
USCA1 Opinion

	




          February 26, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                  __________________          No. 92-1723                                            GILBERT T. GONSALVES,                                Plaintiff, Appellant,                                          v.                           INTERNAL REVENUE SERVICE, ET AL,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                        [Hon. Gene Carter, U.S. District Judge]                                           ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Torruella and Cyr, Circuit Judges.                                             ______________                                 ___________________               Gilbert T. Gonsalves on brief pro se.               ____________________               James A.  Bruton, Acting Assistant Attorney General, Gary R.               ________________                                     _______          Allen, Richard  Farber, Curtis  C. Pett, Attorneys  Tax Division,          _____  _______________  _______________          Department  of  Justice,  and  Richard S.  Cohen,  United  States                                         _________________          Attorney, on brief for appellees.                                  __________________                                  __________________                 Per  Curiam.    Between  1979 and  1985  the  appellant,                 ___________            Gilbert  Gonsalves, worked in  the Panama Canal  Zone for the            Panama Canal Commission.   He believed that  the Panama Canal            Treaty gave  an exemption from United States  income taxes to            American employees  of the Commission.   In 1986,  the United            States Supreme Court decided that the treaty had  not created            such  an exemption.  O'Connor  v. United States,  479 U.S. 27                                 ________     _____________            (1986).                 By the  time the  Supreme Court answered  the underlying            question, however, Mr. Gonsalves and the IRS were locked in a            quarrel over the extent of Mr. Gonsalves' tax liability.  The            IRS  had  received  some  tax payments,  but  said  that  Mr.            Gonsalves still  owed money to the  government; Mr. Gonsalves            said  that he  had  overpaid.   The  IRS  made  at least  one            assessment, for tax year 1981, and in March 1988 it collected            some  of the amount assessed  by levying upon  a bank account            that belonged to Mr. Gonsalves.   See generally Gonsalves  v.                                              _____________ _________            Internal  Revenue Service,  975 F.2d  13, 14 (1st  Cir. 1992)            _________________________            (per curiam).                 Although  the  remedies  were   available  to  him,  Mr.            Gonsalves neither  challenged the  IRS' calculation of  a tax            deficiency by  filing a  petition for redetermination  in the            Tax  Court, nor attempted to recover the taxes paid by filing            a refund  action in  the district  court.  See  26 U.S.C.                                                           ___            6213, 7422.  He has, however, twice sought to recover damages                                         -2-            for  transgressions  that  he  says IRS  officials  committed            during  the course of their dealings with him.  Mr. Gonsalves            claims that IRS officials violated  his rights in three ways:            (1) by denying him an administrative appeal despite his "many            verbal and written requests;" (2) by seizing the funds in his            bank  account  without  giving  him proper  notice  of  their            intention  to  levy; and  (3) by  failing  to respond  to his            inquiries  and settle his  differences with  the agency  in a            "prompt and timely" manner.                   Mr. Gonsalves  first attempted  to recover damages  in a            suit he filed in 1991 in the United States District Court for            the District of Maine.  The 1991 complaint named the Internal            Revenue Service  as the  only defendant, and  asserted claims            under both  the United States Constitution  and the "Taxpayer            Bill of Rights."  26 U.S.C.    7433.  The district court gave            judgment to the IRS, and we affirmed.  975 F.2d at 15-17.                 In January 1992 Mr. Gonsalves filed the complaint before            us  now.  Although  this complaint again  names the IRS  as a            defendant,  it also names, and its true targets appear to be,            the  district  directors  of  the  IRS  offices  in  Andover,            Massachusetts, Augusta, Maine, and Philadelphia, Pennsylvania            (who  are identified  only by title),  and Paul  Chinouard, a            "problem resolution  officer" at the IRS  office in Portland,            Maine.                                           -3-                 The allegations in the 1992 complaint echo those made in            the 1991 complaint.  However, Mr. Gonsalves now contends that            he is entitled to recover directly from the IRS officials who            violated his rights, pursuant to the doctrine first described            in  Bivens v. Six Unknown  Named Agents of  Federal Bureau of                ______    _______________________________________________            Narcotics, 403  U.S. 388 (1971).   The  district court  ruled            _________            that  the defendants  were entitled,  at the  very  least, to            "qualified  immunity,"  and dismissed  the  complaint.   This            appeal followed.  We affirm.                                          I                                          _                 "Bivens  actions  lie  only  for  violations  of  rights                  ______            secured by  the Constitution."   Bothke v. Fluor  Engineers &                                             ______    __________________            Constructors,  Inc.,  834  F.2d  804,  814  (9th  Cir.  1987)            ___________________            (Beezer,  J., concurring).    Mr. Gonsalves  claims that  the            defendants  violated  the Due  Process  Clause  of the  Fifth            Amendment, which  says  that the  federal  government  cannot            deprive a person of life,  liberty, or property "without  due            process  of  law."    The  amended  complaint  did  allege  a            deprivation  of  property  -- the  seizure  of  money in  Mr.            Gonsalves' bank account -- but the record contains no factual            basis  from  which  one  could infer  that  this  deprivation            occurred without due process of law.                 When  the  government  takes  a  person's property,  due            process  requires that it give him  notice and an opportunity            to  be  heard  "at a  meaningful  time  and  in a  meaningful                                         -4-            manner."   Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (quoting                       _______    ______            Armstrong  v. Manzo, 380  U.S. 545, 552  (1965)).  Generally,            _________     _____            "at a  meaningful time"  means "notice  and a  hearing before                                                                   ______            persons  are  separated from  their  property," Rodriguez  v.                                                            _________            United States, 629 F.Supp. 333, 347 (N.D.Ill. 1986) (emphasis            _____________            added), although  in some circumstances --  for example, when            the IRS perceives that  its ability to collect taxes  will be            jeopardized  by  delay  --  a  post-deprivation  hearing  may            adequately  protect  due process  rights.    See Phillips  v.                                                         ___ ________            Commissioner,  283  U.S.  589,  595-97  (1931);  Rodriguez v.            ____________                                     _________            United States, 629 F.Supp. at 348.             _____________                 Except where the IRS makes such a "jeopardy" assessment,            the Internal Revenue  Code requires that  it give a  taxpayer            notice before it takes his property, and provide the taxpayer            with  a  choice  whether to  be  heard  before  or after  the            deprivation.    The procedure  is  as follows:  once  the IRS            determines that a taxpayer owes  money to the government,  it            must  issue a  notice of  the deficiency,  then wait  90 days            before  attempting to  collect the  taxes due.   26  U.S.C.              6213(a).  If the taxpayer wants a pre-deprivation hearing, he            can, during those 90 days, file a petition with the Tax Court            asking it to redetermine the deficiency, and the stay against            collection efforts  will remain in effect  while the petition            is pending.   Id.   Or  the taxpayer can  forego a  Tax Court                          ___                                         -5-            hearing, pay the tax, and seek a refund in a post-deprivation            action in the district court.  26 U.S.C.   7422.                 The taxpayer  may receive, and  may even be  entitled by            statute or  regulation to receive, extra process,  such as an            administrative appeal, a notice of levy, and prompt responses            to his inquiries.   But, because his "due process  rights are            adequately protected by the statutory scheme which allows him            to contest his tax liability in the Tax Court prior to paying            the disputed tax or to  sue for a refund in federal  district            court . . . ,"   Stonecipher v. Bray, 653 F.2d 398,  403 (9th                             ___________    ____            Cir.  1981) (citing  Phillips  v. Commissioner,  283 U.S.  at                                 ________     ____________            595),  these additional  procedures are  not constitutionally                                                         ________________            required.      For  example, once  the  taxpayer  has  either            resorted to or waived a Tax Court hearing, the IRS can, as it            did here, make  a formal  assessment and then  levy upon  the            taxpayer's property to satisfy the deficiency.  See 26 U.S.C.                                                            ___               6203, 6331.   However, before it can perform the  levy, 26            U.S.C.    6331(d)  requires the  IRS to  issue notice  of its            intention  to levy, and to deliver the notice to the taxpayer            personally, or to mail it to his last known address.                 In this case,  the district court that  tried the claims            in  the  1991 complaint  found that  the  IRS had  mailed the            notice to  the wrong address.   975 F.2d at 15.   The ensuing            levy  therefore may  have  violated the  statute.   But,  the            mistake did not  deprive Mr. Gonsalves  of an opportunity  to                                         -6-            file  a  petition in  the Tax  Court  (an opportunity  he had            already waived  by the time of  the levy), or  to institute a            refund  action in  the  district court  (an opportunity  that            remained  available to him after the levy).  It therefore did            not deny him due process of law.  See Baddour, Inc. v. United                                              ___ _____________    ______            States,  802 F.2d 801, 807 (5th Cir. 1986); Zernial v. United            ______                                      _______    ______            States,  714  F.2d 431,  435  (5th Cir.  1983);  Rodriguez v.            ______                                           _________            United  States, 629 F.Supp. at 347 (wrongful levy does not in            ______________            itself deny due process).                 For  the   same  reason,  there   is  no  constitutional            substance to  Mr. Gonsalves'  claims that the  defendants (1)            refused to provide him with an administrative appeal, and (2)            ignored his inquiries and otherwise delayed the resolution of            his  differences with the agency.  Mr. Gonsalves may have had            a "right," created by the IRS' Statement of Procedural Rules,            to an  informal  administrative  appeal.   See  26  C.F.R.                                                          ___            601.106.     But   because   the  statutory   mechanisms  for            challenging agency actions in the courts offer due process to            taxpayers who face deprivations  of property by the  IRS, the            appeals  procedure is  not constitutionally  necessary.   See                                                                      ___            Rosenberg v. Commissioner, 450 F.2d 529, 533 (10th Cir. 1971)            _________    ____________            (provisions in Statement of Procedural Rules "not designed to            protect  the constitutional  rights of  the taxpayer").   See                                                                      ___            also  United States  v. Horne,  714 F.2d  206, 207  (1st Cir.            ____  _____________     _____            1983).  The  violation of a regulation which the Constitution                                         -7-            does  not  require  an  agency  to   adopt  does  "not  raise            constitutional questions."    United States  v. Caceres,  440                                          _____________     _______            U.S. 741, 752 (1979).                 Similarly, Mr.  Gonsalves  may  have  been  entitled  to            responses to  his inquiries and cooperation  with his efforts            to resolve his tax problems -- although he has not identified            the statute or  regulation that  confers such a  right.   But            again,  notwithstanding  the defendants'  alleged inattention            and   uncooperativeness,  constitutionally-adequate   process            remained  available, in the form of a Tax Court petition or a            refund action,  to ensure  that the government  kept no  more            than  its  legal  share  of   Mr.  Gonsalves'  income.    The            underlying property interest did not go unprotected.                   The  defendants' alleged  misbehavior, it  is true,  may            have  deprived  Mr.  Gonsalves  of  the  IRS'  assistance  in                                                           __________            vindicating  that  interest.    However,  such assistance  is            itself neither  a "liberty"  nor a "property"  interest whose            deprivation is  capable of  redress through a  Bivens action.                                                           ______            See Francis-Sobel v.  University of  Maine, 597  F.2d 15,  18            ___ _____________     ____________________            (1st Cir. 1979).   "In  order to state  a legally  cognizable            constitutional claim,  [Mr. Gonsalves needed to]  allege more            than  the  deprivation of  the  expectation  that the  agency                                            ___________            [would] carry out its duties."  Council of and  for the Blind                                            _____________________________            v. Regan,  709 F.2d 1521,  1533-34 (D.C.Cir. 1983)  (en banc)               _____            (emphasis in original).  See also Cameron v. Internal Revenue                                     ________ _______    ________________                                         -8-            Service, 773  F.2d 126,  128-29 (7th Cir.  1985) (allegations            _______            that   IRS   agents   subjected   taxpayer   to   unnecessary            inconvenience   and  failed   to  explore   possibilities  of            settlement did not describe  denial of due process); American                                                                 ________            Association of Commodity Traders  v. Department of  Treasury,            ________________________________     _______________________            598  F.2d 1233,  1236 n.2  (1st Cir.  1979) ("not  clear that            every loss of potential help from a bureaucrat is a loss of a            constitutional interest").                                          II                                          __                 In his  reply brief,  Mr. Gonsalves cites  Rutherford v.                                                            __________            United  States, 702  F.2d 580  (5th Cir.  1983).   Rutherford            ______________                                     __________            suggested  that  a  taxpayer  may  have,  in  addition  to  a            "property"  interest  in  his   tax  dollars,  a  substantive            "liberty" interest  in freedom  from abuse and  harassment by            IRS  officials.    See  also  Bothke  v.  Fluor  Engineers  &                               _________  ______      ___________________            Constructors, Inc., 834 F.2d 804, 811 (9th Cir. 1987).            __________________                 However, the existence of such a liberty interest is, at            present,  more  a  matter   of  conjecture  than  of  settled            interpretation  of the Due Process Clause.  The Fifth Circuit            has  made it clear that  its decision in  Rutherford "did not                                                      __________            hold that the alleged  conduct violated a protected 'liberty'            interest."   Morales v. Haynes,  890 F.2d 708,  710 (5th Cir.                         _______    ______            1989).    Rather,  the  Rutherford  panel,  cautioning   that                                    __________            "[i]mplication  of nontextual  substantive  rights  from  the                                         -9-            general monitions of the  due process clause is a  matter not            to  be undertaken  lightly,"  only remanded  to the  district            court with instructions to determine whether "the due process                                                 _______            clause actually  does create in taxpayers  a liberty interest            in  freedom   from  abusive  behavior  [by  IRS  officials]."            Rutherford, 702 F.2d  at 584.   And, other  courts have  said            __________            that  the  infliction  of   emotional  injury  by  government            officials is a tort  without constitutional dimensions.  See,                                                                     ____            e.g.,  Conner v.  Sticher,  801 F.2d  1266,  1269 (11th  Cir.            ____   ______     _______            1986); Vasquez v. City  of Hamtramck, 757 F.2d 771,  773 (6th                   _______    __________________            Cir.  1985)  ("A citizen  does  not  suffer a  constitutional            deprivation  every   time  he  is  subjected   to  the  petty            harassment of a state agent"); Buikema v. Hayes, 562  F.Supp.                                           _______    _____            910, 911 (N.D.Ill. 1983); Taylor v. Nichols, 409 F.Supp. 927,                                      ______    _______            936 (D.Kan. 1976); Dear v. Rathje, 391 F.Supp. 1, 9 (N.D.Ill.                               ____    ______            1975).   See  also Paul  v. Davis,  424 U.S. 693,  710 (1976)                     _________ ____     _____            (interest   in  reputation   neither  liberty   nor  property            guaranteed  against state  deprivation without  due process);            Gumz  v.  Morissette, 772  F.2d  1395, 1408  (7th  Cir. 1985)            ____      __________            (Easterbrook,  J.,  concurring)  (interest  in  freedom  from            gratuitous fright or shock not a liberty interest).                 We need  not decide here whether the  Due Process Clause            guarantees freedom from  abuse by IRS agents.   Defendants to            Bivens actions enjoy the same "qualified immunity" that state            ______            officials have in the context of civil rights actions brought                                         -10-            under 42 U.S.C.   1983.  Butz v. Economou, 438  U.S. 478, 504                                     ____    ________            (1978).   This means  that they "generally  are shielded from            liability for civil damages insofar as their conduct does not            violate clearly  established .  . . constitutional  rights of            which  a reasonable  person  would have  known."   Harlow  v.                                                               ______            Fitzgerald, 457 U.S. 800,  818 (1982).  "The contours  of the            __________            right must  be sufficiently clear that  a reasonable official            would understand that what he is doing  violates that right."            Anderson v. Creighton, 483 U.S. 635, 640 (1987).              ________    _________                 In  the absence  of  any cases  expressly recognizing  a            liberty interest  in freedom  from  harassment by  government            officials,  we must  conclude  that the  right  has not  been            "clearly established."  Consequently,  to the extent that the            complaint even raised an issue of substantive due process, we            agree  with  the  district  court that  the  defendants  were            entitled to dismissal on grounds of qualified immunity.1                                            ____________________            1.  The complaint  in Rutherford "sketche[d] a  portrait of a                                  __________            lawless  and arbitrary  vendetta fueled  by the power  of the            state, designed  to harass by unwarranted  intrusion into the            minutia of [the plaintiffs'] financial  affairs, and intended            to abuse by the creation of palpably unfounded claims against            their property . .  . ." 702 F.2d at 584.   Mr. Gonsalves, on            the  other  hand, made  no  specific  factual allegations  of            abuse, but merely stated as conclusions that the IRS had used            "harassment  and  delays,"  and  "threats  without  basis  or            legitimate  foundation" in its dealings with him.  Even a pro                                                                      ___            se plaintiff must plead some specific facts in support of his            __            claims of  civil rights  violations.   Hurney v.  Carver, 602                                                   ______     ______            F.2d 993, 995 (1st  Cir. 1979).  We would,  therefore, affirm            the dismissal even if  the constitutional right asserted were            so "clearly  established" as to  preclude granting  qualified            immunity.                                         -11-                 The judgment of the district court is affirmed.                                                       ________                                         -12-
