UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
James Harper
v. Civil No. 20-cv-771-JD Opinion No. 2021 DNH 056 Charles P. Rettig, in his official capacity as Commissioner of the Internal Revenue Service, et al.
O R D E R
James Harper brought this civil rights suit against
Commissioner Charles Rettig, the IRS, and various unknown
officers of the IRS (John Does 1 through 10) (collectively, "the
government"). Harper alleges that the government violated the
Fourth Amendment, Fifth Amendment, and 26 U.S.C. § 7609(f) by
obtaining records of his financial transactions from third
parties. The government moves to dismiss (doc. no. 12) Harper's
suit for lack of jurisdiction under Federal Rule of Civil
Procedure 12(b)(1) and for failure to state a claim upon which
relief can be granted under Federal Rule of Civil Procedure
12(b)(6). Harper objects.
Standard of Review
When resolving a challenge to the court's subject-matter
jurisdiction under Rule 12(b)(1) or determining whether a claim upon which relief can be granted has been stated under Rule
12(b)(6), the court construes the allegations in the complaint
liberally, treats all well-pleaded facts as true, and resolves
inferences in the plaintiff's favor. Jalbert v. U.S. Securities
& Exchange Comm’n, 945 F.3d 587, 590-91 (1st Cir. 2019); Hamann
v. Carpenter, 937 F.3d 86, 88 (1st Cir. 2019). The court,
however, disregards conclusory allegations that simply parrot
the applicable legal standard. Manning v. Boston Med. Ctr.
Corp., 725 F.3d 34, 43 (1st Cir. 2013).
When addressing subject-matter jurisdiction, in addition to
the complaint, the court may consider other evidence submitted
by the parties without objection. Hajdusek v. United States,
895 F.3d 146, 148 (1st Cir. 2018). The plaintiff, as the party
invoking federal jurisdiction, bears the burden of showing that
subject matter jurisdiction exists when challenged. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992).
Background
In 2013, Harper opened an account with "Coinbase," an
entity that "facilitates transactions in virtual currencies such
as bitcoin." Doc. 3 ¶ 18. Coinbase provided terms of agreement
alongside its account, stating, in relevant part, that "Coinbase
takes reasonable precautions, as described herein, to protect
2 your personal information from loss, misuse, unauthorized
access, disclosure, alteration, and destruction." Id. ¶ 25.
In 2013 and 2014, Harper deposited bitcoin into his
Coinbase account. Harper primarily received the bitcoin as
income from consulting work. Harper alleges that he declared
the transactions on his 2013 and 2014 tax returns and states
that he declared all "appropriate income from bitcoin payments,"
including capital gains tax. Id. ¶¶ 30-33. Harper states that
he also paid "appropriate capital gains on any bitcoin income
for tax years 2015 and 2016." Id. ¶ 37. In 2015, Harper
liquidated his holdings in the Coinbase account and by 2016
Harper no longer held any bitcoin in the Coinbase account.
Harper also held bitcoin in accounts with "Abra" and "Uphold".
Harper and his wife liquidated those accounts from 2016 through
the date of the Amended Complaint (August 2020).
In 2016, the IRS sought to enforce an ex parte third-party
"John Doe" administrative summons under 26 U.S.C. §§ 7602,1
1 Section 7602 generally authorizes the IRS to issue administrative summonses "[f]or the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability . . . ."
3 7609(f),2 and 7609(h)(2) against Coinbase in the Northern
District of California. Coinbase opposed enforcement of the
summons. Ultimately, the court ordered Coinbase to comply with
a narrowed version of the summons. United States v. Coinbase,
Inc., 2017 WL 5890052, at *1 (N.D. Cal. Nov. 28, 2017) (finding
that the narrowed IRS summons "serves the IRS's legitimate
2 Section 7609(f) details special prerequisites the IRS must satisfy before enforcing an ex parte "John Doe" third-party summons. It says:
Any summons described in subsection (c)(1) which does not identify the person with respect to whose liability the summons is issued may be served only after a court proceeding in which the Secretary establishes that—
(1) the summons relates to the investigation of a particular person or ascertainable group or class of persons,
(2) there is a reasonable basis for believing that such person or group or class of persons may fail or may have failed to comply with any provision of any internal revenue law, and
(3) the information sought to be obtained from the examination of the records or testimony (and the identity of the person or persons with respect to whose liability the summons is issued) is not readily available from other sources.
The Secretary shall not issue any summons described in the preceding sentence unless the information sought to be obtained is narrowly tailored to information that pertains to the failure (or potential failure) of the person or group or class of persons referred to in paragraph (2) to comply with one or more provisions of the internal revenue law which have been identified for purposes of such paragraph.
4 purpose of investigating Coinbase account holders who may not
have paid federal taxes on their virtual currency profits").
In 2019, the IRS sent Harper a letter entitled "Reporting
Virtual Currency Transactions." Doc. 3 ¶ 67; see also doc. 3-6
at 1. As relevant, the IRS's letter told Harper the following:
We have information that you have or had one or more accounts containing virtual currency but may not have properly reported your transactions involving virtual currency, which include cryptocurrency and non-crypto virtual currencies.
Doc. 3 ¶ 68; see also doc. 3-6 at 1. The IRS stated that if
Harper had failed to properly report his "virtual currency
transactions" then he "may be subject to future civil and
criminal enforcement activity." Doc. 3 ¶ 69; see also doc. 3-6
at 1. Additionally, upon Harper's "information and belief,"
John Does 1 through 10 "issued an informal demand" to Abra and
Coinbase for Harper's financial records. Harper believes that
Abra or Coinbase complied with that demand.
Harper's Amended Complaint contains three counts: (I)
violation of the Fourth Amendment; (II) violation of the Fifth
Amendment; and (III) declaratory judgment/violation of 26 U.S.C.
§ 7609(f). As relief for the alleged violations of law stated
in Counts I and II, Harper requests money damages from the
defendants, as well as injunctive and declaratory relief.
Specifically, Harper requests an order declaring § 7602, et
5 seq., unconstitutional as applied to him under the Fourth and
Fifth Amendments, requiring the IRS to expunge Harper's
financial records, and prohibiting the IRS and John Does 1
through 10 from seizing financial records from "virtual currency
exchanges" under § 7602, et seq., in the future.
In Count III, Harper requests a declaratory judgment that
the IRS is violating § 7609(f) and, like Counts I and II,
requiring the IRS to expunge his financial records and
prohibiting the IRS and John Does 1 through 10 from seizing
similar financial records through § 7609(f) in the future.
Commissioner Rettig is sued in his official capacity, while John
Does 1 through 10 are sued in their personal capacities.
Discussion
The government moves to dismiss Harper's suit for lack of
jurisdiction and for failure to state a claim upon which relief
can be granted. Harper objects to dismissal. The government
filed a reply.
A. Jurisdiction (Sovereign Immunity)
The government argues that, while Harper's suit is
nominally against Commissioner Rettig and unidentified "John
Doe" IRS officers, the suit is, in function, a suit against the
6 United States, so that the United States's sovereign immunity
bars the suit. Harper does not contest that his claims against
the IRS and Commissioner Rettig are functionally against the
United States, but he argues that the Administrative Procedure
Act ("APA") waives sovereign immunity to the extent he requests
declaratory or injunctive relief. Harper also suggests that
Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971), provides an exception to the
United States's sovereign immunity for claims for money damages.
In its reply, the government argues that the APA does not waive
the United States's sovereign immunity because, 1) another
statute – the Anti-Injunction Act, 26 U.S.C. § 7421 – precludes
judicial review; 2) the APA does not waive sovereign immunity if
another statute that grants consent to suit expressly or
implicitly forbids the relief sought; and 3) the agency action
complained of by Harper has another adequate court remedy.
"It is elementary that the United States, as sovereign, is
immune from suit save as it consents to be sued, and the terms
of its consent to be sued in any court define that court's
jurisdiction to entertain the suit." United States v. Mitchell,
445 U.S. 535, 538 (1980) (alterations and quotation marks
omitted). The burden is on Harper to establish that a waiver of
7 sovereign immunity is applicable here. In re Rivera Torres, 432
F.3d 20, 23 (1st Cir. 2005).
1. Counts I and II (Relief in Form of Money Damages)
In Counts I and II, in part, Harper appears to request
money damages from the IRS and Commissioner Rettig, who was sued
only in his official capacity. Contrary to Harper's apparent
contention in his objection to the motion to dismiss, Bivens
does not provide an exception to sovereign immunity for suits
against the United States or official-capacity defendants for
money damages. Tapia-Tapia v. Potter, 322 F.3d 742, 746 (1st
Cir. 2003) ("[T]he government's sovereign immunity does not
vanish simply because government officials may be personally
liable for unconstitutional acts."). Harper asserts no other
basis for his argument that the United States has waived its
sovereign immunity for his claims for money damages brought
against the IRS or Commissioner Rettig. Therefore, Counts I and
II are dismissed to the extent Harper seeks money damages from
the IRS or Commissioner Rettig. See id.
2. Count I, II, and III (Relief in Form of Injunctions & Declaratory Judgments)
Harper also requests that the court declare § 7602, et
seq., unconstitutional as applied to him and order Commissioner
8 Rettig, the IRS, and John Does 1 through 10 to expunge any
financial records they obtained about Harper's cryptocurrency
transactions via § 7602, et seq., and enjoin John Does 1 through
10 from violating the Fourth Amendment, Fifth Amendment, and
§ 7609(f) in the future. In its motion to dismiss, the
government contends that these requests for relief are barred by
the United States's sovereign immunity and the Anti-Injunction
Act. Harper objects, arguing that the APA waives the United
States's sovereign immunity and that the Anti-Injunction Act
does not prohibit the injunctive and declaratory relief he seeks
in this case.
"The APA generally waives the Federal Government's immunity
from a suit 'seeking relief other than money damages and stating
a claim that an agency or an officer or employee thereof acted
or failed to act in an official capacity or under color of legal
authority.'" Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians v. Patchak, 567 U.S. 209, 215 (2012) (quoting 5 U.S.C.
§ 702). That waiver, however, contains two exceptions: (1) if
another limitation on judicial review requires the court to deny
relief; or (2) "if any other statute that grants consent to suit
expressly or impliedly forbids the relief" sought by the
plaintiff. 5 U.S.C. § 702.
9 The Anti-Injunction Act provides such a limitation on
judicial review, as it states, in relevant part, that "no suit
for the purpose of restraining the assessment or collection of
any tax shall be maintained in any court by any person[.]" 26
U.S.C. § 7421(a);3 see also Nat'l Fed'n of Indep. Bus. v.
Sebelius, 567 U.S. 519, 543 (2012) ("This statute protects the
Government's ability to collect a consistent stream of revenue,
by barring litigation to enjoin or otherwise obstruct the
collection of taxes. Because of the Anti–Injunction Act, taxes
can ordinarily be challenged only after they are paid, by suing
for a refund."); Fostvedt v. United States, 978 F.2d 1201, 1203-
04 (10th Cir. 1992) ("Contrary to Petitioner's assertions, § 702
of the APA does not override the limitations of the Anti–
Injunction Act and the Declaratory Judgment Act."). If a claim
"called in question a specific provision of the Internal Revenue
Code, or to a ruling or regulation issued under the Code, the
claim would clearly come under the general bars to jurisdiction
and declaratory relief . . . ." McCarthy v. Marshall, 723 F.2d
3 Harper does not argue that any of the enumerated statutory exceptions to the Anti-Injunction Act apply here. See 26 U.S.C. § 7421(a) (stating that the act applies "[e]xcept as provided in sections 6015(e), 6212(a) and (c), 6213(a), 6232(c), 6330(e)(1), 6331(i), 6672(c), 6694(c), 7426(a) and (b)(1), 7429(b), and 7436"). Rather, he contends that the Anti-Injunction Act does not apply considering the circumstances of his claims.
10 1034, 1037 (1st Cir. 1983). "Conversely, if jurisdiction were
otherwise established and the controversy concerned essentially
nontax matters, there would be no question of dismissing the
case merely because a decision on the merits might have some
collateral tax repercussions." Id.
The Anti-Injunction Act applies to Harper's claims for
declaratory and injunctive relief because they implicate
provisions of the Internal Revenue Code and would restrain the
assessment or collection of a tax. See id. Although Harper's
suit ostensibly challenges the validity of nontax activity – the
IRS's enforcement of a John Doe third-party summons – the effect
of Harper's requested declaratory and injunctive relief would be
to prevent the IRS from assessing Harper's or others' taxes
using the information it has obtained through the John Doe
third-party process. Consequently, his suit, to the extent it
seeks injunctive and declaratory relief, is barred by the Anti-
Injunction Act. See Bob Jones Univ. v. Simon, 416 U.S. 725, 738
(1974) (rejecting argument that suit was not intended to
restrain the assessment or collection of any tax because the
"complaint and supporting documents" revealed the plaintiff's
concern about how the challenged IRS action would affect its
future federal tax liability); Gulden v. United States, 287 F.
Appx. 813, 816 (11th Cir. 2008) ("[T]he Anti–Injunction Act bars
11 not only suits that directly seek to restrain the assessment or
collection of taxes, but also suits that seek to restrain IRS
activities 'which are intended to or may culminate in the
assessment or collection of taxes.'"); Dickens v. United States,
671 F.2d 969, 971 (6th Cir. 1982) ("A suit designed to prohibit
the use of information to calculate an assessment is a suit
designed 'for the purpose of restraining' an assessment under
the [Anti-Injunction Act]."). Therefore, the Anti-Injunction
Act bars consideration of Harper's claims for injunctive and
declaratory relief. See McCarthy, 723 F.2d at 1037; Breton v.
I.R.S., 2013 WL 1788536, at *2 (D.N.H. Apr. 10, 2013) (finding
that Anti-Injunction Act prohibited court from enjoining
administrative tax levy when plaintiff argued the levy violated
the Fourth and Fifth Amendments); see also Fostvedt, 978 F.2d at
1203-04 ("Although disguised as a procedural challenge, the
essence of Petitioner's action is an attempt to delay and/or
prevent the IRS from assessing and collecting the income tax . .
. . Actions in the nature of Petitioner's suit are prohibited
by the Anti–Injunction Act . . . .").4
4The federal declaratory judgment statute, 28 U.S.C. § 2201(a), includes a similar carve out for declaratory judgments "with respect to Federal taxes." Similar to the Anti- Injunction Act, that exception prevents Count III of Harper's complaint, which requests a declaratory judgment "with respect to Federal taxes," from moving forward. See 28 U.S.C. § 2201(a); Thompson/Center Arms Co. v. Baker, 686 F. Supp. 38,
12 In an attempt to evade that conclusion, Harper argues that,
because he alleged in the Amended Complaint that he has paid all
taxes that were due, his request for injunctive relief expunging
his financial records is not an attempt to preemptively stop
assessment or collection of his taxes and therefore does not
fall within the Anti-Injunction Act's scope. Harper, however,
also alleged in his Amended Complaint that the IRS sent him a
letter informing him that it had information – information that
Harper wants the court to direct the IRS to expunge – that he
may have additional tax liability. Therefore, Harper's
allegation that he paid all taxes that were due is an
unsupported conclusory statement and not well pled. See A.G. ex
rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013)
(observing that a conclusory statement "presented as an ipse
dixit" and "unadorned by any factual assertions that might lend
it plausibility" need not be taken as true at the motion to
dismiss stage).
Moreover, in enforcing the IRS's summons on Coinbase that
resulted in the IRS's acquisition of Harper's financial records,
the court found that "the IRS's purpose is related to tax
41 (D.N.H. 1988) ("[A] finding that the plaintiff's claim is barred by the Anti–Injunction Act necessitates a finding that the claim is similarly barred by the Declaratory Judgment Act.").
13 compliance, not research" and that the summons "serves the
legitimate investigative purpose of enforcing the tax laws
against those who profit from trading in virtual currency."
Coinbase, 2017 WL 5890052, at *6, *8. Therefore, Harper's
argument that his proposed injunction and declaratory judgment
are not aimed at restraining the assessment or collection of
taxes is incorrect. See McCarthy, 723 F.2d at 1037; Dickens,
671 F.2d at 971.
Harper also argues that, because he has no other remedy for
the IRS's constitutional or statutory violations, the Anti-
Injunction Act does not bar his suit even if it otherwise would
apply. See South Carolina v. Regan, 465 U.S. 367, 378 (1984)
("In sum, the [Anti-Injunction] Act's purpose and the
circumstances of its enactment indicate that Congress did not
intend the Act to apply to actions brought by aggrieved parties
for whom it has not provided an alternative remedy."). Harper,
however, had an alternative remedy to contest the third-party
summons at issue in this case: A taxpayer who is a target of a
John Doe third-party summons under § 7609(f) "may intervene and
challenge enforcement of the summons." United States v.
Ritchie, 15 F.3d 592, 597 (6th Cir. 1994); cf. United States v.
Coinbase, 2017 WL 3035164 (N.D. Cal. July 18, 2017) (pertaining
to the summons challenged by Harper in this case and granting
14 motion by John Doe to intervene as of right and permissively).
Furthermore, if the IRS determines that Harper does have
additional tax liability, additional processes are available to
challenge the IRS's actions. See 26 U.S.C. §§ 6213, 7422.
Therefore, Harper has failed to demonstrate that he lacks an
adequate remedy for the violations he claims in this suit.
Because Harper has not demonstrated the applicability of
any exception to the United States's sovereign immunity and
because the Anti-Injunction Act prohibits the court from
granting any of the injunctive and declaratory relief sought by
Harper in this suit, Counts I and II, to the extent Harper seeks
injunctive or declaratory relief against any defendant or money
damages from Commissioner Rettig or the IRS, are dismissed for
lack of jurisdiction. Count III of the Amended Complaint is
dismissed in its entirety for lack of jurisdiction.
B. Personal Capacity Claims / Bivens
Harper's remaining unaddressed claims are Counts I and II,
to the extent he seeks money damages from John Does 1 through 10
in their individual capacities. The government moves to dismiss
Harper's claims against the John Does in their individual
capacities on the ground that Harper seeks recognition of Bivens
claims in new contexts. The government contends that "the
15 existence of the Internal Revenue Code, and its comprehensive
scheme governing taxpayer remedies" is a special factor that
prohibits extending Bivens to the new context here, such that
Harper's claims do not state a claim upon which relief can be
granted. Doc. 12-1 at 17. Harper objects, contending that his
claims in Count I (Fourth Amendment violation) and Count II
(procedural due process violation) are not applications of
Bivens in a new context. Harper adds that, even if Counts I and
II do apply Bivens in a new context, Bivens should be extended
to this new context.
A claim seeking money damages from federal officers in
their individual capacities for alleged constitutional
violations is cognizable only if it fits within the existing
contexts in which the Supreme Court has applied Bivens or if
there are no special factors that counsel against extending
Bivens to a new context. Ziglar v. Abbasi, --- U.S. ---, 137 S.
Ct. 1843, 1857-59 (2017). A court examining a claim seeking a
damages remedy under Bivens must first determine whether the
claim applies Bivens in a new context. Id. at 1859. "If the
case is different in a meaningful way from previous Bivens cases
decided by [the Supreme Court], then the context is new." Id.
at 1859-60. "A case might differ in a meaningful way because of
the rank of the officers involved; the constitutional right at
16 issue; the generality or specificity of the official action; the
extent of judicial guidance as to how an officer should respond
to the problem or emergency to be confronted; the statutory or
other legal mandate under which the officer was operating; the
risk of disruptive intrusion by the Judiciary into the
functioning of other branches; or the presence of potential
special factors that previous Bivens cases did not consider."
Id. at 1859–60. Moreover, "[a] claim may arise in a new context
even if it is based on the same constitutional provision as a
claim in a case in which a damages remedy was previously
recognized." Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020).
If the claim is in a new context, the court must then
consider whether any "special factors counsel[] hesitation" in
extending Bivens "in the absence of affirmative action by
Congress." Abbasi, 137 S. Ct. at 1857. Only if there are no
such special factors may the court conclude that Bivens provides
a remedy for constitutional violations alleged by the plaintiff.
See id.
1. Applicability of Bivens to Count I (Fourth Amendment)
The government argues that Harper's Fourth Amendment claim
is dissimilar to Bivens. Harper responds that his claim in
Count I under the Fourth Amendment is not different in a
17 meaningful way from Bivens itself, which also involved a Fourth
Amendment claim.
Harper's claim here, however, applies Bivens in a "new
context." Harper's lawsuit is a broad challenge "largely aimed
at official IRS conduct and policy," while Bivens, in contrast,
was a narrowly-focused suit that challenged the acts of a few
individual officers. Doc. 14 at 6; Bivens, 403 U.S. at 389
("The agents manacled petitioner in front of his wife and
children, and threatened to arrest the entire family. They
searched the apartment from stem to stern. Thereafter,
petitioner was taken to the federal courthouse in Brooklyn,
where he was interrogated, booked, and subjected to a visual
strip search."). Additionally, the John Doe defendants here are
alleged to have violated the Fourth Amendment because they
obtained without a warrant Harper's electronically-stored
financial records from a third party that Harper believes was
contractually obligated to withhold those records. By contrast,
the Fourth Amendment claim in Bivens was based on federal
agents' unlawful entrance and ransacking of a home, their
threats to its occupants, and the strip search of the
petitioner. 403 U.S. at 389. These contextual differences are
sufficient to differentiate Harper's case from Bivens under
Abbasi. See Attkisson v. Holder, 925 F.3d 606, 621 (4th Cir.
18 2019) ("The plaintiffs’ Fourth Amendment Bivens claim . . .
differs meaningfully from the claim raised in Bivens in numerous
ways that are material under Abbasi . . . . [A] claim based on
unlawful electronic surveillance presents wildly different facts
and a vastly different statutory framework from a warrantless
search and arrest.").
The existence of the Internal Revenue Code, which contains
a statutory remedial scheme covering the alleged wrongful
conduct here, as well as the inherent ability of a taxpayer who
is a target of a John Doe third-party summons to intervene in an
enforcement proceeding, is a "special factor" that counsels
against extending Bivens into the new context. See, e.g.,
Harvey v. U.S. Postal Serv., 52 F.3d 309, at *1 (1st Cir. Apr.
25, 1995) (per curiam) (declining to extend Bivens because a
"comprehensive scheme" provides an "exclusive remedy" for
wrongful personnel practices by the federal government);
McMillen v. U.S. Dep't of Treasury, 960 F.2d 187, 190-91 (1st
Cir. 1991) (per curiam) (observing that while the Internal
Revenue Code is not "perfectly comprehensive," Congress has
determined that it provides "adequate remedial mechanisms for
constitutional violations that may occur in the" enforcement of
tax laws). For those reasons alone, the court declines to find
that Bivens extends to the new context asserted by Harper here.
19 Additionally, Harper's suit, as discussed above, implicates
the federal government's power to assess and collect taxes.
That is also a "special factor" that counsels against extending
the Bivens remedy to this context. Cf. Cameron v. I.R.S., 773
F.2d 126, 129 (7th Cir. 1985) ("Congress has given taxpayers all
sorts of rights against an overzealous officialdom, including,
most fundamentally, the right to sue the government for a refund
if forced to overpay taxes, and it would make the collection of
taxes chaotic if a taxpayer could bypass the remedies provided
by Congress simply by bringing a damage[s] action against
Treasury employees. It is hard enough to collect taxes as it
is; additional obstructions are not needed."). As discussed
above, Congress specifically exempted suits that implicate its
taxing power from the Declaratory Judgment Act and, through the
Anti-Injunction Act, affirmatively prohibited injunctions that
restrain that power. Considering Congress's limitations on
injunctive and declaratory relief in tax suits like the one
brought by Harper, as well as the statutory remedial scheme that
includes processes to challenge the conduct complained of by
Harper in this suit, the court declines to imply a money damages
remedy under Bivens.
20 For the foregoing reasons, the court dismisses Count I to
the extent Harper seeks money damages from the John Doe
defendants named in their individual capacities.
2. Applicability of Bivens to Count II (Procedural Due Process)
As with Count I, the government argues that Count II, which
raises a claim for violation of Harper's due process rights
under the Fifth Amendment, extends Bivens to a new context and
that special factors counsel against expansion. Harper responds
that, in Davis v. Passman, 442 U.S. 228 (1979), the Supreme
Court recognized a Bivens remedy for Fifth Amendment violations
such that his Fifth Amendment claim in Count II does not apply
Bivens in a new context.
The circumstances of Harper's Fifth Amendment procedural
due process claim are distinguishable from the Fifth Amendment
claim in Davis. In Davis, "the Court held that the Due Process
Clause of the Fifth Amendment permitted a damages action where a
staffer sued a Member of Congress for cashiering her because of
her gender." Gonzalez v. Velez, 864 F.3d 45, 53 (1st Cir.
2017). By contrast, here, Harper asserts that unidentified
government agents deprived him of a property right that he held
in his financial records or the privacy thereof by seizing those
records without providing him sufficient notice and an
21 opportunity to challenge the seizure. The equal-protection type
claim made in Davis was unlike the procedural due process claim
made by Harper here. See Air Sunshine, Inc. v. Carl, 663 F.3d
27, 33-34 (1st Cir. 2011) ("While the Supreme Court has extended
Bivens to the Due Process Clause, it has only done so in the
context of '[t]he equal protection component' of that clause.")
(quoting Davis, 442 U.S. at 235). Therefore, Davis does not
suffice to bring Harper's claim within an existing context in
which a Bivens action has been recognized.5
For the same reasons as discussed above as to Count I, the
court finds that special factors counsel against extending the
Bivens remedy. Specifically, the existence of a remedial scheme
under the Internal Revenue Code for violations of the law and
Congress's hesitancy to allow injunctions or declaratory
judgments that would interfere with the collection of taxes
counsel against implying a money damages remedy under the same
circumstances. Therefore, the court dismisses Count II of
5 Harper also cites Abdelfattah v. U.S. Dep't of Homeland Sec., 787 F.3d 524, 533-34 (D.C. Cir. 2015), in support of his argument his claim does not extend Bivens into a new context. Abdelfattah is not relevant to this issue, however, because it rejected the plaintiff's damages claim under Bivens, while allowing a claim for a declaratory relief requiring the Department of Homeland Security to expunge certain information it had collected. See id. The court addressed Harper's claims for declaratory and injunctive relief above in Part A.
22 Harper's complaint to the extent it raises a claim for money
damages against the John Doe defendants named in their
individual capacities.
Conclusion
For the foregoing reasons, the government's motion to
dismiss (doc. no. 12) is granted. Counts I and II, to the
extent injunctive or declaratory relief is sought from any
defendant or money damages are sought from Commissioner Rettig
and the IRS, are dismissed for lack of jurisdiction. Counts I
and II, to the extent money damages are sought from John Does 1
through 10, are dismissed for failure to state a claim upon
which relief can be granted. Count III is dismissed for lack of
jurisdiction.
Because all claims in this case have been dismissed, the
Clerk of Court is directed to close the case.
SO ORDERED.
_______________________ Joseph A. DiClerico, Jr. United States District Judge
March 23, 2021
cc: Counsel of Record