Buesgens v. Paulson et al

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
DONALD RAY TAWNEY,
Debtor.
____________________________
MICHAEL L. BUESGENS,
Plaintiff,
v.
DONALD RAY TAWNEY, et al.,
Defendants.
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Case No. 06-11164 (pending
in the United States
Bankruptcy Court for the
Western District of Texas)
(Chapter 7)
Adversary Proceeding No.
07-10008
Not for Publication in
West’s Bankruptcy Reporter
DECISION RE DISMISSING COMPLAINT
The plaintiff, Michael Buesgens, was an employee of the
Internal Revenue Service. 	The complaint in this adversary
proceeding names as defendants Donald Ray Tawney, Jr., who
apparently was Buesgens’ former supervisor at the Internal
Revenue Service; Mark Everson, the Commissioner of Internal
Revenue; and Henry Paulson, the Secretary of the Department of
the Treasury. 	The complaint is frivolous, and in the interests
of justice the court will dismiss the complaint without awaiting
The decision below is signed as a decision of
the court.
Signed: April 19, 2007.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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responses to the complaint by the defendants.
I
The complaint fails to establish any basis for granting
Buesgens any relief.
A.
Tawney is the debtor in a case pending as Case Number 06-
11164 in the United States Bankruptcy Court for the Western
District of Texas.
In part I of the complaint, entitled “JURISDICTION AND
VENUE,” Buesgens fails to cite any statutory provision that would
confer jurisdiction on this court.
In part II of the complaint, Buesgens refers to the
bankruptcy case pending in the Western District of Texas and
notes that the case has been declared to be a no-asset case.
In part III of the complaint, Buesgens alleges that the
bankruptcy case has serious failures, errors, and omissions,
complaining that he was never notified of the pending bankruptcy
case.
In part IV of the complaint, Buesgens notes that he has
filed an adversary proceeding in the bankruptcy case, and that he
has a claim in the bankruptcy case.
In part V of the complaint, Buesgens alleges that he was
involuntarily retired on medical disability as an employee of the
Internal Revenue Service, and he discusses the various litigation
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he has pursued in that regard. 	In part V of the complaint,
Buesgens also requests a denial of a discharge to Tawney in the
bankruptcy case pursuant to 11 U.S.C. §§ 727(a)(11) and
1328(g)(1). 	Section 727(a)(11) deals with denial of a discharge
based on failure to obtain debtor education, but Buesgens only
alleges that Tawney did not promptly file a Form 23 (the form
used to certify that the debtor education was obtained). 	He
acknowledges that the requisite Form 23 was eventually filed,
and, accordingly, Buesgens has stated no basis for a denial of
discharge under § 727(a)(11). 	Section 1328(g)(1) is inapplicable
in a Chapter 7 bankruptcy case, and thus supplies no basis for a
denial of discharge in Tawney’s chapter 7 case.
B.
The complaint fails to state any valid basis for denying
Tawney a discharge. 	(Venue for a request for a denial of
discharge is also improper, but the court will dismiss the
request for a denial of discharge on the merits as the complaint
plainly fails to state a valid basis for such relief.) 	Beyond
that, the complaint fails to establish any jurisdiction under 28
U.S.C. § 1334(b) for granting Buesgens any other relief.
II
On April 11, 2007, Buesgens filed in this adversary
proceeding a Motion to Reopen Bankruptcy Case No. 06-11164
(meaning the bankruptcy case pending in the Western District of
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Texas). 	A motion to reopen a bankruptcy case must be filed in
the district within which the bankruptcy case is pending, and
this court will thus not act on the motion, and will dismiss it
with the rest of the adversary proceeding.
III
On April 11, 2007, Buesgens also filed a Crossclaim. 	Only a
defendant is permitted to file a cross-claim. 	Fed. R. Civ. P.
13(g). 	The court will accordingly dismiss the Crossclaim.
In any event, the Crossclaim would be subject to dismissal
on other grounds.
First, Buesgens has used the wrong procedural vehicle and
has sought relief in the wrong forum. 	The Crossclaim is asserted
against the judge presiding in the bankruptcy case, the judge’s
law clerk, employees of the clerk’s office, the debtor’s attorney
in the case, the chapter 7 trustee, the United States Trustee,
and a judge of the United States District Court for the Western
District of Texas to which an appeal was taken from the
Bankruptcy Court, and two Assistant United States Attorneys who
apparently represented the Government in litigation relating to
Buesgens’ discharge from employment. 	The Crossclaim asserts
claims that relate to actions the parties have taken or actions
they have failed to take in the bankruptcy case or in the appeal
or in the claims litigation. 	If Buesgens is seeking a correction
of what has transpired in those matters, the proper vehicle for
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obtaining such relief is via a motion in the particular
proceeding, or via an appeal of rulings adverse to him. 	Thus, if
that is the relief Buesgens is seeking, he is proceeding
inappropriately for two reasons: first, by seeking relief via an
adversary proceeding, and, second, by seeking relief in this
bankruptcy court (the United States Bankruptcy Court for the
District of Columbia) which had nothing to do with the
proceedings in which Buesgens alleges there were improper
actions, instead of seeking relief in the court in which the
proceeding was pending and in which he alleges the particular
improper actions occurred.
Second, to the extent that Buesgens is seeking to hold the
parties liable for monetary damages, such claims will not have
any impact on the administration of the bankruptcy estate: the
recoveries would not be by the estate, and the claims are not
against the estate. 	Accordingly, there is no subject matter
jurisdiction under 28 U.S.C. § 1334(b) over such claims as
related to the bankruptcy case. 	See Pacor, Inc. v. Higgins, 743
F.2d 984, 994 (3d Cir. 1984); Torkelsen v. Maggio (In re Guild
and Gallery Plus, Inc.), 72 F.3d 1171 (3d Cir. 1996) (bankruptcy
court lacked subject matter jurisdiction over damage claims
asserted against bankruptcy trustee). 	Buesgens has not otherwise
suggested how the court would have subject matter jurisdiction
over the claims.
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In any event, the claims are frivolous. 	For example,
Buesgens has failed to demonstrate that the parties are not
entitled to have the claims dismissed on the basis of applicable
immunities from being sued. 	A presiding judge, for example, is
entitled to absolute immunity with respect to the decisions he
renders in a proceeding.
IV
The Crossclaim was not filed in typewritten form as required
by Rule 5005-1(e) of the Local Bankruptcy Rules of this court.
(A typewriter is available at the clerk’s office for pro se
parties.) 	Buesgens’ Crossclaim is many pages longer than it
would be if typewritten. 	Because the handwritten Crossclaim
included bold black print using a heavy felt pen, the document
could not be scanned and docketed for electronic accessability on
the court’s Electronic Case Filing System. 	The court will direct
the clerk not to accept handwritten documents from Buesgens for
filing without approval by the court. 	If a document is submitted
for filing that is incapable of being scanned, the clerk shall
mark the front page of any such document with the date of receipt
and a notation that it is being returned because it is incapable
of being scanned. 	The clerk shall return such documents to
Buesgens on that basis.
[Signed and dated above.]
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7	O:\Judge Temp Docs\Buesgens vs Paulson (In re Tawney) Decsn re Dismissal of Complaint.wpd
Copies to:
Michael L. Buesgens
3112 Windsor Road
#A322
Austin, TX 78703
Henry Paulson
Secretary of the Treasury
1500 Pennsylvania Ave., NW
Washington, DC 202220
Tax Division
Department of Justice
Washington, DC 20530
Office of U.S. Trustee
903 San Jacinto Blvd., #320
Austin, TX 78701
Randolph N. Osherow, Esq.
342 W. Woodlawn, Suite 300
San Antonio, TX 78212
Karen L. Melnik
Assistant U.S. Attorney
555 Fourth Street, NW
Room E4112
Washington, DC 20530
R. Barry Robinson, Esq.
Assistant U.S. Attorney
816 Congress Avenue
Suite 1000
Austin, TX 78701
Sherri Miller, Case Manager
U.S. Bankruptcy Court,
903 San Jacinto Blvd. #322
Austin, TX 78701
Mark Everson
Commissioner of Internal Revenue
Room 5226
1111 Pennsylvania Ave., NW
Washington, DC 20224
Donald Ray Tawney, Jr.
13601 Elm Ridge Lane #1635
Austin, TX 78727
Charles R. Nettles, Jr.
1524 S. IH-35, Suite 233
Austin, TX 78704
Honorable Frank R. Monroe
United States Bankruptcy Judge
903 San Jacinto Blvd., #322
Austin, TX 78701
Sarah H. McHaney
Law Clerk
U.S. Bankruptcy Court
903 San Jacinto Blvd., #322
Austin, TX 78701
Maria Dozauer
Deputy in Charge
Clerk’s Office
U.S. Bankruptcy Court
903 San Jacinto Blvd., #322
Austin, TX 78701
Honorable Leroy Yeakel, III
United States District Judge
200 West 8 th Street
Austin, TX 78701
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