Templeman v. Beasley, 43 F.3d 1456, 1st Cir. (1994)
Templeman v. Beasley, 43 F.3d 1456, 1st Cir. (1994)
Templeman v. Beasley, 43 F.3d 1456, 1st Cir. (1994)
3d 1456
75 A.F.T.R.2d 95-910
Plaintiffs Andrew and Priscilla Tempelman are long-time tax protestersproponents 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.
2
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.
3
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. Secs. 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. Sec. 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. Secs.
1983, 1985 (and their jurisdictional counterpart, 28 U.S.C. Sec. 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); 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 Sec. 1985.
U.S.C. Secs. 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.
Sec. 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) (Sec. 2680(c) has been
"interpreted broadly" to cover activities that were "in any way related to the
[IRS] agents' official duties").
5
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).
7
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 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
II.
8
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 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:
10
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....
11
12
13
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, 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
14
15
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 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").
16
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 F.3d 1446, 1448 (10th Cir. 1994)-a matter worthy of note here given
the broad category of actions embraced by the injunction.
17
18
19
So ordered.
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
Plaintiffs also allege that their suit was improperly removed to federal court.
Removal was plainly appropriate under 28 U.S.C. Sec. 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. Sec. 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 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.
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
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