Templeman v. Beasley

Opinion

USCA1 Opinion

December 21, 1994
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 93-2337 

                       ANDREW TEMPELMAN & PRISCILLA TEMPELMAN,

                               Plaintiffs, Appellants,

                                          v.

                          PATRICIA BEASLEY, EXAMINER FOR THE
                 U.S. TREASURY DEPARTMENT, INTERNAL REVENUE SERVICE,

                                 Defendant, Appellee.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Martin F. Loughlin, Senior U.S. District Judge]
                                          __________________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                            Selya and Cyr, Circuit Judges.
                                           ______________

                                 ____________________

            Andrew Tempelman and Priscilla Tempelman on brief pro se.
            ________________     ___________________
            Paul  M.  Gagnon, United  States  Attorney,  Loretta  C.  Argrett,
            ________________                             ____________________
        Assistant  Attorney General,  Gary R.  Allen, Jonathan  S. Cohen,  and
                                      ______________  __________________
        Sarah  Knutson, Attorneys,  Tax  Division, Department  of Justice,  on
        ______________
        brief for appellee.

____________________

____________________



Per Curiam.   Plaintiffs Andrew and Priscilla  Tempelman
                 __________

            are long-time tax protesters--proponents of the view that the

            United States internal  revenue system is invalid.   In 1992,

            based upon  audits of plaintiffs' returns for  the years 1986

            through 1988,  the Internal Revenue Service (IRS) determined,

            inter  alia,  that  various deductions  had  been  improperly
            ___________

            claimed  and that  additional  taxes were  owed.   Plaintiffs

            successfully  challenged  this  determination  in  tax court,

            where a settlement with  the IRS resulted in the  elimination

            of  most or  all  of such  liability.   They  then  filed the

            instant  pro se action  in state court,  seeking damages from

            the  IRS agent  who  had conducted  the  audits.   Plaintiffs

            charged  that  defendant  had  deliberately  and  maliciously

            imposed  further tax  liabilities  in  retaliation for  their

            dissident  views,  in  violation  of  various  statutory  and

            constitutional provisions.

                 Defendant removed  the action to federal  court and then

            moved to dismiss, claiming  that parts of the complaint  were

            jurisdictionally defective  while other parts failed to state

            a  claim.   In a  comprehensive  opinion, the  district court

            agreed  and dismissed  the complaint  under Fed.  R. Civ.  P.

            12(b)(1) &  (6).  The court  went on to find  that plaintiffs

            were engaged  in a "vendetta"  against the IRS,  having filed

            numerous frivolous cases against the agency and its employees

            solely for the purpose of harassment.  As a result, the court



enjoined  plaintiffs  from filing  any  further  such actions

            without   judicial  approval.     It  also  imposed  monetary

            sanctions.  Plaintiffs, in summary fashion, challenge each of

            these rulings on appeal.1

                                          I.

                 We  need  not  linger  long  over  the  merits   of  the

            complaint.  Plaintiffs have relied on a plethora of statutory

            provisions  in  an attempt  to establish  jurisdiction and/or

            state a claim.   Each  proves unavailing.   For example,  two

            criminal  provisions on  which they  rely--18 U.S.C.     241,

            242--do not  give rise to a  civil action for damages.   See,
                                                                     ___

            e.g.,  Rodi  v. Ventetuolo,  941 F.2d  22,  29 n.8  (1st Cir.
            ____   ____     __________

            1991); Cok v. Cosentino, 876  F.2d 1, 2 (1st Cir.  1989) (per
                   ___    _________

            curiam).   A third such  provision, contained in  26 U.S.C.  

            7214, is  likewise inapposite; "a precondition  to a taxpayer

            suit for damages against a revenue agent under this provision

            is  the  criminal  conviction  of  the  agent."   Hollett  v.
                                                              _______

            Browning,  711 F.  Supp.  1009, 1012  n.2  (E.D. Cal.  1988).
            ________

            Plaintiffs' reliance on  42 U.S.C.     1983, 1985 (and  their

            jurisdictional counterpart,  28 U.S.C.   1343)  is misplaced.

            Section 1983 is inapplicable to federal officials not alleged

            to  have  acted  "under color  of  state  law."   See,  e.g.,
                                                              ___   ____

            District of Columbia v. Carter,  409 U.S. 418, 424-25 (1973);
            ____________________    ______

                                
            ____________________

            1.  Given  the disposition  we  reach, there  is  no need  to
            decide whether  the notice  of appeal was  ineffective as  to
            Priscilla Tempelman, as defendant suggests. 

                                         -3-



Soldevilla v. Secretary  of Agric.,  512 F.2d  427, 429  (1st
            __________    ____________________

            Cir.  1975).   In turn,  as the  district court  discussed at

            length, plaintiffs  have not  come close  to stating  a claim

            under   1985.

                 No more helpful is plaintiffs' invocation of the Federal

            Tort  Claims Act, 28 U.S.C.     1346(b), 2671-80.  Explicitly

            excluded from  the FTCA's  ambit is  "[a]ny claim arising  in

            respect  of the assessment or collection of  any tax."  Id.  
                                                                    ___

            2680(c);  see,  e.g.,  McMillen  v. United  States  Dep't  of
                      ___   ____   ________     _________________________

            Treasury, 960 F.2d  187, 188  (1st Cir.  1991) (per  curiam).
            ________

            Contrary to plaintiffs' contention, the allegations here fall

            readily within this exception.  See, e.g., National Commodity
                                            ___  ____  __________________

            and Barter Ass'n  v. Gibbs,  886 F.2d 1240,  1246 (10th  Cir.
            ________________     _____

            1989); Capozzoli v. Tracey, 663 F.2d 654, 658 (5th Cir. 1981)
                   _________    ______

            (  2680(c) has been "interpreted broadly" to cover activities

            that were "in any  way related to the [IRS]  agents' official

            duties").  

                 Plaintiffs' reliance on 26  U.S.C.   7433(a) also proves

            misplaced.   This  provision  authorizes a  civil action  for

            damages whenever an IRS official "recklessly or intentionally

            disregards" the tax laws  in connection with "any collection"

            of federal taxes.  Yet plaintiffs are complaining of  alleged

            misconduct  that occurred in  connection with the calculation

            of  their  tax liability,  rather  than  with the  collection

            thereof.  Such a claim is not cognizable under    7433.  See,
                                                                     ___

-4-



e.g., Shaw v.  United States,  20 F.3d 182,  184 (5th  Cir.),
            ____  ____     _____________

            cert.  denied, 63 U.S.L.W. 3181 (1994); Gonsalves v. IRS, 975
            _____________                           _________    ___

            F.2d 13, 16  (1st Cir.  1992) (per curiam).   Furthermore,  a

            prerequisite to any such action is that the taxpayer  exhaust

            his  or   her  administrative  remedies,  see   26  U.S.C.   
                                                      ___

            7433(d)(1),  by filing  a written  administrative claim  with

            "the  district  director ...  of  the district  in  which the

            taxpayer  currently resides,"  26 C.F.R.    301.7433-1(e)(1).

            There  is no  suggestion that  plaintiffs have  complied with

            this requirement.  The failure to do so deprives the court of

            jurisdiction.   See, e.g.,  Venen v. United  States, ___ F.3d
                            ___  ____   _____    ______________

            ___, 1994 WL  567016, at  *2-*3 (3d Cir.  1994); Conforte  v.
                                                             ________

            United States, 979 F.2d 1375, 1377 (9th Cir. 1992).
            _____________

                 Finally,  plaintiffs have  sought  to  advance a  Bivens
                                                                   ______

            claim against defendant in her personal capacity.  See Bivens
                                                               ___ ______

            v.  Six Unknown Named Agents  of Federal Bureau of Narcotics,
                ________________________________________________________

            403  U.S.  388 (1971).   In  this  regard, they  contend that

            defendant's  actions abridged  their rights under  the First,

            Fourth,  Fifth, Eighth  and Fourteenth  Amendments.   Because

            plaintiffs  on  appeal  have  mentioned  the  point  only  in

            passing,  it suffices to note the following.  As we explained

            in McMillen,  courts have  been disinclined to  create Bivens
               ________                                            ______

            remedies  in the  internal revenue  context in  light of  the

            "remedial  mechanisms  for  constitutional  violations"  that

            Congress has already implemented  in this area.  960  F.2d at

-5-



190-91  (quoting Schweiker  v.  Chilicky, 487  U.S. 412,  423
                             _________      ________

            (1988)).   In particular,  courts have specifically disavowed

            any Bivens remedy for  alleged violations associated with tax
                ______

            assessment and  collection activities.  See,  e.g., Vennes v.
                                                    ___   ____  ______

            An Unknown Number of Unidentified Agents, 26 F.3d 1448, 1453-
            ________________________________________

            54 (8th  Cir.), petition for  cert. filed,  63 U.S.L.W.  3192
                            _________________________

            (1994);  McMillen, 960 F.2d at 190-91; Wages v. IRS, 915 F.2d
                     ________                      _____    ___

            1230, 1235  (9th  Cir. 1990),  cert.  denied, 498  U.S.  1096
                                           _____________

            (1991); Gibbs,  886 F.2d at  1247-48; Tonn v.  United States,
                    _____                         ____     _____________

            847 F. Supp. 711, 716-18 (D. Minn. 1993), aff'd, 27 F.3d 1356
                                                      _____

            (8th  Cir. 1994) (per curiam);  see also Cameron  v. IRS, 773
                                            ________ _______     ___

            F.2d  126, 128-29 (7th Cir. 1985);  cf. FDIC v. Meyer, 114 S.
                                                ___ ____    _____

            Ct.  996, 1005-06  (1994) (declining  to imply  Bivens action
                                                            ______

            against federal agencies).

                 Most of  these cases, it  is true, involved  alleged due

            process  violations, whereas  plaintiffs  have  also  claimed

            abridgement of  their First (and  Fourth) Amendment  rights.2

            At least  under the facts  alleged, however, this  is without

            consequence.  The Tenth  Circuit's pair of opinions  in Gibbs
                                                                    _____

            ("NCBA  I"), 886 F.2d 1240, and National Commodity and Barter
              _______                       _____________________________

            Ass'n  v. Archer, 31 F.3d  1521 (10th Cir.  1994) ("NCBA II")
            _____     ______                                    _______

            (the appeal following remand), are instructive.  With respect

                                
            ____________________

            2.  In  their district  court pleadings,  plaintiffs conceded
            that  their  Eighth Amendment  claim  was without  merit.   A
            similar conclusion  applies as to their  Fourteenth Amendment
            claim.  In turn, we have difficulty perceiving how the Fourth
            Amendment is implicated by plaintiffs' allegations.  

                                         -6-



to  allegations that  IRS  agents had  engaged in  widespread

            misconduct  with respect  to a  tax-protesting organization--

            including repeated raids of its headquarters and its members'

            homes and seizures of membership records--the court held that

            a Bivens claim  had been  stated under the  First and  Fourth
              ______

            Amendments.  See  NCBA I, 886 F.2d at 1248;  NCBA II, 31 F.3d
                         ___  ______                     _______

            at 1527-32.   However, with respect  to allegations that  the

            IRS had effected  "wrongful jeopardy assessments," the  court

            declined  to recognize  a  First or  Fourth Amendment  Bivens
                                                                   ______

            remedy "[i]n light of the remedies  afforded elsewhere."  Id.
                                                                      ___

            at 1532.  So here, we think the panoply of statutory remedies

            available militates against recognition  of a First or Fourth

            Amendment  Bivens   remedy  with  respect  to   the  wrongful
                       ______

            assessment of plaintiffs' tax liability.3

                                
            ____________________

            3.  Plaintiffs also  allege that  their  suit was  improperly
            removed to  federal court.   Removal was  plainly appropriate
            under  28 U.S.C.    1442(a)(1)  (pertaining to  suits against
            "[a]ny officer of  the United  States ... for  any act  under
            color of such office"),  inasmuch as defendant's relationship
            to plaintiffs  "derived solely from  [her] official  duties."
            Willingham v. Morgan, 395 U.S. 402, 409 (1969); accord, e.g.,
            __________    ______                            ______  ____
            Palermo  v.   Rorex,  806  F.2d  1266,   1269-70  (5th  Cir.)
            _______       _____
            (rejecting argument that  defendants were  not acting  "under
            color  of federal office" because their  acts were alleged to
            have been maliciously motivated),  cert. denied, 484 U.S. 819
                                               ____________
            (1987);  see also  Arizona v.  Manypenny, 451  U.S.  232, 242
                     ________  _______     _________
            (1981)  ("the  right  of  removal  is  absolute  for  conduct
            performed  under  color  of   federal  office").    As  such,
            plaintiffs'  inability to subpoena the United States Attorney
            in  order to examine the validity of  his 28 U.S.C.   2679(d)
            certification--about  which  they also  complain--was without
            consequence. 
                 As  well,  plaintiffs  object that  the  district  judge
            recused himself on the  same day that he denied  their motion
            for  reconsideration.   To the  contrary, the  record reveals

                                         -7-



II.

                 Remaining for  consideration  is the  propriety  of  the

            sanctions   imposed  upon   plaintiffs--as   to  which   some

            additional  background  is necessary.    In  response to  the

            district  court's order  of  dismissal,  plaintiffs  filed  a

            motion for reconsideration.  Displaying a lack of familiarity

            with the  sovereign immunity doctrine, they  there castigated

            the  court  for  leaving  them  with  "no remedy"  in  "clear

            defiance  of and  contempt  for  federal  law."    They  then

            proceeded, in increasingly intemperate language, to warn  the

            district judge  that unless  the dismissal were  rescinded he

            would "stand  liable" for possible  constitutional violations

            and would run the risk  of impeachment and of being  named as

            "a co-conspirator in  a far larger Civil  Rights matter which

            is  coming  before  this  court  in  a  series  of  actions."

            According  to their certificate  of service,  plaintiffs sent

            copies of  this  motion to  some 28  political officials  and

            various media outlets. 

                 The  district  judge held  a hearing  on the  motion, at

            which plaintiffs enumerated at some length (and in reasonably

            decorous fashion) their objections to the order of dismissal.

            The  court   thereafter,  in  an  oral   ruling,  voiced  its

____________________

            that plaintiffs' motion for recusal was  denied on that date.
            We are told that the judge subsequently recused  himself from
            other  cases  involving  plaintiffs--an  action  that  has no
            bearing on the instant matter.  

                                         -8-



disapproval of plaintiffs' conduct.   Their veiled suggestion

            that  the court had  conspired with the  government, it held,

            bordered on  "criminal contempt."   Their treatment  of court

            personnel had  been "insulting" and "bully[ing]."   And their

            "vendetta against the IRS and its employees"--pursued through

            a series  of "frivolous" and "harassing"  lawsuits--had "gone

            on  too long."  Accordingly,  the court entered  a sua sponte
                                                               __________

            order enjoining plaintiffs from filing any further actions in

            the District  of New  Hampshire "against the  IRS," including

            suits removable from state court, without judicial  approval.

            It also imposed sanctions in the amount of $293 (representing

            the travel costs incurred by government counsel to attend the

            hearing).  In a  subsequent written order in support  of this

            ruling,  the court  noted that  the instant  case was  one of

            eleven  actions  that   plaintiffs  had  prosecuted  in   New

            Hampshire federal court  since 1986, ten  of which the  court

            found  had involved  the  IRS  or  its  agents.    The  court

            reiterated its injunction as follows:

                      The  clerk of  this  court is  ordered not  to
                 accept any  more  cases from  the plaintiff  unless
                 screened  by a  Judge Magistrate  or Judge  of this
                 court.   If  the  plaintiff by  subterfuge, or  any
                 other means[,]  sues in a state  court knowing that
                 it has  to  be removed  by the  government to  this
                 court, he shall  be subject to immediate  sanctions
                 ....

            The court also there denied the motion for reconsideration.  

                 Federal courts, of course, "possess discretionary powers

            to regulate the conduct of abusive litigants."  Cok v. Family
                                                            ___    ______

-9-



Court  of Rhode Island, 985 F.2d  32, 34 (1st Cir. 1993) (per
            ______________________

            curiam).   Accordingly,  "in extreme  circumstances involving

            groundless encroachment  upon the limited  time and resources

            of the court and other parties, an injunction barring a party

            from filing and processing  frivolous and vexatious  lawsuits

            may  be appropriate."  Castro v. United States, 775 F.2d 399,
                                   ______    _____________

            408  (1st Cir.  1985)  (per  curiam).    Any  bar  on  future

            litigation must  be "narrowly tailored" to  "fit the specific

            vice  encountered."  Sires v.  Gabriel, 748 F.2d  49, 51 (1st
                                 _____     _______

            Cir.  1984) (per curiam).   As we have  explained, if such an

            injunction "were  couched in  overly broad terms,  this could

            impermissibly infringe upon a  litigator's right of access to

            the  courts."  Castro, 775 F.2d at  410.  We review the entry
                           ______

            of  such an injunction for  abuse of discretion.   See, e.g.,
                                                               ___  ____

            id. at 408.
            ___

                 We think  it obvious, under the  circumstances, that the

            district  court intended to  restrict the  filing of  any new

            actions  against the IRS or  its agents (as  indicated in the

            oral order), rather than to restrict  court access across the

            board  (as suggested  in  the written  order).   Even  as  so

            construed,  the  injunction  raises  several  concerns.    An

            initial  problem  is  that  plaintiffs were  not  "warned  or

            otherwise   given  notice   that  filing   restrictions  were

            contemplated," and thus were  not afforded "an opportunity to

            respond" before entry thereof.  Cok, 985 F.2d at 35.  In Cok,
                                            ___                      ___

-10-



just  as in the instant case, the court entered an injunction

            on a sua sponte  basis at the close of a  motion hearing.  We
                 __________

            noted  that where  the plaintiff  had been  deprived of  even

            "informal" notice--such  as might  be  provided by  way of  a

            defendant's  request for  an  injunction  or  a  magistrate's

            recommendation thereof--the  customary route  was to  issue a

            show cause order or  a "cautionary" edict.   Id.  Nothing  of
                                                         ___

            the sort occurred here.4

                 Second, we are unconvinced that the circumstances here--

            at least as developed  on the present record--were as  yet so

            "extreme" as to warrant such a  measure.  Castro, 775 F.2d at
                                                      ______

            408.    Plaintiffs  contend  that, contrary  to  the  court's

            finding, only  eight of  their eleven lawsuits  were directed

            against the  IRS or its agents.   While they have  offered no

            support  therefor,   an  independent  review   confirms  this

            contention.5  Of  these, the court  indicated in its  written

____________________

            4.  While the scheduling notice  regarding the hearing is not
            in the record, there  is no indication from the  docket sheet
            that  it   contained  any   reference   to  proposed   filing
            restrictions.  We also note that plaintiffs were not afforded
            an opportunity to respond following imposition of the court's
            oral order,  nor  were they  invited  to file  an  opposition
            thereto prior to entry of the written order.

            5.  We can say with  certainty that two of the  listed cases,
            Tempelman  v. United  States,  No. 91-208,  and Tempelman  v.
            _________     ______________                    _________
            Philbrick, No. 92-409, did  not involve the IRS, inasmuch  as
            _________
            each  was  the  subject of  a  recent  appeal.   (The  former
            involved  the  Postal Service;  the  latter  involved a  town
            moderator.)  And a review of the docket sheet reveals  that a
            third such action, Tempelman  v. Hebbel, No. 93-110, involved
                               _________     ______
            a private defendant. 

                                         -11-



order  that  two others  involved  a "rehash"  of  the issues

            involved  in the instant  complaint; the nature  of the other

            cases is undisclosed (as is the disposition thereof, although

            it  appears safe to conclude that each was unsuccessful).  It

            is thus  unclear to what  extent plaintiffs have  exhibited a

            "propensity to  file repeated suits  against [the IRS  or its

            agents] involving the same  or similar claims."  Id.  at 409.
                                                             ___

            Compare,  e.g., Cok, 985 F.2d at 35, 36 (suggesting that more
            _______   ____  ___

            narrowly drawn ban on  further attempts to remove proceedings

            from  Family Court  divorce case  would have  been approved);

            Castro,  775  F.2d  at   409-10  (upholding  ban  on  further
            ______

            challenges  to nonrenewal  of  appellants' appointment);  see
                                                                      ___

            Pavilonis v. King, 626 F.2d 1075, 1079 (1st Cir.)  (observing
            _________    ____

            that "litigiousness  alone will not support  an injunction"),

            cert. denied, 449 U.S. 829 (1980).  
            ____________

                 In turn, it  is worth noting  that the issue  underlying

            the instant action--the propriety of  defendant's calculation

            of  plaintiffs' tax  liability--was  resolved in  plaintiffs'

            favor in tax  court, and  that their  First Amendment  Bivens
                                                                   ______

            claim, while ultimately unavailing,  would seem to rise above

            the  frivolous (albeit  narrowly).   At  least  a portion  of

            plaintiffs' litigation efforts, in other words, has contained

            a  glimmer  of  merit.   We  also  observe  that less  severe

            measures such as the imposition of monetary  sanctions--which

            we uphold in the  instant case as an appropriate  penalty for

-12-



plaintiffs'  aspersions against the court--might well suffice

            to  forestall future  actions  of a  frivolous and  vexatious

            nature.   Cf. Cok, 985 F.2d at 36 (cautioning that injunction
                      ___ ___

            restricting court  access across  the board should  be issued

            "only  when  abuse is  so  continuous  and widespread  as  to

            suggest no reasonable alternative").  

                 Finally, several  aspects of  the injunction  as drafted

            give us pause.   The  restriction on state  court filings  is

            problematic, inasmuch as "[a]buse of state judicial processes

            is not  per se a  threat to the  jurisdiction of Article  III
                    ______

            courts."   In re Martin-Trigona, 737 F.2d 1254, 1263 (2d Cir.
                       ____________________

            1984)  (vacating extension  of injunction  to  state courts);

            accord, e.g., Anderson v. Mackall, 128 F.R.D. 223, 226  (E.D.
            ______  ____  ________    _______

            Va. 1988).  We understand  that plaintiffs' propensity to sue

            in state court, combined with the automatic right  of removal

            available to  the United  States and its  employees, provided

            the impetus for  such a measure.   Yet  as other courts  have

            indicated, a narrower  restriction ordinarily should suffice.

            See, e.g., Sassower  v. Abrams,  833 F. Supp.  253, 271,  274
            ___  ____  ________     ______

            (S.D.N.Y.  1993)  (issuing  injunction  directing  that, upon

            removal to  federal court of  any case brought  by plaintiff,

            leave  of  court  would   be  required  before  action  could

            continue).   We  also observe  that no  guidelines have  been

            provided  explaining  what  plaintiffs  must  do  to   obtain

            permission  to file, see, e.g.,  Werner v. State  of Utah, 32
                                 ___  ____   ______    ______________

-13-



F.3d 1446, 1448  (10th Cir.  1994)--a matter  worthy of  note

            here  given the  broad category  of  actions embraced  by the

            injunction.

                 It  is important  to  emphasize  that,  in the  face  of

            plaintiffs'  spurious  accusations  and  rancorous  tone, the

            district court's  evident exasperation was  fully explicable;

            indeed,  the care  it  devoted to  a  case bordering  on  the

            frivolous  is  commendable.   Nonetheless,  in  light of  the

            foregoing factors,  we think it appropriate  to await another

            day before  taking the exceptional step  of enjoining further

            lawsuits.  

                 The dismissal of plaintiffs'  complaint is affirmed,  as
                                                            ________

            is  the imposition  of  monetary sanctions.   The  injunction

            barring further court filings is vacated.  
                                             _______

                 So ordered.
                 __________

-14-