Summary
holding that the claims contained in the plaintiff's complaint against IRS officials were, in actuality, claims against the United States
Summary of this case from Wickey v. Comm'r of Internal Rev. Serv.Opinion
No. 78-3007. Summary Calendar.
Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
May 3, 1979.
Carl Michael Seibert, pro se.
J.R. Brooks, U.S. Atty., Birmingham, Ala., M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews, Act. Chief, Gary R. Allen, Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., for Duck Patterson.
Watts, Salmon, Roberts, Manning Noojin, Huntsville, Ala., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Alabama.
Before AINSWORTH, GODBOLD and VANCE, Circuit Judges.
AFFIRMED on the basis of the Memorandum of Opinion of United States District Judge Sam C. Pointer, Jr., a copy of which is an appendix hereto.
APPENDIX
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
Northeastern Division
MEMORANDUM OF OPINION
BACKGROUND
56 6851 6331THE PENDING LITIGATION
pro se, fifth fourteenth 42 U.S.C. §§ 1983 1985 1986 26 U.S.C.A. § 6851 26 U.S.C.A. § 6861JURISDICTION OF THE COURT
CONSTRUCTION OF PLAINTIFF'S CLAIM AS ONE AGAINST THE SOVEREIGN
28 U.S.C. § 2680 Butz v. Economou, 98 S.Ct. 2894 57 L.Ed.2d 895 Scheuer v. Rhodes.JURISDICTION OF THE DISTRICT COURT OVER CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS
fourth fifth 28 U.S.C. § 1331 28 U.S.C. § 2201 28 U.S.C. § 1343 42 U.S.C. §§ 1983 1985 42 U.S.C. §§ 1983 1985 42 U.S.C. § 1986 Mack v. Alexander, 575 F.2d 488 28 U.S.C. § 1343 42 U.S.C. §§ 1983 1985 sub judice 42 U.S.C. §§ 1983 1985 575 F.2d at 489 28 U.S.C. § 1331 fifth fourth fourth fifth 28 U.S.C. § 1331BIVENS, BUTZ, AND DAVIS V. PASSMAN
Butz v. Economou compensable claim for relief under the Federal Constitution, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 91 S.Ct. 1999 29 L.Ed.2d 619 fourth Butz v. Economou Bivens Davis v. Passman, 571 F.2d 793 Davis v. Passman sub judice fourth Bivens, fifth Bivens fourth Bivens Davis Davis Bivens fourth Weeks v. United States, 232 U.S. 383 34 S.Ct. 341 58 L.Ed. 652 Mapp v. Ohio, 367 U.S. 643 81 S.Ct. 1684 6 L.Ed.2d 1081 Bivens, Bivens fifth Cort v. Ash, 422 U.S. 66 95 S.Ct. 2080 45 L.Ed.2d 26 Davis v. Passman Davis, fifth fifth Davis v. Passman Davis fourth fifth Davis, Cort v. Ash, fourth fifth Davis, Bivens fourth Bivens. fourth fifth 7421 Davis fifth fourth Bivens Cort v. Ash fifth Davis. fifth fourth implied fourth fifth Congress Sam C. Pointer, Jr. CARL MICHAEL SEIBERT, ) ) Plaintiff, ) ) -vs.- ) NO. CA 77-P-0951-NE ) ) D.T. BAPTIST, DISTRICT ) DIRECTOR OF INTERNAL REVENUE, ) et al., ) ) Defendants. ) What can only be characterized as an unusual set of events has led to the defendants' motion to dismiss the plaintiff's complaint. It is this motion which is currently before the court. Since both parties have submitted memoranda and affidavits in support of their respective positions, the motion will be treated as one for summary judgment under Rule of the Federal Rules of Civil Procedure. On July 7, 1972, plaintiff Carl Michael Seibert was arrested by the Huntsville Police Department for possession of LSD. At the time of his arrest plaintiff was apparently driving his father's car. The Huntsville Police seized the car and its contents, which included a guitar and a currency collection. On July 10, 1972, agents of the Internal Revenue Service served plaintiff with a Notice of Termination of Taxable Period pursuant to Section of the Internal Revenue Code by which plaintiff's income tax liability for the period January 1, 1972, to July 7, 1972, was made immediately due and payable. Plaintiff was also served with a Notice of Seizure under I.R.C. Section . By this notice it was indicated that the car and its contents previously impounded by the Huntsville police were being seized by the IRS in partial payment of tax deficiencies proposed against plaintiff in the amount of $6,458.00. Plaintiff was never given information about how the deficiency was computed. At this point, it becomes difficult to determine just what events transpired, and in what order. According to plaintiff's amended complaint, on October 19, 1972, plaintiff and his father initiated suit in federal court to enjoin the IRS from selling the seized property at auction, and to compel an explanation of the basis for the seizure. That suit was dismissed by the district court as to all material issues on November 1, 1972. At some point during this sequence of events, defendants' memorandum in support of its motion to dismiss indicates that the termination assessment against plaintiff was abated and a notice of deficiency was issued to the plaintiff. In response to the notice, plaintiff filed a petition for redetermination of his tax deficiency, with the United States Tax Court. Upon a stipulation of the parties, the Tax Court entered an order on January 17, 1977, to the effect that there had been an overpayment in income taxes by plaintiff for the 1972 tax year in the amount of $2,893.15. By the terms of the stipulation incorporated into the Tax Court's order, plaintiff did not waive "any rights he may now have to proceed against the Internal Revenue Service or any employee for damages or restitution on account of the seizure and release of certain personal property . . ." It is this reservation of rights which forms the basis of the present controversy. On July 11, 1977, plaintiff proceeding filed a complaint against the District Director of the Internal Revenue Service, four officials of the IRS, two Huntsville Policemen, and a Madison County Circuit Judge. The complaint, without alleging any statutory basis for relief or grounds for jurisdiction of the court, sought recovery of property seized by the IRS, or compensation therefor. On defendants' motion, the court dismissed this complaint and granted the plaintiff thirty (30) days to amend the complaint to state a jurisdictional basis for the cause of action. Pursuant to this order, on January 3, 1978, plaintiff filed an amended complaint which the defendants' pending motion seeks to have dismissed. By his amended complaint, the plaintiff alleged jurisdiction of this court pursuant to the and amendments to the United States Constitution, and under 28 U.S.C. §§ 2201-02, § 1331, § 1343, and , , and . The gravamen of plaintiff's amended claim is that defendant IRS officials have abused their authority under to terminate plaintiff's taxable period, and that they did not follow the prescribed procedure under to make jeopardy assessments of income tax deficiency. Broadly read, plaintiff's complaint also alleges that the defendants subjected him to malicious prosecution and harassment, that they unlawfully seized his property, caused him and his family mental anguish, and denied him due process and the equal protection of the laws. In his prayer for relief plaintiff requests return of, or compensation for, all previously seized property, as well as compensatory and punitive damages, costs, and attorney's fees. The district courts of the United States are courts, the jurisdiction of which is "limited to those cases within Art. III, Sec. 2 of the Constitution over which an Act of Congress has given [them] jurisdiction." Serious questions are presented here with respect to whether this court has the authority to decide the potential merits of this case. Each of the jurisdictional allegations asserted by the plaintiff therefore requires close scrutiny. Defendants have devoted a substantial portion of their memorandum to the proposition that the plaintiff's claim, while nominally filed against officials of the Internal Revenue Service, is in actuality a suit against the United States as real party in interest. As such, defendants argue, plaintiff's claims are barred by the doctrine of sovereign immunity, by which the United States may not be sued without its consent. Defendants also point out that while the Federal Tort Claims Act swept aside a large portion of the government's immunity for the tortious conduct of its employees, the plaintiff may not seek recovery under the Act for a number of reasons. Most notable among these reasons asserted for the nonapplicability of the FTCA is the (c) exclusion from the Act's provisions of "[a]ny claim arising in respect of the assessment or collection of any tax . . ." To the extent, then, that the plaintiff's complaint is read to assert a claim against the United States, it would appear that this claim is barred by the doctrine of sovereign immunity, and the absence of any statutory exceptions for actions of the kind presented here. The court is of the opinion, however, that this determination does not dispose of the litigation. Presumably, defendants' sovereign immunity theories resulted from their expectation that the United States Supreme Court would clothe all federal executive department officials in the protection of absolute immunity from damages for injuries caused by their unconstitutional conduct. Had the Court adopted such an approach, the plaintiff's only possibility for recovery would have been against the United States. Contrary to defendants' expectations, however, in ___ U.S. ___, , (1978), the Supreme Court held that in suits for damages arising from unconstitutional action, federal executive officials are entitled only to the qualified immunity set out in This decision suggests the possibility of a claim by the plaintiff against the defendant officials in their individual capacities. The question whether such individual liability may in fact be imposed on the defendants requires consideration at this point. As noted previously, by the amended complaint, plaintiff alleged jurisdiction of this court over his claims against the defendants under several statutory and constitutional provisions. It appears clear that the statutory bases are without merit, and can be considered without extensive discussion. The possibility, however, of a direct action under the or amendments, based on the court's general "arising under" jurisdiction requires close scrutiny. The first statutory basis for jurisdiction asserted by the plaintiff is the declaratory judgment provision of 28 U.S.C. §§ 2201-02. That this statute alone will not support plaintiff's cause of action is apparent for two reasons. First, the declaratory judgment sections do not establish an independent basis for federal jurisdiction, but rather only establish a separate remedy available in cases where jurisdiction otherwise exists. Secondly, even if the declaratory judgment provisions authorized federal jurisdiction independently of any other basis, by its terms specifically excludes the use of declaratory judgments "with respect to Federal taxes." Clearly, then, this court has no jurisdiction over plaintiff's claim by virtue of 28 U.S.C. § 2201-02. The plaintiff also alleges that federal jurisdiction is conferred over the present controversy by . This statute is the jurisdictional basis for suits under and . These sections allow a plaintiff to redress the deprivation of civil rights by authorities who act under the color of state law or by those who conspire to deprive such rights. In addition to and plaintiff further alleges the applicability of , under which a person may be held liable for damages if such person neglects to attempt to prevent a conspiracy to deprive constitutional rights as such conspiracy is defined in § 1985. A recent per curiam decision of the Fifth Circuit Court of Appeals disposes of this asserted basis for federal jurisdiction in a manner adverse to plaintiff's contention. In (5th Cir. 1978), the plaintiff filed suit against certain officials of the Internal Revenue Service based on the defendants' alleged violations of constitutional rights stemming from an IRS attempt to levy on a joint bank account held by plaintiff and another party. Federal jurisdiction was asserted under and and . In upholding the district court's dismissal of the action, the Fifth Circuit spoke in language applicable to the controversy : "Section 1343 places original jurisdiction in the district courts when there is a substantive claim for violation of and . However, we agree with the district court's ruling that these statutes provide a remedy for deprivation of rights under color of state law and do not apply when the defendants are acting under color of federal law." (citation omitted). In the present case, similarly, plaintiff's only claims are that the defendants abused their authority under the federal Internal Revenue Code. The final basis for jurisdiction asserted by the plaintiff, and the one which is by far the most complex is the general federal question jurisdiction of . This statute provides the jurisdictional basis for civil actions which arise under the Constitution, laws, or treaties of the United States. Since, as indicated previously, there is no statutory authorization for damage claims against IRS officials, a cause of action supportable under § 1331 would have to be one which arises under the Constitution of the United States. Plaintiff has made such an "arising under" claim by virtue of his allegation that he was denied the due process and equal protection guaranteed to him by the amendment to the Constitution. Further, while the defendants' memorandum denies that plaintiff has ever alleged any amendment violations (Memorandum in Support of Motion to Dismiss at 14), the court concludes that the plaintiff's complaint can be read to allege an unreasonable seizure of his property. Whether or not such and amendment claims will support an action based on remains to be determined. As indicated previously, the Supreme Court's recent decision in determined that federal executive officials are entitled only to a qualified immunity from suits for damages arising from their unconstitutional action. The Court was careful to point out, however, that not all allegations of deprivations of constitutional rights can be made the basis for damage claims. Rather, "[u]nless the complaint states a it should not survive a motion to dismiss." To this date, the only previously-recognized "compensable claim for relief under the Federal Constitution" has come from , , (1971). In that case, the Supreme Court held that a violation of the amendment by federal narcotics officials gave rise to a cause of action for damages consequent upon the unconstitutional conduct, and based on the general federal question jurisdiction of the federal courts. While presented with an opportunity to do so, the Court in specifically refused to consider which, if any, other personal interests are protected by the Constitution. Resolution of plaintiff's constitutional claims in the pending litigation then, depends upon itself, as well as on the Fifth Circuit's en banc decision in (5th Cir. 1978). is an extremely important case from the standpoint of the matter for two reasons. First, based on an analysis of how the Supreme Court had implied the amendment cause of action in the Fifth Circuit determined that no corresponding constitutional cause of action existed under the amendment for an allegedly discriminatory dismissal of the plaintiff by her employer, a former member of Congress. Secondly, and again based on its analysis of the Supreme Court's decision, the Fifth Circuit also suggested that not even all alleged violations of the amendment will support the cause of action which implied. The consequences of this analysis in will be seen to be dispositive of the remaining matters presented in the current litigation. The case tested the cause of action implied in from two standpoints. The first approach considered the action as implied not solely on constitutional authority, but rather from the constitutional protections of the amendment, buttressed by analogy to statutorily-implied causes of action where Congress had created federal rights but had provided no corresponding federal remedy. Since the right to be secure from unreasonable searches and seizures was viewed as one of the most fundamental of federal rights, and since the exclusionary rule of , , (1914), and , , (1961) had proven to be a less than satisfactory remedy, the damages cause of action was viewed as necessary to effectuate the amendment. The second approach, distinguished from that found to have been used by the Supreme Court in was determined to be appropriate only in situations in which the Constitution compels the existence of a damages remedy to vindicate the rights asserted. Having found that the cause of action evolved from both constitutional and statutory bases, the Fifth Circuit tested the propriety of implication of a amendment cause of action under the principles of , , (1975), "the Supreme Court's most comprehensive treatment of implied statutory causes of action." In that case, the Supreme Court had listed four factors to be considered in the decision whether to imply a cause of action from a statutory right: (1) whether the provision asserted creates an especial right in the plaintiff; (2) whether the action of Congress in the field indicates an intent to allow such a remedy or at least an intent not to deny the remedy; (3) whether implication of the remedy would be consistent with the purpose of the right asserted; and (4) whether the cause of action implied would be one appropriate for federal law. In light of these factors, the Fifth Circuit attached a great deal of significance in to the fact that congressional amendments of Title VII had consistently avoided inclusion of the federal government within the Civil Rights Act's definition of the term "employer." Consequently, in the court determined that no federal common law cause of action was due to be implied under the amendment for alleged employment discrimination by a former Member of Congress. Similarly, under the second prong of the two-prong test for implying causes of action, the court of appeals also held that a amendment cause was not constitutionally compelled. This determination was based on the realization that not all rights included within the breadth of due process demanded federal protection through a direct cause of action. While this discussion of has been somewhat lengthy, the court believes that such analysis is required since that decision is viewed as dispositive of the remaining issues in the current controversy. Fortunately, in applying to the present facts, the same considerations will be relevant to the plaintiff's asserted implied causes of action under both the and amendments. For the reasons which appear below, the court has concluded that such causes of action are not to be implied in the present situation. Following the approach adopted in a brief analysis of the current controversy in light of the relevant factors from for implying causes of action is required. The first such factor to be considered is whether the constitutional provisions asserted — here the and amendments — create an especial right in the plaintiff. The Fifth Circuit approach to this "especial right" requires that the injury inflicted on the plaintiff must directly infringe upon a constitutional guarantee. As pointed out in however, due process encompasses virtually all civil liberties embodied by the Constitution. As such, an allegation of the denial of due process does not appear to satisfy the requirement of direct infringement of a constitutional right. Similarly, while in infringement of the plaintiff's amendment rights was clear and direct, in the present case, it appears that appropriate notice of termination and notice of seizure were given to the plaintiff at the time his property was taken. This being the case, the seizure was not so unreasonable as that involved in The second factor required to be considered toward the implication of causes of action is whether congressional activity in the field indicates an intent to allow such a remedy, or at least not to deny the remedy. It is with this factor that the strongest reasons for not implying a cause of action under either the or amendments in the present case are found; for here, congressional indications that no such remedy is to be allowed are clearly evident. First, the Federal Tort Claims Act specifically excludes claims against the United States if they relate to the assessment or collection of taxes. Second, as further indication of congressional intent that the assessment and collection of federal taxes are to be free from judicial intervention, section (a) of the Internal Revenue Code prohibits any suit to restrain the assessment or collection of taxes. Finally, the fact that alternative measures for the contesting of tax assessments are provided, is indicative of further congressional intent that individual liability for Internal Revenue officials is not to be implied. The third factor required to be considered in determining whether to imply a federal common law cause of action is whether implication of such a remedy would be consistent with the purpose of the constitutional right asserted. As noted in the breadth of the amendment due process clause indicates that implication of a damage remedy from its provisions would be judicially unmanageable. Further, while the breadth of the amendment is more limited, the extensive statutory regulation of Internal Revenue matters (regulation which was not existent to the same degree over narcotics officials in ) suggests that implication of a private cause of action would be inconsistent with the statutory scheme enacted by Congress. The final factor to be considered under is whether the implied action would be one appropriate for federal law. With regard to the amendment claim, implication of a cause of action in the current case would present the same problems as those recognized by the Fifth Circuit in As Judge Clark pointed out in that decision, "Because of the breadth of due process, a decision implying an action for money damages from the amendment Due Process Clause alone would extend an action for damages to any constitutional guarantee." Similarly, although the same problems of breadth of the constitutional provision are not present with the amendment claims, significant difficulties are still encountered. While the matter of abuse of IRS authority is obviously not a matter "traditionally relegated to state law," the fact that extensive, specific congressional regulation of federal taxation already exists indicates that neither is the matter one appropriate for federal law. Rather, it is a matter which can best be managed by further congressional refinements as these are deemed necessary. The final consideration with regard to whether a constitutional cause of action is to be implied in this case is whether, notwithstanding congressional action or inaction, a damage action is indispensible to the effectuation of the constitutional rights asserted. Here again, the court concludes that such an action is not constitutionally compelled. In the face of assertions of protected and amendment claims, it is not to be forgotten that the power of "to lay and collect taxes" is also constitutionally-mandated. Pursuant to this authority, Congress has enacted one of this nation's most comprehensive legislative schemes. Adequate provision is made a part of this scheme for the safeguarding of due process and equal protection, and for assurances against unreasonable seizures. The court therefore concludes, that under the facts as here presented, the plaintiff is entitled to no more. Accordingly, it appears that the plaintiff has not asserted a claim "aris[ing] under the Constitution, laws, or treaties of the United States." Therefore, this court has no jurisdiction to entertain the merits of the litigation. Absent jurisdiction over the subject matter of plaintiff's complaint, the action must be dismissed. Judgment to this effect shall be entered by separate order. Done this the 11th day of August, 1978. (s) United States District Judge Sam C. Pointer, Jr.