                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-1571


FRANCIS CLIFFORD TUCKER,

                Plaintiff - Appellant,

          v.

UNITED STATES OF AMERICA,

                Defendant - Appellee.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.     Frederick P. Stamp,
Jr., Senior District Judge. (5:08-cv-00105-FPS-JES)


Submitted:   October 16, 2012            Decided:     December 5, 2012


Before DIAZ and    FLOYD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Paul J. Harris, Wheeling, West Virginia, for Appellant. Kathryn
Keneally, Assistant Attorney General, Jonathan S. Cohen, Karen
G. Gregory, Tax Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; William J. Ihlenfeld, II, United States
Attorney, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

        In this civil action by federal taxpayer Francis C. Tucker

(Tucker) against the United States of America (the government)

for the alleged wrongful disclosures of his federal income tax

return information to third parties, the district court entered

final     judgment      in   favor    of    the     government.          Tucker    noted    a

timely appeal and challenges the judgment on various grounds.

We affirm.



                                             I.

      Pursuant         to    26   U.S.C.     §     6103(a),      federal     tax    return

information          generally       must    be      kept     confidential         by   the

government.          “Return information” includes:

        a taxpayer’s identity, the nature, source, or amount
        of   his   income,  payments,   receipts,   deductions,
        exemptions, credits, assets, liabilities, net worth,
        tax     liability,    tax    withheld,    deficiencies,
        overassessments,   or    tax  payments,   whether   the
        taxpayer’s return was, is being, or will be examined
        or subject to other investigation or processing
        . . . .

Id.   §    6103(b)(2)(A).            Pursuant       to    §   7431(a)(1),      a   federal

taxpayer        is   authorized      to    bring    a    civil     action    against    the

government “[i]f any officer or employee of the United States

knowingly, or by reason of negligence, inspects or discloses any

return     or    return      information      with       respect    to   a   taxpayer      in

violation of any provision of section 6103 . . . .”                          Id.


                                            - 2 -
       Tucker’s complaint alleged that two special agents of the

United    States       Internal       Revenue          Service      (the    IRS),       who    were

assisting in a federal grand jury investigation of his income

tax     liabilities          for     tax        years     2002       through          2007,    made

unauthorized          disclosures          of    his     return       information         to    six

individuals          while    interviewing          them       in    connection         with    the

investigation.          With one exception, the allegations in Tucker’s

complaint were adjudicated pursuant to a one-day bench trial.

       In the district court’s scheduling order filed on August

23,    2010,    the     district       court      set     November         22,   2010     as    the

deadline       for    the     parties      to    file     any       motions      to    amend    the

pleadings.       Tucker did not move to amend his complaint prior to

this    deadline.            The   pretrial       order    filed       on     April     11,    2011

listed Tucker’s theories of liability as follows:                                     (1) Special

Agent    Brad    Nickerson          (Agent      Nickerson)          disclosed     to     Tucker’s

former wife Cathy West “that [Tucker] was going to jail, that he

was evading his income tax and they were going to prove it,”

(J.A. 153); (2) Agent Nickerson and Special Agent Ryan Korner

(Agent Korner) disclosed to Tucker’s brother Tommy Tucker “that

[Tucker] was going to jail and they had him for tax evasion,”

(J.A. 154); (3) Agent Nickerson disclosed to Tucker’s friend

Gregory George that “[Tucker] was [being investigated] for tax

evasion” and          stated       three    times       that    “[Tucker]        was    going    to

jail,” id.; (4) Agent Nickerson disclosed to Tucker’s former

                                                - 3 -
brother-in-law            Thomas       West,          Jr.    “that        [Tucker]        was    being

investigated for tax evasion and [Tucker] was going to go to

jail,” id.; (5) Agent Nickerson disclosed to Tucker’s then wife

Donetta LaRue “that [Tucker] was probably going to go to jail,”

id.;    and    (6)        either       Agent       Nickerson         or     Agent      Korner     told

Tucker’s son Gary Tucker that “he didn’t see any reason why he

should go up the river for something somebody else did,” id.

Prior to trial, the district court granted summary judgment in

favor of the government with respect to the alleged “up the

river” comment on the basis that such comment, even if made, did

not constitute a disclosure of Tucker’s return information.

       The    case        proceeded         to    a     bench      trial     on     the    remaining

allegations.              As    witnesses         for    the       plaintiff,       Tucker       called

Agents Nickerson and Korner, Tommy Tucker, Cathy West, Thomas

West, Donetta LaRue, and Gregory George.                                  Tucker also took the

stand.        As    witnesses         for    the       defense,       the    government          called

Agents Nickerson and Korner.

       During their respective testimonies, Agents Nickerson and

Korner denied making the disclosures alleged in the complaint,

denied       they       heard        each    other          make     such       disclosures,        and

explained          that        the    IRS        trained       them       not     to      make     such

disclosures.                  Additionally,            Agent        Korner        testified       that

disclosure         to     a     third-party           witness       that     Tucker       was    under

investigation for tax evasion would have been unhelpful because,

                                                  - 4 -
“if anything, it would probably cause the third-party witness to

shut down or clam up . . . .”                  (J.A. 305).

       Tommy Tucker testified that during one of three interviews

of him conducted by Agents Nickerson and Korner, one of these

agents     (he    could    not     remember         which   one)      told    him     that    his

brother Tucker was going to jail for tax evasion.                                   Cathy West

testified that when Agents Nickerson and Korner interviewed her,

“they more than indicated that . . . they wanted to [put Tucker

in jail] and that they were investigating him for income tax

evasion,” although she could not remember their exact words.

(J.A. 337).           The end result of Thomas West’s testimony was that,

as    of   the    date    of    trial,        he   could    not    state      whether    Agent

Nickerson        or    Korner     informed         him    during      the    interview       that

Tucker was going to jail.                 On the witness stand, Donetta LaRue

could not recall the exact words the agents used, but she did

not think they used the word jail.                          Rather, “[she] recall[ed]

getting     the       impression       from    them      that   [Tucker]      was     going   to

serve some time.”             (J.A. 355).          Gregory George testified that at

the start of his interview by Agents Nickerson and Korner “[he]

asked them what it was referring to,” and “[the agents] said,

‘We   [a]re      here    to     talk    about      putting      Mr.    Tucker    in    jail.’”

(J.A. 367).

       Based upon the district court’s review of the evidence and

resolution        of    factual    disputes         created     thereby,       the    district

                                              - 5 -
court concluded that Tucker failed to prove by a preponderance

of the evidence that either Agent Nickerson or Agent Korner made

any   statements         during    the     interviews          to    the     third-party

witnesses     that    Tucker      was    going    to     jail,      Tucker      was    being

investigated for income tax evasion, or any similar statements.

Accordingly, the district court found in favor of the government

with respect to Tucker’s allegations tried before the court.



                                          II.

      On    appeal,   Tucker      contends       the    district      court      erred    by

entering judgment in favor of the government with respect to his

allegations of wrongful disclosure of return information under

§ 7431(a)(1), which the district court resolved pursuant to a

bench trial.      Tucker’s contention is without merit.

      We review a judgment following a bench trial under a mixed

standard    of    review;    findings      of    fact    are     reviewed       for    clear

error and conclusions of law are reviewed de novo.                                Roanoke

Cement Co. v. Falk Corp., 413 F.3d 431, 433 (4th Cir. 2005).

The   law    is   well    established      that        “[a]    finding     is    ‘clearly

erroneous’ when although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.”                               United

States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).                            Moreover,

“when a district court’s factual finding in a bench trial is

                                         - 6 -
based upon assessments of witness credibility, such finding is

deserving        of    the     highest      degree         of   appellate       deference.”

Evergreen Int’l, S.A. v. Norfolk Dredging Co., 531 F.3d 302, 308

(4th Cir. 2008) (internal quotation marks omitted).

      Having reviewed the parties’ briefs and the record before

us,   we   perceive       no    basis      on    which     to   overturn      the   district

court’s    judgment          with    respect         to   Tucker’s    allegations      tried

pursuant to a bench trial.                      In this regard, we defer to the

district court’s findings of fact——premised in large part on

witness    credibility         determinations——that              Agents      Nickerson     and

Korner     did    not    disclose         return       information     with     respect    to

Tucker      in        violation       of        § 6103(a)       as     Tucker       alleged.

Accordingly, we affirm the judgment with respect to Tucker’s

allegations of wrongful disclosure of return information under

§ 7431(a)(1), which the district court resolved pursuant to a

bench trial.



                                                III.

      Tucker      contends          the    district        court     erred    by    granting

summary judgment in favor of the government with respect to his

allegation that Agent Korner told his son Gary Tucker that “he

didn’t     see    any    reason       why       he    should    go   up   the      river   for




                                            - 7 -
something somebody else did.” *               (J.A. 154).       According to Tucker,

the       statement         constituted          return          information         under

§ 6103(b)(2)(A),       and    thus       is   actionable        under   §     7431(a)(1).

Tucker’s contention is without merit.

      We review the grant of summary judgment de novo, viewing

the evidence in the light most favorable to the nonmoving party.

PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 119 (4th

Cir. 2011).     Summary judgment is appropriate only if there is no

genuine    dispute    as     to    any    material       fact    and    the      movant   is

entitled to judgment as a matter of law.                   Id.

      We agree with the district court that the alleged “up the

river”    comment     did    not    constitute       a    disclosure        of    Tucker’s

return information as defined in § 6103(b)(2)(A), and therefore,

is not actionable under § 7431(a)(1).                      Accordingly, we affirm

the judgment in favor of the government with respect to this

statement.




      *
       Although there is confusion in the record below as to
whether Tucker alleged Agent Nickerson or Agent Korner made the
“up the river” comment to Gary Tucker, on appeal, Tucker
identifies Agent Korner as such agent.      Under the district
court’s reasoning in granting summary judgment, the identity of
the agent is irrelevant.



                                          - 8 -
                                         IV.

       Tucker next contends the district court erred in excluding

evidence from being presented at trial to prove that when Agents

Nickerson   and    Korner      introduced       themselves    to   certain     third

party interviewees, sixteen in all, the agents stated that they

were   assisting    the   United        States    Attorney    in   a   grand    jury

investigation of Tucker.          Five of these third parties testified

at trial, while the remaining eleven were listed in the pretrial

order as individuals Tucker “may call to testify at trial if the

need arises . . . .”           (J.A. 141) (emphasis omitted).           According

to Tucker, had such evidence been admitted, he would have been

entitled to amend his complaint to conform to such evidence, and

thus, the district court erred when it denied his motion to this

effect.    Tucker’s contentions are without merit.

       A district court is afforded wide discretion in determining

the admissibility of evidence at trial, United States v. Abel,

469 U.S. 45, 54 (1984), and “the district court’s evidentiary

determinations should not be overturned except under the most

extraordinary of circumstances,” United States v. Aramony, 88

F.3d   1369,    1377    (4th     Cir.    1996)    (internal    quotation       marks

omitted).      Therefore, we review a district court’s exclusion of

evidence    proffered     at    trial    under    the   deferential      abuse    of

discretion standard.           Westberry v. Gislaved Gummi AB, 178 F.3d

257, 261 (4th Cir. 1999).           Moreover, whether or not a plaintiff

                                        - 9 -
should   be       allowed    to   amend   his   complaint      to    conform       to   the

evidence admitted at trial is a discretionary determination to

be   made    by    the     district   court,       which   determination          we    also

review      for    abuse     of   discretion.         Quillen       v.    International

Playtex, Inc., 789 F.2d 1041 (4th Cir. 1986).

      As explained in its “Findings of Fact and Conclusions of

Law,” filed March 29, 2012, the district court excluded Tucker’s

proffered         evidence     regarding       the    manner    in        which    Agents

Nickerson     and     Korner      introduced    themselves      on       the   ground    of

untimeliness.         In this regard, the district court specifically

explained:

           During the bench trial, plaintiff attempted to
      submit evidence relating to certain issues, that is
      the IRS agents’ introduction of themselves to certain
      third-party witnesses which plaintiff asserted was in
      violation of 26 U.S.C. § 6103, namely that persons
      interviewed were told by the agents by way of
      introduction that Francis Tucker was under a grand
      jury investigation.    The defendant objected to this
      testimony as being untimely.     This Court decided to
      hear this testimony and then decide at a later date
      whether it should be considered as evidence in this
      civil action. This Court now finds that this evidence
      is untimely as those claims were never made in the
      complaint and the plaintiff never sought to amend his
      complaint to include these allegations. Moreover, the
      plaintiff   never   supplemented    any  responses  to
      discovery requests by the defendant to include this
      information and these matters were never addressed at
      the pretrial conference or in the joint pretrial
      order.

           Accordingly,   this evidence must  be   deemed
      untimely and will not be considered or admitted as
      evidence in this case.


                                          - 10 -
(J.A. 771-72).

      As explained in its memorandum opinion and order denying

Tucker’s motion for leave to amend his complaint to conform to

the evidence admitted at trial, the district court denied the

motion   on   the   ground   that   the   government   would   be   unfairly

prejudiced if the motion were granted “since the United States

was   effectively      precluded     from    conducting   any       discovery

regarding these allegations under the existing scheduling order

which provided for discovery prior to trial.”              (J.A. 752-53).

In this regard, the district court specifically explained:

           As previously noted by the Court in its ruling
      not permitting this evidence to be presented at trial,
      plaintiff Tucker did not make these allegations
      concerning   the   manner   of   introduction   in  the
      complaint, did not seek to amend the complaint, did
      not set forth these allegations in response to
      discovery, and did not include these matters at any
      pretrial conference or in the joint pretrial order.
      Not only is this information untimely, but the
      inclusion of this information at this point in the
      case would be unfairly prejudicial to the United
      States.   As is noted by the United States, there are
      exceptions to the rules prohibiting improper return
      disclosures and the United States did not have an
      opportunity to adequately address those exceptions
      even though the United States did present some
      evidence at trial to demonstrate that it had met the
      requirements    of    §   6103(k)(6)    allowing   such
      disclosures.   The United States submits that had it
      been aware of these allegations prior to trial, it
      could have conducted additional discovery on this
      issue in order to present trial testimony defending
      the assertions of plaintiff Tucker, including the
      presentation of evidence regarding a good faith
      defense under 26 U.S.C. § 7431(b)(1).

(J.A. 751-52).

                                    - 11 -
    We     find   no   abuse   of   discretion      in    the    district      court’s

decision to exclude Tucker’s proffered evidence regarding the

manner in which Agents Nickerson and Korner sought to introduce

themselves to certain third-party witnesses.                         A fortiori, we

find no abuse of discretion in the district court’s denial of

Tucker’s motion to amend his complaint to conform it to such

evidence.



                                       V.

    Having found no error in the proceedings below as contended

by Tucker, we affirm the judgment in favor of the government in

toto.      We dispense with oral argument because the facts and

legal    contentions    are    adequately     presented         in    the    materials

before   the   court    and    argument     would   not    aid       the    decisional

process.

                                                                              AFFIRMED




                                     - 12 -
