1995 Decision: No Damages for Alleged Tax Return Disclosure by Amtrak Employees

                    UNITED STATES DISTRICT COURT,

Carl Roy Peterson, Nancy Shaw, Lord, Bissell & Brook, Chicago, IL, for defendants.

MEMORANDUM OPINION AND ORDER

ASPEN, CHIEF JUDGE:

[1] Presently before the court is plaintiff Ronald Hrubec's motion to amend his complaint. Hrubec maintains that the Supreme Court's ruling in LeBron v. National R.R. Passenger Corp., ___ U.S. ___, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995), which was handed down after the most recent oral arguments before the Seventh Circuit but before that court ruled, has breathed new life into his twice- dismissed lawsuit. ¹ Prior to Lebron, Hrubec was proceeding as if the Amtrak employees named in the suit were not federal employees; rather, he claimed that their actions violated 26 U.S.C. section 7431(a)(2), which relates to disclosure of tax returns or return information by "any person who is not an officer or employee of the United States." See 26 U.S.C. section 7431(a)(2). ² In Lebron, however, the Supreme Court concluded that Amtrak is part of the federal government for First Amendment purposes. Lebron, ___ U.S. at ___, 115 S.Ct. at 974-75. Because Amtrak is now considered part of the federal government, Hrubec reasons, Amtrak employees are employees of the United States. Accordingly, Hrubec now seeks to bring a claim against defendants under 26 U.S.C. sections 6103(a)(1) & 7431(a)(1), which collectively prohibit disclosure of returns or return information by an officer or employee of the United States. ³

[2] The parties expend a great deal of effort debating whether we have jurisdiction to consider Hrubec's motion, in light of our entry of judgment on the pleadings against Hrubec and the Seventh Circuit's affirmance. We need not resolve the jurisdictional issue, however, because even if we had jurisdiction to consider Hrubec's motion, we would deny it on the merits. See Rekhi v. Wildwood Indus., Inc., 61 F.3d 1313, 1316 (7th Cir.1995) (noting that a court may skip jurisdictional issues and proceed to consider the merits "when the former are difficult and the latter easy . . ., provided there is no practical difference in the outcome"). In its most recent opinion in this case, the Seventh Circuit stated:

     Defendants do not come within subsections (1) and (2) [of 26

² This effort proved unavailing, however, because section 7431(a) only provides a cause of action if the disclosure violates 26 U.S.C. section 6103. That section, in turn, only prohibits disclosure by a non-government employee if that person obtains the return or return information in one of a few enumerated ways, none of which are applicable in Hrubec's case. See 26 U.S.C. section 6103(a)(3); Hrubec, 49 F.3d at 1270-71.

³ Unlike section 6103(a))3), section 6103(a)(1) prohibits disclosure regardless of how the disclosing individual obtained the return or return information.