Teague v. Alexander

662 F.2d 79, 213 U.S. App. D.C. 234

• Court: Court of Appeals for the D.C. Circuit
• Decided: August 24, 1981
• Docket: No. 79-2551
• Status: Published

Opinions

Opinion filed by Chief Judge MARKEY.

Separate concurring opinion filed by Circuit Judge McGOWAN.

Separate opinion concurring in the result filed by Circuit Judge TAMM.

MARKEY, Chief Judge:

Walter D. Teague, III (Teague), appeals from an Order of the United States District Court for the District of Columbia granting summary judgment to Alexander, et al. (Alexander). We affirm.

Background

Teague and the Indochina Solidarity Committee¹ sued for damages and equitable relief against 32 former and present federal officials associated with the Internal Revenue Service (IRS), the White House, the Federal Bureau of Investigation (FBI), the Department of Justice, the Air Force, and the Army. Teague identified his suit as a class action under Fed.R.Civ.P. 23(a), 23(b)(2), and 23(c)(4), asserting his representation of 8585 individuals subjected to special tax enforcement procedures because of political beliefs and activities.

The _ Activist Organization Committee (AOC)², an internal unit of the IRS, was formed in July 1969. The AOC had its genesis in indications that individuals and organizations were violating the Internal Revenue laws by: (1) refusing to pay taxes, as a protest to the Vietnam war; (2) transporting, selling and using firearms and explosives; (3) violating statutes relating to the tax-exempt status of organizations; (4) failing to file gift tax returns for large contributions; and (5) other actions.

The AOC’s described purpose was to “coordinate activities in all Compliance Divisions involving ideological, militant, subversive, radical, and similar type organizations; to collect basic intelligence data; and to insure that the requirements of the Internal Revenue Code concerning such organizations have been complied with.” ³

The AOC gathered information on activist organizations and persons prominently identified with them. Although information was gathered from many sources, the greater portion was provided by the FBI.

On receipt of information on an organization or individual, the AOC would open a file. When it disbanded in 1973, the AOC had 11,458 files on 8,585 individuals and 2,873 organizations. Approximately 41 percent of the files were on black and ethnic organizations viewed as associated with violence, confrontations and civil disturbances, 15 percent pertained to white organizations considered “right-wing extremist” and “racist,” 18 percent on antiwar organizations and individuals, and 11 percent on groups and individuals described as “new left” radical. Joint Committee Report, supra, note 3, at 45.

In August or September 1969, following its standard procedure on receipt of information regarding his antiwar activities, the AOC established a file on Teague. His file was among those selected on a random basis to determine whether he had filed tax returns. When the IRS master file computer indicated that Teague had not filed tax returns for any year except 1968, the AOC referred the matter to the IRS’s Manhattan District Director.

In February 1971, the referral was assigned to the Collection Division of the Manhattan District Office. In February 1972, the Collection Division transferred the matter to the Audit Division. A transcript of Teague’s tax return records from 1961 through 1970 indicated that he had filed tax returns only in 1965 and 1968. Based on that information, and records obtained from the Social Security Administration of Teague’s income, the IRS sent Teague a “30-day letter” informing him of a proposed deficiency assessment based upon his income in 1961 and 1962 and advising him of his right to an appellate conference. Twelve days later IRS received a letter from Teague requesting an appellate conference and including copies of Teague’s tax returns for 1961 and 1962. An appellate conference was held in November 1973, during which Teague produced a check dated April 15, 1963 in the amount of the tax indicated as due on his 1962 tax return. Two weeks after the appellate conference, the Manhattan Director told Teague it was closing its file on the matter.

On March 25,1975, Teague filed this suit, alleging that defendants had violated his rights under the First, Fourth, Fifth and Ninth Amendments and had conspired to deprive him of his civil rights in violation of 42 U.S.C. § 1985(3). Teague asked for declaratory and injunctive relief and for total compensatory damages of $15,000, along with punitive damages of $20,000, against each defendant.

The district court denied Teague’s motion for class action certification, denied Teague’s motion for summary judgment against four defendants, and granted the defendants’ motion for summary judgment.

Issue

The issue presented is whether the district court properly granted summary judgment for the defendants.⁴

OPINION

Teague argues that his selection for audit was directly related to and resulted from his dissident political beliefs, and that his selection on that basis violated his right to equal protection of the law and his right to speak freely. In his brief he contends that the formation and operation of the AOC was not supported by a governmental interest sufficient to justify infringement of his rights.

When asked at oral argument to define an injury Teague had suffered, his counsel said the injury resided in the expense and inconvenience of preparing for the appellate conference.

To invoke the judicial power in a challenge to the validity of an administrative action, a party must show “that he has sustained a direct injury resulting from an unlawful governmental action.” Laird v. Tatum, 408 U.S. 1, 13, 92 S.Ct. 2318, 2325, 33 L.Ed.2d 154 (1971); Ex parte Levitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1937); Finley v. Hampton, 473 F.2d 180, 185 (D.C.Cir.1972). Any monetary injury suffered here by Teague is de minimis and cannot therefore warrant legal cognizance. The time and expense of preparing for an appellate conference on one’s taxes, if a burden at all, is one placed annually on many citizens. It is part of the price necessitated by a tax system dependent largely upon the honesty and cooperation of citizens.

Though a total absence of legally cognizable injury is sufficient in this case to sustain the grant of summary judgment below, Teague’s constitutional arguments raise issues warranting disposition, for “[w]e cannot sustain an intrusion on First Amendment rights on the ground that the intrusion is only a minor one.” Lamont v. Postmaster General, 381 U.S. 301, 309, 85 S.Ct. 1493, 1497, 14 L.Ed.2d 398 (1965) (Justice Brennan, concurring). In the present case, however, there appears no connection between Teague’s claimed injury and an intrusion on his constitutional rights.

Teague says he would not have been audited but for his selection by the AOC. It is apparent, however, that Teague’s cause- and-effect analysis is flawed. He was audited, by a separate branch of IRS, because the records of that branch indicated he had failed to file required tax returns. The audit itself was thus justified. Similarly, if Teague’s records had reflected compliance with the tax laws, there is here no evidence even remotely indicating that he would have been audited.⁵

The exercise of some selectivity in enforcement of the laws is not in itself and always a federal constitutional violation. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962). A selection based on an unjustifiable standard, such as race, religion, or other arbitrary classification is impermissible. Id. Among such impermissible classifications are protected political activities. Cox v. Louisiana, 379 U.S. 536, 581, 85 S.Ct. 453, 470, 13 L.Ed.2d 471 (1965) (Justice Black, concurring). For the reasons outlined below, I do not, however, view the selection here as having been based on an unjustifiable standard.

Teague’s argument that his selection was based solely on exercise of his first amendment rights and expression of political views, because of the interposition of the AOC, is too broad. The AOC was formed to aid the proper administration of the tax laws. Joint Comm. Report, supra, note 3 at 2-3.⁶ It is a legitimate governmental interest to see that the tax laws are obeyed. Other courts have upheld selectivity in prosecutions for criminal cases, where the burden imposed was much greater than any here involved. See United States v. Catlett, 584 F.2d 864, 868 (8th Cir., 1978); United States v. Johnson, 577 F.2d 1304, 1308-09 (5th Cir. 1978); United States v. Swanson, 509 F.2d 1205, 1208-09 (8th Cir. 1975).

When, as here, governmental action is challenged on First Amendment grounds, that action requires close judicial scrutiny. Operation of the AOC, in gathering non-tax related information and in obtaining and reviewing information on groups not involved in tax resistence, exhibited less than the careful concern for First Amendment interests required of the government. I join Judge Tamm’s concurring opinion elaborating on that view.

In the present case, no censorship or prior restraint of Teague’s expression was attempted or resulted. No sanction, direct or indirect, was placed upon his exercise of First Amendment rights. There was here no “discriminatory denial of a tax exemption for engaging in speech.” See Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958). That AOC may have monitored more broadly than its tax enforcement interests warranted did not itself cause the injury claimed to have been suffered here.

Here Teague was audited because his tax records indicated a violation of the law — a failure to pay his taxes — not because he spoke. He suffered no legally cognizable injury and was deprived of no right or privilege, directly or indirectly, by a conspiracy or otherwise. Hence his claim under 42 U.S.C. § 1985(3) was properly dismissed.

Affirmed.

1 .The Indochina Solidarity Committee (ISC) was organized by Teague. In a footnote to Teague’s brief, it is announced that the ISC’s claim is “withdrawn,” in “the absence of any evidence that the organization was the subject of any adverse action by defendants.”

2 . The AOC was also known as the “Special Services Group” and the “Special Services Staff.”

3 . Staff of Joint Committee on Internal Revenue Taxation, 94th Cong. 1st Sess., Report on Investigation of the Special Services Staff of the Internal Revenue Service, at 15. (Comm.Print 1975) (Joint Committee Report).

4 . The district court did not reach the government’s jurisdiction contentions respecting sovereign and official immunity, the anti-injunction provision of the Internal Revenue Code, 26 U.S.C. § 7421, and the federal tax exception to the Declaratory Judgment Act, 28 U.S.C. § 2201. Nor do we.

5 . Ninety-eight per cent of the organizations and individuals in AOC’s files were not audited. Joint Committee Report, supra note 3, at 75. If auditing were shown to have violated the Constitution, the rate or extent of violation would be irrelevant. On the present record, however, there is no evidence that any audit was unjustified by the applicable tax files on hand or that the IRS was launched on a campaign to chill the exercise of constitutional rights by subjecting to audit all those who exercised such rights.

6 . At oral argument, Teague’s counsel stated that formation of the AOC did not constitute an unconstitutional act. Teague’s brief emphasizes the AOC’s gathering information without express limitation to groups specifically advocating non-payment of taxes. Beyond non-payment, however, IRS has an interest in, and duty to enforce, laws relating to the tax-exempt status of organizations and contributing activities of individuals, a status dependent on avoidance of “carrying on propaganda, or otherwise attempting, to influence legislation,” 26 U.S.C. § 501(c)(3).