Hans Bothke v. Fluor Engineers & Constructors, Inc., and W.J. Terry

BEEZER, Circuit Judge,

concurring:

Taxpayer Bothke brought this Bivens1 action against Revenue Agent Terry for damages due to Terry’s allegedly wrongful levy on Bothke’s wages. Bothke claims that Terry violated due process when she levied on Bothke’s wages without first affording him a hearing on his tax liability. The district court held that Bothke stated a cause of action for constitutional violations, but that Terry acted within the scope of her qualified immunity. The court granted summary judgment for Terry.

Because Bothke has no constitutional right to a pre-levy hearing, I concur in the judgment on the basis that Bothke does not state a cause of action under Bivens. Accordingly, I would vacate the judgment and remand with instructions to dismiss the action for failure to state a claim upon which relief can be granted.

I

Bothke filed a timely tax return for 1977 claiming a refund for taxes withheld during that year. On March 5, 1979 the IRS sent Bothke a notice of “Correction to Arithmetic” stating that Bothke owed taxes based on the W-2 form attached to his return. The notice also advised Bothke to “[p]lease let us know if you believe the *813balance due is incorrect for reasons other than uncredited payments.”

Bothke promptly mailed a letter protesting the notice on various grounds. The IRS subsequently notified Bothke that his refund claim had been denied and that his wages would be subject to levy unless he either paid his delinquent tax or contacted the IRS within 10 days.

Terry contacted Bothke in November of 1979. Bothke repeated allegations that the IRS had violated his rights. Terry demanded full payment and told Bothke he could expect further action. Two days later, Terry served a Notice of Levy on Fluor Engineers (Bothke’s employer). Fluor paid the IRS approximately half of Bothke’s delinquent tax. Bothke terminated his employment with Fluor in order to avoid further levies. Bothke sued Terry and others, claiming violation of his federal constitutional and statutory rights. All defendants other than Terry were dismissed.

Taxpayers who receive notices of correction to their arithmetic may request an abatement of enforcement proceedings. 26 U.S.C. § 6213(b)(2).2 Requests for abatement permit the taxpayer to avail himself of deficiency procedures, including inter alia an opportunity for redetermination of tax liability by the Tax Court before collection of delinquent taxes.

Bothke claims that Terry’s failure to regard his protest letter as a request for abatement deprived him of process that was due under the Fifth Amendment and of his rights under 26 U.S.C. § 6213. He seeks $100,000 for compensatory and $150,-000 in punitive damages.

The extended procedural history of this case may be summarized as follows:

1.Initial Adjudication In The District Court

The magistrate recommended that summary judgment be granted for Terry on the basis of either qualified or absolute immunity. The district court adopted the magistrate’s recommendation and directed that judgment be entered for Terry.

2. Prior Appeal

This Court affirmed in a memorandum disposition. No. 81-5457 (January 24, 1983). Subsequently, the panel withdrew the memorandum, held that Terry was entitled only to qualified immunity, and vacated the portion of the judgment based on absolute immunity. Bothke v. Fluor Engineers and Constructors, Inc., 713 F.2d 1405 (9th Cir.1983) {Bothke I). Bothke I suggested, but did not hold, that Bothke stated a cause of action for “acts which allegedly bypassed statutory procedural safeguards_” See Bothke I, 713 F.2d at 1415, n. 7.

The Supreme Court granted certiorari, vacated the judgment, and remanded for further consideration in light of Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). Terry v. Bothke, 468 U.S. 1201, 104 S.Ct. 3566, 82 L.Ed.2d 867 (1984). Davis states that, in order to prevail against a defense of qualified immunity, plaintiffs must show that government officials violated rights which were clearly established at the time of the conduct at issue. Davis, 468 U.S. at 197, 104 S.Ct. at 3020.

This Court remanded the case to the district court with instructions to dismiss the action “[u]nless ... Bothke can meet the burden of showing a violation of constitutional rights that were clearly established at the time of the conduct at issue. ...” Bothke v. Fluor Engineers and Constructors, Inc., 739 F.2d 484 (9th Cir. 1984) (Bothke II).

3. Further Proceedings

The magistrate determined that Bothke stated a Bivens cause of action under the Fifth Amendment, but that Bothke’s right to have the IRS treat his protest letter as a *814request for abatement was not clearly established as required by Davis. Given the absence of any precedent requiring IRS agents to treat protest letters as requests for abatement, the magistrate concluded that Terry acted “well within her discretionary authority when she decided to follow through with the levy on [Bothke’s] salary.”

The district court adopted the magistrate’s findings and recommendations and directed entry of summary judgment for Terry. Bothke appeals.

II

The district court had jurisdiction under the general federal question statute, 28 U.S.C. § 1331. See Bivens v. Six Unknown Agents, 403 U.S. 388, 398-99, 91 S.Ct. 1999, 2005-06, 29 L.Ed.2d 619 (1971) (concurring opinion). Summary judgment disposed of all of Bothke’s claims against Terry, the only remaining defendant. This Court has jurisdiction under 28 U.S.C. § 1291.

III

The district court held that Bothke stated a Bivens cause of action for Fifth Amendment violations. The existence of a cause of action is a question of law, which this Court reviews de novo. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

A. Bivens Cause of Action

Under certain circumstances, federal courts may award damages for constitutional violations, despite the absence of any common law or statutory cause of action.

The federal courts’ statutory jurisdiction to decide federal questions confers adequate power to award damages to the victim of a constitutional violation. When Congress provides an alternative remedy, it may, of course, indicate its intent, by statutory language, by clear legislative history, or perhaps even by the statutory remedy itself, that the courts’ power should not be exercised. In the absence of such a congressional directive, the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation.

Bush v. Lucas, 462 U.S. 367, 378, 103 S.Ct. 2404, 2411, 76 L.Ed.2d 648 (1983). The Supreme Court has approved a damages remedy for deprivations of due process under the Fifth Amendment. See Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979).

Bivens actions lie only for violations of rights secured by the Constitution. See Bivens, 403 U.S. at 396-97, 91 S.Ct. at 2004-05. The due process clause of the Fifth Amendment protects both substantive and procedural rights, either of which may serve as a foundation for Bivens actions.

For purposes of the following discussion, I assume that Terry violated 26 U.S.C. § 6213(b)(2) when she levied on Bothke’s wages before Bothke obtained a hearing before the Tax Court. Because Bothke has no constitutional right to a pre-levy hearing, his complaint does not state a Bivens cause of action for Fifth Amendment violations.

1. Substantive Due Process

The Fifth Amendment protects taxpayers’ substantive right to be free of abusive tax collection practices. See e.g. Hall v. United States, 704 F.2d 246 (6th Cir.1983); Rutherford v. United States, 702 F.2d 580 (5th Cir.1983) (claim for malicious prosecution, harassment and mental anguish); Seibert v. Baptist, 599 F.2d 743 (5th Cir.1979) (taxpayer sought damages for malicious prosecution, harassment, unlawful seizure of property, mental anguish, and deprivation of due process and equal protection; see Seibert v. Baptist, 594 F.2d 423, 427 (5th Cir.1979)).

Concluding that Bothke claimed a constitutional violation, the magistrate and district court relied on Rutherford v. United States, 702 F.2d 580 (5th Cir.1983). The magistrate considered Rutherford “quite similar” to this case. I disagree.

*815In that case, the Rutherfords alleged that a revenue agent invented additional gross income, intentionally assessed tax twice on the same income, repeatedly demanded useless documentation, accused the taxpayers of hiding money and even demanded, on one occasion, that Rutherford empty his pockets of money. Rutherford, 702 F.2d at 581. Finally, “in the ‘coup de grace,’ [the agent] arranged for his audit report to be delivered to the Ruth-erfords’ home at 4:30 p.m. on Christmas Eve.” Id.

The court found that the Rutherfords had stated a claim for violation of “a liberty interest derived from and protected by the substantive aspects of the due process clause”; the court suggested that a Bivens action for damages would be the appropriate remedy for abusive and malicious tax collection practices. Id. at 583-84.

Bothke alleges that Terry was guilty of a “malicious abuse of process” in serving a “spurious document” (the levy). The only basis for Bothke’s characterization of Terry’s conduct as wrongful is that the levy was “spurious.” The reason the levy was spurious was that Bothke had not been afforded a hearing on his tax liability. However, the IRS’ failure to comply with the statutory process of § 6213 is not per se abusive behavior. Even assuming that the IRS should have construed Bothke’s protest letter as a request for abatement, nothing in Bothke’s complaint suggests that the IRS did so deliberately and with intent to harass Bothke.3

This case closely resembles Zernial v. United States, 714 F.2d 431 (5th Cir.1983). In Zernial the taxpayer claimed that revenue agents violated due process when they levied on wages without first providing a notice of deficiency and the opportunity for a hearing on tax liability. The court held that the taxpayer failed to state a claim upon which relief could be granted: “[the taxpayer] has not suggested that there was *816any abusive behavior by any of the defendants, so this case is clearly distinguishable from Rutherford. The only constitutional claim raised here is one of procedural due process.” Id. at 435.

Similarly, Bothke alleges violation of procedural, not substantive, due process. Rutherford is inapposite. Substantive due process does not furnish a basis upon which Bothke may found his Bivens action.

2. Procedural Due Process

The statutory provision for a refund suit (26 U.S.C. § 7422) satisfies procedural due process, Bob Jones University v. Simon, 416 U.S. 725, 746-47, 94 S.Ct. 2038, 2050-51, 40 L.Ed.2d 496 (1974), unless “irreparable injury may result” if the taxpayer is not afforded a pre-enforcement hearing. Commissioner v. Shapiro, 424 U.S. 614, 629, 96 S.Ct. 1062, 1071, 47 L.Ed.2d 278 (1976). Bothke suffered no irreparable harm when the IRS denied him a pre-levy hearing.

The statute, 26 U.S.C. § 6213(b)(2), allows for a pre-enforcement hearing upon a taxpayer’s request for abatement. However, Congress’s decision to afford more than due process for taxpayers does not automatically convert statutory process into constitutional due process. Zernial, 714 F.2d at 435; see Laing v. United States, 423 U.S. 161, 206, 96 S.Ct. 473, 495, 46 L.Ed.2d 416 (1976) (Blackmun, J., dissenting on other grounds).

Bothke had no constitutional right to a pre-levy hearing on his tax liability. Like the taxpayer’s complaint in Zernial, Bothke’s complaint “demonstrates on its face that he received all of the process to which he was entitled.” Zernial, 714 F.2d at 435. Accordingly, Bothke has no constitutional basis for a Bivens action. Id.

B. Implied Cause of Action Under 26 U.S.C. § 6213

The Supreme Court has articulated the standard for determining whether a cause of action may be implied from a statute.

[T]he fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person. Instead, our task is limited solely to whether Congress intended to create the private right of action.

Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979) (citations omitted). Neither the language nor the legislative history of 26 U.S. C. § 6213(b) suggests Congress intended that section to form the basis for private damage actions against the government or government employees. See generally H.R.Rep. 658, 94th Cong., 2d Sess. at 288-92, reprinted in 1976 U.S.Code Cong. & Admin.News 2897, 3184-88; S.Rep. 938, 94th Cong., 2d Sess. at 374-78, reprinted in 1976 U.S.Code Cong. & Admin.News 3439, 3803-3807. Bothke does not have an implied cause of action under 26 U.S.C. § 6213.

Bothke states no cause of action either under 26 U.S.C. § 6213 or under Bivens for Fifth Amendment violations. I would vacate the judgment and remand with instructions to dismiss the action for failure to state a claim upon which relief can be granted.

. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

. "(A) ... [U]pon receipt of [a request for abatement], the Secretary shall abate the assessment. Any reassessment of the tax with respect to which an abatement is made ... shall be subject to the deficiency procedures prescribed by this subchapter. (B) [N]o levy or proceeding in court for the collection of such assessment shall be made, begun, or prosecuted during the period in which such assessment may be abated.”

. The broadest allegations in Bothke’s complaint are the following:

FIRST CAUSE OF ACTION
******
25. By reason of these premises defendant Terry willfully and knowingly issued, executed and delivered a spurious document purporting to have legal force and effect and alleging to be a valid "Notice of Levy” on plaintiffs property, which constitutes a malicious abuse of process under color of federal common law.
26. By reason of these premises it is not within the purview of defendant Terry's duties and responsibilities as an acting group manager for the Internal Revenue Service to violate the Internal Revenue law, specifically Section 6213, nor to deny plaintiff the protection of the Internal Revenue Law more specifically Section 6213, and such actions by the defendant Terry constitute a deprivation of plaintiffs rights, privileges and immunities guaranteed under the federal Constitution, and constitute an action in bad faith, bad motive not authorized by law.
SECOND CAUSE OF ACTION ******
18. By reason of these premises, defendant Terry, by issuing, executing and delivering the spurious alleged Notice of Levy to the defendant Myers, as stated in the First Cause of Action in Paragraph 11, unlawfully and maliciously circumvented the Statutory Procedure of the Revenue Law..,.
Allegation 25 does not suggest that Terry knew the document was "spurious”, in violation of Bothke’s statutory right to a hearing; allegation 25 only suggests that Terry knew she was delivering the document. That Terry’s action "constitutes a malicious abuse of process” is a conclusion, not a pleading of fact.
Allegation 26 compounds different thoughts with the result that it does not suggest Terry acted abusively. Bothke connects Terry’s failure to heed section 6213 with her "bad faith, bad motive not authorized by law.” If Bothke had severed the second thought from the first he might have pleaded abuse by Terry; for example, Bothke simply might have said, ‘Terry acted in bad faith.’ As it is, however, Bothke compounds the two thoughts. That Terry's failure to heed section 6213 ”constitute[s] an action in bad faith” is not a pleading of fact, but a conclusion that does not follow from the predicate.
Similarly, allegation 18 compounds different thoughts. That Terry "unlawfully and maliciously circumvented” the law “by ... delivering the spurious alleged Notice of Levy” is another conclusion that does not follow from the predicate.
Bothke’s other allegations do not suggest that Terry acted abusively. For instance, the complaint recounts objections Bothke made to Terry after she issued the notice of levy. The gist of these objections is that ”[t]he arbitrary issuance of form 668-W constitutes a denial of my (plaintiffs) legal remedies which are guaranteed by the Fifth amendment [sic] to the United States Constitution.”