Lopez v. United States , 21 F. App'x 879 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 15 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ANDREW LEO LOPEZ, doing
business as ANDREW LEO LOPEZ,
CPA,
Plaintiff-Appellant,
v. No. 01-2090
(D.C. No. CIV-97-1303 BB/KBM)
UNITED STATES OF AMERICA; (D.N.M.)
TREASURY DEPARTMENT;
INTERNAL REVENUE SERVICE;
COMMISSIONER OF INTERNAL
REVENUE; JOELLA APODACA;
PATRICIA ANDREWS; JAMES E.
DUMERER; SAM CHAVEZ; DEBRA
CORONA; MARY ENGDAHL;
SANDY HAYES; REBA JOHNSON;
PATRICIA MILLER; LOU NEZ;
RICHARD A. SCULLY; LESLIE S.
SHAPIRO; SCOTT ROSENZWEIG;
LUCY TELLEZ; MATILDA
WALLING, individually and in their
official capacities; ROBERT M.
RUBIN; STEPHEN M. WALKER,
individually and as partner in Rogoff,
Diamond and Walker a New Mexico
Partnership; ROGOFF, DIAMOND
AND WALKER, a New Mexico
Partnership; AMERICAN INSTITUTE
OF CERTIFIED PUBLIC
ACCOUNTANTS,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY , BALDOCK , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff Andrew Leo Lopez, a Certified Public Accountant proceeding
pro se, appeals from orders of the district court denying him relief in his two
consolidated cases. The first case was an appeal of an administrative decision by
the Treasury Department to disbar him from practicing before the Internal
Revenue Service (IRS). In the second case, plaintiff sought damages, injunctive
relief and declaratory relief based on the disbarment proceedings. The district
court affirmed the agency’s disbarment decision. In the civil suit, it dismissed the
claims against some defendants and entered summary judgment in favor of the
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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remaining defendants. We exercise jurisdiction under 28 U.S.C. § 1291 and
affirm.
I. The Administrative Appeal
The Treasury Department’s administrative decision to disbar plaintiff from
practicing before the IRS was based on three instances of “disreputable conduct,”
as defined in 31 C.F.R. § 10.51. Plaintiff challenges the administrative decision
on the following grounds: (1) the Administrative Law Judge (ALJ) applied the
wrong standard of proof; (2) plaintiff was denied due process, including
discovery; (3) the instances of disreputable conduct were not supported by
substantial evidence; (4) the ALJ erred in refusing to impose sanctions against the
attorneys prosecuting the administrative action; and (5) the ALJ was biased
against plaintiff, thereby entitling him to a new administrative hearing before a
different ALJ. He further complains that there was neither subject-matter
jurisdiction nor personal jurisdiction in the administrative proceeding.
Because plaintiff is representing himself on appeal, his pleadings will be
liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972). Our review of
the Treasury Department’s administrative decision is governed by the
Administrative Procedure Act, 5 U.S.C. §§ 701-706. We examine the agency’s
action to determine whether it was arbitrary and capricious or an abuse of
discretion. Wyo. Farm Bureau Fed’n v. Babbitt , 199 F.3d 1224, 1231 (10th Cir.
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2000). We will affirm the agency’s factual findings if they are supported by
substantial evidence. Custer County Action Ass’n v. Garvey , 256 F.3d 1024,
1030 (10th Cir. 2001). We review de novo the legal issues and constitutional
claims. Id.We have carefully reviewed the administrative record and we have
considered the arguments and authorities presented by the parties. Applying the
standards set out above for review of an administrative decision, we affirm the
Treasury Department’s decision for substantially the same reasons stated by the
district court in its October 31, 2000 memorandum opinion.
The district court’s memorandum opinion does not address plaintiff’s
challenge to the agency’s jurisdiction or his claim that the ALJ should have
sanctioned the prosecuting attorneys. Plaintiff has not presented any argument or
authorities to support his jurisdictional challenge; therefore, we do not address it.
See Phillips v. Calhoun , 956 F.2d 949, 953-54 (10th Cir. 1992) (party must
support argument with legal authority). We also do not address his sanctions
claim because he has not shown where in the record the issue was presented to the
district court. See Chambers v. Family Health Plan Corp. , 100 F.3d 818, 822
(10th Cir. 1996) (court of appeals generally does not consider arguments not
presented to district court); Gross v. Burggraf Constr. Co. , 53 F.3d 1531, 1546
(10th Cir. 1995) (appellate court will not search record to find evidence to
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support arguments); see also Ogden v. San Juan County , 32 F.3d 452, 455 (10th
Cir. 1994) (plaintiff’s pro se status does not excuse his obligation to fulfill the
“fundamental requirements of the Federal Rules of Civil and Appellate
Procedure”) (citation omitted).
II. The Civil Lawsuit
Plaintiff sued several private and governmental parties for various
constitutional torts based on the defendants’ actions in the administrative
disbarment proceeding. The district court (1) granted absolute immunity to the
ALJ, the agency prosecutors and the IRS Director of Practice; (2) granted the
motion to dismiss filed by defendant American Institute of Certified Public
Accountants (AICPA); (3) granted summary judgment to defendants Stephen M.
Walker and Rogoff, Diamond and Walker (the Walker defendants); (4) dismissed
the claims against the Treasury Department and the IRS because they are not
entities against which suit may be brought; (4) dismissed the claims against
Secretary Rubin and the IRS Commissioner; and (5) granted summary judgment to
the remaining defendants. Thereafter, the district court entered a judgment that
included dismissal of plaintiff’s civil case.
On appeal, plaintiff challenges the ruling that the ALJ and others involved
in prosecuting the administrative action are immune from suit. He further claims
that the district court erred in resolving his other claims against him. He asserts
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that genuine issues of material fact preclude summary judgment. He requests that
his case be remanded to be heard by a different district court judge.
We review de novo the district court’s grant of summary judgment, viewing
the record in the light most favorable to the party opposing summary judgment.
McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998).
Summary judgment is appropriate if there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c). Our review of an order
of dismissal for failure to state a claim also is de novo. See Witt v. Roadway
Express, 136 F.3d 1424, 1431 (10th Cir. 1998).
Plaintiff is correct that genuine issues of material fact will preclude entry
of summary judgment. Although he has alleged that disputed material facts exist,
he has not identified any. Rather, the matters he characterizes as factual issues
are issues of law, on which the district court ruled against him. Moreover, vague
references to the existence of disputed facts, without identifying the factual
matters in dispute are insufficient. See Kidd v. Taos Ski Valley, Inc., 88 F.3d
848, 853 (10th Cir. 1996) (conclusory allegations not supported by evidence are
insufficient to resist summary judgment). Accordingly, plaintiff has not identified
any disputed material facts that would preclude summary judgment.
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Plaintiff’s claims against the ALJ, the IRS Director of Practice, and the
agency prosecutors were based on their official acts in the agency disbarment
proceeding. The record reflects that at a hearing the district court granted them
absolute immunity. Because these parties are entitled to absolute immunity, they
were properly dismissed from the case. See Butz v. Economou, 438 U.S. 478,
512-17 (1978).
The Walker defendants were granted summary judgment on their arguments
that plaintiff’s claims were time-barred and the statements were absolutely
privileged. Plaintiff advanced claims against these defendants for defamation,
malicious abuse of process and conspiracy to commit malicious abuse of process,
based on testimony given in February of 1994 by defendant Stephen M. Walker
pertaining to the administrative proceeding . Plaintiff’s complaint was filed in
October of 1997. The district court fully addressed the statute-of-limitations
defense in relation to defamation claims against several federal defendants in its
October 31, 2000 memorandum opinion. Also in that memorandum opinion, the
district court addressed plaintiff’s constitutional malicious process claims as they
related to several federal defendants. Applying the standards set out above, we
affirm the summary judgment granted to the Walker defendants for substantially
the same reasons stated in the memorandum opinion for granting summary
judgment to the federal defendants on similar claims.
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Plaintiff’s claims against the AICPA were based on vicarious liability for
the statements of defendant Walker. They were dismissed for failure to state
a claim upon which relief can be granted. Plaintiff offers no authority for his
position that the AICPA, a national professional organization of CPAs, is
vicariously liable for Mr. Walker’s statements. Accordingly, dismissal was
proper.
Plaintiff’s claims against the remaining defendants were disposed of in the
thorough and comprehensive memorandum opinion referenced above. We have
carefully reviewed the record on appeal, as well as the briefs submitted by the
parties. Applying the standards set out above, we affirm the district court’s
disposition of these claims for substantially the same reasons stated in the
October 31, 2000 memorandum opinion.
Finally, plaintiff requests a remand to a different district court judge.
Because we affirm the district court’s judgment, there will be no remand.
Even so, “conclusions, rumors, beliefs, and opinions are not sufficient to form a
basis for disqualification.” Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir.
1987).
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The judgment of the United States District Court for the District of
New Mexico is AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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