
USCA1 Opinion

	




          December 22, 1992                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1519                               IN RE:  MICHAEL HAGGERT,                                      Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Frank H. Freedman, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Michael Haggert on brief pro se.            _______________            A.  John  Pappalardo, Acting  United  States  Attorney,  James  A.            ____________________                                     _________        Bruton,  Acting  Assistant  Attorney  General, Gary  R.  Allen,  David        ______                                         _______________   _____        English  Carmack,  and  S.  Robert  Lyons,  Attorneys,  Tax  Division,        ________________        _________________        Department of Justice, on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.   On  August  12,  1991, the  Internal                      ___________            Revenue Service ("IRS")  brought an ex  parte application  in                                                __  _____            the  district court for a  writ authorizing the  IRS to enter            the business premises  of appellant Michael  Haggert so  that            the IRS could effectuate its levy upon, and seize,  Haggert's            property  in satisfaction of Haggert's federal tax liability.            On  the  same  day,  a  magistrate  judge  signed   an  order            permitting  the  entry.    Following  the  IRS'  seizure   of            Haggert's  property   pursuant   to  this   order,   Haggert,            proceeding  pro se, filed in the district court on August 27,                        ___ __            1991, a "Motion to  Rescind Order and Restore to  Equity," in            which  he requested the return  of the seized  property.  The            district  court denied this motion on September 19, 1991.  On            October 31, 1991, Haggert filed a motion captioned,  "Notice,            Offences, Demands  and Remedy," in  which he argued  that the            IRS'  levy upon his property had  been illegal, requested the            imposition  of  various criminal  penalties  against  the IRS            agents involved,  and  damages from  the  federal  government            under  42 U.S.C.    1983.   On March  24, 1992,  the district            court denied the  motion on  two grounds:   (1) the  district            court lacked  jurisdiction  over  the  motion,  and  (2)  the            substantive arguments  raised by  Haggert were  frivolous and            "have  been rejected  as frivolous by  every court  which has            considered  them."   Haggert  appeals.    We affirm,  on  the            grounds relied on by the district court.                                   I.  JURISDICTION                                       ____________                      Initially, the government argues that Haggert could            not raise his claims  in the form of post-seizure  motions in            an  ex parte proceeding brought by the IRS to enter Haggert's                __ _____            premises.    Since  the  sole  issue  in  such  an  ex  parte                                                                __  _____            proceeding is whether the IRS  showed probable cause to enter            a  taxpayer's  premises and  seize  property  to satisfy  tax            liability, see United  States v. Shriver,  645 F.2d 221,  222                       ___ ______________    _______            (4th Cir.  1981),  the government  argues that  the ex  parte                                                                __  _____            proceeding  is concluded  once  the writ  of  entry has  been            granted.  Thus, the district court would have no jurisdiction            over     post-seizure  motions  purportedly  brought  by  the            taxpayer in the ex parte proceeding.                            __ _____                      We need not resolve this technical question because            we agree with the district court  that there was no basis for            district  court jurisdiction  over Haggert's  claims, whether            those claims are  treated as post-seizure  motions in the  ex                                                                       __            parte proceeding or, instead, as an entirely new action filed            _____            by Haggert in the district court.                      In part, Haggert's motions  appear to request  that            the  IRS refund to  Haggert the amounts seized  by the IRS to            satisfy unpaid taxes, on  the ground that Haggert did  not in            fact owe those taxes.  In order to seek such a refund  in the            district court, however,  a taxpayer first must  pay the full            amount  of the tax owed and file an administrative claim with            the  IRS for a refund.  28  U.S.C.   1346(a)(1).  Haggert has                                         -3-            not done this.  Nor did Haggert file a claim in the Tax Court            for review of  Haggert's tax liability before payment,  as is            permitted by 26 U.S.C.   6213(a).                      To  the extent Haggert's motions could be construed            as a suit to recover for wrongful levy on Haggert's property,            the district  court has no  jurisdiction because 26  U.S.C.              7426(a)(1)  provides that only a third party can bring a suit            for wrongful levy.  A taxpayer, like Haggert, cannot maintain            such a suit.                      Haggert's  motions  also  seek  criminal  penalties            against the IRS  agents involved in the seizure  of Haggert's            property.    It  is  well settled,  however,  that  only  the            Attorney General  of the  United  States or  his delegee  may            initiate  a prosecution  for  violation  of federal  criminal            laws.    See  Inmates  of  Attica  Correctional  Facility  v.                     ___  ___________________________________________            Rockefeller, 477 F.2d 375, 379-82 (2nd Cir. 1973).            ___________                      Finally, Haggert requests damages under 42 U.S.C.              1983  on  the ground  that the  seizure  of his  property was            illegal because the IRS did not demonstrate probable cause to            justify  the writ of entry.  Haggert's   1983 claim, however,            is  against the U.S. Government only.  Haggert has not served            any IRS agents or other government employees with process  as            to any claim under    1983.  The government  enjoys sovereign            immunity  against  Haggert's claim,  since     1983 does  not            provide for any waiver of that  immunity.  See Hall v. United                                                       ___ ____    ______                                         -4-            States, 704 F.2d  246, 251-52  (6th Cir.)  cert. denied,  464            ______                                     ____________            U.S. 1002 (1983).  Also, section 1983 permits damages actions            against  persons acting  under color  of state  law, and  not            against  persons  acting  under  federal  law.    Chatman  v.                                                              _______            Hernandez,  805 F.2d  453, 455  (1st Cir.  1986); Zernial  v.            _________                                         _______            United States, 714 F.2d  431, 435 (5th Cir. 1983).   The IRS,            _____________            of  course, acts  under federal,  not state  law.   Nor could            Haggert bring  a Bivens  claim, since the  federal government                             ______            enjoys sovereign  immunity  against Bivens  claims  as  well,                                                ______            Nuclear Transport & Storage, Inc. v.  United States, 890 F.2d            _________________________________     _____________            1348, 1352  (6th  Cir. 1989),  cert.  denied, 494  U.S.  1079                                           _____________            (1990),  and since  the  tax  statutes  themselves  foreclose            Bivens  claims by  providing adequate  remedies for  improper            ______            assessment of tax liability.   Cameron v. IRS, 773  F.2d 126,                                           _______    ___            129 (7th Cir. 1985).                                   II.  THE MERITS                                        __________                      As the  district court ruled, even  if the district            court  had jurisdiction,  Haggert's claims were  meritless in            any  event.    We will  briefly  consider  each of  Haggert's            arguments in turn.                      First,  Haggert  attacked  the sufficiency  of  the            affidavit  of Revenue  Officer John Mello  in support  of the            IRS' application for the writ of entry on Haggert's premises.            Haggert contends that the affidavit is unacceptable hearsay.                                         -5-                      The affidavit of Revenue Officer  Mello does indeed            contain  hearsay.   In  the affidavit  Revenue Officer  Mello            states,  "I have  been advised  of the  following by  Revenue            Officer  Bruce  Boyson,  whom I  know  and  believe  to be  a            reliable  source of  this information."   The  affidavit then            goes  on  to  set  forth  the  evidence  in  support  of  the            application  for the writ of  entry.  This  evidence, in sum,            was that Haggert had been issued tax  assessments and notices            of deficiency  for the unpaid tax liability in question; that            Haggert had neglected  or refused to  pay the taxes  assessed            for over ten  days; that Haggert had been issued  a notice of            the  IRS' intention  to levy  on his  property; that  Haggert            leased the business premises on which entry was sought;  that            Revenue   Officer  Boyson  had   personally  observed  office            fixtures and furnishings on  these premises, which were among            the items to be seized; that Boyson had verified that Haggert            owned  these  items because  both  Haggert's  landlord and  a            Uniform Commercial  Code filing  at the Secretary  of State's            office said so; and that Haggert had refused Boyson's request            for consent to enter the premises for the purposes of levying            on Haggert's assets.                      Even  in  an application  for  a  warrant to  enter            premises  to  search  for  evidence  of   criminal  activity,            reliance  in   an  affidavit  upon   hearsay  information  to            establish probable  cause is  permissible.  A  search warrant                                         -6-            may be issued on the basis of hearsay information, consistent            with  the fourth  amendment, if  issuance  of the  warrant is            justified by the totality of the circumstances.                      The  task  of the  issuing  magistrate is                      simply to make a  practical, common-sense                      decision    whether,   given    all   the                      circumstances set forth in  the affidavit                      before him, including the  "veracity" and                      "basis of knowledge" of persons supplying                      hearsay  information,  there  is  a  fair                      probability  that contraband  or evidence                      of a crime will  be found in a particular                      place.  And the duty of a reviewing court                      is simply  to ensure that  the magistrate                      had  a  "substantial  basis  for  .  .  .                      conclud[ing]"    that    probable   cause                      existed.   Jones  v.  United States,  362                                 _____      _____________                      U.S., at 271.            Illinois v. Gates, 462 U.S. 213, 238-39 (1983).            ________    _____                      There is disagreement among the circuits whether an            IRS  application  for  a writ  of  entry  is  subject to  the            probable cause  standards applied  to search warrants  in the            criminal law setting  under Gates, id., or is instead subject                                        _____  ___            to  the  less  exacting  probable  cause  standards governing            administrative  searches, see Marshall v. Barlow's, Inc., 436                                      ___ ________    ______________            U.S. 307, 320-21 (1978); United States v. Blanchard, 495 F.2d                                     _____________    _________            1329,  1331 (1st Cir. 1974).  Compare United States v. Condo,                                          _______ _____________    _____            782  F.2d  1502,  1505  (9th Cir.  1986)  (applying  criminal            standards),  with In  the Matter of  Carlson, 580  F.2d 1365,                         ____ __________________________            1376-81 (10th Cir. 1978) (applying administrative standards).            Even under the criminal  standards, however, we could readily            find  "that  the  magistrate  had  a  substantial  basis  for                                         -7-            concluding that  probable cause existed."   Gates, supra, 462                                                        _____  _____            U.S. at 238-39 (quotation and citation omitted).                      The hearsay  statements in Revenue  Officer Mello's            affidavit were not those of an unidentified informant, but of            a  named IRS  Revenue Officer,  Bruce Boyson,  whose business            address  and  telephone  number  are  given  in  an  attached            "seizure data sheet."  The magistrate judge had ample reason,            therefore, for confidence in  the veracity and reliability of            the hearsay declarant.   See United States v. McCormick,  309                                     ___ _____________    _________            F.2d 367, 372  (7th Cir.  1962), cert. denied,  372 U.S.  911                                             ____________            (1963)  ("information .  . .  communicated  in the  course of            official business by [FBI]  agents among themselves . .  . is            [not] excluded by the hearsay rule . . . so as to require the            quashing of a search warrant issued upon the affidavit of one            of  the   agents  setting   forth  his  reliance   upon  such            information").                      In addition, Mello's affidavit adequately  sets out            the  basis of  the  hearsay information  provided by  Boyson.            Giving  the affidavit  the "practical,  common-sense" reading            required by Gates, supra, 462 U.S. at 238,  it is implicit in                        _____  _____            the  affidavit  that  the assertions  that  Haggert  received            various required IRS  assessments and notices, which  Haggert            neglected or  refused to pay,  were derived from  IRS records            maintained in  the course  of official business.   Similarly,            Boyson's hearsay  assertion  that  the  office  fixtures  and                                         -8-            furnishings belonged  to Haggert  was supported by  a Uniform            Commercial Code  filing and by Haggert's  landlord.  Although            this would  appear to  be double  hearsay, double  hearsay is            permissible  in  such an  affidavit  if  adequate indicia  of            reliability are present.   United States v. Angulo-Lopez, 791                                       _____________    ____________            F.2d 1394, 1397 (9th  Cir. 1986).  A Uniform  Commercial Code            filing   certainly  carries  ample  indicia  of  reliability.            Boyson's other statements were based on personal knowledge or            observation.  If we  had jurisdiction to consider the  issue,            therefore,  we   would  have  no  difficulty   in  finding  a            substantial  basis for  the magistrate  judge's determination            that the affidavit was adequate to establish probable cause.                      Haggert   also  argues   that  the   affidavit  was            insufficient to support the writ of entry because the IRS did            not  submit   the  actual  notices  of   deficiency  and  tax            assessments against Haggert.  The affidavit,  however, stated            that  notices  of deficiency  and  tax  assessments had  been            issued to Haggert for  the unpaid tax liability in  question.            This  was  adequate,  as   the  magistrate  judge  found,  to            establish probable  cause to believe that  Haggert's property            was subject  to levy by  the IRS.   Actual production of  the            documents was not required.                      Haggert's  other points,  as the  government notes,            were   all   well-worn  tax-protestor   arguments  repeatedly            rejected by  the courts.   Haggert argued  that he was  not a                                         -9-            taxpayer,  and owed no income tax, because his wages were not            income; that he did  not live within the jurisdiction  of the            IRS, which  is limited to  Washington, D.C.; that  the income            tax is a  volunteer tax  by self-assessment, and  he had  not            chosen  to volunteer; that the  income tax is  an excise tax;            and  that application  of  the Internal  Revenue Code  to tax            Haggert  would  be  unconstitutional.   These  arguments  are            meritless,  indeed silly, on their face.  See, e.g., Cheek v.                                                      ___  ____  _____            United  States, 111 S. Ct. 604, 612-13 (1991); In re Becraft,            ______________                                 _____________            885 F.2d 547  (9th Cir.  1989); Wilcox  v. Commissioner,  848                                            ______     ____________            F.2d 1007  (9th Cir.  1988); Sullivan v.  United States,  788                                         ________     _____________            F.2d 813, 815 (1st Cir. 1986).                      The  government's request  for  the  imposition  of            sanctions on Haggert, who has no record of repeated frivolous            filings in this court, is denied.                                      ______                      The judgment of the district court is affirmed.                                                            ________                                         -10-
