Tempelman v. Beasley
| Decision Date | 21 December 1994 |
| Docket Number | No. 93-2337,93-2337 |
| Citation | 43 F.3d 1456 |
| Parties | -910 NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. Andrew TEMPELMAN & Priscilla Tempelman, Plaintiffs, Appellants, v. Patricia BEASLEY, Examiner for the U.S. Treasury Department, Internal Revenue Service, Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Martin F. Loughlin, Senior U.S. District Judge ]
Andrew Tempelman and Priscilla Tempelman on brief pro se.
Paul M. Gagnon, United States Attorney, Loretta C. Argrett, Assistant Attorney General, Gary R. Allen, Jonathan S. Cohen, and Sarah Knutson, Attorneys, Tax Division, Department of Justice, on brief for appellee.
D.N.H.
AFFIRMED IN PART, VACATED IN PART.
Before Torruella, Chief Judge, Selya and Cyr, Circuit Judges.
Plaintiffs Andrew and Priscilla Tempelman are long-time tax protesters-proponents of the view that the United States internal revenue system is invalid. In 1992, based upon audits of plaintiffs' returns for the years 1986 through 1988, the Internal Revenue Service (IRS) determined, inter alia, that various deductions had been improperly claimed and that additional taxes were owed. Plaintiffs successfully challenged this determination in tax court, where a settlement with the IRS resulted in the elimination of most or all of such liability. They then filed the instant pro se action in state court, seeking damages from the IRS agent who had conducted the audits. Plaintiffs charged that defendant had deliberately and maliciously imposed further tax liabilities in retaliation for their dissident views, in violation of various statutory and constitutional provisions.
Defendant removed the action to federal court and then moved to dismiss, claiming that parts of the complaint were jurisdictionally defective while other parts failed to state a claim. In a comprehensive opinion, the district court agreed and dismissed the complaint under Fed. R. Civ. P. 12(b)(1) & (6). The court went on to find that plaintiffs were engaged in a "vendetta" against the IRS, having filed numerous frivolous cases against the agency and its employees solely for the purpose of harassment. As a result, the court enjoined plaintiffs from filing any further such actions without judicial approval. It also imposed monetary sanctions. Plaintiffs, in summary fashion, challenge each of these rulings on appeal. 1
We need not linger long over the merits of the complaint. Plaintiffs have relied on a plethora of statutory provisions in an attempt to establish jurisdiction and/or state a claim. Each proves unavailing. For example, two criminal provisions on which they rely-18 U.S.C. Secs. 241, 242-do not give rise to a civil action for damages. See, e.g., Rodi v. Ventetuolo, 941 F.2d 22, 29 n.8 (1st Cir. 1991); Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (per curiam). A third such provision, contained in 26 U.S.C. Sec. 7214, is likewise inapposite; "a precondition to a taxpayer suit for damages against a revenue agent under this provision is the criminal conviction of the agent." Hollett v. Browning, 711 F. Supp. 1009, 1012 n.2 (E.D. Cal. 1988). Plaintiffs' reliance on 42 U.S.C. Secs. 1983, 1985 () is misplaced. Section 1983 is inapplicable to federal officials not alleged to have acted "under color of state law." See, e.g., District of Columbia v. Carter, 409 U.S. 418, 424-25 (1973); Soldevilla v. Secretary of Agric., 512 F.2d 427, 429 (1st Cir. 1975). In turn, as the district court discussed at length, plaintiffs have not come close to stating a claim under Sec. 1985.
No more helpful is plaintiffs' invocation of the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671-80. Explicitly excluded from the FTCA's ambit is "[a]ny claim arising in respect of the assessment or collection of any tax." Id. Sec. 2680(c); see, e.g., McMillen v. United States Dep't of Treasury, 960 F.2d 187, 188 (1st Cir. 1991) (per curiam). Contrary to plaintiffs' contention, the allegations here fall readily within this exception. See, e.g., National Commodity and Barter Ass'n v. Gibbs, 886 F.2d 1240, 1246 (10th Cir. 1989); Capozzoli v. Tracey, 663 F.2d 654, 658 (5th Cir. 1981) ().
Plaintiffs' reliance on 26 U.S.C. Sec. 7433(a) also proves misplaced. This provision authorizes a civil action for damages whenever an IRS official "recklessly or intentionally disregards" the tax laws in connection with "any collection" of federal taxes. Yet plaintiffs are complaining of alleged misconduct that occurred in connection with the calculation of their tax liability, rather than with the collection thereof. Such a claim is not cognizable under Sec. 7433. See, e.g., Shaw v. United States, 20 F.3d 182, 184 (5th Cir.), cert. denied, 63 U.S.L.W. 3181 (1994); Gonsalves v. IRS, 975 F.2d 13, 16 (1st Cir. 1992) (per curiam). Furthermore, a prerequisite to any such action is that the taxpayer exhaust his or her administrative remedies, see 26 U.S.C. Sec. 7433(d)(1), by filing a written administrative claim with "the district director ... of the district in which the taxpayer currently resides," 26 C.F.R. Sec. 301.7433-1(e)(1). There is no suggestion that plaintiffs have complied with this requirement. The failure to do so deprives the court of jurisdiction. See, e.g., Venen v. United States, F.3d , 1994 WL 567016, at * 2-* 3 (3d Cir. 1994); Conforte v. United States, 979 F.2d 1375, 1377 (9th Cir. 1992).
Finally, plaintiffs have sought to advance a Bivens claim against defendant in her personal capacity. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In this regard, they contend that defendant's actions abridged their rights under the First, Fourth, Fifth, Eighth and Fourteenth Amendments. Because plaintiffs on appeal have mentioned the point only in passing, it suffices to note the following. As we explained in McMillen, courts have been disinclined to create Bivens remedies in the internal revenue context in light of the "remedial mechanisms for constitutional violations" that Congress has already implemented in this area. 960 F.2d at 190-91 (quoting Schweiker v. Chilicky, 487 U.S. 412, 423 (1988)). In particular, courts have specifically disavowed any Bivens remedy for alleged violations associated with tax assessment and collection activities. See, e.g., Vennes v. An Unknown Number of Unidentified Agents, 26 F.3d 1448, 1453-54 (8th Cir.), petition for cert. filed, 63 U.S.L.W. 3192 (1994); McMillen, 960 F.2d at 190-91; Wages v. IRS, 915 F.2d 1230, 1235 (9th Cir. 1990), cert. denied, 498 U.S. 1096 (1991); Gibbs, 886 F.2d at 1247-48; Tonn v. United States, 847 F. Supp. 711, 716-18 (D. Minn. 1993), aff'd, 27 F.3d 1356 (8th Cir. 1994) (per curiam); see also Cameron v. IRS, 773 F.2d 126, 128-29 (7th Cir. 1985); cf. FDIC v. Meyer, 114 S. Ct. 996, 1005-06 (1994) ().
Most of these cases, it is true, involved alleged due process violations, whereas plaintiffs have also claimed abridgement of their First (and Fourth) Amendment rights. 2 At least under the facts alleged, however, this is without consequence. The Tenth Circuit's pair of opinions in Gibbs ("NCBA I "), 886 F.2d 1240, and National Commodity and Barter Ass'n v. Archer, 31 F.3d 1521 (10th Cir. 1994) ("NCBA II ") (), are instructive. With respect to allegations that IRS agents had engaged in widespread misconduct with respect to a tax-protesting organization-including repeated raids of its headquarters and its members' homes and seizures of membership records-the court held that a Bivens claim had been stated under the First and Fourth Amendments. See NCBA I, 886 F.2d at 1248; NCBA II, 31 F.3d at 1527-32. However, with respect to allegations that the IRS had effected "wrongful jeopardy assessments," the court declined to recognize a First or Fourth Amendment Bivens remedy "[i]n light of the remedies afforded elsewhere." Id. at 1532. So here, we think the panoply of statutory remedies available militates against recognition of a First or Fourth Amendment Bivens remedy with respect to the wrongful assessment of plaintiffs' tax liability. 3
Remaining for consideration is the propriety of the sanctions imposed upon plaintiffs-as to which some additional background is necessary. In response to the district court's order of dismissal, plaintiffs filed a motion for reconsideration. Displaying a lack of familiarity with the sovereign immunity doctrine, they there castigated the court for leaving them with "no remedy" in "clear defiance of and contempt for federal law." They then proceeded, in increasingly intemperate language, to warn the district judge that unless the dismissal were rescinded he would "stand liable" for possible constitutional violations and would run the risk of impeachment and of being named as "a co-conspirator in a far larger Civil Rights matter which is coming before this court in a series of actions." According to their certificate of service, plaintiffs sent copies of this motion to some 28 political officials and various media outlets.
The district judge held a hearing on the motion, at which plaintiffs enumerated at some length (and in reasonably decorous fashion) their objections to the order of dismissal. The court thereafter, in an oral ruling, voiced its disapproval of plaintiffs' conduct. Their veiled suggestion that the court had conspired with the government, it held, bordered on "criminal contempt." Their treatment of court personnel had been "insulting" and "bully[ing]." And their "vendetta against the IRS and its employees"-pursued through a series of "frivolous" and "ha...
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