) (Bankruptcy Code, 11 U.S.C. �110(c) (2000), required disclosure of social security number, thus section 7(a) inapplicable; further stating that section 7(b) also inapplicable "even assuming the [U.S. Trustee] or the clerk of the bankruptcy court were agencies" because no "request" had been made; rather, because disclosure of social security number is required by statute, "the [U.S. Trustee] is enforcing a Congressional directive, not 'requesting' anyone's SSN" and "[t]he clerk receives documents for filing but does not police their content or form or request that certain information be included"); Krebs v. Rutgers , 797 F. Supp. 1246, 1256 (D.N.J. 1992) (although state-chartered, Rutgers is not state agency or government-controlled corporation subject to Privacy Act); Greidinger v. Davis , 782 F. Supp. 1106, 1108-09 (E.D. Va. 1992) (Privacy Act violated where state did not provide timely notice in accordance with section 7(b) when collecting social security number for voter registration), rev'd & remanded on other grounds , 988 F.2d 1344 (4th Cir. 1993); Libertarian Party v. Bremer Ehrler, Etc. , 776 F. Supp. 1200, 1209 (E.D. Ky. 1991) (requirement that voter include social security number on signature petition violates Privacy Act); Ingerman v. IRS , No. 89-5396, slip op. at 3-5 (D.N.J. Apr. 3, 1991) (section 7(b) not applicable to IRS request that taxpayers affix printed mailing label containing social security number on tax returns; no new disclosure occurs because IRS already was in possession of taxpayers' social security numbers), aff'd , 953 F.2d 1380 (3d Cir. 1992) (unpublished table decision); Oakes v. IRS , No. 86-2804, slip op. at 2-3 (D.D.C. Apr. 16, 1987) (section 7(b) does not require agency requesting individual to disclose his social security number to publish any notice in Federal Register ); Doyle v. Wilson , 529 F. Supp. 1343, 1348-50 (D. Del. 1982) (section 7(b)'s requirements are not fulfilled when no affirmative effort is made to disclose information required under 7(b) " at or before the time the number is requested"); Doe v. Sharp , 491 F. Supp. 346, 347-50 (D. Mass. 1980) (same as Green and McElrath regarding section 7(a); section 7(b) creates affirmative duty for agencies to inform applicant of uses to be made of social security numbers—"after-the-fact explanations" not sufficient); and Chambers v. Klein , 419 F. Supp. 569, 580 (D.N.J. 1976) (same as Green , McElrath , and Doe regarding section 7(a); section 7(b) not violated where agency failed to notify applicants of use to be made of social security numbers as state had not begun using them pending full implementation of statute requiring their disclosure), aff'd , 564 F.2d 89 (3d Cir. 1977) (unpublished table decision). Cf. Doe v. Herman , No. 297CV00043, 1999 WL 1000212, at *9 (W.D. Va. Oct. 29, 1999) (magistrate's recommendation) (although not citing section 7 with regard to issue, citing Doe v. Sharp and subsection (e)(3) for proposition that "when agency solicits a social security number it shall inform the individual of what use will be made of it"), adopted in pertinent part & rev'd in other part (W.D. Va. July 24, 2000), aff'd in part, rev'd in part, & remanded, on other grounds sub nom. Doe v. Chao , 306 F.3d 170 (4th Cir. 2002), aff'd , 124 S. Ct. 1204 (2004).
IRS refunds a stolen $11k after Admin Claim is filed
Marilyn Freeman, a retired school teacher in Wyoming had her pension stolen for 5 years by greedy tax thieves. Dr Clarkson et al helped her file Administrative Claims under the Illegal Tax Collections Act, IRC �7433. Finally, the Service admitted wrongdoing and returned the illegal tax collections of $11,000.
Now, this brave Freedom fighter will sue as a Federal Bounty Hunter for damages, mental anguish, interest, fees, paralegal fees, costs and statutory damages of $100,000. Marilyn's Administrative Claim may be viewed by clicking here.
More of Marilyn's notices and pleadings will be posted as her case proceeds. A copy of the check will be posted soon. Look for updates on Marilyn's case in The Patriot Cannon Newsletter. We have about 30 of these cases in various stages and expect to retrieve millions of stolen money. According to the Government Accounting office, three out of four of liens and levies are incorrect !!!
IN THE U. S. DISTRICT COURT
Ward Dean, ) M.D. ) CASE NO:_______________ Plaintiff, ) vs. ) UNITED STATES OF AMERICA ) PLAINTIFF DEMANDS and ) A TRIAL BY JURY INTERNAL REVENUE SERVICE, ) OF ALL ISSUES SO TRIABLE Defendants, )
COMPLAINT FOR DAMAGES UNDER 26 U.S.C. SECTION 7431Ward Dean, M.D., Plaintiff herein, complains of Defendants and seeks statutory and/or actual, and punitive damages as follows:
1. This is an action brought pursuant to Title 26, Section 7431 of the Internal Revenue Code for the recovery of statutory and/or actual and punitive damages caused by the intentional and/or negligent unlawful disclosure of confidential return information by Criminal Investigation Division Special Agent Tanya Burgess and Internal Revenue Service Group Manager Ted Poole (aka George Poole).
2. This Court has jurisdiction for this action under Title 26, Section 7431(a)(1) of the Internal Revenue Code. Venue is proper in this Court under 28 U.S.C. � 1391(e).
3. Ward Dean, M.D., is an individual who at all times material hereto resided in Pensacola, Florida. Ward Dean, M.D., is a medical doctor who at all times material hereto was licensed to practice medicine in the State of Florida.
4. Dr. Dean is the subject of an on-going criminal investigation being conducted by Special Agent Tanya Burgess of the Criminal Investigation Division of the Internal Revenue Service.
5. On or about 3 October, 2002, Criminal Investigation Division Special Agent Tanya Burgess and Revenue Agent Wayne Jackson arrived unannounced at Dr. Dean's residence and informed him that he was under criminal investigation.
6. Shortly thereafter Special Agent Burgess phoned a number of Dr. Dean's patients and associates and informed them that he was under criminal investigation, and asked a number of questions about Dr. Dean, his activities, and personal beliefs.
7. Special Agent Burgess also caused several summonses to be issued to compel disclosure of financial documents relating to Dr. Dean (Exhibit A).
88. Special Agent Burgess' summonses reflected that the Internal Revenue Service Criminal Investigation Division was conducting an investigation of Dr. Dean.
9. The words "Criminal Investigation Division" were prominently displayed on the return address of the envelopes and on the summonses (Exhibit B).
10. The Summons and envelope attached hereto as Exhibits " A" and "B" improperly disclosed to all who received them that Plaintiff was under criminal investigation.
11. The Summonses with the words "Criminal Investigation Division," and phone calls to Dr. Dean's associates, advising them that he was under criminal investigation, suggested wrongdoing on the part of Dr. Dean.
12. Furthermore, the mailing of said Summonses and making of said phone calls have caused third-parties to learn that Dr. Dean is under "criminal investigation."
13. Such disclosures have caused Plaintiff substantial personal professional embarrassment and loss of revenue.
14. The wrongful disclosure of Dr. Dean's return information has caused Dr. Dean substantial mental and emotional distress.
15. The issuance of summonses which reveal on their face that they were issued by the Criminal Investigation Division of the Internal Revenue Service are unlawful disclosures prohibited by 26 USC Section 6103.
16. The disclosure that Dr. Dean is under criminal investigation has caused Dr. Dean to suffer substantial professional embarrassment, loss of income, and loss of goodwill. 17. It was not necessary for Agent Burgess to identify that her investigation emanated from the Criminal Investigation Division in order to gain the information she sought. 18. An Internal Revenue Agent does not need to identify herself as a member of the Criminal Investigation Division to secure desired information.
19. Agent Burgess' disclosure was not in good faith or there existed no good faith in disclosure of the information.
20. An Internal Revenue Agent is expected to know the statutory provisions governing disclosure, as interpreted and reflected in IRS regulations and manuals.
21. An IRS agent's contrary interpretation is not in good faith.
22. Agent Burgess did not follow the dictates of section 6103 or the applicable IRS manual provisions prior to mailing the Summonses or when making the phone calls.
23. The Handbook for Special Agents, , amended on June 12, 1992, provides that "neither the signature block nor the ancillary heading of the letter should contain the words 'Criminal Investigation Division.' The heading and return address may contain the necessary symbols for the letter to be returned to the special agent."
24. On information and belief, the agents involved in this case have all received extensive "disclosure" training which is designed to preserve the integrity of the confidentiality provisions of the federal tax laws.
25. Section 7431 of the Internal Revenue Code provides taxpayers with a cause of action for statutory and/or actual and punitive damages against the United States in the event an officer or employee thereof makes an unlawful disclosure of "return information" in violation of Section 6103 of the Internal Revenue Code.
26. "Return information" is required by Section 6103(a) to remain confidential and not be disclosed except as provided in Section 6103.
27. "Return information" is broadly defined in Section 6103(b )(2) as follows:
a taxpayer's identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, over-assessments, or tax payments, whether the taxpayer's return was, is being, or will be examined or subject to investigation or processing, or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense, ...
28. The disclosures described in Paragraph 7 through 18 of this Complaint are intentional, negligent, and/or grossly negligent disclosures of "return information" in violation of Section 6103 and for which Plaintiff is entitled to statutory and/or actual and punitive damages under Section 7431.
29. The disclosures made by Criminal Investigation Division Special Agent Tanya Burgess, Wayne Jackson, and Ted (aka George) Poole and the other agents involved herein caused Plaintiff substantial professional and personal embarrassment, loss of income, loss of goodwill, and unnecessary attorney and other legal fees, resulting in actual damages, the extent of which at this time cannot be completely and accurately ascertained but which will be more fully known after the completion of discovery.
30. The intentional and/or grossly negligent unlawful disclosures by Criminal Investigation Division Special Agent Tanya Burgess and the other agents involved herein entitles Plaintiff to punitive damages the extent of which at this time cannot be completely and accurately ascertained at this time.
31. Based on the unlawful disclosures, Plaintiff is entitled to the costs of the action, plus reasonable attorneys' fees pursuant to Section 7431 (c)(2) and (3).
WHEREFORE, Plaintiff requests actual and punitive damages, the costs of this action, reasonable attorney's fees, and such other and further relief to which Plaintiff is entitled.
Ward Dean, M.D.
Plaintiff, Pro Se
8799 Burning Tree Road
Pensacola, Florida 32514
False Claims � 3729.
(a) LIABILITY FOR CERTAIN ACTS
(1) IN GENERAL.�Subject to paragraph (2), any person who�
(A) knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval;
(D) has possession, custody, or control of property or money used, or to be used, by the Government and knowingly delivers, or causes to be delivered, less than all of that money or property;