National Commodity and Barter Ass'n, National Commodity Exchange v. Gibbs, 88-1470

• Decision Date: 25 September 1989
• Docket Number: No. 88-1470,88-1470
• Citation: 886 F.2d 1240
• Parties: -5783, 90-1 USTC P 50,147, 14 Fed.R.Serv.3d 1357 NATIONAL COMMODITY AND BARTER ASSOCIATION, NATIONAL COMMODITY EXCHANGE; Members & Subscribers of the National Commodity & Barter Association/National Commodity Exchange; John Voss; Mitchell Beals, individually and as representative of the National Commodity & Barter Association/National Commodity Exchange; John S. Pleasant, Plaintiffs-Appellants, v. Lawrence B. GIBBS, Individually and as Commissioner of the Internal Revenue Service; et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1240

886 F.2d 1240

64 A.F.T.R.2d 89-5783, 90-1 USTC P 50,147,

14 Fed.R.Serv.3d 1357

NATIONAL COMMODITY AND BARTER ASSOCIATION, NATIONAL COMMODITY EXCHANGE; Members & Subscribers of the National Commodity & Barter Association/National Commodity Exchange John Voss; Mitchell Beals, individually and as representative of the National Commodity & Barter Association/National Commodity Exchange; John S. Pleasant Plaintiffs-Appellants, v. Lawrence B. GIBBS, Individually and as Commissioner of the Internal Revenue Service; et al., Defendants-Appellees.

No. 88-1470.

United States Court of Appeals Tenth Circuit.

Sept. 25, 1989.

William A. Cohan (Jennifer A. Greene, Cohan & Greene, Denver, Colo. and John S. Pleasant, pro se, with him on the brief), of Cohan & Greene, Denver, Colo., for plaintiffs-appellants.

Ann Belanger Durney, Atty. (William S. Rose, Jr., Asst. Atty. Gen., Gary R. Allen, Regina S. Moriarty, Attys., Tax Div., Dept. of Justice, Washington, D.C. and Michael J. Norton, U.S. Atty., Denver, Colo., of counsel, with her on the brief), Tax Div., Dept. of Justice, Washington, D.C., for defendants-appellees.

Before LOGAN, BRORBY and EBEL, Circuit Judges.

PER CURIAM.

The National Commodity and Barter Association, the National Commodity Exchange, and certain individual members of these organizations (collectively referred to as the NCBA) instituted this action in federal court, naming several federal agencies and numerous federal employees as defendants. The NCBA alleged direct violations of its first, fourth, and fifth amendment rights pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). It additionally claimed that the defendants had engaged in a conspiracy and pattern of racketeering activity in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Secs. 1961, 1962 (1982 & Supp. IV 1986), by their continued, unwarranted investigation and harassment of the organization pursuant to the IRS' "Illegal Tax Protester Project" and by their collection of unlawful penalties under the Internal Revenue Code. It requested injunctive relief and damages for these alleged violations. In addition, the NCBA requested the district court declare unconstitutional the statute authorizing the collection of the above penalties, 26 U.S.C. Sec. 6700(a) (1982 & Supp. IV 1986).

The defendants thereafter moved for dismissal of the complaint under Fed.R.Civ.P. 12(b)(6). After a hearing on the motion, the district court ruled for the defendants, issuing its findings orally from the bench. The court held that the plaintiffs' cause of action against the defendants in their official capacities was barred by the doctrine of sovereign immunity and that there had been no waiver of that immunity under the Federal Tort Claims Act. It further held that the NCBA's damages claim against the defendants in their individual capacities was barred by the doctrine of qualified immunity and that its claim for injunctive relief was precluded by the Anti-Injunction Act, 26 U.S.C. Sec. 7421 (1982). Finally, the court ruled that the NCBA had not overcome the presumption that 26 U.S.C. Sec. 6700 was constitutional. The NCBA now appeals to this court, and we affirm in part, reverse in part, and remand to the district court for additional proceedings.

I. Procedural Matters

The dismissal of a complaint pursuant to Fed.R.Civ.P. 12(b)(6) presents a question of law which we review de novo, and we apply the same standard as did the district court below. Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). Under this rule, the dismissal of a complaint is proper if, taking all well-pleaded facts as true and construing them in the light most favorable to the plaintiff, it is clear that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Grider v. Texas Oil & Gas Co., 868 F.2d 1147, 1148 (10th Cir.1989). We conclude 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.

At the outset, we note that the NCBA's second amended complaint consists of some thirty-five single-spaced pages, over twenty-five of which are comprised of "general allegations" describing events spanning a period of approximately eight years. These allegations catalogue various policies and activities which the NCBA characterizes as designed to "demoralize, paralyze, and ultimately destroy a noncommercial, voluntary, political/educational association of individuals advocating dissident views as to the tax, monetary and fiscal law and policies of the government." Many of the allegations purport to detail these activities by listing the particular federal agents involved in them; however, there is little identification, if any, of the persons targeted by these activities, the specific dates of the events, or the particular property seized.

In addition, the narrative indicates that, in a number of instances, the NCBA has already commenced, if not pursued successfully, actions challenging many of the above events. ¹ The complaint does not indicate how the claims raised in this case are distinguishable from those raised in earlier actions; indeed, it would appear that the prior resolution of several issues, particularly with respect to the jeopardy assessments challenged herein, would preclude their relitigation in this forum. It is likewise nearly impossible to discern how the fifty-seven general allegations in the complaint can be structured to support the required elements of each of the six separate claims for relief in this case, and the NCBA's briefs on appeal do little to resolve this dilemma.

In sum, this complaint does not present a "short and plain" statement of the claims raised by the NCBA, as required by Fed.R.Civ.P. 8(a). Nor do the NCBA's briefs in this appeal meet the requirement of Fed.R.App.P. 28 to demonstrate to this court the basis for the alleged error. While we have a duty to determine in a Rule 12(b)(6) motion whether the complaint states a conceivable cause of action, we are not required to manufacture a party's argument on appeal when it has failed in its burden to draw our attention to the error below. See United States v. Swingler, 758 F.2d 477, 493 (10th Cir.1985); cf. 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice, p 228.02 at 28-10 to -11 (2d ed. 1989). Despite the vague, disorganized, and rambling nature of the complaint, however, it is possible to conclude that a number of the NCBA's claims must be dismissed. As to those remaining claims, we remand to the district court with directions to permit an amended complaint which outlines in clear, direct and understandable terms the precise factual allegations to support each essential element of these claims.

We additionally note that the complaint identifies as plaintiffs not only the NCBA and several named individuals, but also the "members & subscribers of the National Commodity & Barter Association/National Commodity Exchange." In detailing the allegations against the defendants, the complaint does not further specify the names of the individual members of the NCBA whose rights were allegedly violated and counsel for the NCBA stated during oral argument that this was to protect the anonymity and first amendment freedom of association of these individuals allegedly recognized by this court in In re First National Bank of Englewood, Colo., 701 F.2d 115 (10th Cir.1983). ²

Rule 10(a) of the Federal Rules of Civil Procedure provides that "[e]very pleading shall contain a caption setting forth the name of the court, the title of the action, the file number, and a designation as in Rule 7(a). In the complaint, the title of the action shall include the names of all the parties...." The Federal Rules thus make no provision for suits by persons using fictitious names or for anonymous plaintiffs. Coe v. United States Dist. Court, 676 F.2d 411, 415 (10th Cir.1982). In certain limited circumstances, however, courts have permitted a plaintiff to proceed using a fictitious name where there are significant privacy interests or threats of physical harm implicated by the disclosure of the plaintiff's name. See, e.g., id. at 415-17 (collecting cases); Doe v. Stegall, 653 F.2d 180 (5th Cir.1981); Doe v. United Servs. Life Ins. Co., 123 F.R.D. 437 (S.D.N.Y.1988). This procedure has not been permitted when only the plaintiff's economic or professional concerns are involved, see, e.g., Coe, 676 F.2d at 417; Southern Methodist Univ. Ass'n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir.1979); Free Market Compensation v. Commodity Exchange, Inc., 98 F.R.D. 311 (S.D.N.Y.1983), or when there is the threat of criminal or civil prosecution, see, e.g., Doe v. Rostker, 89 F.R.D. 158, 161-62 (N.D.Cal.1981).

In this case, the unnamed plaintiffs have made no request to the district court for permission to proceed anonymously, nor have they otherwise disclosed their identities to the court or to the defendants. Absent permission by the district court to proceed anonymously, and under such other conditions as the court may impose (such as requiring disclosure of their true identity under seal), the federal courts lack jurisdiction over the unnamed parties, as a case has not been commenced with respect to them. ³ See Doe v. Stegall, 653 F.2d at 183; Doe v. United States Dept. of Justice, 93 F.R.D. 483, 484 (D.Colo.1982). We therefore dismiss the complaint as to the unnamed members of the NCBA, and consider the remainder of the claims in this appeal solely with respect to NCBA as an associational entity. ⁴

II. Sovereign Immunity

NCBA has raised a number of claims against each of the defendants in their official capacities as officers or employees of the federal government. Addressing these claims, the district court correctly noted...