Gonsalves v. IRS

• Court: Court of Appeals for the First Circuit
• Decided: February 26, 1993
• Docket: 92-1723
• Status: Published

Opinion

USCA1 Opinion

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                                [NOT FOR PUBLICATION]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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