United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 13, 2000 Decided May 19, 2000
No. 99-5065
Bruce E. Gardner,
Appellant
v.
United States of America,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 97cv03075)
Bruce E. Gardner, appearing pro se, argued the cause and
filed the briefs for appellant.
Annette M. Wietecha, Attorney, United States Department
of Justice, argued the cause for appellee. With her on the
brief were Gilbert S. Rothenberg, Attorney, and Mary Lou
Leary, United States Attorney at the time the brief was filed.
Loretta C. Argrett, Assistant Attorney General, and Edward
T. Perelmuter, Attorney, entered appearances.
Before: Edwards, Chief Judge, Henderson and Rogers,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: Bruce Gardner, appearing pro se,
appeals the District Court's dismissal of his complaint for
failure to prosecute and for lack of subject matter jurisdic-
tion. Mr. Gardner alleges that the Internal Revenue Service
("the Service") unlawfully levied his property without first
sending a notice of federal tax deficiency to his last known
address. The District Court dismissed this complaint sua
sponte for failure to prosecute under Fed. R. Civ. P. 41(b)
("Rule 41(b)") and, upon defendant's motion, for lack of
subject matter jurisdiction. On appeal, the Service defends
only the Rule 41(b) dismissal, abandoning any claim that
federal courts lack subject matter jurisdiction over Mr. Gard-
ner's cause of action.
The District Court understandably sought to sanction Mr.
Gardner for failing to appear at a motions hearing. Given
applicable Supreme Court and D.C. Circuit precedent, howev-
er, the District Court's dismissal in the context of the instant
case constitutes an abuse of discretion. Mr. Gardner's nonap-
pearance, while arguably irresponsible, did not justify a Rule
41(b) dismissal. In addition, the District Court erroneously
found that it lacked subject matter jurisdiction over the
complaint. Accordingly, we reverse and remand for further
proceedings on the merits.
I. BACKGROUND
Mr. Gardner formerly worked as an attorney in the Office
of Chief Counsel to the Service at the Treasury Department.
He was terminated for his alleged failure to comply with
federal and state tax laws. Mr. Gardner filed three com-
plaints before the District Court, all related to his compliance
with federal and state tax laws; all were dismissed by the
District Court. One of the complaints was a tax refund
action, the dismissal of which this court summarily affirmed
on October 8, 1999. The second complaint, appealed along
with the instant case, seeks damages from a variety of
defendants for allegedly unlawful disclosures of Mr. Gard-
ner's private tax information. The instant case involves Mr.
Gardner's pro se complaint, filed December 23, 1997, claiming
that the Service unlawfully levied Mr. Gardner's bank account
for an alleged 1990 tax deficiency of almost $4,000 without
sending him a notice of deficiency and an opportunity to
challenge the assessment in the United States Tax Court.
Mr. Gardner, seeking to enjoin the Service from levying his
property, bases his complaint on 26 U.S.C. s 6213(a) (Supp.
IV 1998). Actions based on s 6213(a) to enjoin the Service's
assessment of a tax deficiency before the Service mails a
notice of deficiency to the taxpayer are exempt from the
Anti-Injunction Act of Internal Revenue Code, 26 U.S.C.
s 7421(a) (Supp. IV 1998).
On February 18, 1998, the Service filed a motion to dismiss
for lack of subject matter jurisdiction pursuant to Fed. R. Civ.
P. 12(b)(1) ("Rule 12(b)(1)"), arguing that Mr. Gardner must
meet traditional equitable requirements (i.e., demonstrate
irreparable injury and the lack of an adequate remedy at law)
as a prerequisite to obtaining injunctive relief under
s 6213(a). On the day the Service filed its motion, Mr.
Gardner filed an amended complaint affirmatively pleading
grounds for equitable relief. The District Court struck the
amended complaint from the record, because Mr. Gardner
had not sought leave to file.
After delays that no one attributes to Mr. Gardner, the
District Court scheduled a hearing on January 27, 1999, to
consider the motion to dismiss, along with motions to dismiss
filed in Mr. Gardner's other two cases. On January 21, Mr.
Gardner moved to continue the motions hearing, contending
that a continuance was necessary because he had the flu and
he had suffered burns during a fire in his home. The District
Court, after a teleconference held on January 22, denied Mr.
Gardner's motion. The District Court indicated that it would
accommodate Mr. Gardner's physical condition during the
hearing. Mr. Gardner failed to appear in court on January 27
and he telephoned the court later that evening to state that
he had slept through the hearing.
On January 28, Mr. Gardner filed a motion to reschedule
the hearing; the motion also offered an explanation for his
absence from the January 27 hearing. He included a doctor's
note stating that, on January 21, his physician treated him for
syncope and bronchitis, prescribed antibiotics, and instructed
Mr. Gardner to get bed rest. He also made several claims to
the effect that his illness, the fire in his home, and his intense
preparation for the motions hearing had combined to deprive
him of necessary sleep and stamina. According to plaintiff,
he was so disoriented that, until he heard the evening news
on January 27, he was under the impression that it was
January 26.
On January 29, the District Court denied Mr. Gardner's
motion to reschedule the hearing. The court also granted
defendant's motion to dismiss on two grounds. First, the
District Court dismissed the complaint under Rule 41(b) for
failure to prosecute the complaint. See Gardner v. United
States, Civ. Act. No. 97-3075, Mem. Op. & Order at 2 (D.D.C.
Jan. 29, 1999). The court noted that it previously had denied
Mr. Gardner's motion for continuance and that Mr. Gardner
had stated that he would appear on January 27. See id. at 1-
2. The court also declared that it had not intended to hear
argument on January 27, because it already had decided to
issue orally its ruling dismissing Mr. Gardner's complaint for
lack of subject matter jurisdiction. See id. at 2. The District
Court found that it lacked jurisdiction because Mr. Gardner
had failed to demonstrate irreparable injury and a lack of an
adequate remedy at law. See id. at 4. The court dismissed
as moot Mr. Gardner's motion for reconsideration of the
order striking his first amended complaint from the record.
Mr. Gardner moved for reconsideration, further detailing
the events leading up to his absence from the hearing. He
stated that on January 12, 1999, he began taking Nyquil and
Chlortrimeton, an antihistamine, and that he was without
heat for one day in January because his house lost electricity
during an ice storm, exacerbating his illness. Mr. Gardner
also revealed that, on January 18, a fire had broken out in his
children's room and he had sustained third-degree burns to
his hands while dragging a burning mattress from the house.
The court denied Mr. Gardner's motion for reconsideration.
This appeal followed.
II. DISCUSSION
A. Rule 41(b) Dismissal
Under Rule 41(b), a court may dismiss an action "[f]or
failure of the plaintiff to prosecute or to comply with ... any
order of court." In the instant case, the District Court
dismissed the complaint because Mr. Gardner failed to attend
the January 27, 1999, motions hearing. We review for abuse
of discretion. See Bristol Petroleum Corp. v. Harris, 901
F.2d 165, 167 (D.C. Cir. 1990). While this is a deferential
standard, we have made it clear that, "under certain circum-
stances, dismissal may be an unduly severe sanction for a
single episode of misconduct." Id. A District Court may
dismiss under Rule 41(b) "only after less dire alternatives
have been explored without success." Trakas v. Quality
Brands, Inc., 759 F.2d 185, 187 (D.C. Cir. 1985).
The Supreme Court established the framework for review-
ing a sua sponte dismissal for failure to prosecute in Links v.
Wabash Railroad Co., 370 U.S. 626 (1962). In Links, plain-
tiff's counsel missed a pretrial conference but did not inform
the court of his impending nonattendance until the day of the
conference. See id. at 627-28. The District Court, after
reviewing the history of the case (including plaintiff's re-
peated untimely responses to defendant's interrogatories),
found that plaintiff's counsel did not provide a reasonable
explanation for his nonappearance and dismissed the com-
plaint for failure to prosecute. See id. at 628-29.
The Court affirmed the dismissal, failing to find an abuse of
discretion because: (1) the District Court relied only in part
on counsel's nonappearance; (2) the excuse offered by counsel
was inadequate; and (3) "it could reasonably be inferred from
his absence, as well as from the drawn-out history of the
litigation, that petitioner had been deliberately proceeding in
dilatory fashion." Id. at 633 (footnote and citation omitted).
The Court did not reach "whether unexplained absence from
a pretrial conference would alone justify a dismissal with
prejudice if the record showed no other evidence of dilatori-
ness on the part of the plaintiff." Id. at 634 (first emphasis
added).
As we previously have noted, it is important to recall that
the "lawyer's default [in Links] ... was merely the culmina-
tion of a protracted course of dilatory tactics and other
improper behavior in litigation that had dragged on for six
years." Camps v. C & P Tel. Co., 692 F.2d 120, 122 (D.C. Cir.
1982) (footnote omitted). In contrast, this court has held
"that dismissal is rarely if ever appropriate when there is but
a single instance of attorney-misconduct," as in the instant
case. Id. This is because the sua sponte dismissal of a
lawsuit on the merits is " 'a drastic step, normally to be taken
only after unfruitful resort to lesser sanctions.' " Id. at 123
(quoting Jackson v. Washington Monthly Co., 569 F.2d 119,
123 (D.C. Cir. 1978)); see also Bristol Petroleum Corp., 901
F.2d at 167 ("[D]ismissal is in order only when lesser sanc-
tions would not serve the interests of justice.").
There are three basic justifications for dismissal because of
attorney misconduct: (1) prejudice to the other party; (2)
failure of alternative sanctions to mitigate the severe burden
that the misconduct has placed on the judicial system; and (3)
deterrence of future misconduct. See Shea v. Donohoe
Constr. Co., 795 F.2d 1071, 1074 (D.C. Cir. 1986). These
justifications are not easily met. Prejudice, for instance,
must be "so severe[ ] as to make it unfair to require the other
party to proceed with the case." Id. Similarly, a malfeasant
party places a severe burden on the judicial system if "the
court [is required] to expend considerable judicial resources
in the future in addition to those it has already wasted,
thereby inconveniencing many other innocent litigants in the
presentation of their cases." Id. at 1075-76. The final
rationale, deterrence, justifies dismissals when there is some
indication that the client or attorney consciously fails to
comply with a court order cognizant of the drastic ramifica-
tions. See id. at 1078.
Defendants have alleged no prejudice from Mr. Gardner's
failure to appear at the January 27 conference. And given
the District Court's observation that it would not hear argu-
ment at the hearing and its intention to resolve the case on
jurisdictional grounds despite Mr. Gardner's failure to ap-
pear, his nonappearance cannot be said to have interfered
with the orderly administration of the trial court's business.
Cf. id. at 1076-77 (concluding that "repeated failure to attend
status conferences" in that case did not constitute prejudice
to the judicial system). Of the enumerated justifications for
sua sponte dismissal, then, only the last, deterrence, has any
application to the instant case.
Mr. Gardner's situation, however, is not one to which the
deterrence rationale speaks with great eloquence. There are
three reasons for this: first, this was Mr. Gardner's only
failure to comply with an order of the District Court; second,
there is no evidence that Mr. Gardner acted in bad faith by
failing to appear at the hearing; and third, the trial court
provided no warning to Mr. Gardner of the consequences of
nonappearance. We also note that there is nothing in the
record to indicate that the District Court considered alterna-
tive sanctions for Mr. Gardner's misbehavior.
The District Court did not identify any prior instance of
misconduct on Mr. Gardner's part. Indeed, the court ob-
served that Mr. Gardner's absence was "atypical." That Mr.
Gardner had never before failed to comply with the District
Court's orders argues in favor of reversal. See Trakas, 759
F.2d at 188. In addition, as in Trakas, there is no evidence in
the record of "bad faith, deliberate misconduct, or tactical
delay." Id. In fact, Mr. Gardner provided a supportable
explanation for why he failed to attend the hearing. Finally,
the trial court did not warn Mr. Gardner that the case would
be dismissed if he failed to appear. "Absent such advance
warning [of the consequences], dismissal to drive a lesson
home, we think, is more akin to overkill than judicial discre-
tion." Camps, 692 F.2d at 125. In short, dismissal in this
case was unwarranted.
We appreciate the difficulty faced by the District Court in
this case. Mr. Gardner had filed three complaints before the
court. One of the complaints consisted of 44 counts and
named as defendants the United States, the Service, the State
of California, and several individual Service employees,
among others. Prior to dismissing the complaint in the
instant case, the District Court had denied Mr. Gardner's
motion for a continuance, and had been assured that Mr.
Gardner would attend the January 27 hearing. In this cir-
cumstance, we cannot doubt that Mr. Gardner's failure to
appear was an annoying occurrence. Nonetheless, given that
this was Mr. Gardner's only "failure ... to prosecute or to
comply with ... any order of court," Fed. R. Civ. P. 41(b), we
find that the District Court abused its discretion in dismissing
his case. Here we do not have a case of an unexplained
absence from the motions hearing, or any evidence that Mr.
Gardner deliberately sought to delay adjudication of the
merits of his complaints. Moreover, the record does not
show that the District Court considered the availability of a
lesser sanction. While the District Court's decision in the
instant case may not " 'comprehend[ ] a pointless exaction of
retribution,' " Camps, 692 F.2d at 123 (quoting Jackson, 569
F.2d at 123), it does cross the line to abuse of discretion. See,
e.g., Berry v. District of Columbia, 833 F.2d 1031, 1037 (D.C.
Cir. 1987) (reversing dismissal where attorney failed to file a
pretrial brief by specified date, failed to attend a status
conference, and failed to file a pleading specifically requested
by the court); Tolbert v. Leighton, 623 F.2d 585, 587 (9th Cir.
1980) (finding abuse of discretion where the only evidence of
dilatoriness was attorney's failure to attend a pretrial confer-
ence, the court had not warned that nonappearance would
result in a dismissal, and the case was still "young").
We emphasize that we do not call into question the District
Court's denial of both Mr. Gardner's motion for a continuance
and his motion to reschedule the hearing, because those
decisions are not before us. Nor does our disposition of this
case revive Mr. Gardner's tax refund complaint, the dismissal
of which this court summarily affirmed on October 8, 1999.
We hold only that, given the particular facts of this case, the
District Court abused its discretion in dismissing Mr. Gard-
ner's complaint for failure to prosecute.
B. Subject Matter Jurisdiction
The District Court also dismissed Mr. Gardner's complaint
under Rule 12(b)(1), holding that Mr. Gardner was required
to plead equitable grounds for relief in order to obtain an
injunction under 26 U.S.C. s 6213(a). Before this court, the
Government does not defend the District Court's Rule
12(b)(1) dismissal. Accordingly, there is no longer any dis-
pute between the parties as to whether a federal court may
entertain jurisdiction over Mr. Gardner's complaint. This
does not moot the issue, however. We are a court of limited
jurisdiction and must be satisfied through our own inquiry of
our power to hear this dispute. See Mansfield, Coldwater &
Lake Michigan Ry. v. Swan, 111 U.S. 379, 382 (1884). In
contrast to the issue of personal jurisdiction, parties may not
waive or concede a federal court's subject matter jurisdiction.
See Jackson v. Ashton, 33 U.S. (8 Peters) 148, 148-49 (1834)
(reversing for lack of subject matter jurisdiction even though
appellee had "no objection to the court's proceeding in the
case.").
Mr. Gardner seeks an injunction preventing the Service
from levying his bank account to assess an alleged deficiency
in his 1990 federal tax return. The Anti-Injunction Act, a
provision of the Internal Revenue Code, states that, "[e]xcept
as provided in section[ ] ... 6213(a), ... no suit for the
purpose of restraining the assessment or collection of any tax
shall be maintained in any court by any person, whether or
not such person is the person against whom such tax was
assessed." 26 U.S.C. s 7421(a). The District Court must
dismiss for lack of subject matter jurisdiction any suit that
does not fall within one of the exceptions to the Anti-
Injunction Act. Mr. Gardner seeks to bring his suit within
one of s 7421(a)'s exceptions, arguing that the Service violat-
ed s 6213(a) by levying his bank account without first mailing
him a notice of deficiency. For the purposes of deciding
whether we have jurisdiction over Mr. Gardner's complaint,
we will accept as true his allegation that the notice of
deficiency was never mailed to him.
Section 6213(a) establishes the Service's authority and re-
sponsibility to send a notice of deficiency to a taxpayer prior
to initiating proceedings to assess the deficiency. With a
notice of deficiency in hand, a taxpayer may file suit in Tax
Court challenging the assessment, and the Service is prohibit-
ed from enforcing the assessment until the Tax Court's
decision regarding the petition for review becomes final. See
id. s 6213(a). If the taxpayer does not file suit in Tax Court
in the time allotted after receipt of the notice of deficiency,
the Service may, among other things, impose a levy upon the
taxpayer's property, after notice, to recover unpaid taxes.
See id. s 6331(a) (1994).
There is some dispute among the circuits whether a taxpay-
er must allege traditional grounds for equitable relief to
establish a prima facie claim under s 6213(a) (i.e., irrepara-
ble harm and lack of an adequate remedy at law). The
District Court, following the Ninth Circuit, dismissed the
complaint, because Mr. Gardner failed to allege any equitable
grounds for relief. See Mem. Op. & Order at 4 (citing Elias
v. Connett, 908 F.2d 521, 523 (9th Cir. 1990)). The Ninth
Circuit is in the lead among those circuits that imply this
requirement in s 6213(a) claims, with the circuit's reasoning
set out in Cool Fuel, Inc. v. Connett, 685 F.2d 309, 313 (9th
Cir. 1982).
In Cool Fuel, the District Court had granted summary
judgment for the Service where a taxpayer alleging a viola-
tion of s 6213(a) had not met the requirements for equitable
relief. The Ninth Circuit affirmed, finding both a presump-
tion that equitable grounds be met for a court to issue an
injunction and "that section 6213 does not abolish equitable
tenets to support injunctive relief." Id. (relying on Wein-
berger v. Romero-Barcelo, 456 U.S. 305 (1982)). The court
emphasized s 6213(a)'s permissive language. See Cool Fuel,
685 F.2d at 313 (noting that s 6213(a) provides that an
assessment based on a notice of deficiency "may be enjoined"
by a court). Because a taxpayer retains the right to institute
a refund suit after payment of taxes, and the taxpayer in Cool
Fuel could afford to pay the disputed tax prior to an adjudica-
tion of the alleged deficiencies, the court found that an
equitable remedy was not available. The Third and Eleventh
Circuits have followed the Ninth Circuit's rule. See Flynn v.
Eggers, 786 F.2d 586, 591 (3rd Cir. 1986); Lovell v. United
States, 795 F.2d 976, 977 (11th Cir. 1986).
The Tenth Circuit, in Guthrie v. Sawyer, 970 F.2d 733, 736-
37 (10th Cir. 1992), reached a different result. Having re-
viewed the circuits' competing opinions, we think that the
Tenth Circuit clearly has the best of the argument. Accord-
ingly, we hold, in accord with Guthrie, that
[t]he purpose of the statutory exception [in s 6213(a)] is
to preserve the taxpayer's right to litigate his tax liability
in Tax Court before paying the tax. If the availability of
a refund suit after payment prohibits the taxpayer from
obtaining an injunction to protect his right to litigate
first, that right is virtually meaningless. Under this
approach, this right would be available only upon a
showing that the taxpayer could not pay the tax. We
have difficulty believing that Congress intended to give
with one hand and take back with the other.
970 F.2d at 736.
The result that we reach is not contrary to the principles
announced in Romero-Barcelo. In that case, the Supreme
Court merely observed that courts should "not lightly assume
that Congress has intended to depart from established [equi-
table] principles." 456 U.S. at 313. In Romero-Barcelo,
however, the Court expressly distinguished Tennessee Valley
Authority v. Hill, 437 U.S. 153 (1978), in which the Court
held that "Congress had foreclosed the exercise of the usual
discretion possessed by a court of equity" when it passed the
Endangered Species Act, 16 U.S.C. ss 1531-1544. Romero-
Barcelo, 456 U.S. at 313 (citing Tennessee Valley Authority,
437 U.S. at 173). According to the Romero-Barcelo Court,
the difference was that in Hill, the statute providing the basis
for the challenge "contain[ed] a flat ban" on the challenged
activity. 456 U.S. at 314. Similarly, here s 6213(a) flatly
prohibits the activity challenged by Mr. Gardner. See 26
U.S.C. s 6213(a) (providing that the Service shall begin "no
levy or proceeding" to collect on a notice of deficiency until a
period after the notice has been mailed to the taxpayer).
This statutory scheme, in combination with the Guthrie
Court's reasoning, convinces us that Congress did not intend
that litigants need establish equitable grounds for injunctive
relief under s 6213(a).
We decline to follow Cool Fuel for a third reason. The
Cool Fuel court cited Bob Jones University v. Simon, 416
U.S. 725, 742 n.16 (1974), to support its finding that "congres-
sional history [of s 6213(a)] is barren of indicated intent to
abandon historical principles of equity jurisprudence." 685
F.2d at 313. Bob Jones University involved an interpretation
of the Anti-Injunction Act, however, not s 6213(a). In fact,
the Court explicitly noted that "[n]one of the exceptions in
s 7421(a) is relevant to this case." Bob Jones University,
416 U.S. at 732 n.6. Therefore, it is of no moment that the
Court in Bob Jones University held that traditional equitable
principles were applicable to an action under the Anti-
Injunction Act that did not fall into any of the enumerated
exceptions. Of greater note, we think, is the Supreme
Court's failure to discuss traditional grounds for equity juris-
diction when holding that taxpayers to whom the Service had
not mailed notices of deficiency are entitled to bring suit
under s 6213(a). See Laing v. United States, 423 U.S. 161,
183-85 & 184 n.27 (1976).
III. CONCLUSION
For the reasons articulated herein, we reverse the District
Court's decision and remand for proceedings on the merits.