Black's Law Dictionary,
Sixth Edition, p. 1612
Injunction. A court order prohibiting someone from doing
some specified act or commanding someone to undo some wrong or injury.
A prohibitive, equitable remedy issued or granted by a court at the
suit of a party complainant, directed to a party defendant in the action,
or to a party made a defendant for that purpose, forbidding the latter
from doing some act which he is in the continuance thereof, such act
being unjust and inequitable, injurious to the plaintiff, and not such
as can be adequately redressed by an action at law. A person to
whom it is directed to do or refrain from doing a particular thing.
Gainsburg v. Dodge, 193 Ark. 473, 101 S.W.2d 178, 180. Generally,
it is a preventive and protective remedy, aimed at future acts, and
is not intended to redress past wrongs. Snyder v. Sullivan, Colo.,
705 P.2d 510, 513. Fed.R.Civil P. 65. See also Temporary
restraining order.
Interlocutory injunction. Interlocutory injunctions are
those issued at any time during the pendency of the litigation for the
short-term purpose of preventing irreparable injury to the petitioner
prior to the time that the court will be in a position to either grant
or deny permanent relief on the merits. In accordance with their
purpose, interlocutory injunctions are limited in duration to some specified
length of time, or at the very outside, to the time of conclusion of
the case on the merits. Within the category of interlocutory injunctions
there are two distinct types which must be considered individually.
The first is generally referred to as a preliminary injunction, and
includes any interlocutory injunction granted after the respondent has
been given notice and the opportunity to participate in a hearing on
whether or not that injunction should issue. The second is generally
referred to as a temporary restraining order, and differs from a preliminary
injunction primarily in that it is issued ex parte, with no notice or
opportunity to be heard granted to the respondent. Temporary restraining
orders supply the need for relief in those situation in which the petitioner
will suffer irreparable injury if relief is not granted immediately,
and time simply does not permit either the deliver of notice or the
holding of a hearing. Fed.R.Civil P.65. See also Injury
(Irreparable injury); Temporary restraining order.
Mandatory injunction. One which (1) commands the defendant
to do some positive act or particular thing; (2) prohibits him from
refusing (or persisting in a refusal) to do or permit some act to which
the plaintiff has a legal right; or (3) restrains the defendant from
permitting his previous wrongful act to continue operative, thus virtually
compelling him to undo it.
Permanent injunction.
One intended to remain in force until the final termination of the particular
suit.
Perpetual injunction.
An injunction which finally disposes of the suit, and is indefinite
in point of time.
Preliminary injunction.
An injunction granted at the institution of a suit, to restrain the
defendant from doing or conti9nuing some act, the right to which is
in the dispute, and which may either be discharged or made perpetual,
according to the result of the controversy, as soon as the rights of
the parties are determined. Fed.R.Civil P.65.
Preventive injunction.
One which prohibits the defendant from doing a particular act or commands
him to refrain from it.
Prohibitory injunction.
An order of a court in the form of a judgment which directs one not
to do a certain thing; sometimes called a restraining order. See
Restraining order.
Provisional injunction.
Another name for a preliminary or temporary injunction or an injunction
pendente lite.
Restraining order.
See Order; Restraining order; Temporary restraining order.
Temporary injunction.
A preliminary or provisional injunction, or one granted pendente lite;
as opposed to a final or perpetual injunction. A provisional remedy
to preserve subject matter of controversy pending trial., Electronic
Data Systems Corp. v. Powell, Tex.Civ.Appl, 508 S.W.2d 137, 139.
It is one which operates until dissolved by interlocutory order or until
final hearing on matter. Brines v. McIlhaney, Tx., 596 S.W.2d
519, 523. See also Temporary restraining order.
[Black's Law Dictionary,
Sixth Edition, p. 1612]
TITLE 26 >
Subtitle F >
CHAPTER 76 >
Subchapter A > § 7408
§ 7408. Action to enjoin promoters of abusive tax shelters, etc.
(a) Authority to seek injunction
A civil action in the name of the United States to enjoin any person
from further engaging in conduct subject to penalty under section
6700 (relating to penalty for promoting abusive tax shelters, etc.)
or section 6701 (relating to penalties for aiding and abetting understatement
of tax liability) may be commenced at the request of the Secretary.
Any action under this section shall be brought in the district court
of the United States for the district in which such person resides,
has his principal place of business, or has engaged in conduct subject
to penalty under section 6700 or section 6701. The court may exercise
its jurisdiction over such action (as provided in section 7402 (a))
separate and apart from any other action brought by the United States
against such person.
(b) Adjudication and decree In any action under subsection (a),
if the court finds—
(1) that the person has engaged in any conduct subject to
penalty under section 6700 (relating to penalty for promoting
abusive tax shelters, etc.) or section 6701 (relating to penalties
for aiding and abetting understatement of tax liability), and
(2) that injunctive relief is appropriate to prevent recurrence
of such conduct,
the court may enjoin such person from engaging in such conduct
or in any other activity subject to penalty under section 6700
or section 6701.
(c) Citizens and residents outside the United States If any citizen
or resident of the United States does not reside in, and does not
have his principal place of business in, any United States judicial
district, such citizen or resident shall be treated for purposes
of this section as residing in the District of Columbia.
F. STANDING TO RAISE THE ISSUE OF LACK OF JURISDICTION
Any injunction issued by a court without jurisdiction--that is,
without the power to do so, is inherently void. For this reason,
lack of jurisdiction can be called to the attention of the court
at any time, by any of the parties or by the court itself on its
own motion. Once the court is aware of the lack of jurisdiction,
it can take steps to declare what is already the fact, namely, that
the injunction is void. This is generally accomplished by
an order formally vacating the injunction.
It also follows that since an injunction issued without jurisdiction
is void, there is no time limitation on raising the issue by any
party or the court. If, for example, the defect is not called
to the attention of the court until after final judgment, or even
after time for appeal has expired, the voidness of the decree is
not cured, and no party is estopped or precluded from having it
then vacated or defending against the imposition of contempt sanctions
on this ground.
Similarly, one being charged with violating the order as an aider
and abettor, or successor in interest, can attack the validity of
the order itself on this limited ground of lack of jurisdiction.
The corporation contends that, since it denies that interstate
or foreign commerce is involved and claims that a hearing would
subject it to irreparable damage, rights guaranteed by the Federal
Constitution will be denied unless it be held that the District
Court has jurisdiction to enjoin the holding of a hearing by the
Board.[1] So to
hold would, as the government insists, in effect substitute the
District Court for the Board as the tribunal to hear and determine
what Congress declared the Board exclusively should hear and determine
in the first instance. The contention is at war with the long-settled
rule of judicial administration that no one is entitled to judicial
relief for a supposed or threatened injury until the pre-
[303 U.S. 41, 51] scribed administrative
remedy has been exhausted.[2]
That rule has been repeatedly acted on in cases where, as here,
the contention is made that the administrative body lacked
power over the subject matter.[3]
Obviously, the rules requiring exhaustion of the administrative
remedy cannot be circumvented by asserting that the charge on which
the complaint rests is groundless and that the mere holding of the
prescribed administrative hearing would result in irreparable damage.[4]
Lawsuits also often prove to have been ground- [303
U.S. 41, 52] less; but no way has been discovered
of relieving a defendant from the necessity of a trial to establish
the fact.
[Myers v. Bethlehem
Shipbuilding Corp., 303 U.S. 41 (1938)]
__________________________________
[1] In support of
that contention the following cases were cited: Ohio Valley
Water Co. v. Ben Avon Borough,
253 U.S. 287, 289 , 40 S.Ct. 527, 528; Bluefield Water
Works Co. v. Public Service Commission,
262 U.S. 679, 683 , 43 S.Ct. 675; Phillips v. Commissioner,
283 U.S. 589, 600 , 51 S.Ct. 608, 612; Crowell v. Benson,
285 U.S. 22, 60 , 64 S., 52 S.Ct. 285, 296, 297; State
Corporation Commission v. Wichita Gas Co.,
290 U.S. 561, 569 , 54 S.Ct. 321, 324; St. Joseph Stock
Yards Co. v. United States,
298 U.S. 38, 51 , 52 S., 56 S.Ct. 720, 725, 726.
[2] The rule has
been most frequently applied in equity where relief by injunction
was sought. Pittsburgh &c. Ry. v. Board of Public Works,
172 U.S. 32, 44 , 45 S., 19 S.Ct. 90; Prentis v. Atlantic
Coast Line Co.,
211 U.S. 210, 230 , 29 S.Ct. 67; Dalton adding Machine
Co. v. State Corporation Commission,
236 U.S. 699, 701 , 35 S.Ct. 480; Gorham Mfg. Co. v.
State Tax Commission,
266 U.S. 265, 269 , 270 S., 45 S.Ct. 80, 81; Federal
Trade Commission v. Claire Furnace Co.,
274 U.S. 160, 174 , 47 S.Ct. 553, 556; Lawrence v. St.
Louis-San Francisco Ry. Co.,
274 U.S. 588, 592 , 593 S., 47 S.Ct. 720, 722; Chicago,
M., St. P. & P.R.R. Co. v. Risty,
276 U.S. 567, 575 , 48 S.Ct. 396, 399; St. Louis-San
Francisco Ry. Co. v. Alabama Public Service Commission,
279 U.S. 560, 563 , 49 S.Ct. 383, 384; Porter v. Investors'
Syndicate,
286 U.S. 461, 468 , 471 S., 52 S. Ct. 617, 619, 620;
United States v. Illinois Central Ry. Co .,
291 U.S. 457, 463 , 464 S., 54 S.Ct. 471, 473, 474;
Hegeman Farms Corp. v. Baldwin,
293 U.S. 163, 172 , 55 S.Ct. 7, 10; compare Red 'C'
Oil Mfg. Co. v. North Carolina,
222 U.S. 380, 394 , 32 S.Ct. 152; Farncomb v. Denver,
252 U.S. 7, 12 , 40 S.Ct. 271, 273; Milheim v. Moffat
Tunnel District,
262 U.S. 710, 723 , 43 S. Ct. 694, 698; McGregor v.
Hogan,
263 U.S. 234, 238 , 44 S.Ct. 50, 51; White v. Johnson,
282 U.S. 367, 374 , 51 S.Ct. 115, 118; Petersen Baking
Co. v. Bryan,
290 U.S. 570, 575 , 54 S. Ct. 277, 278; Pacific Tel.
& Tel. Co. v. Seattle,
291 U.S. 300, 304 , 54 S.Ct. 383, 384. But because the
rule is one of judicial administration-not merely a rule
governing the exercise of discretion-it is applicable to
proceedings at law as well as suits in equity. Compare First
National Bank of Fargo v. Board of County Commissioners,
264 U.S. 450, 455 , 44 S.Ct. 385, 387; Anniston Mfg.
Co. v. Davis,
301 U.S. 337, 343 , 57 S.Ct. 816, 819.
[3] Dalton Adding
Machine Co. v. State Corporation Commission,
236 U.S. 699 , 35 S.Ct. 480; Federal Trade Commission
v. Claire Furnace Co.,
274 U.S. 160 , 47 S.Ct. 553; Lawrence v. St. Louis-San
Francisco Ry. Co.,
274 U.S. 588 , 47 S.Ct. 720; St. Louis-San Francisco
Ry. Co. v. Alabama Public Service Commission,
279 U.S. 560 , 49 S.Ct. 383. Compare Western & Atlantic
R.R. v. Georgia Public Service Commission,
267 U.S. 493, 496 , 45 S.Ct. 409, 410, and casesited
in note 1, supra.
[4] Such contentions
were specifically rejected in Bradley Lumber Co. v. National
Labor Relations Board, 5 Cir., 84 F.2d 97; Clark v. Lindemann
& Hoverson Co., 7 Cir., 88 F.2d 59; Chamber of Commerce
v. Federal Trade Commission, 8 Cir., 280 F. 45; Heller Bros.
Co. v. Lind, 66 App.D.C. 306, 86 F.2d 862; and Pittsburgh
& W. Va. Ry. Co. v. Interstate Commerce Commission, 52 App.D.C.
40, 280 F. 1014. Compare United States v. Los Angeles &
S.L.R.R. Co.,
273 U.S. 299, 314 , 47 S.Ct. 413, 416; Lawrence v. St.
Louis-San Francisco Ry. Co.,
274 U.S. 588 , 47 S.Ct. 720; Dalton Adding Machine Co.
v. State Corporation Commission,
236 U.S. 699 , 35 S.Ct. 480; McChord v. Louisville &
Nashville Ry. Co.,
183 U.S. 483 , 22 S.Ct. 165; Richmond Hosiery Mills
v. Camp, 5 Cir., 74 F.2d 200, 201.
In a suit such as
petitioner's, insofar as it seeks injunctive relief to prevent a
substantial risk of serious injury from ripening into actual harm,
"the subjective factor, deliberate indifference, should be determined
in light of the prison authorities' current attitudes and conduct,"
Helling, supra, at 36: their attitudes and conduct at the time suit
is brought and persisting thereafter. An inmate seeking
an injunction on the ground that there is "a contemporary violation
of a nature likely to continue," United States v. Oregon Medical
Society, 343 U.S. 326, 333 (1952), must adequately [511 U.S. 846]
plead such a violation; to survive summary judgment, he must come
forward with evidence from which it can be inferred that the defendant
officials were at the
time suit was filed, and are at the time of summary judgment, knowingly
and unreasonably disregarding an objectively intolerable risk of
harm, and that they will continue to do so; and finally
to establish eligibility for an injunction, the inmate must demonstrate
the continuance of that disregard during the remainder of the litigation
and into the future. In so doing, the inmate may rely, in the district
court's discretion, on developments that postdate the pleadings
and pretrial motions, as the defendants may rely on such developments
to establish that the inmate is not entitled to an injunction.{9}
See Fed.Rule Civ.Proc. 15(d); 6A C. Wright, A. Miller & M. Kane,
Federal Practice and Procedure §§ 1504-1510, pp. 177-211 (2d ed.
1990). If the court finds the Eighth Amendment's subjective and
objective requirements satisfied, it may grant appropriate injunctive
relief. See Hutto v. Finney, 437 U.S. at 685-688 and n. 9 (upholding
order designed to halt "an ongoing violation" in prison conditions
that included extreme overcrowding, rampant violence, insufficient
food, and unsanitary conditions). Of course, a district court should
approach issuance of injunctive orders with the usual caution, [511
U.S. 847] see Bell v. Wolfish, supra, at 562 (warning courts against
becoming "enmeshed in the minutiae of prison conditions"), and may,
for example, exercise its discretion if appropriate by giving prison
officials time to rectify the situation before issuing an injunction.
[Farmer
v. Brennan, 511 U.S. 825 (1994)]
It will simplify consideration of
such cases as this to keep in sight the target at which relief is
aimed. The sole function
of an action for injunction is to forestall future violations.
It is so unrelated to punishment or reparations for those past that
its pendency or decision does not prevent concurrent or later remedy
for past violations by indictment or action for damages by those
injured. All it takes
to make the cause of action for relief by injunction is a real threat
of future violation or a contemporary violation of a nature likely
to continue or recur. This established, it adds nothing
that the calendar of years gone by might have been filled with transgressions.
Even where relief is mandatory in form, it is to undo existing conditions,
because otherwise they are likely to continue.
In a forward-looking action
such as this, an examination of "a great amount of archaeology"
4
is justified only when
it illuminates or explains the present and predicts the shape of
things to come.
When defendants are shown to have
settled into a continuing practice or entered into a conspiracy
violative of antitrust laws,
courts will not assume
that it has been abandoned without clear proof.
Local 167 v. United States,
291 U.S. 293, 298 .
It is the duty of the courts to beware of efforts to defeat injunctive
relief by protestations of repentance and reform, especially when
abandonment seems timed to anticipate suit, and there is probability
of resumption. Cf. United States v. United States Steel Corp.,
251 U.S. 417, 445 .
[343 U.S. 326, 334]
But we find not the slightest reason
to doubt the genuineness, good faith or permanence of the changed
attitude and strategy of these defendant-appellees which took place
in 1941. It occurred seven years before this suit was commenced
and, so far as we are informed, before it was predictable. It did
not consist merely of pretensions or promises but was an overt and
visible reversal of policy, carried out by extensive operations
which have every appearance of being permanent because wise and
advantageous for the doctors. The record discloses no threat or
probability of resumption of the abandoned warfare against prepaid
medical service and the contract practice it entails. We agree with
the trial court that conduct discontinued in 1941 does not warrant
the issuance of an injunction in 1949. Industrial Assn. v. United
States,
268 U.S. 64, 84 .
[United
States v. Oregon Medical Society, 343 U.S. 326 (1952)]
The Court's purpose in retaining jurisdiction in those cases
can be gleaned from the respective reports of the Special Masters,
which note the need for flexibility in light of changed conditions
and questions which could not be disposed of at the time of an initial
decree.{17} This interpretation
is also consistent with the role of a "court of equity to modify
an injunction in adaptation to changed [460 U.S. 625] conditions."
Railway Employes v. Wright, 364 U.S. 642, 647 (1961); United States
v. Swift & Co., 286 U.S. 106, 114 (1932).
[Arizona
v. California, 460 U.S. 605 (1983)]
At the outset, it should be
noted that the power of the District Court to modify this decree
is not drawn in question. That proposition indeed could not well
be disputed. See Pennsylvania v. Wheeling & Belmont Bridge Co.,
18 How. 421; United States v. Swift & Co., 286 U.S. 106; [364 U.S.
647] Chrysler Corp. v. United States, 316 U.S. 556. In the Swift
case, Mr. Justice Cardozo put the matter thus, 286 U.S. at 114:
We are not doubtful of the power
of a court of equity to modify an injunction in adaptation to
changed conditions though it was entered by consent. . . . Power
to modify the decree was reserved by its very terms, and so,
from the beginning, went hand in hand with its restraints. If
the reservation had been omitted, power there still would be
by force of principles inherent in the jurisdiction of the chancery.
A continuing decree of injunction directed to events to come
is subject always to adaptation as events may shape the need.
Ladner v. Siegel, 298 Pa. 487, 494, 495.
There is also no dispute
but that a sound judicial discretion may call for the modification
of the terms of an injunctive decree if the circumstances, whether
of law or fact, obtaining at the time of its issuance have changed,
or new ones have since arisen. The source of the power
to modify is, of course, the fact that an injunction often requires
continuing supervision by the issuing court, and always a continuing
willingness to apply its powers and processes on behalf of the party
who obtained that equitable relief. Firmness and stability must
no doubt be attributed to continuing injunctive relief based on
adjudicated facts and law, and neither the plaintiff nor the court
should be subjected to the unnecessary burden of reestablishing
what has once been decided.
Nevertheless, the court
cannot be required to disregard significant changes in law or facts
if it is "satisfied that what it was been doing has been turned
through changing circumstances into an instrument of wrong."
United States v. Swift & Co., supra, at 114-115. A balance must
thus be struck between the policies of res judicata and the right
[364 U.S. 648] of the court to apply modified measures to changed
circumstances.
[System
Federal v. Wright, 364 U.S. 642 (1961)]
It is contended that the Supreme
Court lacked jurisdiction because there was no case or controversy
within the meaning of § 2 of article 3 of the Constitution. Compare
Lord v. Veazie, 8 How. 251; Little v. Bowers, 134 U.S. 547; South
Spring Hill Gold Mining Co. [276 U.S. 326] v. Amador Medean Gold
Mining Co., 145 U.S. 300; California v. San Pablo & Tulare R. Co.,
149 U.S. 308. The defendants concede that there was a case at the
time when the government filed its petition and the defendants their
answers, but they insist that the controversy had ceased before
the decree was entered. The argument is that, as the government
made no proof of facts to overcome the denials of the answers, and
stipulated both that there need be no findings of fact and that
the decree should not constitute or be considered an adjudication
of guilt, it thereby abandoned all charges that the defendants had
violated the law, and hence the decree was a nullity.
The argument ignores
the fact that a suit for an injunction deals primarily not with
past violations, but with threatened future ones, and that an injunction
may issue to prevent future wrong although no right has yet been
violated. Vicksburg Waterworks Co. v. Vicksburg, 185 U.S. 65, 82;
Pierce v. Society of Sisters, 268 U.S. 510, 536.
[Swift
& Co. v. United States, 276 U.S. 311 (1928)]
Kehmeier v. Atlas Air, Inc., 2021 U.S. Dist. LEXIS 102919, 20 CV 4191
II. Analysis
The Court lacks subject matter jurisdiction to hear plaintiff's claims requesting injunctive and declaratory relief under the Anti-Injunction Act and the Declaratory Judgment Act, respectively.3
The Anti-Injunction Act prevents courts from hearing suits brought "for the purpose of restraining the assessment or collection of any tax." 26 U.S.C. § 7421(a). The Anti-Injunction Act expressly bars the Court from granting [*4] injunctive relief. See Karas v. Katten Muchin Zavis Rosenman, 2006 U.S. Dist. LEXIS 109, 2006 WL 20507, at *3 (S.D.N.Y. Jan. 3, 2006), aff'd sub nom. Karas v. Katten Muchin Rosenman LLP, 2008 U.S. App. LEXIS 27038, 2009 WL 38898 (2d Cir. Jan. 8, 2009) (summary order).
Plaintiff alleges defendant should not have withheld taxes from him under Section 3402(a). That section provides, however, with exceptions not relevant here, "every employer making payment of wages shall deduct and withhold upon such wages a tax." Section 3402(a) thus provides a method of collecting taxes within the meaning of the Anti-Injunction Act. See United States v. American Friends Service Committee, 419 U.S. 7, 10, 95 S. Ct. 13, 42 L. Ed. 2d 7 (1974). Accordingly, the Anti-Injunction Act applies and deprives the Court of subject matter jurisdiction to consider plaintiff's request for injunctive relief.4
With respect to plaintiff's request for declaratory relief, the Declaratory Judgment Act bars federal courts from issuing any declaratory relief "with respect to federal taxes." 28 U.S.C. § 2201. "There is no dispute . . . that the federal tax exemption to the Declaratory Judgment Act is at least as broad as the Anti-Injunction Act." Bob Jones Univ. v. Simon, 416 U.S. 725, 732, n.7, 94 S. Ct. 2038, 40 L. Ed. 2d 496 (1974). Accordingly, the Declaratory Judgment Act applies here and prevents the Court from hearing plaintiff's request for declaratory relief. See Smith v. Shulman, 333 F. App'x 607, 609 (2d Cir. 2009) (summary order).5
[Kehmeier v. Atlas Air, Inc., 2021 U.S. Dist. LEXIS 102919, 20 CV 4191]
[EDITORIAL:
The problem with that case is that the court had to determine that the issue a "federal tax" to even apply the anti-injunction act, which they can't do without a definition.
And there is no definition of what "federal tax" is in that context. Federal means STATES. States of the Union are nowhere mentioned in Title 26, Subtitles A and C. They are all territorial "States" in 4 USC 110(d). If "federal tax" is not defined in that context, the judge is legislating from the bench to define it in the context of 28 USC 2201 or to PRESUME that constitutional states are included in Title 26 when they are nowhere mentioned. I.R.C. Subitles A and C are NATIONAL taxes, not FEDERAL taxes, based on the geographical deinitions.]
(d) Supplemental Pleadings.
Upon motion of a party the court
may, upon reasonable notice and upon such terms as are just, permit
the party to serve a supplemental pleading setting forth transactions
or occurrences or events which have happened since the date of the
pleading sought to be supplemented. Permission may be granted even
though the original pleading is defective in its statement of a
claim for relief or defense. If the court deems it advisable that
the adverse party plead to the supplemental pleading, it shall so
order, specifying the time therefor.
[Federal
Rule of Civil Procedure 15(d)]
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