Lawsuits
The Law

Table of Contents
  1. Lawsuit 2006: Intentional Infliction of Emotional Distress & Outrageous Conduct
    1. Larry's Lawsuit
    2. Press Release 1
    3. Article: Flaggers File Federal Suit
      (from The Toccoa Record)
    4. Letter to Editor by R.W. Moore
      (M. Dee's Fact Sheet)
    5. WNEG Editorial
    6. Letter to WNEG Radio by Nelson Waller
    7. Letter to WNEG Radio by Larry Leitgeb
    8. Letter to Representative Charile Norwood by LL
    9. Clarkson's Settlement Letter to Toccoa Record
    10. Plaintiffs' Initial Disclosures
    11. Opposition to District Attorney's Motion to Dismiss
    12. Press Release 2
    13. Reply to Ms. B. Kelley & Associates in their Official Capacities
    14. Reply to Ms. B. Kelley & Associates in their Individual Capacities
    15. Opposition to School Board's Motion to Dismiss
    16. Interrogatories (Questions for the Defense)
    17. Reply to School Board's Answer to Interrogatories
    18. Press Release 3
    19. Request for Production of Documents #2
  2. Habeas Corpus
    1. Order For Habeas Corpus
    2. Petition For Habeas Corpus
    3. Habeas Corpus Memorandum of Law
    4. Habeas Corpus and Instructions for Florida
  3. Illegal Disclosure-7431
    1. Illegal Disclosure-7431
    2. Illegal Disclosure 7431—Appeal Brief
    3. Dr. Reddy's Complaint on Illegal Disclosure
    4. Payne's 7431- Writ to the Supremes
  4. Complaint For Tax Refund Suit
  5. Request For Sample Lawsuit Form (clerk of court)
  6. Clarkson v. City of Greenville
    1. Complaint for Illegal Arrest
    2. Order to Show Cause
    3. Affidavit of Plaintiff
  7. Tate v IRS and H.B Bindseil
    1. Plaintiff's Opposition to Defendant's Motion
    2. Affidavit in connection with Opposition, above

Complaint For Tax Refund Suit

United States District Court
District of South Carolina




Endwith Holding, Plaintiff                  
             V.                                          }   CA#
                                                                             Complaint for Tax Refund Suit

United States Government,                         
                        Defendant


  1. This is an action pursuant to 26 USC §7422 for the recovery of administration fine of $500.00 plus interest and penalties, issued pursuant to 26 USC §6682.
  2. This cou This court has jurisdiction pursuant to 28 USC §1331 in that this action involves a federal statute, defendant is a federal office and the Constitutional rights of the Plaintiff including the Due Process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution have been violated.
  3. On 1 July 82, Plaintiff filed a W-4 form with his employer claiming an exempt
    status to halt; the withholding of Federal income taxes from his payroll check. Plaintiff, a non lawyer, accountant or Tax practitioner, believed that he had paid enough income tax into the IRS at that point of the year, that he would receive a refund of taxes overpaid.
  4. On 1 Aug 82, the IRS sent Plaintiff a letter instructing him to change his exempt
    withholding status, However, Plaintiff had left this employment, had no
    further contact with the employer or its payroll staff, and consequently was
    unable to comply with the IRS instruction.
  5. On 1 Sept 82, a low-level, local IRS agent issued a $500.00 administrative
    fine pursuant to IRC~ 6682. Plaintiff on 10 Sept 82 appealed this assessment
    (copy attached), asking for a hearing, an opportunity to appear and present
    evidence. In said letter, Plaintiff requested the necessary forms and instructions
    to perfect his appeal.

    The IRS neither responded to the appeal nor scheduled an administrative hearing, nor sent any instructions or forms.

  6. On 1 Oct 82, the IRS collected the fine from Plaintiff’s salary. On 10 Oct 82
    Plaintiff submitted his request for abatement under §26 SC 6682 and a copy of
    the account of assessment pursuant to IRC § 6203.. (copy attached)

    The IRS failed to respond to those requests.

  7. On Oct 82, Plaintiff filed his Form 843 request for refund pursuant to IRC 7422(a) (copy attached) which was refused by the IRS on 1 Dec 82.
  8. The administrative fine was incorrectly arid illegally leveled against Plaintiff because:
    1. Plaintiff having changed employment was unable to carry out the IRS instructions, unable to change his form. Plaintiff simply did not owe the money.
    2. Plaintiff request for abatement by the IRS was wrongfully refused, as he had meant their requirements.
    3. The IRS failed to carry out the required administrative procedural steps in
      accessing and collecting the fine.
    4. Plaintiff was denied due process, denied a chance to appear, to present
      witnesses and evidence in his behalf, to appeal and to receive proper notice.
    5. The agency abused its desretion in denying the request for abatement.
      Furthermore, the IRS is following incorrect procedures in handling the request for abatement.
  9. The act which allows the administrative fine is patently un-Constitutional in
    many ways:
    1. Violates the separation of powers doctrine in that the leveling of fines is
      limited to courts and judges, and not granted to low-level administrative agents.
    2. The entire process of a single IRS agent leveling $500 fines without any
      restraints, any requirement of notice, opportunity to appear, to appeal,
      inherently violates the Due Process provisions in the 5th and 14th Amendments
    3. The granting of the authority to abate the finer to a minor official is a
      violation of the agencies delegated powers.
  10. This Act should be declared unConstutional, null and void by this court, the IRS required to return to Plaintiff his $500 and any interest or add-ons
    collected.
Wherefore Plaintiff requests the relief herein above requested, plus cost ands cost and expenses of this action and other just relief.



Date:_______________                                           __________________
                                                                                 Plaintiff per se
Address:_____________
____________________

Phone:_______________

Illegal Disclosure-7431

IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE NORTHERN DISTRICT OF FLORIDA

  Ward Dean, M.D.                                                      CASE NO:

            Plaintiff,                                        }

UNITED STATES OF AMERICA and
INTERNAL REVENUE SERVICE,                              
                                                                       
(PLAINTIFF DEMANDS A

                                                                                      TRIAL BY JURY OF ALL ISSUES SO TRIABLE)

Defendants,

COMPLAINT FOR DAMAGES UNDER 26 U.S.C. SECTION 7431

Ward Dean, M.D., Plaintiff herein, complains of Defendants and seeks statutory and/or actual, and punitive damages as follows:

I.

INTRODUCTION

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).

II.

FACTS

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).

8.      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.

                                                                        IV.

DAMAGES

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

                                                                        (850) 484-0595

Habeas Corpus

COUNTY OF ANDERSON
                                                              IN THE COURT OF CITY COURT RECORDER
STATE. OF SOUTH CAROLINA      }
ROBERT B. CLARKSON
                           Petitioner 
                                                             }                         HABEAS CORPUS
             vs.

DARWIN WRIGHT, MAYOR OF
THE CITY OF ANDERSON
                             Respondent

Having read the attached, verified Petition and it appears:

That Petitioner was engaged in picketing and literature distribution on a public sidewalk;

That the United States Constitution, in particular the First Amendment, does
in fact guarantee Petitioner the Freedom of Expression and access to the
public areas to picket and hand out political literature;

That the subsequent arrest by Petitioner might be in violation of Petitioner’s
Constitutional Rights, as well as the City Code of laws, therefore it is hereby:

ORDERD that Respondent and all officers under his control do forthwith
produce the body of Petitioner before me at my offices at ______________________
and show cause if cause there be why Petitioner should not be released until a
trial of this case, or in the alternative, Respondent is to be released from
custody immediately to appear in Court when notified.


Date:__________
                                                                   _________________________
                                                                   Judge of This Court


ORDER PROPOUNDED BY PETITIONER

Petition For Habeas Corpus

COUNTY OF ANDERSON
                                                           }    IN THE COURT OF CITY COURT RECORDER
STATE OF SOUTH CAROLINA

ROBERT  B. CLARKSON                                  }
                              Petitioner
                 vs.                                                                   PETITION FOR HABEAS CORPUS

DARWIN WRIGHT, MAYOR OF
THE CITY OF ANDERSON, S.C.
                                  Respondent                      
}

The Petitioner above-named hereby Petitions the Court:

1. The Petitioner is an American Citizen and thereby entitled to the protections under the United States Constitution. That a part thereof, generally referred to as the First Amendment, guarantees Petitioner the Right to Petition for Redress of Grievances and guarantees Freedom of Speech and Press, which includes the right to distribute political literature.

2. In exercise of that Constitutional guarantee, on March 11, 1982 at about
3:00 o’clock, Petitioner in the company of others did in fact on the public sidewalks of this City of Anderson exercise his First Amendment rights in that he stood in front of City Hall with a placard stating his grievance against certain actions of government and handed out to passers-by literature advocating a particular political position. Petitioner did not have a permit and does not intend to request one.

3. Police officers under the control of Respondent approached Petitioner and asked him to refrain from his legal and lawful activities. Petitioner requested to see a copy of their rulebook, or police code and regulation which clearly stated “parades”, i.e. interference with traffic and rights of others may be regulated and permits required. However, picketing and literature distribution is permitted in any public area, without a permit insofar as the demonstrators do not interfere with others. Petitioner and
his followers meet all these requirements.

4. Nevertheless, the police officers arrested Petitioner and currently hold him incarcerated in their jail.

5. Petitioner requests from this Court a Habeas Corpus Order requiring Respondent and his police officer to produce the body and person of Petitioner immediately and show cause, if cause there be, why he should not be released upon his own recognition until a regular trial of this matter, or in the alternative release him immediately from custody.
Date: __________

                                                                __________________________
                                                                Robert B. Clarkson, Petitioner

Memorandum of Law

COUNTY OF ANDERSON                     
                                                                   
               }    IN THE COURT OF CITY RECORDER
STATE OF SOUTH CAROLINA 
          

ROBERT B. CLARKSON                         }
                   Petitioner
                                                                              MEMORANDUM  OF LAW
                          vs.      
DARWIN WRIGHT, MAYOR OF
CITY OF ANDERSON, S.C.
                 Respondent

Petitioner submits This Memorandum of Law in support of his Petition for
Habeas Corpus:
1. The law is well settled: American citizens do have the Constitutional right for freedom of Expression, to demonstrate, picket, pass out literature, without interference from the local authorities or the requirement of permits or permission.

However, the government can regulate any authority which involves interference
with the rights of others, i.e. parades which by definition interfere with traffic.

2. A requirement of written permit would place an intolerable burden on small,
unorganized political action groups, prevent spontaneous demonstrations, place a financial hardship on groups without lawyers, typewriters, divert limited resources and allow in effect the authorities to control political expression by failure to grant permits, dilatory responses, picayune procedure requirements, etc.

Further, no need, no reason, no state interest exists for taxpayers to finance
police officers and city managers policing a couple of harmless demonstrations.
What difference does it make to the city authorities for a few handouts to be passed out on a city street?

3. The First Amendment of the U. S. Constitution provides:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Constitution of this State provides similar protections.

The US. Supreme Court has ruled this Constitutional protection is a FUNDAMENTAL RIGHT, that cannot be abridged by governments without COMPELLING STATE INTEREST!

The Citizens of this community have the right to hear varying viewpoints and make their own decision. To deny Petitioner access to the public streets would deny the citizenry exposure to certain political beliefs.

4. Distribution of Literature: In Lowell vs. City of Griffin, Ga., 58 S. Ct.
666, 303 U.S. 444 (1938) the U.S. Supreme Court decisively ruled that city ordinance that mandated permits were unconstitutional as an abridgment
of Freedom of the Press.

In Lowell, the Defendant was arrested for distributing religious literature without a permit required under city ordinances.

The Court held, Chief Justice Hughes speaking:

“Freedom of speech and freedom of the Press, which are protected by the
First Amendment from Congress are among the fundamental personal rights,
liberties which are protected by the Fourteenth Amendment from invasion by
state action.”


“The liberty of the press is not confined to newspaper and periodicals.
It necessarily embraces pamphlets and leaflets . . . Liberty of circulating
is as essential to that freedom as liberty of publishing, indeed without
circulation, the publication would be of little value.”


In a fact circumstance IDENTICAL to Petitioner’s, the High Court
in Lowell, supra, ruled: “As the ordinance is void on its face, it was
not lawful for appellant to seek permit under it.”

Likewise in Martin vs. City of Struthers, 63 5. Ct. 862, 319 U.s. 141
(1943), the Supreme Court continued its tradition of throwing out municipal
ordinance limiting “liberty”. "Freedom to distribute information to any citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that it must be fully preserved.”

5. Permit Requirement: In Shuttlesworth vs. City of Birmingham, Ala. 89 S.
Ct79357397J~7[7~7 (1969) the U.S. Supreme Court ruled:

“It is settled by a long line of recent decisions of this Court that an
ordinance which, like this one, makes the peaceful enjoyments of freedoms
which the Constitution guarantees contingent upon the uncontrolled will of
an official - as by requiring a permit or license which maybe granted or
withheld in the desertion of such official — is an unconstitutional censor-
ship or prior restraint upon the enjoyment of those freedoms . . . and our
decisions have made clear that a person faced with such an unconstitutional
licensing law may ignore it and engage with impunity in the exercise of the
right of free expression.”


Again the high court, in similar fact circumstances as Petitioners, reversed
Shuttlesworth’ s conviction of leading a procession without a permit.

6. In conclusion the courts must protect the right of an American citizen
to express his belief, to hand out literature, etc. Consequently, this court
should grant the Petitioner the relief which he seeks.

Date: 11 March 82                                 _______________________
                                                             ROBERT B.CLARKSON, PETITIONER

                                                              515 Concord Ave., Anderson, SC 29621

top

Request Records Form (clerk of court)

                                                                      FROM:_______________________

                                                                                  _______________________

                                                                                  _______________________

US Clerk of Court
US Courthouse
________________
________________

Re: ______________________________________________

Your Docket Number: _______________________________

Cited as:__________________________________________

Date of Cite:_______________________________________

Gentlemen:

I am preparing to file a lawsuit similar to the above-cited case. I need a guide or something to go by in order to write my complaint in accordance with the rules and standard procedure. Therefore, would you please send to me at my above address, copies of the following documents or pleadings from that case or case file:

1.______________________________

2.______________________________

3.______________________________

I agree to pay your fees for copying and mailing. You can send me the requested records with a bill and I will promptly pay.

                                                                                   Yours,
Date:__________

                                                                                     _____________________

Order to Show Cause

                                                                          
US DISTRICT COURT
DISTRICT OF GEORGIA

ROBERT B. CLARKSON          )
     Plaintiff              )      CIVIL #__________________
      V.                    )      ORDER TO SHOW CAUSE
                            )
                            )
IRS AND JON HENDERSON,      )
     Defendants,            )

Upon the complaint, exhibit and affidavit attached thereto, and upon Motion of Robert B. Clarkson, Plaintiff pro se.

It is ORDERED that Defendants Internal Revenue Service and John Henderson, District Director-IRS-Georgia, appeared before the US District Court for the Distrcit of Georgia, presided over by the undersigned, in this courthouse, in the US Courthouse in Atlanta, Georgia on_________ 1979 at __________o'clock __m to show cause why Defendants should not be compelled to expunge or correct the documents and records as complained of in the complaint, and affidavit, including the memorandum of surveillance against the private political group "We the People" of Feb 6, 79, and the newspaper article from the North Dekalb News, on 7 Feb 79 and any other documents collected, maintained, used in reference to Plaintiff by the Defendant which do not pertain to a necessary and relevant function of the agency, pursuant to The Privacy Act (e)(1). Further, Defendant will show cause if cause therebe, why they should not be required to furnish to the Plaintiff a copy of the figures mandated by The Privacy Act (f)(4) pertaining to how an individual might have his records or information pertaining to him amended. Additionally, Defendants ought to show cause, if cause therebe, why they should not be required to furnish Plaintiff with a listing of accounting of disclosures pursuant to the Privacy Act (e) information about the individual that is accurate, relevant, timely and complete "as is reasonably necessary to assure fairness to the individual".

Let a copy of this order, together with the complaint, the exhibit and the affidavit attached thereto be served upon Defendants on or about________________79.

It is further ORDERED that the Plaintiff, Robert B. Clarkson, appeared in Court at the time and place to be scheduled for the Show Cause hearing to answer questions personally for this Court. It is further ORDERED that Defendants file a written response to the attached complaint within five days after service thereto.

Dated at Atlanta, Georgia, this______________day of _________________1979.

__________________
US DISTRICT JUDGE

Affidavit of Plaintiff

                                                                           
US DISTRICT COURT
DISTRICT OF GEORGIA

ROBERT B. CLARKSON          )
    Plaintiff               )       CIVIL #__________________
      V.                    )
                            )
                            )       AFFIDAVIT OF PLAINTIFF,
IRS AND JON HENDERSON,      )       ROBERT B. CLARKSON
    Defendants,             )
        

Robert B. Clarkson, being duly sworn, deposes:

  1. That he is the Plaintiff in the instant action, a citizen of the US, and one who is actually harmed by the maintenance and collection of the docments mentioned in the Complaint and by Defendant agency.
  2. Plaintiff has been involved in a number of political activities, including serving as Executive Director of the SC Libertarian Party, Co-Chairman of the Tax Protest Day Demonstration Committee in SC, and has actually ben involved with these causes in connection with the political activities of his brother, a resident of the State of Georgia, who was former Chairman of the Georgia Libertarian Party and Co-Chairman of the Tax Protest Day Demonstration Committee in Georgia, and Plaintiff has attanded a number of Libertarian Party activites in the State of Georgia, including the Southeastern Libertarian Conference.
  3. The Internal Revenue Service, under the direction of John Henderson, according to documents released pursuant to the FOIA, has been involved in an extensive political spying operation in Georgia and in conjunction with other agents of the IRS, throughout the Southeast. As a result, Defendants contain in their files a number of documents and records pertaining to private, political reform groups, the speeches and activities of a US Congressman, the license tag numbers and ownership of automobiles parked in parking lots or meeting places of political reform groups, etc. Additionally, Plaintiff has seen personally documents that came from Defendants's files pertaining to Plaintiff, his political activities, and his words and messages which were supposedly protected by The First Amendment.
  4. In particular, Plaintiff has a copy of the Memorandum of Surveillance pertaining to the political spying operation against the private reform group entitled "We the People" and its meeting on Feb 6, 1979. This particular document is untruthful to a great extent. It wrongfully and maliciously states therein certain words and activities of the Plaintiff which are totally untrue. Plaintiff has access to a tape recording of the meeting and any comment made by the Plantiff, and can show the great discrepancies in that particular memorandum by demonstrating the actual words and conduct of the Plaintiff.
  5. Plaintiff has in his possession a copy of the article from the North Dekalb News dated 7 Feb 79 pertaining to Plaintiff, and Plaintiff has received information from reliable sources that this particular document pertaining to Plaintiff is false, malicious and intentually placed, according to Plaintiff's belief, by Defendants in said newspaer for the purpose of harming and embarrassing Plaintff. Plaintiff did not have any activity causing this particular article to be published and has inquired with other persons who might be responsible, but these have denied having any part whatsoever in the publication of this entirely untruthful article.
  6. As mentioned in the Complaint, Plaintiff had given Defendant an opportunity to expunge and correct the documentation referred to therein, but Defendant Henderson has refused.
  7. The Plaintiff desires that these records and documents be removed from the file of the Defendant, not only for personal reasons and for constitutional reasons, but mainly because the documents have actually harmed Plaintiff and have adversely affected the relationship of Plaintiff to various government agencies.
  8. Plaintiff needs and has been refused an accounting of all disclosures of the papers pertaining to him, including the date, nature and purpose of each disclosure and a copy of the written guidelines as mandated by the Privacy Act pertaining to how the Plaintiff might have his records amended or expunged, and administrative procedure.
  9. Plaintiff's allegations are that his actions are specifically protected by the Privacy Act (e)(7) and his activities which pertain to peaceful exercise of his rights are guaranteed by the First Amendment.

DATE:_______________________          ______________________
Anderson, SC                          ROBERT B. CLARKSON

Plaintiff's Opposition to Defendant's Motion for Summary Judgment

                                                                           
US DISTRICT COURT
DISTRICT OF GEORGIA
        

JOHN TATE,                 )
    Plaintiff              )       CIVIL #__________________
     V.                    )
                           )
                           )      PLAINTIFF'S OPPOSITION TO
IRS AND H.B. BINDSEIL,     )      DEFENDANT'S MOTION FOR  
     Defendants,           )      SUMMARY JUDGMENT

Plaintiff, moves this Court to deny Defendant's Motion for Summary Judgment as hereinbelow requested, and to grant those things which Plaintiff requests herein:

  1. John Tate has previously mentioned to the Court that he is mainly interested with and concerned with those records and documents within the range of this suit pertaining to him personally insofar as they refer to him as a "tax protestor". Documents which indicate a "tax protest" status are the ones which Plaintiff requires that the Court force the government to reveal.
  2. In April 1978, Plaintiff, as Co-Chairman of the SC Tax Protest Day Demonstration Committee (TPDD), participated in a public demonstration with placards, literature, and picketing in front of the IRS building in Columbia, SC, in March, 1979, Plaintiff met with others in Anderson, SC to plan a TPDD for this year. However, due to the disruption caused by two IRS special agents, the demonstration was not held in April.
  3. IRS manual supplement 90-93 provides in section .02 that "The procedures in this supplement are not directed toward suppressing dissent, or prosecuting individuals because they are critical of, or identified with groups critical of, the tax system or government policies". Further, IRM 938.6 provides in Section 10 "service personnel will be guided by Treasury Department policy which directs that no information should be collected on peaceful demonstrations which involve the exercise of First Amendment rights..." The Privacy Act (e)(7) provides that agencies shall maintain no records on how citizens exercise their First Amendment rights and "maintain" is defined as collect or use. Privacy Act (e)(1) provides that agencies shall:
    "Maintain in its records only such information about an individual that is relevant and necessary to accomplish by statue."
  4. The First Amendment to the US Constitution provides that "the Congress shall make no laws respecting the right of the people peaceably to assemble and to petition the Government for redress of grievances."
  5. The documents already released pursuant to Tate's suits reveal that the IRS has an extensive political spying operation against numerous groups and individuals, including John Tate. However, when Tate asked for copies of these documents, the Government asserts that these documents are not releaseable because they fit within the exemption pertaining to law enforcement. The FBI had claimed that their activities constituted "authorized law enforcement activity." However, Judge Freeman, examining and quoting from the Legislative History, ruled:
    "The term 'investigative information' has a special narrow meaning under this bill (The Privacy Act). It means information associated with an identifiable individual compiled by... an agency in the course of conducting a criminal investigation of a specific criminal act where such investigation is pursuant to a statutory function of the agency..." "Given this definition, it is difficult to conclude that the self-contained exemption in 552a (e)(7) relating to law enforcement activity applies to any records which do not relate to a specific past, present or future criminal acts [emphasis added]. Merely beacuse the FBI may act within its authority by monitoring the public or private speeches of a person in the course of a legitimate security investigation, does not give it the right to maintain records relating to the contents of those speeches where investigation does not focus on a past of anticipated, specific criminal act... While the affidavit does reveal one particular instance where the investigation of a suspected violation by someone other than Jabara did lead to an investigation of Jabara, this investigation appears to have been of a limited nature. Furthermore, the court cannot see how as the records maintain regarding Jabara's political view as expressed in his speeches and discussions have any relevancy to the one criminal violation set forth in the (agent's) affidavit."
  6. In this case, the records sought admittedly deal with Tate's First Amendment rights; yet, even though the IRS has submitted a number of affidavits, they failed to mention whatsoever that the investigation against Tate was legitimate. Beceause of this failure alone, the government must reveal the documents to me, as my thirteen-year-old daughter says, "immediately, if not sooner."
  7. Even though the FOIA has abolished the "need to know" standard and replaced it with the "right to know" standard, insofar as the government's claim for the law enforcement exemption the "balancing of interest test" is to be determined by the court itself. In Rural Housing Alliance vs. USDA, 4198 F 2d 73 (DC 1974), the court ruled that, under similar section, the court in determining the balance of interest, should consider the severity of the harm versus the public interest purpose, and whether other sources of information might suffice: the Court also can determine the nature and extent of the harm and whether the public interest purpose of the private litigant could be achieved by alternate, available sources of information.
  8. In the case of US v Illinois Fair Plan Assn, 67 FRD 657 (Ill 1975) stands for the proposition that claim of exemption for law enforcement purposes should not be sustained when the litigant's need for investigatory records compiled for law enforcement purposes outweigh the government's need for secrecy.
  9. In the instant case, we find the government's purpose and need for secrecy includes: to continue the cover-up of illegal political surveillance to prevent the courts, private persons and the news media from seeing records gathered illegally, wrongfully, and criminally; to protect the agents involved from criminial and civil liability.
  10. On the other hand, in weighing Plaintiff's need for the documents, the court could consider that Plaintiff needs these documents to expose the wrongdoings of the government; to show that Plaintiff has been labeled, identified and classified as a "tax protestor" because of his stand on tax reform, membership on the TRIM Committee, participation in the TPDD, his public exposition of IRS tyrannies, etc. Additionally, Plaintiff has a right to seek amendment and may need other records to substantiate his position. The government did the labeling and Plaintiff is entitled to know why he is so labeled. The only practicable method available to him is access to those documents in that area.
  11. As Plaintiff mentioned at the hearing, the fundamental basis for this suit is the Ninth Amendment to the US Constitution which was ruled upon in the case of Lehrhaupt v Flynn 356 A. 2d 35(NJ 1976): The right of privacy is one guaranteed by the US Constitution. It is the fundamental freedom from intrusion by government derived by federal excision from the penumbra of constitutional provisions including the right to receive information under the free speech guarantee, freedom from unreasonable serach and procedure, right against self-incrimination, due process clause and the retained right of the people under this amendment. Rather, the Ninth Amendment shows a belief of the constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments, and other intent that the list of rights included there not be deemed exhausted, pg 1686.
  12. Defendant's attorney continually refers to Plaintiff as a "tax protestor" in his Motion for Summary Judgment and other pleading. Plaintiff is entitled to know the source of this labeling and to expunge the same if necessary. Plaintiff is aware that some documents may be exempt for a legitimate reason, for example, those not discloseable pursuant to (b)(3) pertaining to records of other taxpayers. Plaintiff has never requested and does not want those documents to which a legitimate exemption is applicable. However, Plaintiff has not received an itemization and indexing in this case, even though he moved the Court for the same and in fact it was granted by Judge Hempfield. At the hearing on July 5, 1979, Judge Hempfield ordered in this case that the government submit a detailed itemization, indexing and justification (the Vaughn-Rosen Motion). On or about Oct 25, 1979 Plaintiff received a document entitled: "Index For Documents At Issue in Tate vs. IRS Civil Action #79-1346." In other words, the government furnished the itemization for the wrong case. In any event, Plaintiff is severely handicapped in this case in that he is not able to discuss and argue against the government allegation because he does not know what the documents are. However, Plaintiff is aware the goverment has fought very, very hard to keep these documents from him. Defendant's attrorney opposed Tate's Vaughn-Rosen Motion and only reluctantly handed Plaintiff some records at October 31 hearing. Therefore, Plaintiff assumes that some of the exemptions claimed by the government are not legitimate.
  13. As to the 48 documents withheld udner (b)(7)(A), the issue is not whether they were gathered "pursuant to law enforcement purposes" because the Plaintiff acknowledges the same (even though the same attorneys and IRS agents denied ay criminal action involved in this case during the Summons Enforcement Hearing). Plaintiff does dispute the assertion that the production of the documents would interfere with any enforcement proceeding and, as mentioned above, the investigation is illegal political surveillance which is not a legtimate purpose of the agency and therefore not a legal law enforcement purpose. This exemption applies only to legal investigation of an agency.
  14. Since the IRS illegal political spying is widespread, other courts have dealt with these issues. In Kanter v IRS 433 F Supp 812 (DC 1977), the court firmly stated: "the exemptions under the FOIA do not sheild materials related to unauthorized or illegal investigative tactics." Further, the affidavits in Kanter were held to be insufficient to enable the court to verify the appropriateness of the government's exemption, i.e. investigation. Further, "similarly they (the affidavits) do not negate Plaintiff's assertion that they may relate to illegal investigative activities which must be revealed." The Kanter court held that the government agents' affidavit was insufficient for the court to rely upon in denying access to certain documents. Likewise, in this case, special agent Harrison's affidavit is in fact insufficient, especially in regards to Plaintiff's assertion of illegal acts by the government. In this case, Tate has alleged that the government has "utilized illegal and outragous investigatory methods to develop" the information. Therefore, Harrison should be required by this court to sumit an affidavit setting forth: (1) whether the investigation was illegal; (2) whether the documents were colleted in good faith or bad, for "if the court is to hazard a guess as to the connection between the evils anticipated by the government and the documents in dispute, it must have a much clearer understanding of the contents of these documents." Since the government's widspread, illegal spying operations have been admitted and already exposed somewhat in documents heretofore released, Tate's "contention that these materials being withheld may cast further light on the range of illegal, bad faith investigatory tactics can not be dismissed as unfouned speculation. The information currently on record does at least provide the defendant with a motive to be unduly secretive about the contents of their files, per Kanter, supra. In conclusion, Tate asserts first, that documents relating to illegal activities of the agencies are not exempt from disclosure and secondly, Harrison's affidavit is not sufficient at this time. The burden of proof is upon the government to prove that the investigation they claim the Plaintiff would frustrate is legitimate. One can note that the FOIA law does not grant a blanket exemption for law enforcement records, but very narrowly limites this exemption to those three sub-paragraphs, indicating "the FOIA reflects congressional skepticism at the propriety of much of the government's bureaucratic secretiveness". Kanter, supra.
  15. Apparently, defendant's attorney is basing the case upon a proposition that the revelation of the document would interfere with government's right for reciprocal discovery. However, the Congress is charged in our society with the responsibility of writing the laws and it made no provisions in the FOIA preventing such. Plaintiff feels tht the court should folow the letter of the statute or the known intent of the Congress which provides that the identity of the requestor is immaterial; that the purposes or reason the requestor wants information is immaterial; that Plaintiff is entitled to the documents, unless the government can prove under a heavy burden that, in fact, certain documents fit in certain narrowly construed exemptions. The issue of reciprocal discovery has no connection whasoever with the exemptions. The Plaintiff suggests that Defendant's attorney write his Congressman and request that they amend the FOIA to protect the governemnt; and until then, the court shoud disregard this ridiculous attempt to hinder Plaintiff's access to the documents to which he is entitled by law.
  16. The FOIA is not an independent disclosure mechanism, as Defendant's attorney asserts, but a simple law that states that Plaintiff is entitlesd to the documents pertaining to him unpon his request. Defendant's justification or assertion of exemption under (b)(7)(A) becuase it might possibly tend ot remotely, in the future, deny to the governemnt the benefit of reciprocal discovery is an outright perversion and misuse of this exemption, which typifies the government's actions throughout this case. This frivolous claim of exemption indicates that the government has a very weak case and will us every possible means to deny Plaintiff access to those documents which were wrongfully withheld.
  17. Likewise, Defendant's theory pertaining to records not discoverable under the FRCrmP has nothing to do with a FOIA action. Whether or not the documents are discoverable under the Federal Rules is immaterial -- the issue is whether the documents have been withheld upon legitimate exemption. The exemption is phony, as Defendant's attorney well knows; and that is why he is asserting such ridiculous defenses.
  18. Again, Plaintiff does not seek those documents pertaining to third party taxpayers which happen to be on the same forms which include information pertaining to him. These documents and any other documents legitimately withheld by Defendants are not requested and are not sought in this action. Plaintiff dose not want the social security number of any other idividual or any personal information pertaining to IRS agents which might be listed on certain forms. Plaintiff admits that these deletions are valid.
  19. Defendant is somewhat belated in contesting the jurisdiction or claiming an incorrect Act because Plaintiff's orginal request did not mention the Privacy Act. However, the complaint, the answer, and all the pleadings in this case have been pertaining to this suit as strictly a Privacy Act case with certaitn FOIA implications. Further, the request and the released materials were all handled under the Privacy Act as this case was considered a Privacy Act matter entirely by the government. Defendant's attorney, now realizing that the claimed exemptions are shaky, is grasping at straws and trying to ask this court to dismiss this case after six months of litigations, on the ground that there is no jurisdiction. Plaintiff believes that the court can well handle this frivolous argument. Defendants could have made a motion to dismiss months ago, but did not.
  20. Typically, the affidavit of special agent Henry M. Harrison claimes that Plaintiff, a dentist and the father of four teenage daughters would "tamper with evidence and witnesses". Likewise with the affidavit of H.B. Bindseil, District Director. So it is that they claim exemption on this ground. Also this is more ridiculous than the other reasons they seek to prevent revelation of their illegal spying operations.
  21. As to Defendant's theory of reciprocal discovery, the courts have held as Tax Reform Research Groups vs. IRS, 416 F 2d 415 (DC 1976), that "the specified exemptions to the FOIA provide the only basis for an agency's refusal to disclose information sought... (they) are too narrowly construed."
  22. Defendant's attempt to withhold on the basis of IRC Section 6301 has been tried before and the courts have ruled against the same. In particular in Tax Reform Research Groups vs. IRS, 505 F 3d 350 (DC 1974) which held: mere labeling by the IRS of its memoranda as return information was not sufficient to bring them within this section which only exempts tax returns from disclosure.
  23. Considering the level of past IRS compliance with the letter and spirit of the FOIA, Plaintiff would suggest that some of the documents withheld under IRC 6301 are not really "return information". Further, the affidavit of Defendant Bindseil did not state that the materials constituted "income tax return information" and therefore are insufficient justification because IRC 6301 clearly applies to only tax return materials. See Fruehauff Corp. vs. IRS 390 F Supp 108 (Mich 1974).
  24. Defendants, without any precedent or legislative history to show congressional intent have, as in Kanter v IRS, supra, sought to hide behind Section 6301 (which) must reflect the assertion of a perceived interference with enforcement actions" as to how disclosure would seriously impair tax administration. In any event, Plaintiff believes that the documents at issue do not constitute tax returns or return information.
  25. Section 6301 is the basic provision of the IRC to mandate confidentiality for tax returns. In this case, from the affidavits it is very apparent that documents withheld under this section are not tax returns or tax return information, but internal communication of the IRS concerning Tate's tax return. The Defendants assert that the documents, according to Defendant Bindseil's affidavit, "were received, prepared by, and furnished by the IRS in the course of the investigation of the Plaintiff's tax liability." Actually, any and all records, including ones already released, can in some manner, and by stretch of the imagination, be so classified. But as the court in Tax Analysis and Advocates, supra, held: "This is a circular and self-fulfilling rationale which cannot be accepted. Any agency would thus be able to avoid the FOIA and public disclosure" for its documents by "requiring administratively that certain documents be so related. This is not the purpose of the 6301 or the (b)(3) of the FOIA."
  26. Insofar as records not disclosable under the confidentiality requirement of the IRC as expressed in Section 6301, the court in Tax Reform Research Group vs IRS, 419 F 2d 415 (DC 1976) held:
    "While in normal circumstances, privacy is protected by statute, difficulties arise whenever, as here, the activities involved are not part of the normal and proper operation of the agency, in relation to which taxpayer privacy is normally protected, but are rather connetced with a serious abuse of essentially political nature which, -- not being contemplated by the privacy statute, -- they are therefore not protected from disclosure. Also to be weighed in the balance is the obvious public interest in a full and thorough airing of the serious abuses that did in fact occur, in hope that such abuses will not include in the future... In weighing these various interests in light of the mandate of the act that the balance be tipped toward disclosure, the court has attemted to be sensitive to these values and to reconcile them to the extent possible; the court does not wish to note, however, that the resolution of the issues herein must be viewed in the light of the unusual context in which the case arises."
  27. Likewise in Tate's case, the issues involved the illegal acts of the IRS, to wit: political spying. The courts should balance the scales by weighing the need to disclose (and thereby halt IRS spying) against the weight of revealing Tate's confidential records. However, since Tate is asking for his own records, there is really not much of a confidentiality requirement. Section 6301 is concerned about the confidentiality of the records to protect the taxpayer.
  28. The Tax Analysis and Advocates case stands for the proposition that 6301 provides "for the protection of the privacy of the taxpayer," not protection of the IRS from illegal acts. The intent of Congress in passing 6301 is clearly to protect the taxpayer.
  29. As to the Defendant's other claims,Plaintiff reiterates that a balancing test should be used by this court, weighing the need to expose and thereby halt the vast IRS illegal intelligence operation against varied and sundry claims of exemption by Defendants.

DATE: December 1979          ___________________________
Anderson, SC                 JOHN TATE, PLAINTIFF
PRO SE


I hereby certify that on or about this date I mailed a copy of this

pleading to opposing counsel.


Date:_______________          ___________________________
                              JOHN TATE, PLAINTIFF PRO
  SE

Address
________________
________________
________________

Affidavit in Connection with Plaintiff's Opposition to Defendant's Motion for Summary Judgment

                                                                           
US DISTRICT COURT
DISTRICT OF GEORGIA

JOHN TATE,                      )
    Plaintiff                   )       CIVIL #__________________
     V.                         )
                                )
                                )      AFFIDAVIT IN CONNECTION WITH
                                )      PLAINTIFF'S OPPOSITION TO
IRS AND H.B. BINDSEIL,          )      DEFENDANT'S MOTION FOR  
     Defendants,                )      SUMMARY JUDGMENT

I, John L. Tate, being duly sworn, do hereby depose and state:

  1. I am the Plaintiff in this action and am the taxpayer whose records and documents are at issue in this case.
  2. I have not received a detailed justification, itemization, indexing in this case, even though so moved, and am handicapped in this affidavit because I do not know what the documents are. However, I understand from the affidavits and pleadings of the Defendants that the documents in the IRS records are pertaining to me, and most if not all pertain to an IRS political surveillance progam against those persons known to advocate tax reform and that some of the documents identify, label and classify me as a "tax protestor".
  3. In April of 1978, I served as Co-Chairman of the Tax Protest Day Demonstration Committee and participated in a demonstration in front of the IRS building in Columbia, SC. In March 1979, I attended a planning session of said committee to make plans for another demonstration in SC. However, this was not held, because of the disruption of two IRS agents. I also was an active member and served as membership Chairman of the TRIM Committee, a private group that (1) advocates tax reform and (2) has been spied upon the the IRS. Because of my political and economic views, associations and memberships, I have been classified as a "tax protestor".
  4. I am also not familiar with the documents because the court halted my discovery in this case.

Date:_______________          ___________________________
                              JOHN TATE, PLAINTIFF
PRO SE

Sworn to me this__________ day of 
December 1979.

___________________________
NOTARY PUBLIC FOR SC
My Commission expires ________________
Robert Clarkson 864-225-3061    email Nelson Waller 864-225-0882    email

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