White v. Boyle, 75-1491

• Decision Date: 10 August 1976
• Docket Number: No. 75-1491,75-1491
• Citation: 538 F.2d 1077
• Parties: 76-2 USTC P 9597 Kenneth WHITE, Appellant, v. James P. BOYLE et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1077

538 F.2d 1077

76-2 USTC P 9597

Kenneth WHITE, Appellant, v. James P. BOYLE et al., Appellees.

No. 75-1491.

United States Court of Appeals, Fourth Circuit.

Argued June 7, 1976.

Decided Aug. 10, 1976.

Kenneth White, pro se.

Michael J. Roach, Atty., Tax Div., Dept. of Justice (Scott P. Crampton, Asst. Atty. Gen., Jonathan S. Cohen, Gilbert E. Andrews, Attys., Tax Div., Dept. of Justice, Washington, D. C., and Paul R. Thomson, Jr., U. S. Atty., Roanoke, Va., on brief), for appellees.

Before CRAVEN, RUSSELL and WIDENER, Circuit Judges.

CRAVEN, Circuit Judge:

Kenneth White, president of the Virginia Taxpayers Association, instituted a civil rights action in the district court against the district director and various agents of the Internal Revenue Service. In his official capacity, and as a concerned citizen, White had occasion to address legislative panels and to release statements to the press; his public stance consistently attacked government spending habits and urged modification of the revenue-collecting system. White maintained that as a result of his outspoken opposition to the present taxing structure, he was designated a "sensitive case" and a "high deterrent case," and was thereafter made an object of retaliatory investigatory procedures aimed at harassment and the abridgment of his constitutionally protected rights. Features of this program of harassment, he claimed, included a trespass onto and destruction of White's property by IRS agents as well as illegal investigation into White's bank accounts. White's complaint set forth three counts, each seeking $75,000 compensatory and $200,000 punitive damage as well as an injunction against further unconstitutional activity.

Having moved for summary judgment, the several defendants submitted affidavits which stated that an investigation was routinely initiated when it became apparent that the Form 1040 filed by White and his wife pertaining to their 1972 federal income tax liability was unsigned, contained no information from which a computation of tax liability could be derived, and had written across its face "filed under protest." ¹ The inquiry, begun after referral from the Memphis Service Center, was aimed at determining whether White had violated any laws pertaining to the collection of revenues.

On the basis of these affidavits, the district court found that the actions of the defendants were made pursuant to federal law, were within the scope of their authority, and were reasonable, good faith actions taken in response to White's defective 1972 return. As a result, the district judge determined that the defendants enjoyed official immunity, and, accordingly, granted summary judgment in their favor. In addition, that portion of the complaint seeking injunctive relief was dismissed because the court was without power to entertain the suit. See White v. Boyle, 390 F.Supp. 514 (W.D.Va.1975).

Clearly, if White can demonstrate an injury consequent upon the violation by federal agents of his constitutionally protected rights, absent official immunity, he is entitled to recovery. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). However, White has failed to make any such showing beyond mere conclusory allegations, and the grant of summary judgment for the defendants was clearly proper.

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Rule 56(e), Fed.R.Civ.P. " '(T)o resist a motion for summary judgment, the party against whom it is sought must present some evidence to indicate that the facts are in dispute . . . . His bare contention that the issue is disputable will not suffice.' " Berry v. Atlantic Coast Line R. R. Co., 273 F.2d 572, 582 (4th Cir. 1960), cert. denied, 362 U.S. 976, 80 S.Ct. 1060, 4 L.Ed.2d 1011 (1960), (quoting Zoby v. American Fidelity Co., 242 F.2d 76, 80 (4th Cir. 1957)).

White failed to carry the burden of showing that there is present here any genuine issue of material fact. There is no evidence of the existence of any fact which, when viewed in a light most favorable to the plaintiff, will support the contention that the defendants invaded any right of the plaintiff secured by the Constitution.

White's complaint alleged a retaliatory Internal Revenue investigation initiated in response to his exercise of First Amendment rights. The defendants in their affidavits stated that their actions were taken pursuant to federal law (specifically 26 U.S.C. §§ 6201, 7601-7605, 7622) upon receipt by them of a return which did not adequately reflect his income tax liability for the year 1972. Additionally, the Internal Revenue Service's inspection of White's bank accounts, it was asserted, was performed pursuant to similarly lawful authority. At this point in the development of the pleadings, White was under the duty to present to the court some facts which would put into dispute the motivation behind the IRS action. Instead, he chose to file similarly conclusory counter-affidavits which reiterated his view that the IRS's activities were patently recriminatory. Nothing...