
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          December 21, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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-
