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USCA1 Opinion
December 21, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-2337
ANDREW TEMPELMAN & PRISCILLA TEMPELMAN,
Plaintiffs, Appellants,
v.
PATRICIA BEASLEY, EXAMINER FOR THE
U.S. TREASURY DEPARTMENT, INTERNAL REVENUE SERVICE,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge] __________________________
____________________
Before
Torruella, Chief Judge, ___________
Selya and Cyr, Circuit Judges. ______________
____________________
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.
____________________
____________________
Per Curiam. 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
I.
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. 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.
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. 1983, 1985 (and their
jurisdictional counterpart, 28 U.S.C. 1343) 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); ____________________ ______
____________________
1. Given the disposition we reach, there is no need to
decide whether the notice of appeal was ineffective as to
Priscilla Tempelman, as defendant suggests.
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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 1985.
No more helpful is plaintiffs' invocation of the Federal
Tort Claims Act, 28 U.S.C. 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. ___
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) _________ ______
( 2680(c) has been "interpreted broadly" to cover activities
that were "in any way related to the [IRS] agents' official
duties").
Plaintiffs' reliance on 26 U.S.C. 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 7433. See, ___
-4-
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. ___
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. 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
-5-
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) (declining to imply Bivens action ______
against federal agencies).
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") _____ ______ _______
(the appeal following remand), are instructive. With respect
____________________
2. In their district court pleadings, plaintiffs conceded
that their Eighth Amendment claim was without merit. A
similar conclusion applies as to their Fourteenth Amendment
claim. In turn, we have difficulty perceiving how the Fourth
Amendment is implicated by plaintiffs' allegations.
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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
____________________
3. Plaintiffs also allege that their suit was improperly
removed to federal court. Removal was plainly appropriate
under 28 U.S.C. 1442(a)(1) (pertaining to suits against
"[a]ny officer of the United States ... for any act under
color of such office"), inasmuch as defendant's relationship
to plaintiffs "derived solely from [her] official duties."
Willingham v. Morgan, 395 U.S. 402, 409 (1969); accord, e.g., __________ ______ ______ ____
Palermo v. Rorex, 806 F.2d 1266, 1269-70 (5th Cir.) _______ _____
(rejecting argument that defendants were not acting "under
color of federal office" because their acts were alleged to
have been maliciously motivated), cert. denied, 484 U.S. 819 ____________
(1987); see also Arizona v. Manypenny, 451 U.S. 232, 242 ________ _______ _________
(1981) ("the right of removal is absolute for conduct
performed under color of federal office"). As such,
plaintiffs' inability to subpoena the United States Attorney
in order to examine the validity of his 28 U.S.C. 2679(d)
certification--about which they also complain--was without
consequence.
As well, plaintiffs object that the district judge
recused himself on the same day that he denied their motion
for reconsideration. To the contrary, the record reveals
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II.
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
____________________
that plaintiffs' motion for recusal was denied on that date.
We are told that the judge subsequently recused himself from
other cases involving plaintiffs--an action that has no
bearing on the instant matter.
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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 "harassing" lawsuits--had "gone
on too long." Accordingly, the court entered a sua sponte __________
order enjoining plaintiffs from filing any further actions in
the District of New Hampshire "against the IRS," including
suits removable from state court, without judicial approval.
It also imposed sanctions in the amount of $293 (representing
the travel costs incurred by government counsel to attend the
hearing). In a subsequent written order in support of this
ruling, the court noted that the instant case was one of
eleven actions that plaintiffs had prosecuted in New
Hampshire federal court since 1986, ten of which the court
found had involved the IRS or its agents. The court
reiterated its injunction as follows:
The clerk of this court is ordered not to
accept any more cases from the plaintiff unless
screened by a Judge Magistrate or Judge of this
court. If the plaintiff by subterfuge, or any
other means[,] sues in a state court knowing that
it has to be removed by the government to this
court, he shall be subject to immediate sanctions
....
The court also there denied the motion for reconsideration.
Federal courts, of course, "possess discretionary powers
to regulate the conduct of abusive litigants." Cok v. Family ___ ______
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Court of Rhode Island, 985 F.2d 32, 34 (1st Cir. 1993) (per ______________________
curiam). Accordingly, "in extreme circumstances involving
groundless encroachment upon the limited time and resources
of the court and other parties, an injunction barring a party
from filing and processing frivolous and vexatious lawsuits
may be appropriate." Castro v. United States, 775 F.2d 399, ______ _____________
408 (1st Cir. 1985) (per curiam). Any bar on future
litigation must be "narrowly tailored" to "fit the specific
vice encountered." Sires v. Gabriel, 748 F.2d 49, 51 (1st _____ _______
Cir. 1984) (per curiam). As we have explained, if such an
injunction "were couched in overly broad terms, this could
impermissibly infringe upon a litigator's right of access to
the courts." Castro, 775 F.2d at 410. We review the entry ______
of such an injunction for abuse of discretion. See, e.g., ___ ____
id. at 408. ___
We think it obvious, under the circumstances, that the
district court intended to restrict the filing of any new
actions against the IRS or its agents (as indicated in the
oral order), rather than to restrict court access across the
board (as suggested in the written order). Even as so
construed, the injunction raises several concerns. An
initial problem is that plaintiffs were not "warned or
otherwise given notice that filing restrictions were
contemplated," and thus were not afforded "an opportunity to
respond" before entry thereof. Cok, 985 F.2d at 35. In Cok, ___ ___
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just as in the instant case, the court entered an injunction
on a sua sponte basis at the close of a motion hearing. We __________
noted that where the plaintiff had been deprived of even
"informal" notice--such as might be provided by way of a
defendant's request for an injunction or a magistrate's
recommendation thereof--the customary route was to issue a
show cause order or a "cautionary" edict. Id. Nothing of ___
the sort occurred here.4
Second, we are unconvinced that the circumstances here--
at least as developed on the present record--were as yet so
"extreme" as to warrant such a measure. Castro, 775 F.2d at ______
408. Plaintiffs contend that, contrary to the court's
finding, only eight of their eleven lawsuits were directed
against the IRS or its agents. While they have offered no
support therefor, an independent review confirms this
contention.5 Of these, the court indicated in its written
____________________
4. While the scheduling notice regarding the hearing is not
in the record, there is no indication from the docket sheet
that it contained any reference to proposed filing
restrictions. We also note that plaintiffs were not afforded
an opportunity to respond following imposition of the court's
oral order, nor were they invited to file an opposition
thereto prior to entry of the written order.
5. We can say with certainty that two of the listed cases,
Tempelman v. United States, No. 91-208, and Tempelman v. _________ ______________ _________
Philbrick, No. 92-409, did not involve the IRS, inasmuch as _________
each was the subject of a recent appeal. (The former
involved the Postal Service; the latter involved a town
moderator.) And a review of the docket sheet reveals that a
third such action, Tempelman v. Hebbel, No. 93-110, involved _________ ______
a private defendant.
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order that two others involved a "rehash" of the issues
involved in the instant complaint; the nature of the other
cases is undisclosed (as is the disposition thereof, although
it appears safe to conclude that each was unsuccessful). It
is thus unclear to what extent plaintiffs have exhibited a
"propensity to file repeated suits against [the IRS or its
agents] involving the same or similar claims." Id. at 409. ___
Compare, e.g., Cok, 985 F.2d at 35, 36 (suggesting that more _______ ____ ___
narrowly drawn ban on further attempts to remove proceedings
from Family Court divorce case would have been approved);
Castro, 775 F.2d at 409-10 (upholding ban on further ______
challenges to nonrenewal of appellants' appointment); see ___
Pavilonis v. King, 626 F.2d 1075, 1079 (1st Cir.) (observing _________ ____
that "litigiousness alone will not support an injunction"),
cert. denied, 449 U.S. 829 (1980). ____________
In turn, it is worth noting that the issue underlying
the instant action--the propriety of defendant's calculation
of plaintiffs' tax liability--was resolved in plaintiffs'
favor in tax court, and that their First Amendment Bivens ______
claim, while ultimately unavailing, would seem to rise above
the frivolous (albeit narrowly). At least a portion of
plaintiffs' litigation efforts, in other words, has contained
a glimmer of merit. We also observe that less severe
measures such as the imposition of monetary sanctions--which
we uphold in the instant case as an appropriate penalty for
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plaintiffs' aspersions against the court--might well suffice
to forestall future actions of a frivolous and vexatious
nature. Cf. Cok, 985 F.2d at 36 (cautioning that injunction ___ ___
restricting court access across the board should be issued
"only when abuse is so continuous and widespread as to
suggest no reasonable alternative").
Finally, several aspects of the injunction as drafted
give us pause. The restriction on state court filings is
problematic, inasmuch as "[a]buse of state judicial processes
is not per se a threat to the jurisdiction of Article III ______
courts." In re Martin-Trigona, 737 F.2d 1254, 1263 (2d Cir. ____________________
1984) (vacating extension of injunction to state courts);
accord, e.g., Anderson v. Mackall, 128 F.R.D. 223, 226 (E.D. ______ ____ ________ _______
Va. 1988). We understand that plaintiffs' propensity to sue
in state court, combined with the automatic right of removal
available to the United States and its employees, provided
the impetus for such a measure. Yet as other courts have
indicated, a narrower restriction ordinarily should suffice.
See, e.g., Sassower v. Abrams, 833 F. Supp. 253, 271, 274 ___ ____ ________ ______
(S.D.N.Y. 1993) (issuing injunction directing that, upon
removal to federal court of any case brought by plaintiff,
leave of court would be required before action could
continue). We also observe that no guidelines have been
provided explaining what plaintiffs must do to obtain
permission to file, see, e.g., Werner v. State of Utah, 32 ___ ____ ______ ______________
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F.3d 1446, 1448 (10th Cir. 1994)--a matter worthy of note
here given the broad category of actions embraced by the
injunction.
It is important to emphasize that, in the face of
plaintiffs' spurious accusations and rancorous tone, the
district court's evident exasperation was fully explicable;
indeed, the care it devoted to a case bordering on the
frivolous is commendable. Nonetheless, in light of the
foregoing factors, we think it appropriate to await another
day before taking the exceptional step of enjoining further
lawsuits.
The dismissal of plaintiffs' complaint is affirmed, as ________
is the imposition of monetary sanctions. The injunction
barring further court filings is vacated. _______
So ordered. __________
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Document Info
Docket Number： 93-2337
Filed Date： 12/21/1994
Precedential Status： Precedential
Modified Date： 9/21/2015