Gonsalves v. IRS ( 1993 )

February 26, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1723
GILBERT T. GONSALVES,
Plaintiff, Appellant,
v.
INTERNAL REVENUE SERVICE, ET AL,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Breyer, Chief Judge,
Torruella and Cyr, Circuit Judges.
Gilbert T. Gonsalves on brief pro se.
James A. Bruton, Acting Assistant Attorney General, Gary R.
Allen, Richard Farber, Curtis C. Pett, Attorneys Tax Division,
Department of Justice, and Richard S. Cohen, United States
Attorney, on brief for appellees.
Per Curiam. Between 1979 and 1985 the appellant,
Gilbert Gonsalves, worked in the Panama Canal Zone for the
Panama Canal Commission. He believed that the Panama Canal
Treaty gave an exemption from United States income taxes to
American employees of the Commission. In 1986, the United
States Supreme Court decided that the treaty had not created
such an exemption. O'Connor v. United States, 479 U.S. 27(1986).
By the time the Supreme Court answered the underlying
question, however, Mr. Gonsalves and the IRS were locked in a
quarrel over the extent of Mr. Gonsalves' tax liability. The
IRS had received some tax payments, but said that Mr.
Gonsalves still owed money to the government; Mr. Gonsalves
said that he had overpaid. The IRS made at least one
assessment, for tax year 1981, and in March 1988 it collected
some of the amount assessed by levying upon a bank account
that belonged to Mr. Gonsalves. See generally Gonsalves v.
Internal Revenue Service, 975 F.2d 13, 14 (1st Cir. 1992)
(per curiam).
Although the remedies were available to him, Mr.
Gonsalves neither challenged the IRS' calculation of a tax
deficiency by filing a petition for redetermination in the
Tax Court, nor attempted to recover the taxes paid by filing
a refund action in the district court. See 26 U.S.C.
6213, 7422. He has, however, twice sought to recover damages
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for transgressions that he says IRS officials committed
during the course of their dealings with him. Mr. Gonsalves
claims that IRS officials violated his rights in three ways:
(1) by denying him an administrative appeal despite his "many
verbal and written requests;" (2) by seizing the funds in his
bank account without giving him proper notice of their
intention to levy; and (3) by failing to respond to his
inquiries and settle his differences with the agency in a
"prompt and timely" manner.
Mr. Gonsalves first attempted to recover damages in a
suit he filed in 1991 in the United States District Court for
the District of Maine. The 1991 complaint named the Internal
Revenue Service as the only defendant, and asserted claims
under both the United States Constitution and the "Taxpayer
Bill of Rights." 26 U.S.C. 7433. The district court gave
judgment to the IRS, and we affirmed. 975 F.2d at 15-17.
In January 1992 Mr. Gonsalves filed the complaint before
us now. Although this complaint again names the IRS as a
defendant, it also names, and its true targets appear to be,
the district directors of the IRS offices in Andover,
Massachusetts, Augusta, Maine, and Philadelphia, Pennsylvania
(who are identified only by title), and Paul Chinouard, a
"problem resolution officer" at the IRS office in Portland,
Maine.
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The allegations in the 1992 complaint echo those made in
the 1991 complaint. However, Mr. Gonsalves now contends that
he is entitled to recover directly from the IRS officials who
violated his rights, pursuant to the doctrine first described
in Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). The district court ruled
that the defendants were entitled, at the very least, to
"qualified immunity," and dismissed the complaint. This
appeal followed. We affirm.
I
"Bivens actions lie only for violations of rights
secured by the Constitution." Bothke v. Fluor Engineers &
Constructors, Inc., 834 F.2d 804, 814 (9th Cir. 1987)
(Beezer, J., concurring). Mr. Gonsalves claims that the
defendants violated the Due Process Clause of the Fifth
Amendment, which says that the federal government cannot
deprive a person of life, liberty, or property "without due
process of law." The amended complaint did allege a
deprivation of property -- the seizure of money in Mr.
Gonsalves' bank account -- but the record contains no factual
basis from which one could infer that this deprivation
occurred without due process of law.
When the government takes a person's property, due
process requires that it give him notice and an opportunity
to be heard "at a meaningful time and in a meaningful
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manner." Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (quoting
Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Generally,
"at a meaningful time" means "notice and a hearing before
persons are separated from their property," Rodriguez v.
United States, 629 F.Supp. 333, 347 (N.D.Ill. 1986) (emphasis
added), although in some circumstances -- for example, when
the IRS perceives that its ability to collect taxes will be
jeopardized by delay -- a post-deprivation hearing may
adequately protect due process rights. See Phillips v.
Commissioner, 283 U.S. 589, 595-97 (1931); Rodriguez v.
United States, 629 F.Supp. at 348.
Except where the IRS makes such a "jeopardy" assessment,
the Internal Revenue Code requires that it give a taxpayer
notice before it takes his property, and provide the taxpayer
with a choice whether to be heard before or after the
deprivation. The procedure is as follows: once the IRS
determines that a taxpayer owes money to the government, it
must issue a notice of the deficiency, then wait 90 days
before attempting to collect the taxes due. 26 U.S.C.
6213(a). If the taxpayer wants a pre-deprivation hearing, he
can, during those 90 days, file a petition with the Tax Court
asking it to redetermine the deficiency, and the stay against
collection efforts will remain in effect while the petition
is pending. Id. Or the taxpayer can forego a Tax Court
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hearing, pay the tax, and seek a refund in a post-deprivation
action in the district court. 26 U.S.C. 7422.
The taxpayer may receive, and may even be entitled by
statute or regulation to receive, extra process, such as an
administrative appeal, a notice of levy, and prompt responses
to his inquiries. But, because his "due process rights are
adequately protected by the statutory scheme which allows him
to contest his tax liability in the Tax Court prior to paying
the disputed tax or to sue for a refund in federal district
court . . . ," Stonecipher v. Bray, 653 F.2d 398, 403 (9th
Cir. 1981) (citing Phillips v. Commissioner, 283 U.S. at
595), these additional procedures are not constitutionally
required. For example, once the taxpayer has either
resorted to or waived a Tax Court hearing, the IRS can, as it
did here, make a formal assessment and then levy upon the
taxpayer's property to satisfy the deficiency. See 26 U.S.C.
6203, 6331. However, before it can perform the levy, 26
U.S.C. 6331(d) requires the IRS to issue notice of its
intention to levy, and to deliver the notice to the taxpayer
personally, or to mail it to his last known address.
In this case, the district court that tried the claims
in the 1991 complaint found that the IRS had mailed the
notice to the wrong address. 975 F.2d at 15. The ensuing
levy therefore may have violated the statute. But, the
mistake did not deprive Mr. Gonsalves of an opportunity to
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file a petition in the Tax Court (an opportunity he had
already waived by the time of the levy), or to institute a
refund action in the district court (an opportunity that
remained available to him after the levy). It therefore did
not deny him due process of law. See Baddour, Inc. v. United
States, 802 F.2d 801, 807 (5th Cir. 1986); Zernial v. United
States, 714 F.2d 431, 435 (5th Cir. 1983); Rodriguez v.
United States, 629 F.Supp. at 347 (wrongful levy does not in
itself deny due process).
For the same reason, there is no constitutional
substance to Mr. Gonsalves' claims that the defendants (1)
refused to provide him with an administrative appeal, and (2)
ignored his inquiries and otherwise delayed the resolution of
his differences with the agency. Mr. Gonsalves may have had
a "right," created by the IRS' Statement of Procedural Rules,
to an informal administrative appeal. See 26 C.F.R.
601.106. But because the statutory mechanisms for
challenging agency actions in the courts offer due process to
taxpayers who face deprivations of property by the IRS, the
appeals procedure is not constitutionally necessary. See
Rosenberg v. Commissioner, 450 F.2d 529, 533 (10th Cir. 1971)
(provisions in Statement of Procedural Rules "not designed to
protect the constitutional rights of the taxpayer"). See
also United States v. Horne, 714 F.2d 206, 207 (1st Cir.
1983). The violation of a regulation which the Constitution
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does not require an agency to adopt does "not raise
constitutional questions." United States v. Caceres, 440
U.S. 741, 752 (1979).
Similarly, Mr. Gonsalves may have been entitled to
responses to his inquiries and cooperation with his efforts
to resolve his tax problems -- although he has not identified
the statute or regulation that confers such a right. But
again, notwithstanding the defendants' alleged inattention
and uncooperativeness, constitutionally-adequate process
remained available, in the form of a Tax Court petition or a
refund action, to ensure that the government kept no more
than its legal share of Mr. Gonsalves' income. The
underlying property interest did not go unprotected.
The defendants' alleged misbehavior, it is true, may
have deprived Mr. Gonsalves of the IRS' assistance in
vindicating that interest. However, such assistance is
itself neither a "liberty" nor a "property" interest whose
deprivation is capable of redress through a Bivens action.
See Francis-Sobel v. University of Maine, 597 F.2d 15, 18
(1st Cir. 1979). "In order to state a legally cognizable
constitutional claim, [Mr. Gonsalves needed to] allege more
than the deprivation of the expectation that the agency
[would] carry out its duties." Council of and for the Blind
v. Regan, 709 F.2d 1521, 1533-34 (D.C.Cir. 1983) (en banc)
(emphasis in original). See also Cameron v. Internal Revenue
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Service, 773 F.2d 126, 128-29 (7th Cir. 1985) (allegations
that IRS agents subjected taxpayer to unnecessary
inconvenience and failed to explore possibilities of
settlement did not describe denial of due process); American
Association of Commodity Traders v. Department of Treasury,
598 F.2d 1233, 1236 n.2 (1st Cir. 1979) ("not clear that
every loss of potential help from a bureaucrat is a loss of a
constitutional interest").
II
In his reply brief, Mr. Gonsalves cites Rutherford v.
United States, 702 F.2d 580 (5th Cir. 1983). Rutherford
suggested that a taxpayer may have, in addition to a
"property" interest in his tax dollars, a substantive
"liberty" interest in freedom from abuse and harassment by
IRS officials. See also Bothke v. Fluor Engineers &
Constructors, Inc., 834 F.2d 804, 811 (9th Cir. 1987).
However, the existence of such a liberty interest is, at
present, more a matter of conjecture than of settled
interpretation of the Due Process Clause. The Fifth Circuit
has made it clear that its decision in Rutherford "did not
hold that the alleged conduct violated a protected 'liberty'
interest." Morales v. Haynes, 890 F.2d 708, 710 (5th Cir.
1989). Rather, the Rutherford panel, cautioning that
"[i]mplication of nontextual substantive rights from the
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general monitions of the due process clause is a matter not
to be undertaken lightly," only remanded to the district
court with instructions to determine whether "the due process
clause actually does create in taxpayers a liberty interest
in freedom from abusive behavior [by IRS officials]."
Rutherford, 702 F.2d at 584. And, other courts have said
that the infliction of emotional injury by government
officials is a tort without constitutional dimensions. See,
e.g., Conner v. Sticher, 801 F.2d 1266, 1269 (11th Cir.
1986); Vasquez v. City of Hamtramck, 757 F.2d 771, 773 (6th
Cir. 1985) ("A citizen does not suffer a constitutional
deprivation every time he is subjected to the petty
harassment of a state agent"); Buikema v. Hayes, 562 F.Supp.
910, 911 (N.D.Ill. 1983); Taylor v. Nichols, 409 F.Supp. 927,
936 (D.Kan. 1976); Dear v. Rathje, 391 F.Supp. 1, 9 (N.D.Ill.
1975). See also Paul v. Davis, 424 U.S. 693, 710 (1976)
(interest in reputation neither liberty nor property
guaranteed against state deprivation without due process);
Gumz v. Morissette, 772 F.2d 1395, 1408 (7th Cir. 1985)
(Easterbrook, J., concurring) (interest in freedom from
gratuitous fright or shock not a liberty interest).
We need not decide here whether the Due Process Clause
guarantees freedom from abuse by IRS agents. Defendants to
Bivens actions enjoy the same "qualified immunity" that state
officials have in the context of civil rights actions brought
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under 42 U.S.C. 1983. Butz v. Economou, 438 U.S. 478, 504
(1978). This means that they "generally are shielded from
liability for civil damages insofar as their conduct does not
violate clearly established . . . constitutional rights of
which a reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). "The contours of the
right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right."
Anderson v. Creighton, 483 U.S. 635, 640 (1987).
In the absence of any cases expressly recognizing a
liberty interest in freedom from harassment by government
officials, we must conclude that the right has not been
"clearly established." Consequently, to the extent that the
complaint even raised an issue of substantive due process, we
agree with the district court that the defendants were
entitled to dismissal on grounds of qualified immunity.1
1. The complaint in Rutherford "sketche[d] a portrait of a
lawless and arbitrary vendetta fueled by the power of the
state, designed to harass by unwarranted intrusion into the
minutia of [the plaintiffs'] financial affairs, and intended
to abuse by the creation of palpably unfounded claims against
their property . . . ." 702 F.2d at 584. Mr. Gonsalves, on
the other hand, made no specific factual allegations of
abuse, but merely stated as conclusions that the IRS had used
"harassment and delays," and "threats without basis or
legitimate foundation" in its dealings with him. Even a pro
se plaintiff must plead some specific facts in support of his
claims of civil rights violations. Hurney v. Carver, 602
F.2d 993, 995 (1st Cir. 1979). We would, therefore, affirm
the dismissal even if the constitutional right asserted were
so "clearly established" as to preclude granting qualified
immunity.
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The judgment of the district court is affirmed.
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