240 F.Supp.2d 894 (2003)
Timothy L. JUNKER, Plaintiff,
v.
AMANA COMPANY, L.P., a/k/a Amana Refrigeration, Defendaint.
No. C01-91.
United States District Court, N.D. Iowa, Cedar Rapids Division.
January 8, 2003.
*895 Larry J. Thorson, Ackley Kopecky & Kingery, LLP, Cedar Rapids, IA, for plaintiff.
Iris E. Muchmore, Leonard T. Strand, Simmons Perrine Albright Ellwood, Cedar Rapids, IA, for defendant.

OPINION AND ORDER
READE, District Judge.

I. INTRODUCTION
This matter is before the Court on Defendant's motion for summary judgment (docket no. 11). Plaintiff filed his complaint in Iowa District Court for Benton County on June 13, 2001 alleging Defendant breached an implied employment contract by terminating Plaintiff and that Defendant violated the Family and Medical Leave Act by denying Plaintiff leave and terminating Plaintiffs employment. Defendant removed the action from Iowa District Court for Benton County to this Court on June 28, 2001. Defendant has moved for summary judgment on Plaintiffs breach of contract claim (Count II) and on Plaintiffs Family and Medical Leave Act claim (Count III).[1] Plaintiff resisted Defendant's motion on July 20, 2002 (docket no. 16) and Defendant replied to Plaintiffs resistance on August 7, 2002 (docket no. 23). The Court held a telephonic hearing on Defendant's motion on December 20, 2002. For the reasons set forth below, the Court grants Defendant's motion on both of Plaintiffs claims.

II. FACTUAL BACKGROUND
The Court views the following facts in the light most favorable to Plaintiff, the nonmoving party. Plaintiff was a bargaining unit employee of Defendant. On October 22, 2000, Plaintiff was injured in a nonwork related automobile accident. Plaintiff was in the hospital being treated for his injuries until October 23, 2000. On October 24, 2000, Plaintiff had his mother drive him to Defendant's facility to fill out medical leave forms because he was unable to return to work due to his injuries. At this time, Plaintiff met with two individuals in Defendant's human resources department, Dennis Meyer and Sharon Gross. Plaintiff filled out and signed a form entitled "Application for Medical Leave," (the "Application") which stated, in pertinent part, the following:
This form is required only when the absence is going to be over five (5) workdays and the disability is due to a non-work related injury or illness .... Employees applying for a leave of absence must complete and return this form to the Personnel Department for authorization as soon as possible, but in no case shall it be later than the SIXTH (6th) DAY of absence. A Certificate of Disability must also be completed by a licensed physician and returned to the Personnel Office as soon as possible, but in no case shall it be later than the sixth (6th) day of absence. YOU are responsible for returning the Certificate of Disability; do not rely on your physician to return it for you. FAILURE TO RETURN THIS FORM AND THE CERTIFICATE OF DISABILITY WILL *896 RESULT IN AUTOMATIC TERMINATION. Once your leave of absence has been authorized, you will be provided with a duplicate copy of this form. EXPIRATION OF LEAVE. You will not be reminded by the Company of the date your leave will expire. FAILURE TO RETURN ON THE FIRST DAY FOLLOWING THE EXPIRATION DATE, or to provide necessary doctor's certificate for the extension of leave (where allowable) on or before the expiration date, WILL RESULT IN AUTOMATIC SEPARATION FROM THE PAYROLL.....
Def.App. 83 (emphasis in original).
During this meeting, either Mr. Meyer or Ms. Gross explained to Plaintiff that Defendant would not remind Plaintiff of the date on which his leave would expire. Mr. Meyer or Ms. Gross further explained that Defendant would terminate Plaintiffs employment if he failed to either return to work upon the expiration of his leave or to submit a new medical certification to extend his leave prior to the expiration of his initial leave period. Ms. Gross gave Plaintiff her fax number and indicated that it was acceptable for Plaintiff or Plaintiffs physician to communicate with Defendant by fax. Plaintiff left the meeting with an understanding that Defendant's policy, as set forth in the Application, required that he submit to Defendant medical documentation to support his request for leave. Plaintiff further understood that it was his responsibility to provide to Defendant another physician's certification if he could not return to work at the end of his initial leave period. Defendant's policy with respect to the Application was to review the completed Application together with the medical certification once Defendant received it, and to then notify the requesting employee of the length of leave Defendant granted.
Plaintiffs physician subsequently faxed to Defendant a medical certification which indicated that Plaintiffs injuries required that he be granted leave beginning on October 22, 2000 and lasting for an "indeterminate" period of time. The medical certification also indicated that Plaintiffs next appointment with the physician was November 2, 2000.
Defendant reviewed Plaintiffs medical certification and approved an initial medical leave for Plaintiff that expired on November 23, 2000. Defendant sent to Plaintiff via certified mail documents pertaining to his leave, including a copy of the Application he had filled out during his meeting with Mr. Meyer and Ms. Gross. This copy of the Application indicated at the bottom that Plaintiffs initial leave expired on November 23, 2000. Plaintiff acknowledged that he received the document and that he knew at this time that, if his leave were to extend beyond November 23, 2000, he would need to inform Defendant of his need for an extension prior to that date.[2]
Plaintiff saw his treating physician again on November 7, 2000 and received a medical certification that established a return to work date of December 4, 2000. The *897 office nurse, Nurse Joan Colston, testified that it was office practice to give each patient two copies of his or her medical certificationone copy for the patient and one copy for the patient to provide to his or her employer. Nurse Colston further testified that she gave to Plaintiff two copies of his medical certification. Plaintiff is unsure whether he actually received such copies from Nurse Colston. Plaintiff did, however, ask that Nurse Colston fax a copy of the certification to Defendant at this time. Plaintiffs wife called Nurse Colston on November 13, 2000 to ensure that she had faxed a copy of the certification to Defendant. She also asked Nurse Colston to confirm that the fax number to which she was faxing documents was in fact Defendant's fax number. On November 15, 2000, either Plaintiff or his wife called Nurse Colston to request that she fax a copy of the medical certification to Bob Zlasnik, who was an employee of Jefferson Pilot, Defendant's short term disability insurance carrier, so that Plaintiff could receive disability benefits.
Defendant terminated Plaintiffs employment on November 30, 2000 because Plaintiff had failed to return to work upon expiration of his initial leave period and had failed to notify Defendant that he needed to extend his leave. Prior to making the decision to terminate Plaintiff, Mr. Meyer asked various individuals in Defendant's human resources department whether they had received any documentation or communication from Plaintiff requesting an extension of his leave. None of these individuals reported receiving any communication from Plaintiff.
On December 4, 2000, Plaintiffs wife called Nurse Colston and informed her that Defendant had terminated Plaintiffs employment and requested that Nurse Colston fax to Defendant on that day the medical certification indicating a return to work date for Plaintiff of December 4, 2000. Defendant received this fax but, at this point, it already had terminated Plaintiffs employment. Plaintiff admits that neither he nor his wife ever contacted Defendant to ensure that it had received the documentation regarding an extension of Plaintiffs leave. Plaintiff instead relied on Nurse Colston's representations that she had faxed the medical certification to Defendant.
On December 4, 2000, Plaintiff submitted to his Union representative a grievance concerning the termination of his employment in accordance with the terms of the Collective Bargaining Agreement between Defendant and Plaintiffs Union. Plaintiffs Union was the exclusive collective bargaining representative for Defendant's bargaining unit employees. The Union did not pursue Plaintiffs grievance.

III. ANALYSIS

A. Standard of Review
Summary judgment is appropriate only when the record, viewed in the light most favorable to the nonmoving party, shows there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Carter v. Ford Motor Co., 121 F.3d 1146, 1148 (8th Cir.1997) (citing Yowell v. Combs, 89 F.3d 542, 544 (8th Cir.1996)). An issue of material fact is genuine if it has a real basis in the record. Hartnagel v. Norman, 953 F.2d 394 (8th Cir.1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A fact is material when it is a fact that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 471 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Rouse v. Benson, 193 F.3d 936, 939 (8th Cir. 1999); Beyerback v. Sears, 49 F.3d 1324, *898 1326 (8th Cir.1995); Hartnagel, 953 F.2d at 394.
In considering a motion for summary judgment, a court must view all facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus., 475 U.S. at 587, 106 S.Ct. 1348. Further, the court must give such party the benefit of all reasonable inferences that can be drawn from the facts. Id. Procedurally, the nonmoving party bears "the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show lack of a genuine issue." Hartnagel 953 F.2d at 394 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
Once the moving party successfully has carried its burden under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the pleadings and by depositions, affidavits or otherwise, designate "specific facts showing that there is a genuine issue for trial." Fed.R. Civ. P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The nonmoving party must offer proof "such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
The Eighth Circuit has made it clear that summary judgment should be used sparingly in employment discrimination cases. Haglof v. Northwest Rehabilitation, Inc., 910 F.2d 492, 495 (8th Cir.1990); Hillebrand v. M-Tron Indus., Inc., 827 F.2d 363, 364 (8th Cir.1987), cert. denied, 488 U.S. 1004, 109 S.Ct. 782, 102 L.Ed.2d 774 (1989). The Court therefore considers Defendant's motion with these principles in mind.

B. Plaintiffs Breach of Contract Claim
Plaintiff alleges in his complaint that Defendant's employment manual and terms of employment constituted an employment contract and that Defendant breached this contract by discharging Plaintiff for reasons contrary to the contract and to public policy. Defendant moves for summary judgment on Plaintiffs breach of contract claim alleging that, because Plaintiffs Union was the exclusive collective bargaining representative for Defendant's employees, Defendant could not negotiate individual employment agreements with bargaining unit employees. As such, any breach of contract claim Plaintiff may have against Defendant based on alleged contractual obligations of Defendant must arise exclusively from the Collective Bargaining Agreement between Plaintiffs Union and Defendant (the "CBA"). Accordingly, Defendant argues that Plaintiffs breach of contract claim therefore is preempted by Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a). Defendant further contends that, to the extent Plaintiffs breach of contract claim requires the interpretation of the CBA and is preempted by Section 301, Plaintiff failed to exhaust the grievance procedures set forth in the CBA and therefore he cannot now maintain a separate breach of contract claim. Finally, Defendant asserts that, even if Plaintiff had brought an action against Defendant under Section 301, such claim would be time barred because he failed to file his action within the sixmonth statute of limitations of Section 301.
Section 301 (a) of the LMRA provides, in pertinent part that "`[s]uits for violation of contracts between an employer and a labor organization ... or between any such labor organizations may be brought in any district court of the United States ...' and completely preempts state law claims founded `directly on rights created by collective-bargaining agreements, and also claims substantially *899 dependent on analysis of a collective bargaining agreement.' " Schuver v. MidAmerican Energy Co., 154 F.3d 795, 799 (8th Cir.1998)(citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). Thus, "[w]here a state law claim is based on a collective bargaining agreement or is `inextricably intertwined' with the contents of a collective bargaining agreement, the claim is subject to § 301(a) preemption." Id. (citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985)). However, where a state law claim does not depend upon the interpretation, analysis or construction of a collective bargaining agreement and can be resolved without the need to interpret the collective bargaining agreement, the state law claim is "independent" of the collective bargaining agreement for Section 301 preemption purposes. Id. (citing Barske v. Rockwell Int'l Corp., 514 N.W.2d 917 (Iowa 1994)). For example, in Anderson v. Ford Motor Company, 803 F.2d 953 (8th Cir.1986), cert. denied, 483 U.S. 1011, 107 S.Ct. 3242, 97 L.Ed.2d 747 (1987), the Eighth Circuit held that an employee's claims of fraudulent misrepresentation were not completely preempted by Section 301 because the tort of fraudulent misrepresentation "ar[o]se in state common law and [was] measured by standards of conduct and responsibility completely separate from and independent of a collective bargaining agreement."
In response to Defendant's contention that it is entitled to summary judgment on Plaintiffs breach of contract claim because such claim is preempted by Section 301 of the LMRA, Plaintiff offers no evidence that his breach of contract claim arises independently of the CBA. Instead, Plaintiff changes his breach of contract claim to that of a claim for breach of a statutory provision (the Family and Medical Leave Act) which Plaintiff contends applies irrespective of the terms of the CBA. During the telephonic hearing on Defendant's motion for summary judgment, Plaintiff asserted that the contract which embodied the statutory terms Defendant allegedly breached consists of the various forms Plaintiff received from Defendant in connection with his medical leave.
The Court finds that Plaintiff has failed to present any evidence that Plaintiffs breach of contract claim arises independently of the CBA and therefore is not preempted by Section 301 of the LMRA. The Court further finds that even if Plaintiff could prove that his breach of contract claim arises independently of the CBA and therefore is not preempted, Plaintiff has failed to establish a genuine issue of material fact with respect to the issue of whether either the employment manual or the medical leave forms constituted an enforceable contract between Plaintiff and Defendant. Further, even if such documents did constitute an enforceable contract, Plaintiff has not put forth any evidence to show which of those terms Defendant breached. Accordingly, the Court grants summary judgment in favor of Defendant on Plaintiffs breach of contract claim.

C. Plaintiffs Family and Medical Leave Act Claim
The Family and Medical Leave Act (the "FMLA") provides up to twelve weeks of medical leave to covered employees for serious health conditions and protects such employees' right to be placed in the same or an equivalent position upon return from leave. 29 U.S.C. §§ 2612(a)(1)(D); 2614(a). FMLA regulations provide that an employee must give to his or her employer adequate notice of the need to take leave. 29 C.F.R. § 825.302(a). Where an employee's need for leave is foreseeable, an employee must give the employer notice of the employee's need for leave at *900 least 30 days in advance. Id. If it is not practical for an employee to give the employer 30 days notice, for example, because the employee does not know exactly when his or her leave will begin, because of a change in circumstances or because of a medical emergency, the employee is required to give the employer notice of the need for leave as soon as practicable. Id. An employee need only give to his or her employer notice of the need for FMLA leave one time, but the "employee shall advise the employer as soon as practicable if the dates of the scheduled leave change or are extended, or were initially unknown." Id.; see also 29 C.F.R. § 825.309(c) (providing that an employer may require that an employee provide an employer with reasonable notice (i.e. within 2 business days) of a change in the need for leave where such changed circumstances are foreseeable). Generally, the term "as soon as practicable" means no more than two days after learning of the need for leave or the need for extension of the leave, as the case may be. 29 C.F.R. § 825.302(b).
Employers are entitled to require that employees submit medical certification of the need for medical leave. See 29 U.S.C. § 2613. Further, employers may require that employees submit recertification when an employee requests an extension of leave, provided that such recertification is not required prior to 30 days after the employer's previous receipt of medical certification. 29 C.F.R. § 825.308(c)(1).
In this case, Plaintiff contends that Defendant violated the FMLA by terminating Plaintiffs employment for what Plaintiff characterizes as his alleged failure to follow Defendant's policies regarding employee leave. Defendant moves for summary judgment on this claim, asserting that Defendant's decision to terminate Plaintiffs employment did not violate the FMLA. Defendant contends that the FMLA and the regulations promulgated thereunder impose upon the employee a duty to notify his or her employer of the need to extend FMLA leave beyond the period of leave initially granted and to provide medical recertification in support of the need for such extension when requested. Defendant maintains that its decision to terminate Plaintiff was based on Plaintiffs failure to provide to Defendant (1) notice that Plaintiff needed to extend his FMLA leave beyond the initial leave period which ended on November 23, 2000 and (2) recertification of Plaintiffs serious medical condition. Defendant claims that its termination of Plaintiffs employment therefore was justified by Plaintiffs failure to provide such notice and did not violate the FMLA.
Plaintiff argues that a factual issue exists as to whether Defendant ever asserted that it would automatically terminate Plaintiff if he failed to provide to Defendant notice of his need for an extension of leave and the supporting medical certification. Plaintiff cites the following language in the Application in support of this contention:
FAILURE TO RETURN ON THE FIRST DAY FOLLOWING THE EXPIRATION DATE, or to provide the necessary doctor's certificate for the extension of leave (where allowable) on or before the expiration date, WILL RESULT IN AUTOMATIC SEPARATION FROM THE PAYROLL....
It is Plaintiffs position that, because Defendant used the term "automatic termination" in other parts of the Application, Defendant's use of the term "automatic separation from payroll" in reference to an employee's failure to provide the necessary medical certification to extend his or her leave precludes the Defendant from automatically terminating an employee for failure to provide such certification.
*901 Plaintiff further contends that a genuine issue of material fact exists as to whether Defendant had notice of Plaintiffs need to extend his leave beyond the initial leave period as set forth in the Application. In support of this contention, Plaintiff cites a list of documents which either were addressed to an employee of Defendant or were carbon copied to an employee of Defendant which should have put Defendant on notice of Plaintiffs expected return to work date, which was December 4, 2000. Plaintiff further contends that Defendant had Plaintiffs home telephone number and therefore should have called Plaintiff to inquire as to his medical condition prior to terminating Plaintiff.
After reviewing all of the evidence submitted by Plaintiff in resistance to Defendant's motion for summary judgment on Plaintiffs FMLA claim, the Court finds that Plaintiff has failed to satisfy his burden of submitting evidence from which this Court could find that there is a genuine issue for trial. The FMLA and the regulations promulgated thereunder make it clear that (1) an employer may request recertification of a serious medical condition when an employee seeks to extend his medical leave, see 29 CF.R. § 825.308(c)(1); and (2) an employee must give his or her employer notice as soon as practicable if the dates of a scheduled leave change or are extended. 29 CF.R. §§ 825.302(a); 825.309(c). See Carter v. Ford Motor Co., 121 F.3d at 1148 (upholding grant of summary judgment where notice to employer of need for FMLA leave was neither adequate or timely); Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 980 (5th Cir.1998) (reversing district court's denial of summary judgment on plaintiffs FMLA claim after concluding as a matter of law that plaintiffs notice to employer of the need for FMLA leave was inadequate). Moreover, the law does not impose upon an employer an affirmative obligation to investigate the circumstances of an employee's medical condition in all situations. Rather, under 29 CF.R. § 825.303(b), employers are expected to make an "informal" inquiry only when an employee or the employee's spokesperson requests leave under circumstances where the need for leave was not foreseeable (i.e., in a medical emergency or in other urgent circumstances).
In this case, the record is clear. Defendant's company policy required that Plaintiff return to work upon termination of the leave period set forth in the Application or provide to Defendant medical certification of the need to extend his leave on or before the expiration of Plaintiffs initial leave period. Plaintiff testified in his deposition that he understood Defendant's policy and, further, that he understood that if he failed to either provide a doctor's certificate to extend his leave or to return to work on the first workday after his leave expired, he would be terminated. There is no evidence in the record that Plaintiff actually was confused as to the meaning of the phrase "automatic separation from payroll" used in the Application.
On November 7, 2000, Plaintiff received from his treating physician a medical certification which indicated a return to work date of December 4, 2000. Thus, Plaintiff knew on November 7, 2000 that he would need to extend his FMLA leave beyond the expiration of the initial leave period. Plaintiff offers evidence that his wife checked with Nurse Colston at his treating physician's office on two occasions to ensure that she had faxed to Defendant the certification indicating a return to work date that was beyond the expiration of the initial leave period. Plaintiff also offers evidence that Defendant destroyed its records of receipt of faxes for the time period in question and that Defendant received copies of certain documents which Plaintiff contends should have put Defendant on *902 notice that Plaintiff needed to extend his leave period. Plaintiff offers no evidence, however, that Plaintiff, his wife or any other spokesperson for Plaintiff ever contacted Defendant to confirm that Defendant had received the requisite recertification or notice of the need for an extension of Plaintiffs medical leave. Further, Plaintiff puts forth no evidence that Defendant actually received such documentation. Moreover, while Plaintiff argues that Defendant should have inquired of Plaintiff as to the status of his medical condition and need for extended medical leave, the Court finds that Defendant was not required to make such an inquiry in this case. Plaintiffs need for extended leave was neither the result of a medical emergency nor was it unforeseeable. Plaintiff knew on November 7, 2000 that he needed to extend his FMLA leave and failed to ensure that Defendant received proper notice of his need for extended leave. The Court therefore grants Defendant's motion for summary judgment with respect to Plaintiffs FMLA claim.
IT IS THEREFORE ORDERED that Defendant's motion for summary judgment (docket no. 11) on Count II (breach of contract claim) and Count III (Family and Medical Leave Act claim) of Plaintiffs complaint is GRANTED. All court costs are assessed against Plaintiff.
IT IS FURTHER ORDERED that Plaintiffs motion to take the evidentiary deposition of Marlene Lantz for trial (docket no. 27) and the motion in limine (docket no. 31) are denied as moot.
IT IS FURTHER ORDERED that the trial set for January 20, 2003 and the pretrial conference set for January 10, 2003 are canceled because this ruling eliminates the need for trial.
NOTES
[1]  Count I of the Petition at Law is labeled "Facts" and does not appear to state a cause of action.
[2]  Plaintiff's testimony on the issue of whether he knew when his leave expired is somewhat confusing. He testified on page 31 of his deposition that he received the completed Application from Defendant and knew that Defendant had given him leave through November 23, 2000. On pages 40-41, Plaintiff testified that he was unsure if he realized his leave expired on November 23, 2000 because he and his wife read the leave forms they had received from Defendant but "kind of got them and glanced over to make sure that we actually had the leave but we didn't look to see exactly what the date was." Nevertheless, the Court finds that Plaintiff received from Defendant leave forms indicating that his leave expired on November 23, 2000 and therefore, at the very least, he should have known that his leave expired on this date.


578 F.Supp.2d 30 (2008)
Robert D. STEWART, Plaintiff,
v.
UNITED STATES of America, Defendant.
Civil Action No. 07-0814 (JDB).
United States District Court, District of Columbia.
September 23, 2008.
*31 Robert D. Stewart, Bedford, IN, pro se.
Beatriz T. Saiz, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION
JOHN D. BATES, District Judge.
Plaintiff Robert Stewart seeks damages pursuant to 26 U.S.C. § 7433 for alleged misconduct by the Internal Revenue Service ("IRS") in connection with the collection of taxes in the absence of a lawful tax assessment, resting his claims on many of the same boilerplate allegations that have been asserted by numerous other individuals mounting similar challenges in this district. His first lawsuit on this subject was dismissed for failure to prosecute and failure to exhaust administrative remedies. See Stewart v. United States, No. 06-0127, 2006 WL 1582280 (D.D.C. June 6, 2006). Plaintiff has renewed his request for relief under section 7433 with the filing of this restyled amended complaint. Defendant United States ("defendant") responds that the complaint still must be dismissed because several of the claims do not fit within the cause of action authorized by section 7433, and the complaint, in any event, contains insufficient factual allegations to satisfy the notice pleading requirements of Fed.R.Civ.P. 8(a). Defendant also contends that plaintiff is precluded by statute from obtaining any injunctive relief relating to the assessment or collection of taxes. Defendant therefore has moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.

BACKGROUND
Section 7433(a) of the Internal Revenue Code ("Code") authorizes taxpayers to bring an action for civil damages against any officer or employee of the IRS who acts in disregard of the Code or its implementing regulations in connection with collection activity. The provision authorizing this cause of action states:
If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence disregards any provision of this title, or any regulation promulgated under this title, such taxpayer may bring a civil action for damages against the United States *32 in a district court of the United States. Except as provided in section 7432, such civil action shall be the exclusive remedy for recovering damages resulting from such actions.
26 U.S.C. § 7433(a) (emphasis added). A taxpayer's ability to obtain injunctive relief, however, is limited by the Anti-Injunction Act, which provides that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person" except for actions under specific statutory provisions enumerated therein.[1] 26 U.S.C. § 7421.
Plaintiff alleges that the United States, through the IRS and its employees, has unlawfully taken the position that he owes taxes and has disregarded the provisions of the Internal Revenue Code and its regulations in the course of pursuing collection activities against him. Am. Compl. at 4-22. Plaintiff enumerates 34 "counts" of alleged IRS misconduct, reciting a litany of regulations and statutory provisions, but providing few facts underlying the violations alleged. See id. He does not identify the tax years at issue or the amount of taxes demanded by the IRS; nor does he specify the persons involved in the alleged misconduct, or identify the encumbered properties at issue. Instead, plaintiff alleges the following general types of violations of law: (1) failure to prepare or execute substitute tax returns on his behalf, and disclose such returns to him (Counts 1-7); (2) failure to lawfully make or record proper assessments of taxes against him (Counts 8-15); (3) failure to implement the IRS's authority to collect taxes under section 6301 in compliance with existing regulations (Counts 16-22); (4) failure to provide notice of unpaid tax and demands for payment thereof (Counts 23-25); (5) "conduct the natural consequence of which is to harass, oppress, or abuse" (Count 26); and (6) unlawful attempts to collect taxes through improper notices of unidentified liens and/or levy issued without proper procedures (Counts 27-34).
Based on these allegations, plaintiff requests an order directing defendant to pay damages under 26 U.S.C. § 7433 in the amount of $10,000 for each disregard of each Internal Revenue Code law or regulation, or, in the alternative, to order such payment under 26 U.S.C. § 7214, a separate provision of the Internal Revenue Code governing criminal offenses by federal employees. Am. Compl. at 22-23.

STANDARD OF REVIEW
"[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see Leatherman v. Tarrant Cty. Narcotics and Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C.Cir.1979). Therefore, the factual allegations must be presumed true, and plaintiffs must be given every favorable inference that may be drawn from the allegations of fact. Scheuer, 416 U.S. at 236, 94 S.Ct. 1683; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000). However, the Court need not accept as true "a legal conclusion couched as a factual allegation," *33 nor inferences that are unsupported by the facts set out in the complaint. Trudeau v. Federal Trade Comm'n, 456 F.3d 178, 193 (D.C.Cir.2006) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)).
Here, the Court will treat defendant's motion to dismiss the damages claim as one for failure to state a claim upon which relief can be granted because the alleged deficiency pertains, in large part, to the boundaries of the right of action under section 7433, in contrast to a statutory provision speaking to the jurisdiction of the district courts. See Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 1245, 163 L.Ed.2d 1097 (2006) ("when Congress does not rank a statutory limitation as ... jurisdictional, courts should treat the restriction as non-jurisdictional in nature"); see also Trudeau, 456 F.3d at 188, 191 (observing that whether a statute authorizes a cause of action presents a question of whether plaintiff states a claim upon which relief can be granted, rather than jurisdiction).
In considering a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the Court is mindful that all that the Federal Rules of Civil Procedure require of a complaint is that it contain "`a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. ___, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); accord Erickson v. Pardus, 551 U.S. ___, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atl. Corp., 127 S.Ct. at 1964-65; see also Papasan, 478 U.S. at 286, 106 S.Ct. 2932. Instead, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp., 127 S.Ct. at 1965 (citations omitted).

DISCUSSION

I. Damages under 26 U.S.C. § 7433
Defendant moves to dismiss all but five counts of the complaint on the ground that they impermissibly mount a challenge to the merits of plaintiff's underlying tax liability in contrast to any collection activity by the IRS.[2] Def.'s Mem. at 1-2. The Court agrees that section 7433 does not provide a cause of action for any alleged IRS violations of law in connection with the assessment of taxes, but is instead limited to damages arising from conduct in connection with the "collection of Federal tax." Therefore, those counts challenging alleged IRS violations in connection with the assessment of taxes, or challenging other actions that are not in connection with the "collection" of taxes, will be dismissed.
Judge Collyer conducted a comprehensive analysis of the scope of the right of action under section 7433 in Buaiz v. United States, 471 F.Supp.2d 129, 135-36 (D.D.C.2007), and reached the well-supported conclusion that "§ 7433 does not provide a cause of action for wrongful tax assessment or other actions that are not specifically related to the collection of income tax." Judge Collyer observed that *34 all of the circuits that have addressed this issue, along with several district courts, have reached the same conclusion, which is supported by the legislative history, the structure of the Internal Revenue Code, and principles of statutory construction. Id. (citing Miller v. United States, 66 F.3d 220, 222-23 (9th Cir.1995), Shaw v. United States, 20 F.3d 182, 184 (5th Cir.1994), and Gonsalves v. IRS, 975 F.2d 13, 16 (1st Cir.1992)). Plaintiff disagrees with that narrow construction of "collection," and makes the conclusory assertion that "every provision of the Internal Revenue Code and every tax regulation implementing a Code provision is `in connection with ... collection.'" See Pl.'s Mem. at 2 (emphasis added). Plaintiff's broad interpretation of the term "collection" has no basis in law. No court has so held; indeed, as Buaiz comprehensively explained, an assessment or tax determination, or investigation of tax liability, is distinct from the act of "collection" of taxes. See 471 F.Supp.2d at 135-36. And as the Ninth Circuit explained in Miller, this interpretation finds strong support in the legislative historymost notably, the "conference committee responsible for [§ 7433] rejected a proposed amendment to allow taxpayers the right to sue for damages in connection with determination of a federal tax." See 66 F.3d at 223 (emphasis in original). For the reasons articulated in Buaiz, Miller, Shaw, and Gonsalves, this Court has joined in the holding that "section 7433 does not provide a cause of action for wrongful tax assessment, the absence of a tax assessment, or other actions not related to the collection of income tax," and hence applies that holding here as well.[3]See Jaeger v. United States, 524 F.Supp.2d 60, 63-64 (D.D.C.2007); Bryant v. United States, 527 F.Supp.2d 137, 140-41 (D.D.C.2007); see also Spahr v. United States, 501 F.Supp.2d 92, 95 (D.D.C.2007) (Huvelle, J.) (adopting the holding of Buaiz).
Many of plaintiff's claims fall outside the right of action authorized by section 7433. Counts 1 through 7 arise from the IRS's alleged failure to prepare or execute substitute returns on his behalf or to disclose those returns to him. See Compl. at 4-7. This type of conduct is separate and distinct from efforts by the IRS to collect taxes, and thus is not actionable under section 7433. See Buaiz, 471 F.Supp.2d at 136; Spahr, 501 F.Supp.2d at 96. Counts 8 through 15 are based on the IRS's alleged failure to lawfully make or record a proper assessment of taxes against him. Compl. at 7-12. These claims, too, do not arise from tax collection efforts, but rather from alleged failures regarding assessments. See Buaiz, 471 F.Supp.2d at 136; Spahr, 501 F.Supp.2d at 96.
Counts 16 through 34, however, arguably arise from tax collection efforts, as they relate to the IRS's alleged failure to properly implement its authority to collect taxes under section 6301 in compliance with existing regulations, the failure to provide notices of unpaid tax and demands for payment, general harassment, and the unlawful imposition of tax liens or levies. See Buaiz, 471 F.Supp.2d at 137. Defendant contends that the claims relating to "collection" of taxes must nonetheless be *35 dismissed because they contain insufficient factual allegations to state a claim upon which relief can be granted. See Def.'s Mem. at 3. The Court agrees that the allegations are far too conclusory to satisfy the notice pleading standards of Fed.R.Civ.P. 8(a). The complaint, although 23 pages in length, contains very few factual allegations. Each of the remaining countsincluding the counts concerning liens and leviesrecites in conclusory language that "[b]y disregard of" a cited provision of the Internal Revenue Code or its regulations "with intent to defeat the application thereof: defendant, through principals, officers, agents, and/or employees of Internal Revenue Service, purported to be a component of the Department of Treasury" either "failed to implement" a Code provision or regulation, or "exceeded the limits" of its authority in doing so. Compl. at 12-21. Although each count is accompanied by a subsection entitled "Factual Basis," no facts are given; instead, all that appears are quotes or paraphrases of the statutory provision cited, or a conclusory statement that plaintiff has "rebutt[ed] any presumption that [an] assessment" was made.[4]See id.
These excerpts are nothing more than legal conclusionsthat the IRS has failed to make an assessment and has violated a provision of the Internal Revenue Code or regulationsinterspersed with formulaic recitation of the statutory language.[5] But, as the Supreme Court observed in Bell Atlantic Corp. v. Twombly, a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation" of legal elements to satisfy the Rule 8 notice pleading standard. 127 S.Ct. at 1964-65. Instead, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. (citations omitted).
Stripped of the legal conclusions and formulaic language from the Internal Revenue Code, the only factual allegations that can be discerned are that the IRS has determined that plaintiff owes taxes and that it has taken a "collection" action against plaintiff in the form of one or more unidentified notices of lien or levy. Such scant factual allegations fail to satisfy the notice pleading requirements because they do not put defendant on notice as to which notices of tax liens or levies are at issue, or the specific IRS conduct pertaining to liens or levies that is unlawful, or whether some other action in pursuit of collection is at issue. Indeed, plaintiff fails even to identify which tax years are at issue.
Defendant also moves to dismiss the complaint to the extent that plaintiff asserts a right of action for damages under 26 U.S.C. § 7214(a). See Def.'s Reply at 1-2. The Court agrees that claim must be dismissed. Section 7214 is a criminal statute that does not provide for a private right of action and thus is "not enforceable through a civil action." Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir.2007); Jaeger, 524 F.Supp.2d at 65; Wesselman v. United States, 501 F.Supp.2d 98, 99-100 *36 n. 1 (D.D.C.2007). Moreover, section 7433 provides the exclusive damages remedy for any alleged IRS conduct "in connection with any collection of Federal tax with respect to a taxpayer." 26 U.S.C. § 7433(a); Evans v. United States, 478 F.Supp.2d 68, 71 (D.D.C.2007); Ross v. United States, 460 F.Supp.2d 139, 151-52 (D.D.C.2006).

II. Injunctive Relief
Plaintiff also requests an order broadly enjoining the IRS from violating the Internal Revenue Code. Compl. at 22. Plaintiff does not otherwise specify the scope of the injunction sought, but the Court discerns from the complaint read as a whole that the alleged unlawful conduct at issue relates to the assessment and collection of taxes. Defendant submits that such relief is barred by the Anti-Injunction Act, 26 U.S.C. § 7421.
The Anti-Injunction Act provides, in relevant part, that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed." Id. This Court in Ross, 460 F.Supp.2d at 147-48, previously addressed whether the Anti-Injunction Act applies to this very type of injunctionone seeking to enjoin the IRS from engaging in unlawful assessment and collection activity and, after considering whether any exceptions applied, concluded that the Anti-Injunction Act precluded the entry of such an injunction. As the Court noted, every decision in this Circuit to address the availability of injunctive relief to a plaintiff challenging the assessment and collection of income taxes by the IRS has held that the court lacks subject matter jurisdiction under the Anti-Injunction Act to grant such relief. See, e.g., Lindsey v. United States, 448 F.Supp.2d 37, 58-59 (D.D.C. 2006); Davis v. United States, 2006 WL 2687018, at *4-5 (D.D.C. Sept. 19, 2006); Erwin v. United States, 2006 WL 2660296, at *8-9 (D.D.C. Sept. 15, 2006). The Court again reaches that conclusion here.
Plaintiff's request for relief mirrors the language of the Administrative Procedure Act ("APA") in some respects, insofar as it refers to "compelling agency action unlawfully withheld" and "setting aside agency actions." Compl. at 22. To the extent plaintiff seeks injunctive relief under the APA, the claim fails based on the Anti-Injunction Act because "an action brought under the APA is barred if it concerns the assessment or collection of federal taxes." McGuirl v. United States, 360 F.Supp.2d 129, 132 (D.D.C.2004), aff'd, 167 Fed.Appx. 808 (D.C.Cir.2005); see also Foodservice and Lodging Inst. v. Regan, 809 F.2d 842, 844 (D.C.Cir.1987) (holding that a challenge asserting that tax regulations concerning the assessment or collection of taxes were arbitrary and irrational was precluded by the Anti-Injunction Act); Ross, 460 F.Supp.2d at 149-50.

CONCLUSION
For the foregoing reasons, the Court will grant defendant's motion to dismiss plaintiff's amended complaint. A separate order has been issued on this date.
NOTES
[1]  The statutory provisions excepted from the Anti-Injunction Act are 26 U.S.C. §§ 6015(e), 6212(a) and (c), 6213(a), 6225(b), 6246(b), 6330(e)(1), 6331(i), 6672(c), 6694(c), 7426(a) and (b)(1), 7429(b), and 7436. See 26 U.S.C. § 7421(a). Plaintiff has not requested injunctive relief under any of these provisions.
[2]  These are Counts 1 through 22, 24, 25, 29, 30, 32, 33, and 34. See Def.'s Mem. at 2.
[3]  Judge Collyer held that such limitations on the right of action under section 7433 are jurisdictional because they pertain to the scope of the United States' waiver of sovereign immunity. Buaiz, 471 F.Supp.2d at 135-36. This Court concludes, however, that the limitations on the right of action are non-jurisdictional because the language of section 7433 is not jurisdictional (see Arbaugh, 126 S.Ct. at 1245) and, furthermore, this Circuit treats the lack of a right of action as an issue of failure to state a claim upon which relief can be granted. See Trudeau, 456 F.3d at 188, 191.
[4]  Sometimes the "Factual Basis" cites to "Exhibit__"leaving the exhibit number blank-but no exhibits are attached to the amended complaint or plaintiff's brief. Compl. at 13, 19.
[5]  For example, plaintiff makes the broad allegation, reciting language from section 6304, that the IRS has "engag[ed] in conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of any unpaid tax." Compare Compl. at 18 with 26 U.S.C. § 6304 ("The Secretary may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of any unpaid tax."). The conduct that falls within that legal description is not identified in the complaint except for a vague reference to a failure to produce unidentified records.


883 F.Supp. 303 (1995)
Charles E. HERRIMAN and Johnny Sue Herriman, Plaintiffs,
v.
CONRAIL INC., and Consolidated Rail Corporation, Defendants.
No. 1:94-CV-232.
United States District Court, N.D. Indiana, Fort Wayne Indiana.
April 24, 1995.
*304 Gene M. Jones, Martin W. Kus, Newby, Lewis, Kaminski & Jones, LaPorte, IN, for plaintiffs.
Bruce A. Hugon, Victor L. Frost, II, Andrew W. Swain, Cindy E. Shively, Frost & Hugon, Indianapolis, IN, for defendants.

MEMORANDUM OF DECISION AND ORDER
COSBEY, United States Magistrate Judge.
This matter is before the Court[1] on the Defendants', Conrail, Inc. and Consolidated Rail Corporation (hereinafter collectively referred to as "Conrail"), Motion for Partial Summary Judgment, filed March 15, 1995. Plaintiffs, Charles E. Herriman and Johnny Sue Herriman (hereinafter collectively referred to as "the Herrimans"), filed a response brief on April 3, 1995. Conrail filed its reply on April 15, 1995. For the reasons *305 stated below, Conrail's Motion for Partial Summary Judgment is GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND
This wrongful death action arises out of a Railroad grade crossing collision that occurred on August 11, 1992. The Decedent, the 19 year-old son of the Herrimans, was struck by a Southbound Conrail train as he travelled west, across the tracks at the Bond Avenue grade crossing in Marion, Indiana. The collision occurred at about 8:15 p.m., and it was dark at the time.
As the Decedent approached the crossing from the east, he had an unobstructed view to the north of the crossing, enabling him see oncoming southbound trains. However, within his line of sight, and just northwest of the crossing, were several artificial lights mounted on a nearby building. According to the expert report of Stuart Nightenhelser, an engineering consultant, these lights interfered with the decedents ability to judge the distance of the Conrail train. (Plaintiff's exhibit B).[2] To oversimplify, Nightenhelser opines that if both the motorist and the train approached the crossing at a constant (but not necessarily equal) speed, the train's headlight would get lost against the background of the artificial lights and would appear stationary, thereby obscuring the decedent's distance perception. Id.
The Herrimans now claim that due to this hazardous lighting condition, the Conrail train was traveling at an excessive rate of speed through the Bond Avenue crossing. At the time of the collision Conrail's locomotive was travelling at 24 miles per hour. The Federal Railroad Administration ("FRA") had classified the tracks which cross Bond Avenue as Class 4, thereby setting the maximum allowable operating speed over those track at 60 miles per hour. 49 C.F.R. § 213.9(a). Conrail has moved for summary judgment of this excessive speed claim, contending that because the train was traveling well below the maximum allowable operating speed, the Herriman's tort claim is pre-empted by federal law.

II. STANDARD OF REVIEW
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). However, Rule 56(c) is not a requirement that the moving party negate his opponent's claim. Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir.1990). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). A scintilla of evidence in support of the non-moving party's position is not sufficient to successfully oppose summary judgment; "there must be evidence on which *306 the jury could reasonably find for the plaintiff." Id. at 252, 106 S.Ct. at 2512; In Matter of Wildman, 859 F.2d 553, 557 (7th Cir. 1988); Klein v. Ryan, 847 F.2d 368, 374 (7th Cir.1988); Valentine v. Joliet Township High School District No. 204, 802 F.2d 981, 986 (7th Cir.1986). No genuine issue for trial exists "where the record as a whole could not lead a rational trier of fact to find for the nonmoving party." Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 322 (7th Cir.1992) (quoting Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)).
Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the "pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, which demonstrate the absence of a genuine issue of material fact, Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Goka v. Bobbitt, 862 F.2d 646, 649 (7th Cir.1988); Guenin v. Sendra Corp., 700 F.Supp. 973, 974 (N.D.Ind.1988); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). In ruling on a summary judgment motion the court accepts as true the non-moving party's evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 477 U.S. at 249-251, 106 S.Ct. at 2511. However, "[i]t is a gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained" and in such cases summary judgment is appropriate. Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir.1983).
Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Id., 477 U.S. at 248, 106 S.Ct. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. FED.R.CIV.P. 56(c), (e). To establish a genuine issue of fact, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; First National Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1411 (7th Cir.1988). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512.

III. DISCUSSION
In their Complaint, the Herrimans allege that the grade crossing accident resulted, in part, because Conrail was operating the train at an excessive rate of speed through the Bond Avenue crossing. Conrail argues that because the train was traveling at 24 miles per hour  a rate well under the 60 mph limit codified at 49 C.F.R. § 213.9(a)  45 U.S.C. § 434 instructs that this claim is pre-empted by federal law. Section 434 provides:
The Congress declares that laws, rules, regulations, orders, and standards relating to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement. A State may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce.
*307 45 U.S.C. § 434. In CSX Transp., Inc. v. Easterwood, ___ U.S. ___, ___-___, 113 S.Ct. 1732, 1743-44, 123 L.Ed.2d 387 (1993), the Supreme Court held that the maximum allowable speeds codified at 49 C.F.R. § 213.9(a), "cover[] the subject matter of train speed with respect to track conditions, including conditions at grades crossing," and therefore, pre-empt common law tort claims asserting that a train was traveling at an excessive rate of speed. Id.
While conceding that excessive speed claims are generally pre-empted, the Herriman's point out that the Easterwood Court reserved ruling on whether the pre-emption of excessive speed claims extends to "bar[] suit[s] for breach of related tort duties, such as the duty to stop or slow a train to avoid a specific, individual hazard." ___ U.S. at ___, n. 15, 113 S.Ct. at 1743, n. 15. The Herriman's insist that their Complaint is more properly construed as a failure to stop to avoid a specific hazard  one which they claim is not subject to pre-emption.
The Court need not resolve the open issue of whether such claims are indeed pre-empted by the operating speed regulations, for the Herrimans' allegation is not the type of individualized hazard to which the Easterwood Court was referring. Bowman v. Norfolk Southern Ry. Co., 832 F.Supp. 1014, 1017 (D.S.C.1993). The lighting condition at the crossing did not create a situation which existed solely on the night decedent was killed. Rather, these allegedly hazardous lights were continuously present at that crossing. Further, the duty the Herrimans seek to impose is not one that would require this particular engineer to slow down, but in fact would require a substantial reduction in speed by every Conrail train entering the Bond Avenue crossing at night. This generalized duty is distinguishable from the obvious case of an individual hazard  i.e. an engineer who sees a motorist stranded on the crossing, but nevertheless negligently fails to stop or slow his train to avoid the collision. Clearly, the Herrimans complaint raises a general claim of excessive speed, and it is therefore subject to pre-emption.
The Herrimans next contend that their particular allegation falls within the savings clause of section 434, which permits a state to adopt or continue in force a more stringent rule of law in order to eliminate an "essentially local safety hazard." The Herrimans claim that the lighting conditions at the Bond Avenue crossing presented an essentially local safety hazard which takes this claim outside the pre-emptive reach of section 434.
The disruptive artificial lighting present at the Bond Avenue crossing is not an essentially local safety hazard within the meaning of the savings clause. The condition of disruptive lighting can, and does, exist at numerous crossings throughout the state, and therefore is not unique to this locality. Earwood v. Norfolk Southern Ry. Co., 845 F.Supp. 880, 888 (N.D.Ga.1993). In fact, the theory proffered by the Herrimans has been expressly rejected by the Easterwood Court:
The state law on which respondent relies is concerned with local hazards only in the sense that its application turns on the facts of each case. The common law of negligence provides a general rule to address all hazards caused by lack of due care, not just those owing to unique local conditions. Respondent's contrary view would completely deprive the Secretary of the power to pre-empt state common law, a power clearly conferred by § 434. At the least, this renders respondent's reliance on the common law `incompatible with' FRSA and the Secretary's regulation.
Id. at ___, 113 S.Ct. at 1743. Accordingly, the Herriman's excessive speed claim does not fall within the purview of the savings clause. Id.; see also, Earwood, 845 F.Supp. at 888 (crossing with multiple tracks and rail cars obstructing view does not present "an essentially local safety hazard"); Bowman v. Norfolk Southern Ry. Co., 832 F.Supp. 1014 (D.S.C.1993) (crossing adjacent to two chemical plants and used by trucks transporting hazardous chemicals, and heavily trafficked during shift changes does not present an "essentially local safety hazard"); Estate of Martin v. Consolidated Rail, 620 N.E.2d 720, 725 (Ind.App.1993) (excessive speed claim premised upon unique conditions of particular crossing not within the savings clause).
*308 Finally, even if the Herriman's could establish that the allegedly hazardous lighting conditions at the Bond Avenue were unique to that locality, they failed to show that their proposed regulation would not create an undue burden on interstate commerce. See, 45 U.S.C. § 434; Bowman, 832 F.Supp. at 1019. Although the Herrimans did not address this issue, any such argument would clearly fail. If the Herriman's were to successfully pursue their excessive speed claim, the result would force Conrail and other railroads to hire experts to visually inspect crossings statewide and assess whether lighting conditions may, under certain circumstances, interfere with the view of oncoming motorists. The magnitude of this burden is highlighted by the facts of the present case. The Herrimans do not assert that the lights at the Bond Avenue crossing affected all motorists; instead they affected only westbound motorists who approached the crossing at a constant rate of speed simultaneously with a southbound train also traveling at a constant rate of speed. To expect Conrail to find all such crossings on its rail system, and instruct train engineers to bring their train to a near halt (after all the train in question was already traveling 35 mph less than the maximum allowable speed) before entering the crossing would impose an undue burden upon interstate commerce. "The commonlaw theory on which [the Herrimans'] excessive speed claim rests is an example of the "hodgepodge of state safety regulations" that Congress sought to avoid when it enacted FRSA to provide uniform railroad regulation. Id. Thus, the Herriman's claim is outside the scope of the savings clause, and is preempted by speed limitations codified at 49 C.F.R. 213.9(a).[3]

IV. CONCLUSION
For the reasons stated above, and pursuant to 45 U.S.C. § 434, Plaintiffs' claim that the Conrail train was operating at an excessive rate of speed is pre-empted by 49 C.F.R. 213.9(a). Accordingly, Defendants' Motion for Partial Summary Judgment is GRANTED.
Enter this 24th day of April, 1995.
NOTES
[1]  Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting.
[2]  Defendant has filed a motion to strike Nightenhelser's expert report asserting that it contains inadmissible hearsay. Defendant has offered no explanation in support of that contention, but has simply made a conclusory reference to "Federal Rule of Evidence § 01" [sic]. Rule 56 requires that a party's submissions in opposition to a motion for summary judgment set forth facts that "would be admissible in evidence." FED. R.CIV.P. 56(e). The opinions contained in that report, which are premised upon a visual inspection of the scene, review of accident photos, and review of the police report, do not appear violative of Rule 802, and would seemingly be admissible under Federal Rule of Evidence, 702 and 703. Conrail has not contested the report's admissibility under either Rule 702 or 703. Nor has Conrail objected to the report on the basis that it is unsworn (which is likely the most proper objection at this point). Accordingly, Conrail's motion to strike exhibit B is denied.

Defendant has also moved to strike Plaintiff's exhibits A and C. The Court found it unnecessary to consider these exhibits and therefore the motion to strike as it relates to these exhibits is moot.
[3]  The Herrimans assert that even if their excessive speed claim is pre-empted, evidence of the train's speed may be relevant to other theories of liability. The Defendants do not dispute this argument at this time.


EW_I[_ED

"‘?""R 1 1 2012
CIerk, U. ,; ~ .
UNITED STATES DISTRICT COURT courts fm  ll Bankrum
FOR THE DISTRICT OF COLUMBIA ct of C°'U
Sylvester L. Monroe, )
)
Petitioner, )
)
v_ ) Civil Action No. 61 1 _ 1

, 1,. 1558
District of Columbia et al., )
)
Respondents. )

MEMORANDUM OPINION

Petitioner, proceeding pro se, is an inmate at the District of Columbia Jail seeking
issuance of a writ of habeas corpus presumably under 28 U.S.C. § 2241. He claims that the
District of Columbia’s supervised release statute, D.C. Code § 24-403.01, violates the separation
ofpowers doctrine. See Geraghly v. U.S. Parole Comm’n, 719 F.Zd 1199, 1210 (3rd Cir. 1983)
(observing that "the doctrine of separation of powers is inferred from the fact that the legislative,
executive, and judicial functions are described in three separate articles of the Constitution.").
Plaintiff posits that the statute "gives the U.S. Parole Commission . . . the same power as is
vested in the courts [and that] such usurpation of power is forbidden by the Constitution
[because] the executive branch is not allowed to encroach on the authority of the judicial branch
of the Federal Goverenment."' Pet. at 5.

"A court . . . entertaining an application for a writ of habeas corpus shall forthwith award

the writ or issue [a show cause] order . . ., unless it appears from the application that the

' In a separate handwritten portion of the form petition, petitioner claims that he was
denied a timely parole revocation hearing but he identifies this claim only in the context of it
having been the subject of a previously filed action. See Pet. at 3 1111 6-7. Petitioner has not listed
that claim in the instant petition as a ground for relief, see id. at 5, and the Court has not
considered it as such.

applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. The extraordinary
remedy of habeas corpus is available to District of Columbia prisoners if the prisoner shows that
he is "in custody in violation of the Constitution or laws or treaties of the United States." 28
U.S.C. § 2241(0)(3).

Because the District's parole and supervised release statutes govern the execution of a
judicially imposed sentence, several judges of this Court have determined that "[t]he Parole
Commission does not exercise a judicial function and its decisions do not violate the separation
of powers." Montgomery v. U.S. Parole Comm'n, Civ. Action No. 06-2133 (CKK), 2007 WL
1232190, at *2 (D.D.C. Apr. 26, 2007) (citing cases); accord Leach v. U.S. Parole Comm'n, 522
F. Supp. 2d 250, 251 (D.D.C. 2007) (Sullivan, J.); Hammett v, U.S. Parole Comm'n, Civ. Action
No. 10-0442 (JDB), 2010 WL 1257669, at *l (D.D.C. Apr. 2, 2010) (observing that "[t]his
argument, and similar separation of powers arguments, have been raised often and rejected each
time."); see also Smallwood v. U.S, Parole Comm ’n, 777 F. Supp. 2d 148, 150 (D.D.C. 201 1)
(Boasberg, J.) ("Proceedings pertaining to parole and supervised release are not part of a criminal
prosecution [but] [r]ather . . . are separate administrative matters . . . . The [Commission],
therefore, exercises no judicial function, and its decisions do not violate the separation of powers
doctrine.") (citing cases).

The instant petition presents no grounds for departing from the foregoing decisions and

therefore will be denied. A separate order of dismiss

Uhited Stzl,tes District Judge

\- emorandum Opinion.


399 B.R. 470 (2008)
In re Cynthia A. REID, Debtor.
No. 02-34592.
United States Bankruptcy Court, W.D. Kentucky.
November 21, 2008.
*471 Paul Musselwhite, Radcliff, KY, William Koehler, Louisville, KY, for Debtor.

MEMORANDUM-OPINION-ORDER
JOAN A. LLOYD, Bankruptcy Judge.
This matter is before the Court on the Motions to Allow Claims of Bob Thompson Construction Company filed by Debtor Cynthia Reid ("Debtor") and the Objections thereto of Trustee J. Baxter Schilling ("Trustee") to both Motions of the Debtor. The Court considered the Motions of the Debtor, the Objections of the Trustee and the comments of counsel for the parties at the hearing held on the matter. The Court DENIES both Motions.
Debtor filed two Motions to Allow Claims of Bob Thompson Construction Company in the total amount of $15,044.34. Bob Thompson, owner of Bob Thompson Construction Company, made $15,044.34 in post-petition mortgage payments on real estate owned by the Debtor. These payments reduced the balance owed by Debtor to the Bank of Magnolia, increased Debtor's equity in the property and prevented the property from being foreclosed upon by the Bank.
Debtor seeks an Order authorizing payment of Bob Thompson Construction Company's claims as administrative expenses pursuant to 11 U.S.C. § 503. Under § 503, administrative expenses include the actual, necessary costs and expenses of preserving the estate, including those incurred by a creditor. To qualify as an actual and necessary expense, the expenditure must benefit the estate as a whole. In re Jartran, Inc., 886 F.2d 859, 871 (7th Cir.1989). Administrative expense claims should be narrowly construed in order to keep administrative expenses at a minimum and thus preserve the estate for the benefit of all creditors. In re Federated Dept. Stores, Inc., 270 F.3d 994 (6th Cir.2001). The administrative claimant has the burden of proving entitlement to an administrative expense by the preponderance of the evidence and must demonstrate that the benefit is more than speculative or a potential benefit. In re HNRC Dissolution Co., 343 B.R. 839 (Bankr.E.D.Ky.2006).
Bob Thompson is a personal friend and the former boyfriend of the Debtor. He was also the Debtor's ad hoc employer and not a creditor of the estate. Thompson was not a joint debtor on this property. He had no ownership interest in the *472 real estate. The payments made by Bob Thompson Construction Company were voluntary payments made post-petition which prevented another creditor from foreclosing on estate property. While the payments were actual, there was no evidence that they were necessary as defined under 11 U.S.C. § 503.
The Trustee contends that he was in favor of a foreclosure sale and that the payments made by Thompson did not benefit the estate. Instead, according to the Trustee, Debtor attempted to gain access to the sale proceeds at closing and would have dissipated the proceeds before Trustee could administer this asset. Given Debtor's prior actions in this case, the Court agrees that the payments did not benefit the estate.
Additionally, on June 9, 2008, following an evidentiary hearing, this Court ruled that the sale proceeds from the real estate were property of the estate pursuant to 11 U.S.C. § 541. The Court specifically stated in that Order that the Trustee was to administer and pay claims in accordance with the distribution scheme of the United States Bankruptcy Code. Upon full administration of the estate assets any remaining claims to any excess sale proceeds were to be resolved by the Greene Circuit Court. Since this Court finds that the claims of Bob Thompson Construction Company are not claims entitled to administrative priority, these issues are to be resolved by the Greene Circuit Court following full administration of this estate by the Trustee.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the two Motions to Allow Claims of Bob Thompson Construction Company, be and hereby are, DENIED.


393 F.2d 937
TRINITY UNIVERSAL INSURANCE COMPANY et al., Appellants,v.ALABAMA GAS CORPORATION, Appellee.
No. 24914.
United States Court of Appeals Fifth Circuit.
May 16, 1968.

Appeal from the United States District Court for the Northern District of Alabama; Seybourn H. Lynne, Judge.
Joseph S. Mead, Mead, Norman & Fitzpatrick, Joseph Mead, Birmingham, Ala., for appellants.
James O. Haley, Reid B. Barnes, James O. Haley, William G. Somerville, Jr., Birmingham, Ala., Lange, Simpson, Robinson & Somerville, Birmingham, Ala., of counsel, for appellee.
Before TUTTLE and SIMPSON, Circuit Judges, and BREWSTER, District Judge.
PER CURIAM:

1
The judgment is affirmed.


WORKERS

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

NO. 3-92-340-CV

TEXAS PHYSICAL THERAPY ASSOCIATION,
JERRY HURT, JEANETTE WINFREE AND WAYNE SAWYER,

	APPELLANTS

vs.

TEXAS WORKERS' COMPENSATION COMMISSION,

	APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NO. 91-10669, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

	Following the adoption of an agency rule by the Texas Workers' Compensation
Commission (the "Commission"), the Texas Physical Therapy Association, Jerry Hurt, Jeanette
Winfree, and Wayne Sawyer (the "Appellants") petitioned the district court for declaratory and
injunctive relief.  The district court issued an order denying the Appellants' request for temporary
injunction.  We will affirm the district court's order.
BACKGROUND
	On September 10, 1991, the Commission published in the Texas Register proposed
Rule 134.201 (1) (the "Rule"), entitled "Medical Fee Guideline for Medical Services and Equipment
Provided Under the Texas Workers' Compensation Act."  16 Tex. Reg. 4929 (1991).  The
purpose of the Rule was the medical-cost containment of payments for medical services and
equipment incurred in treating injured employees under the workers' compensation law.  The
Commission held a public hearing and received comments by parties interested in the Rule and
reported the adoption of Rule 134.201 by publishing an order in the Texas Register on November
29, 1991.  16 Tex. Reg. 6923 (1991).  This order purported to include a summary of comments
received and reasons why the Commission disagreed with the comments.  Rule 134.201 became
effective on December 11, 1991.
	On April 6, 1992, the Appellants amended their previous pleadings regarding Rule
134.200 to allege that the Commission adopted Rule 134.201 in violation of the "reasoned
justification" requirement of section 5(c-1)(1) of the Administrative Procedure and Texas Register
Act ("APTRA") which states:

The agency order finally adopting a rule must include:  (1) a reasoned justification
of the rule, including a summary of comments received from parties interested in
the rule and showing the names of any interested group or association offering
comment on the rule and whether they were for or against its adoption, and also
including a restatement of the rule's factual bases and the reasons why the agency
disagrees with party submissions and proposals . . . .

Tex. Rev. Civ. Stat. Ann. art. 6252-13a, § 5(c-1)(1) (West Supp. 1993). (2)
	On June 10, 1992, the district court denied the Appellants' request for a temporary
injunction.  In its order, the trial court found that the Commission made a good faith effort to
provide a rational basis for the Rule and that the adoption of the Rule was in substantial
compliance with the procedures set forth in APTRA.  From this decision of the trial court, the
Appellants bring this appeal.

DISCUSSION
	The appeal of an order denying a temporary injunction is an appeal from an
interlocutory order; accordingly, the merits of the underlying case are not presented for appellate
review.  Davis v. Huey, 571 S.W.2d 859, 861 (Tex. 1978).  Appellate review of an order denying
a temporary injunction is strictly limited to a determination of whether there has been a clear
abuse of discretion by the trial court in denying the interlocutory order.  Id. at 861-62; Public
Util. Comm'n v. General Tel. Co., 777 S.W.2d 827, 829 (Tex. App.--Austin 1989, writ dism'd).
At a hearing on a temporary injunction, the only issue before the district court is whether the
applicant is entitled to preservation of the status quo of the subject matter of the suit pending trial
on the merits.  Davis, 571 S.W.2d at 862;  Houston Belt & Terminal Ry. Co. v. Texas & N. O.
R.R., 289 S.W.2d 217, 219 (Tex. 1956).  The appellate court is not to substitute its judgment for
that of the trial court, but merely to determine whether the court's action was so arbitrary as to
exceed the bounds of reasonable discretion.  Davis, 571 S.W.2d at 862;  Texas Foundries, Inc.
v. International Moulders & Foundry Workers' Union, 248 S.W.2d 460, 463 (Tex. 1952).  In
reviewing the order denying the temporary injunction, we must draw all legitimate inferences
from the evidence in a light most favorable to the trial court's judgment, even if we disapprove
of the reason given by the trial court for denying the temporary injunction.  Hartwell's Office
World, Inc. v. Systex Corp., 598 S.W.2d 636, 639 (Tex. Civ. App.--Houston [14th Dist.] 1980,
writ ref'd n.r.e.).
	The Appellants contend in five points of error that the district court erred in
denying a temporary injunction because the Commission did not "substantially comply" with the
requirements of APTRA, section 5(c-1)(1) in enacting the Rule in question.  Specifically, the
Appellants contend that some eighteen comments which they tendered to the Commission during
the rulemaking process were either not addressed by the Commission or were summarily dealt
with by the Commission.
	In Methodist Hospitals of Dallas v. Texas Industrial Accident Board, 798 S.W.2d
651 (Tex. App.--Austin 1990, writ dism'd w.o.j.), this Court identified the three elements that
"reasoned justification" must include:  "(1) a summary of comments received from parties
interested in the rule, with their names and whether they were for or against its adoption; (2) a
restatement of the rule's factual bases; and (3) the reasons why the agency disagrees with party
submissions and proposals."  Id. at 657.  Tex. Rev. Civ. Stat. Ann. art. 6252-13a, § 5(c-1)(1)
(West Supp. 1993).  In the present case, the Appellants attack only the Commission's failure to
comply with the third element; they allege that the agency failed to respond properly to their
submissions and proposals.
	We note that of the Appellants' eighteen comments, some dealt specifically with
the substance of the Rule while others could be characterized only as a collateral attack on the
Rule.
	In the area of substantive comments, the Appellants discuss technical issues
involved in computing costs and setting fee guidelines.  In these comments, the Appellants
complain that the guidelines set some fees near or below cost and that the guidelines would
actually increase costs for some physical therapy services.  The Appellants maintain that the
Commission failed to respond properly to these comments in the final order.  Specifically, they
state that the Commission either entirely "omitted a response, mischaracterized a response, or
responded in a conclusionary manner" to these comments.
	The collateral attack on the Rule includes comments that contend the Rule benefits
chiropractors at the expense of other health care providers.  One comment contends that the Rule
was influenced by illegal and improper behavior of a state senator who served on the Legislative
Oversight Committee.  In these comments, the Appellants contend that the senator had met with
the Commission's medical director and a group of chiropractors to discuss the fee guidelines prior
to the Rule's adoption.  Another comment alleges illegal and improper behavior by Nancy Kozak,
the former Director of the Commission's Medical Review Division, in the adoption of the Rule.
The Appellants produced evidence that Kozak obtained her position through false resumes and that
she conducted a meeting in which the Appellants were intentionally excluded and in which certain
parts of the Rule were discussed.  The Commission did not respond in any manner to the
comments that collaterally attacked the Rule on grounds of alleged fraud and improper conduct.
	In this appeal, the sole issue we must decide is whether the trial court abused its
discretion in determining that the Commission substantially complied with section 5(c-1)(1) of
APTRA.  Our review of the record shows that, in denying the request for a temporary injunction,
the district court carefully reviewed the Methodist Hospitals decision; pages 6923 to 6936 of the
Texas Register, which include the Rule and comments thereto; and section 5(c-1)(1) of APTRA.
In Methodist Hospitals, this Court stated that "substantial compliance with [section 5(c-1)(1) of
APTRA] is a question of law to be determined solely from the face of the . . .  order finally
adopting [the Rule]."  798 S.W.2d at 659.  From our review of the record, the comments, and
the Rule, we agree with the district court that the Commission's rulemaking actions were not in
"perfect compliance," but we cannot conclude that the trial court abused its discretion in finding
those actions to be in "substantial compliance" with APTRA, section 5(c-1)(1).  Accordingly, we
overrule all of the Appellants' points of error.  Our holding implies no decision regarding the
merits of the cause underlying this appeal.

CONCLUSION
	We affirm the order of the district court denying the temporary injunction.

					Mack Kidd, Justice
[Before Chief Justice Carroll, Justices Jones and Kidd]
Affirmed
Filed:   January 20, 1993
[Do Not Publish]
1.        The Appellants initially requested a temporary injunction against the
implementation, enforcement, and administration of section 134.200 of the Texas
Administrative Code, a rule previously adopted by the Commission.  The district court
issued a temporary injunction order.  The Commission, on September 19, 1991, filed its
notice of appeal of the temporary injunction order.  On December 11, 1991, this Court
concluded that the Commission did not properly perfect its appeal and dismissed the case.
Texas Workers' Compensation Comm'n v. Texas Physical Therapy Ass'n, No. 3-91-439-CV
(Tex. App.--Austin Dec. 11, 1991, no writ) (not designated for publication).  The Commission
proposed Rule 134.201 as a substitute to the enjoined rule.
2.        At the hearing on April 29, 1992, the district court judge agreed with the
Commission that the adoption of the substitute rule mooted the previous injunction.  In
response, the Appellants, having previously amended their pleadings, sought an
injunction against the new rule.