Larry Stuler v. United States ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
11-25-2008
Larry Stuler v. USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2426
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ALD-27 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2426
___________
LARRY L. STULER,
Appellant
v.
UNITED STATES OF AMERICA; INTERNAL REVENUE SERVICE;
FEDERAL BUREAU OF PRISONS; D. BLYNN, I.R.S. Revenue Officer;
K. EISENBART, I.R.S. Revenue Officer; MARY SOMMA, I.R.S. Custodian of Records;
FRANK REVAK, I.R.S. Tax Auditor; JOHN DOE AGENTS, of the Internal Revenue
Service; COMMISSIONER OF THE INTERNAL REVENUE SERVICE, Each in Their
Official and Individual Capacity; WILLIAM COHAN, Esq.
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 07-cv-00642)
District Judge: Honorable Alan N. Bloch
____________________________________
Submitted for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
November 6, 2008
Before: SLOVITER, FUENTES and JORDAN, Circuit Judges
(Opinion filed November 25, 2008 )
_________
OPINION
_________
PER CURIAM
1
Appellant, Larry Stuler, appeals the District Court’s order granting defendants’
motions to dismiss his complaint pursuant to Fed. R. Civ. P. 12(b)(6). For essentially the
reasons set forth by the District Court, we will affirm.
Because the parties are all too familiar with the facts and procedural history
underlying this cause of action, we only briefly recount them here. On May 15, 2007,
Stuler – who was convicted in July 2001 of three counts of willfully failing to file federal
income tax returns and sentenced to two years imprisonment followed by a year of
supervised release – initiated an action against the United States, the Internal Revenue
Service (“IRS”), the Bureau of Prisons, named employees and/or former employees of
these governmental bodies and agencies, and his former criminal defense attorney,
William Cohan. Stuler’s complaint was amended on two occasions. In his second
amended complaint, Stuler asserted the following causes of action: 1) declaratory relief
pursuant to the Declaratory Judgment Act; 2) intentional violation of the Internal Revenue
Code and/or regulations under 26 U.S.C. § 7433; 3) wrongful levy under 26 U.S.C. §
7426; 4) unjust tax lien pursuant to 26 U.S.C. § 7432 and 28 U.S.C. § 2410; 5) civil rights
violations under 42 U.S.C. §§ 1983 and 1985; and 6) an independent action to invalidate
his conviction as a result of fraud on the court. In addition to various forms of declaratory
and injunctive relief, Stuler sought monetary damages in excess of five million dollars.
The named defendants sought to have the second amended complaint dismissed pursuant
to, inter alia, Fed. R. Civ. P. 12(b)(6). In an Order entered on April 8, 2008, the District
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Court granted the motions and dismissed the complaint in its entirety. This timely appeal
followed.
We have jurisdiction over the instant appeal pursuant to 28 U.S.C. § 1291. Our
review of a dismissal under Fed. R. Civ. P. 12(b)(6) is de novo. See Phillips v. County of
Allegheny, 515 F.3d 224, 230 (3d Cir.2008). In considering a Rule 12(b)(6) motion, a
court is required to “accept all factual allegations as true, construe the complaint in the
light most favorable to the plaintiff, and determine whether, under any reasonable reading
of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny,
515 F.3d 224, 233 (3d Cir. 2008), quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361,
374 n. 7 (3d Cir. 2002). See also Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S. Ct.
1955, 1969 n. 8 (2007). “‘[S]tating ... a claim requires a complaint with enough factual
matter (taken as true) to suggest’ the required element.” Phillips, 515 F.3d at 234,
(quoting Twombly, 127 S. Ct. at 1965). Stated differently, the “[f]actual allegations [of
the complaint] must be enough to raise a right to relief above the speculative level.” Id.
Having carefully reviewed the record and the parties’ submissions, we conclude
that the District Court’s dismissal under Rule 12(b)(6) was proper even affording Stuler
the liberal construction due a pro se litigant under Haines v. Kerner, 404 U.S. 519, 520
(1979). As the defendants argued and as the District Court concluded, the bulk of
Stuler’s complaint is little more than a thinly veiled attempt to attack his criminal
conviction obtained at United States v. Stuler, W.D. Pa. Crim. No. 01-cr-00035, under the
3
guise of a civil action.1 Any such attack is, however, barred by the favorable termination
rule of Heck v. Humphrey, 512 U.S. 477, 481-82 (1994). We affirmed Stuler’s judgment
of conviction on direct appeal, see United States v. Stuler, 39 Fed. Appx. 737 (3d Cir.
2002) and his motion to vacate sentence filed pursuant to 28 U.S.C. § 2255 was dismissed
by the District Court in May 2006. Moreover, any Bivens claim that even arguably
survives the Heck bar is precluded, inter alia, by the two year limitations period.
The remainder of Stuler’s claims fare no better. His request for declaratory relief
against the IRS is precluded insofar as Congress has preserved the immunity of the
United States – which the IRS shares – from declaratory and injunctive relief with respect
to all tax controversies except those pertaining to the classification of organizations under
the Internal Revenue Code. See 28 U.S.C. § 2201(a); 26 U.S.C. § 7421(a). See also
Murphy v. I.R.S., 493 F.3d 170, 174 (D.C. Cir. 2007). With respect to Stuler’s
allegations regarding violations under 26 U.S.C. §§ 7426, 7432 and 7433, he has, inter
alia, failed to allege the exhaustion of administrative remedies and thus deprived the
District Court of jurisdiction to consider these claims. See Venen v. United States, 38
F.3d 100, 103 (3d Cir. 1994). While certain claims are cognizable against the United
States under 28 U.S.C. § 2410, the sovereign immunity waived under that section extends
“to a suit ‘which challenges the validity of a federal tax lien and sale so long as the
1
Of course, Stuler’s claim is properly considered as one brought under Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971)
4
taxpayer refrains from contesting the merits of the underlying tax assessment itself.’”
Robinson v. United States, 920 F.2d 1157, 1159 (3d Cir. 1991), quoting Aqua Bar &
Lounge, Inc. v. United States, 539 F.2d 935, 939-40 (3d Cir. 1976). As the District Court
correctly noted, Stuler most certainly contests the merits of the underlying tax assessment.
Finally, we can find no fault with the District Court’s conclusion that, even
assuming that an independent action alleging fraud on the court can be used to circumvent
the limitations imposed on collateral attacks of a criminal conviction, the allegations
contained in Stuler’s complaint (which had been amended twice) fall far short of the
particularity requirement needed to state such a claim. See, e.g., Lum v. Bank of
America, 361 F.3d 217, 220 (3d Cir. 2004) (“Federal Rule of Civil Procedure 9(b)
requires that the fraud be pled with specificity.”). See also Herring v. United States, 424
F.3d 384, 386-87, 390 (3d Cir. 2005). We would further note that we denied no fewer
than five such motions filed by Stuler on direct appeal following the entry our judgment
affirming his criminal conviction. See United States v. Stuler, C.A. No. 01-3914 (Orders
issued on 7/16/03, 11/3/03, 1/12/06, 6/8/06 and 7/13/06).
In his submission to this Court in opposition to appellees’ motion for summary
action, Stuler asks us to “rule on the constitutionality of the Act of Congress approved on
March 3, 1791, that established ‘internal duties’ based upon a patent within the
jurisdiction of Great Britain.” See Response at 9. Although quite convoluted, Stuler’s
argument appears to be an attempt to challenge the District Court’s jurisdiction over his
5
criminal proceeding. We will decline Stuler’s invitation. This Court, in its order
disposing of Stuler’s second of five motions seeking to recall the mandate in his direct
criminal appeal, has previously concluded that the District Court did indeed have
jurisdiction over the underlying criminal action. See C.A. No. 01-3914 (Order issued
11/3/03 concluding, in relevant part, that “the District Court had jurisdiction to adjudicate
[the three federal offenses under 26 U.S.C. § 7203].”). We will not revisit that issue here.
Accordingly, because the District Court properly dismissed Stuler’s complaint and
no substantial question is presented by this appeal, we will grant appellees’ motion and
summarily affirm the order of dismissal. See Third Circuit LAR 27.4 and I.O.P. 10.6.
6