National Commodity and Barter Ass'n v. Archer, 92-1031

• Citation: 31 F.3d 1521
• Decision Date: 04 August 1994
• Docket Number: No. 92-1031,92-1031
• Parties: -5709 NATIONAL COMMODITY AND BARTER ASSOCIATION, National Commodity Exchange, Plaintiffs-Appellants, v. Glenn L. ARCHER, Larry D. Bergsgaard, Joseph A. Brousseau, Frank Contos, Jr., Lester Furr, Patrick Henry, Charles Holden, Paulette G. Johnson, John E. Keller, Gerald W. Leland, Donald Lewis, Albert J. Monica, Keith Mueller, C.D. Switzer, Ronald Urbanski, Darryl Watkins, Nathan Woodard, Charles Young, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1521

31 F.3d 1521

74 A.F.T.R.2d 94-5709

NATIONAL COMMODITY AND BARTER ASSOCIATION, National Commodity Exchange, Plaintiffs-Appellants, v. Glenn L. ARCHER, Larry D. Bergsgaard, Joseph A. Brousseau Frank Contos, Jr., Lester Furr, Patrick Henry, Charles Holden, Paulette G. Johnson, John E. Keller, Gerald W Leland, Donald Lewis, Albert J. Monica, Keith Mueller, C.D Switzer, Ronald Urbanski, Darryl Watkins, Nathan Woodard Charles Young, Defendants-Appellees.

No. 92-1031.

United States Court of Appeals, Tenth Circuit.

Aug. 4, 1994.

William A. Cohan of Cohan & Greene, Encinitas, CA (Jennifer A. Greene of Cohan & Greene, with him on the brief), for plaintiffs-appellants.

Robert W. Metzler, Atty., Tax Div., Dept. of Justice, Washington, DC (Michael J. Norton, U.S. Atty., James A. Bruton, Acting Asst. Atty. Gen., and Jonathan S. Cohen, Atty., Tax Div., Dept. of Justice, Washington, DC, with him on the brief), for defendants-appellees.

Before SEYMOUR, Chief Judge, HOLLOWAY and LOGAN, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiffs-appellants National Commodity & Barter Association and the National Commodity Exchange (collectively referred to generally as the NCBA) appeal a decision of the district court dismissing the instant action. 790 F.Supp. 233 (D.Colo.1991). The NCBA asserts First and Fourth Amendment Bivens claims, ¹ inter alia, against several Internal Revenue Service officers and employees, and several officers and employees of the Department of Justice in their individual capacities. Jurisdiction below was grounded on 28 U.S.C. Secs. 1331 and 1343 in light of the constitutional claims asserted. Our jurisdiction rests on 28 U.S.C. Sec. 1291. The appeal presents questions of the viability of the First and Fourth Amendment Bivens claims and of the qualified immunity defense asserted by the defendants.

I

A

The instant case has been before this court before. See National Commodity & Barter Ass'n, et al. v. Gibbs, 886 F.2d 1240 (10th Cir.1989) (NCBA I ). To consider the case in its proper perspective, we must note the prior proceedings in some detail. We noted in NCBA I that the National Commodity & Barter Association, the National Barter Exchange, and several individual members of these organizations had brought this suit against several federal agencies and employees, alleging violations of its First, Fourth and Fifth Amendment rights as Bivens claims.

The defendants moved to dismiss that complaint under Fed.R.Civ.P. 12(b)(6). As we noted, 886 F.2d at 1243, after a hearing the district judge sustained the motion in an oral ruling. He held that claims against the defendants in their official capacities were barred by sovereign immunity and that NCBA's damage claims against the defendants in their individual capacities were barred by the doctrine of qualified immunity. In NCBA I we concluded that "except for the NCBA's Bivens claims for violations of the first and fourth amendments, dismissal of the complaint under Rule 12(b)(6) was appropriate in this case." Id. at 1244. NCBA I remanded the First and Fourth Amendment Bivens claims for repleading and reconsideration, along with the qualified immunity defense, which was also to be reconsidered if the complaint was held to sufficiently state a claim. Id. at 1248-49.

With respect to the First and Fourth Amendment Bivens claims, our NCBA I opinion said that the complaint consisted of a lengthy statement of "general allegations" about events spanning approximately eight years. The allegations were said to catalogue policies and activities of the government defendants designed to "demoralize, paralyze, and ultimately destroy a non-commercial, voluntary, political/educational association of individuals advocating dissident views as to the tax, monetary and fiscal law and policies of the government." We noted that the complaint gave but little identification, if any, of persons targeted, dates of events, or particular property seized and thus the complaint did not "present a 'short and plain' statement of the claims raised by the NCBA, as required by Fed.R.Civ.P. 8(a)." Id. at 1244. Because unnamed plaintiffs had not made a request to proceed anonymously and had not otherwise disclosed their identities, under the pleading rules we "dismiss[ed] the complaint as to the unnamed members of the NCBA, and consider[ed] the remainder of the claims in this appeal solely with respect to NCBA as an associational entity." Id. at 1245 (footnote omitted).

NCBA I noted that the district court had ruled that the First and Fourth Amendment Bivens claims against the named defendants in their individual capacities "were barred by the doctrine of qualified immunity, as the defendants were simply carrying out their jobs and had not violated any clearly established laws in doing so." 886 F.2d at 1247. We declined to reach that issue, but observed:

While we agree with the district court's reasoning that the defendants were entitled to qualified immunity as to the plaintiffs' Bivens claims, we do not reach this issue. Rather, we first address whether the NCBA is entitled to raise a Bivens claim in the first instance.

Id.

After our opinion rejected as inappropriate any recognition of a Bivens remedy for alleged violations of the Fifth Amendment or the Internal Revenue Code, Id. at 1248, we noted that in Pleasant v. Lovell, 876 F.2d 787 (10th Cir.1989), we had permitted individuals to proceed on First and Fourth Amendment Bivens claims on activities described in NCBA's complaint. We said:

We therefore recognize that the NCBA may bring a Bivens action for violations of the first and fourth amendments. However, due to the obtuse language of much of the complaint, we are unable to discern the precise factual basis for each of these claims. We therefore remand to the district court with directions that the court permit the NCBA to file an amended complaint which clearly outlines the basis for each of these claims, consistent with our discussion in Section I above.

In addition, since we have dismissed the complaint as to all parties except the NCBA, it is imperative that the amended complaint clearly indicate the property held by the NCBA as an entity which has been subject to the allegedly illegal searches and seizures. The NCBA can sue only with respect to its own property or rights allegedly infringed by identifiable defendants. If the district court determines that the NCBA has set forth sufficient facts to state a claim under the first and fourth amendments, it should then reconsider whether the defendants are entitled to the defense of qualified immunity.

NCBA I, 886 F.2d at 1248-49.

B

Following our remand in NCBA I, the district judge allowed the filing of NCBA's Third Amended Complaint. A new motion to dismiss and response were filed. The judge then reconsidered the case. He noted that while the Tenth Circuit in NCBA I had held that special factors exist precluding a Bivens claim for a Fifth Amendment violation, we did not make such a finding as to either First or Fourth Amendment claims. Consequently, the judge held that he would allow the latter claims to be asserted. 790 F.Supp. at 235.

With respect to NCBA's First Amendment Bivens claim, the judge said there were several shortcomings in the complaint; that the type of "chilling effect" averred by NCBA "is not particularly specific." 790 F.Supp. at 236. The district judge also said that Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972), raised the issue whether federal jurisdiction can be invoked by allegations of chilling by the mere existence, without more, of a governmental investigative and data gathering activity, alleged to be broader than reasonably necessary for a valid governmental purpose. 790 F.Supp. at 236. The judge concluded that the claim fails to set forth any particular injuries suffered by plaintiffs themselves. Id.

Concerning the Fourth Amendment claim, the judge stated that no specific property or act is identified; that plaintiffs allege simply that their Fourth Amendment rights were violated; and that the plaintiffs' failure to specifically set forth the unauthorized entry and failure to identify the holder of the protectible interest made any meaningful analysis of the claim "difficult at best." Id. at 238. He concluded that the plaintiffs were "unable to state a claim for a Bivens action for an alleged Fourth Amendment violation. Plaintiffs have failed to set [forth with] adequate specificity the specific violation of any particular right or interest which belonged to the plaintiffs or either of them." Id.

The judge stated that since he was dismissing the First and Fourth Amendment Bivens claims for failure to state a claim and for failure to comply with the Tenth Circuit remand, any analysis of qualified immunity was mooted. He said, however, "that the mere assertion by the plaintiffs that the defendants acted in violation of certain federal case law or statutes, or even acted in furtherance of a conspiracy, would not have saved the complaint from dismissal." Id. at 238-39. The action was dismissed and plaintiffs appeal again.

II

A

We turn to the First and Fourth Amendment Bivens claims and note these allegations:

The National Commodity and Barter Association (NCBA) is a noncommercial, nonprofit, voluntary political and educational association of individuals who believe in abolition of the Internal Revenue Service (IRS). Expression of the association's political, social and educational values takes the form of sponsoring seminars and other educational activities and the distribution of literature. The National Commodity Exchange (NCE) is a service wing of the association, available exclusively to its members, some of whom use its services to obtain gold and silver, and to have greater privacy than is available through commercial banks. The association and the exchange are headquartered in Denver. The defendants are officers and employees of the IRS or the United...