Mom's, Incorporated v. Weber

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT MOM'S, INC.; JOHN ROBERT COLAPRETE; THEODORE MAZUR BONK; EDY MILLER; JENNIFER MARIE MILLER, a minor who sues by Edy Miller, her parent and next friend; RICHARD SCOTT MILLER, II, a minor who sues by Edy Miller, his parent and next friend; RICHARD SCOTT MILLER, Plaintiffs-Appellees, v. JUDITH WEBER; CLYDE SANTANA; BOB DUNFORD; DAVE ALTMAN; DARYL WARE; JAMES EDWARDS; ROGER WARREN; DAVID HUFF; CRAIG CARMEN; JOYCE SUTTON; LEON No. 96-2769 COLEMAN; DAVID LIBENGOOD; BOBBY BASS, individually and as Special Agents for the Department of Alcoholic Beverage Control of Virginia, Defendants-Appellants, and GEORGE OVERSTREET, individually and as Police Officer of the City of Norfolk Police Department, Norfolk, Virginia; CAROL E. WILLMAN, individually and as Special Agent for the Internal Revenue Service, Norfolk, Virginia; THE CITY OF VIRGINIA BEACH; CITY OF NORFOLK; UNKNOWN FEDERAL AGENTS; UNKNOWN STATE AGENTS; UNKNOWN CITY OF VIRGINIA BEACH AGENTS; UNKNOWN CITY OF NORFOLK AGENTS; CHERYL L. KAST, individually and as Group Manager for the Internal Revenue Service; JOHN C. MCDOUGAL, individually and as Special Litigation Assistant for the Internal Revenue Service; ROBERT E. BURGESS, individually and as Special Agent for the Internal Revenue Service; ARLENE T. CAMPSEN, individually and as Special Agent for the Internal Revenue Service; TIMOTHY DARUK, individually and as Special Agent for the Internal Revenue Service; MICHAEL E. DUNLOW, individually and as Special Agent for the Internal Revenue Service; DONNA L. EASON, individually and as Tax Fraud Investigative Aide for the Internal Revenue Service; JOHN BRINK, individually and as Special Agent for the Internal Revenue Service, Defendants. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. J. Calvitt Clarke, Jr., Senior District Judge. (CA-96-246) Argued: June 6, 1997 Decided: October 14, 1998 [2] Before RUSSELL,* WIDENER, and WILKINS, Circuit Judges. _________________________________________________________________ Dismissed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL ARGUED: John Patrick Griffin, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellants. Robert John Haddad, SHUTTLEWORTH, RULOFF & GIORDANO, P.C., Virginia Beach, Virginia, for Appellees. ON BRIEF: James S. Gilmore, III, Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellants. Beverly A. Rebar, SHUTTLEWORTH, RULOFF & GIORDANO, P.C., Virginia Beach, Virginia; James C. Breeden, HUBBARD, BREEDEN & TERRY, Irvington, Virginia; Alan W. Clark, Chassell, Missouri, for Appellees. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: Mom's, Inc.1 brought this action claiming that a number of individ_________________________________________________________________ *Judge Russell heard oral argument in this case but died prior to the time the decision was filed. The decision is filed by a quorum of the panel. See 28 U.S.C.A. § 46 (d) (West 1993). 1 Plaintiffs are Mom's, Inc.; John Robert Colaprete; Theodore Mazur Bonk; Edy Miller; Jennifer Marie Miller; Richard Scott Miller, II; and Richard Scott Miller. For ease of reference, we refer to Plaintiffs collectively as "Mom's, Inc." [3] uals employed by the Virginia Department of Alcohol Beverage Control (ABC)2 and employees of the Internal Revenue Service violated its constitutional rights under the Fourth, Fifth, and Fourteenth Amendments and violated various state laws in connection with obtaining and executing a search warrant in April 1994. The ABC agents filed a motion to dismiss, arguing that the action was barred by the Tax Injunction Act, see 28 U.S.C.A.§ 1341 (West 1993), and the principles of comity affirmed in Fair Assessment in Real Estate Ass'n v. McNary, 454 U.S. 100 (1981). The district court disagreed, see Mom's, Inc. v. Weber, 951 F. Supp. 92 (E.D. Va. 1996), and the ABC agents sought review of the ruling in this court. We conclude that we lack appellate jurisdiction to consider this matter because the order of the district court is not a final order, see 28 U.S.C.A. § 1291 (West 1993); is not an appealable interlocutory order, see 28 U.S.C.A. § 1292 (West 1993 & Supp. 1998); and is not an appealable collateral order, see Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541 , 54547 (1949). Accordingly, we dismiss. DISMISSED _________________________________________________________________ 2 The appealing ABC agents are Judith Weber, Clyde Santana, Bob Dunford, Dave Altman, Daryl Ware, James Edwards, Roger Warren, David Huff, Craig Carman, Joyce Sutton, Leon Coleman, David Libengood, and Bobby Bass.