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McNeil v. Whipple

July 6, 2010

JERRY P. MCNEIL, PLAINTIFF,
v.
KATHIE ANN WHIPPLE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff Jerry P. McNeil, proceeding pro se, has sued defendants Kathie Ann Whipple, Linda Springer, and Tricia Hollis, all employees of the Office of Personnel Management ("OPM"), for executing Internal Revenue Service ("IRS") tax levies against his federal civil service annuity. Before the Court are (1) defendants' motion to dismiss the complaint; and (2) plaintiff's motion for entry of a default judgment. For the reasons stated herein, defendants' motion to dismiss will be granted and plaintiff's motion for entry of a default judgment will be denied.

BACKGROUND

Plaintiff retired under the Civil Service Retirement System ("CSRS") on February 2, 1987, and since then he has received retirement benefits in the form of payments from his Civil Service Annuity. See McNeil v. United States, 78 Fed. Cl. 211, 213 (Fed. Claims Ct. 2007), aff'd, 293 Fed. Appx. 758 (Fed. Cir. 2008). The OPM is responsible for making these payments to the plaintiff. Id.

Plaintiff has a history of not paying federal taxes and/or civil penalties, resulting in the IRS issuing levies against plaintiff's property. For example, in September 2004, the IRS served a Notice of Levy against plaintiff's federal credit union account to collect unpaid civil penalties for tax years 1999-2001. See McNeil v. Doe, 2006 WL 2054082, No. 05-CV-0579 (N.D. Okla. July 21, 2006). Plaintiff filed a complaint challenging the levy in federal district court in Oklahoma, but the case was dismissed for lack of subject matter jurisdiction due to plaintiff's failure to follow prescribed administrative procedures prior to filing a civil claim in federal district court. Id. at *1-*2.

In July 2006, the IRS served a Notice of Levy on the OPM against plaintiff's retirement annuity to collect unpaid taxes for tax years 2002 and 2003 and civil penalties for tax years 1999-2003. McNeil v. United States, 78 Fed. Cl. at 214. Plaintiff filed a complaint in the Court of Federal Claims challenging the levy on multiple grounds, but that case was also dismissed for lack of subject matter jurisdiction.*fn1 Id.

The present case arises out of another IRS levy that was executed through OPM on plaintiff's federal retirement annuity. The complaint is captioned "Verified Criminal Complaint for Embezzlement of Private Property Held in Trust by the United States by Named Individual Defendants and Civil Demand for Restitution." (Compl. at 1.) It names three OPM employees as defendants (Kathie Ann Whipple, Linda Springer, and Tricia Hollis) and indicates that each is being sued in her "private" capacity. The complaint alleges that the defendants "embezzled money from the retirement accounts held in trust for the benefit of McNeil" and then "paid over the embezzled money [$27,926] to the IRS in the guise of a tax and under color of federal law." (Id. ¶ 6.) According to the complaint, defendants are personally liable because they should have known that their actions violated "established criminal, and civil statutes of the United States" and "clearly violate constitutional protections of the 4th amendment against seizure" and his right to due process. (Id. ¶¶ 6, 9.)

On April 21, 2010, the Court extended the time to provide proof of proper service of the complaint until May 12, 2010. (Order, Apr. 21, 2010 [dkt. #9].) Plaintiff served defendant Whipple on April 28, 2010 (Return of Service, May 5, 2010 [dkt. #10]) and served defendant Springer on April 29, 2010. (Return of Service, May 10, 2010 [dkt. #11].) Plaintiff never filed proof of service as to defendant Hollis.

On June 2, 2010, defendants jointly filed a motion to dismiss. (Mot. to Dismiss, June 2, 2010 [dkt. #13].) That same day, the Court issued an order advising plaintiff that he had until July 2, 2010, to respond to defendants' motion, and that if he failed to do so, the Court could "treat the motion as conceded and dismiss plaintiff's complaint." (Order, June 2, 2010 [dkt. # 15].)

Since then, plaintiff has filed several documents with the Court, including (1) a document entitled "Praecipe (Order) to the Clerk and Judges of this Court," directing the Clerk of Court to refuse to file documents submitted by defendants' counsel, an attorney from the Department of Justice, on the ground that he was illegally intervening in the case (Notice, June 10, 2010 [dkt. #17]); (2) a motion for "Judicial Entry of Default Judgment with Writ of Execution and Proof By Official Agency Records of the Clear Absence of All Jurisdiction in Any Federal Court to Ratify Thefts by the IRS" (Motion, June 11, 2010 [dkt. #18], seeking default judgment against defendants Whipple and Springer; (3) a document entitled "Refusal of Void Order by Ellen S. Huvelle for Fraud on the Court (Notice, June 24, 2010 [dkt. #20]), indicating that plaintiff considered the Minute Order*fn2 filed on June 13, 2010 (which the Court issued in response to plaintiff's June 10, 2010 filing to notify plaintiff that defendants' counsel was properly in the case), a "fraud" due to its lack of seal or signature; and (4) a document entitled "Praecipe (Order) to the Clerk In re Loss of Jurisdiction by the Court." (Notice, July 1, 2010 [dkt. #21].) As defendants point out in their reply, none of these documents is identified as a response to defendants' motion to dismiss or addresses defendants' arguments. (Reply, July 2, 2010 [dkt. #22]). However, in light of plaintiff's numerous submissions and the fact that he is proceeding pro se, the Court will not treat defendants' motion to dismiss as conceded but rather it will consider it on the merits, and will consider plaintiff's multitude of pleadings to the extent that they are at all relevant.

ANALYSIS

I. DEFENDANTS' MOTION TO DISMISS

Defendants proffer three alternative bases for dismissal of the complaint: (1) failure to state a claim, see Fed. R. Civ. P. 12(b)(6); (2) lack of subject matter jurisdiction, see Fed. R. Civ. P. 12(b)(1); and (3) ...


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