                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-31-2000

Shreiber v. Mastrogiovanni
Precedential or Non-Precedential:

Docket 99-5230




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Recommended Citation
"Shreiber v. Mastrogiovanni" (2000). 2000 Decisions. Paper 115.
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Filed May 31, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-5230

GERALD B. SHREIBER

v.

ROBERT A. MASTROGIOVANNI;
THE INTERNAL REVENUE SERVICE

GERALD B. SHREIBER,
       Appellant

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 98-cv-02515)
District Judge: Honorable Joseph E. Irenas

Argued December 9, 1999

Before: NYGAARD, RENDELL, and ROSENN,
Circuit Judges

(Filed: May 31, 2000)

       David N. Zeehandelaar, Esq.
        (ARGUED)
       Blank, Rome, Comisky & McCauley
       One Logan Square
       Philadelphia, PA 19103
        Counsel for Appellant
       Kenneth Rosenberg, Esq. (ARGUED)
       David I. Pincus, Esq.
       U.S. Department of Justice,
        Tax Division
       P.O. Box 502
       Washington, DC 20044
        Counsel for Appellees

OPINION OF THE COURT

RENDELL, Circuit Judge.

In this appeal we are called upon to decide whether a
federal cause of action should be implied to permit a
plaintiff to sue an employee of the Internal Revenue Service
("IRS") for damages resulting from a constitutional violation
claimed to have occurred in connection with the
assessment of a tax liability.1 We will affirm the order of the
District Court dismissing Shreiber's complaint for failure to
state a claim. In so doing, we join a number of other courts
of appeals holding that a damages remedy should not be
inferred against an IRS agent pursuant to Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), for
alleged constitutional violations, because Congress has
created an extensive scheme providing remedies to a
plaintiff complaining of the conduct of government officials
in connection with tax assessments and collections.

In 1995 and 1996, IRS agent Mastrogiovanni conducted
_________________________________________________________________

1. We have previously affirmed, without precedential effect, at least
three
district court rulings which have explained that a Bivens remedy should
not be inferred for allegations of unconstitutional actions by IRS agents.
See Barnard v. Pavlish, No. 97-CV-0236, 1998 WL 247768, at *8-9 (M.D.
Pa. Mar. 30, 1998), aff 'd, 187 F.3d 625 (3d Cir. 1999) (table)
(unpublished) (per curiam); Upper v. United States Gov't, No. 93-3596
(JHR), 1994 WL 660738, at *3 (D.N.J. Aug. 11, 1994), aff 'd, 74 F.3d
1229 (3d Cir. 1995) (table) (judgment order); Schiff v. Balas, Civ. A. No.
90-2007, 1991 WL 330204, at *2 (W.D. Pa. Oct. 2, 1991), aff 'd, 961
F.2d 1568 (3d Cir. 1992) (table) (judgment order). We noted, but did not
decide, a similar issue in Lojeski v. Boandl, 788 F.2d 196, 198 (3d Cir.
1986).

                               2
an audit of the federal income tax liabilities of Shreiber and
his wife for the 1991, 1992 and 1993 tax years. During the
investigation, Shreiber spoke with Mastrogiovanni on
several occasions and became familiar with

Mastrogiovanni's voice. Shreiber alleges that on August 11,
1995, Mastrogiovanni left a voice mail message at his place
of business stating in part: "Hey you Jew bastard piece of
shit. This is White Trash, I am going to get you." Thereafter,
when the audit was completed, the IRS sent a "30-day
letter" to the Shreibers, dated May 31, 1996, proposing
large increases in their tax liabilities for the years 1991,
1992 and 1993. The letter was prepared by J. J. Jennings,
District Director, on the basis of Mastrogiovanni's
recommendation.

Shreiber filed a timely protest of the adjustment with the
IRS, and proceeded to contest it through administrative
channels. It appears that he reached a tentative settlement
with the IRS in June of 1999, in which the IRS agreed to
reduce the amount of deductions it would deny and agreed
to an adjusted amount due.

On May 29, 1998, while the administrative appeal was
pending, Shreiber filed a civil rights action against
Mastrogiovanni and the IRS. Shreiber's complaint alleges
that he was "denied his constitutional right to a fair hearing
due to the religious discrimination of the IRS agent,"
evidenced by the voice mail message, and "deprived of
property without due process of law, in violation of his Fifth
Amendment rights." In his appellate briefs, Shreiber
extends his complaint to encompass an equal protection
violation based on religion and grounded in the Fifth
Amendment. He requests damages compensating him for
his attorney's fees and mental anguish as well as punitive
damages. The government filed a motion for summary
judgment, which the District Court actually treated as a
motion to dismiss.

The District Court dismissed the complaint on two
grounds. First, the District Court determined that Shreiber
could not state a claim upon which relief could be granted.
The District Court explained that Shreiber had conceded
that 26 U.S.C. S 7433 was limited to redressing violations of
the Internal Revenue Code and, thus, did not provide him

                               3
with a cause of action. The Court then considered whether
a Bivens remedy should be inferred. Reviewing the Supreme
Court's decision in Bivens, and its progeny, including
Schweiker v. Chilicky, 487 U.S. 412 (1988), the Court
concluded that a cause of action should not be inferred
because Congress had enacted 26 U.S.C. S 7433 and had
provided a complex structure permitting the challenge of
tax assessments through other means. The Court also
concluded that even if a cause of action should be inferred,
the claim should be dismissed as premature because it
would not accrue until it was determined that the
assessment had, in fact, been incorrect.2

Shreiber contends that we should infer a cause of action
under Bivens precisely because Congress did not provide
one when it enacted 26 U.S.C. S 7433, and because,
without a federal damages action, he will be without a
meaningful remedy in the form of compensatory and
punitive damages and unconstitutional behavior will not be
deterred. At oral argument, Shreiber emphasized that his
case should be distinguished from Schweiker and the other
tax cases resolved in the government's favor by other courts
because he is contending that his constitutional rights were
violated on the basis of religious animus.

An understanding of the applicable statutes and their
history is important to understanding this appeal. In 1988,
as part of the "Taxpayer Bill of Rights," Congress enacted
26 U.S.C. S 7433, providing for a federal cause of action
against an officer or employee of the IRS for actions in
violation of the Internal Revenue Code or regulations "in
connection with any collection of Federal tax." 26 U.S.C.
S 7433(a).3 As enacted,S 7433(a) is the "exclusive remedy
_________________________________________________________________

2. The government does not rely upon this ground of dismissal on
appeal. The government does argue that Shreiber failed to allege a
cognizable constitutional violation, and that Mastrogiovanni is entitled
to
qualified immunity. In light of our disposition, we need not discuss these
points.

3. The statute currently states in full:

       (a) In general. If, in connection with any collection of Federal
tax
       with respect to a taxpayer, any officer or employee of the Internal

                               4
for recovering damages resulting from such actions." Id. A
proposed draft of the provision contained broader language.
The draft permitted civil actions "in connection with any
determination or collection of federal tax" and in violation of
"any provisions of federal law." S. 2223, 100th Cong., 2d
Sess. S 123 (1988) (emphasis added). The Conference
Report regarding S 7433 discusses two modifications from
the Senate draft that are relevant to the issue before us.
The Report explains that the final version was:

       limited to reckless or intentional disregard in
       connection with the collection of tax. An action under
       this provision may not be based on alleged reckless or
       intentional disregard in connection with the
       determination of tax. . . . [T]he provision is limited to
       reckless or intentional disregard of the Internal
       Revenue Code and the regulations thereunder. An
       action may not be brought under this provision based
       on an alleged violation of a Federal law other than the
       Internal Revenue Code or a regulation promulgated
       thereunder.

H.R. Conf. Rep. No. 100-1104, at 229 (1988), reprinted in
1988-3 C.B. 473-479;4 see also Miller v. United States, 66
F.3d 220, 222-23 (9th Cir. 1995) (discussing the legislative
history of S 7433 and finding that it does not permit actions
for the incorrect determinations of tax liability); Shaw v.
United States, 20 F.3d 182, 184 (5th Cir. 1994).
_________________________________________________________________

       Revenue Service recklessly or intentionally, or by reason of
       negligence, disregards any provision of this title, or any
regulation
       promulgated under this title, such taxpayer may bring a civil
action
       for damages against the United States in a district court of the
       United States. Except as provided in section 7432, such civil
action
       shall be the exclusive remedy for recovering damages resulting from
       such actions.

26 U.S.C. S 7433(a).

4. Since its enactment in 1988, Congress has amended S 7433. For
instance, in 1998, Congress amended the provision to permit suits based
upon allegations of negligence in the collection of taxes. See Pub. L. No.
105-206, Sec. 3102(a), (c).

                               5
Even though S 7433 was narrowed in scope during the
drafting process, Congress has provided other methods by
which a taxpayer can challenge an assessment. See 26
C.F.R. S 601.103(c) (explaining options available to a
taxpayer). A taxpayer may pursue an internal appeal with
the IRS, see 26 C.F.R. S 106, sue for a refund in federal
court, see 28 U.S.C. S 1346(a)(1), 26 U.S.C. SS 6511, 7422,
or appeal the assessment to the Tax Court, see 26 U.S.C.
SS 6213, 6214. Attorney's fees may be recovered in certain
circumstances when the taxpayer is successful. See 26
U.S.C. S 7430. As noted, Shreiber utilized the
administrative appeals process.

In determining whether Shreiber's claim can be asserted
against Mastrogiovanni in a civil rights action, we must
consult the relevant precedent beginning with the seminal
case of Bivens v. Six Unknown Federal Narcotics Agents. In
Bivens, the Supreme Court held that an individual
complaining of a Fourth Amendment violation by federal
officers acting under color of their authority may bring a
suit for money damages against the officers in federal court.
See Bivens, 403 U.S. at 397. In so holding, the Court noted
in dicta that "[t]he present case involves no special factors
counseling hesitation in the absence of affirmative action by
Congress," and found "no explicit congressional declaration
that persons injured by a federal officer's violation of the
Fourth Amendment may not recover money damages from
the agents, but must instead be remitted to another
remedy, equally effective in the view of Congress." Id. at
396-97.

Following Bivens, the Supreme Court has considered the
availability of damages remedies under Bivens in a number
of factual settings, and addressed the meaning of"special
factors counseling hesitation."5 The Court's decision in
_________________________________________________________________

5. See Schweiker, 487 U.S. 412 (1988); Chappell v. Wallace, 462 U.S.
296, 304 (1983) (finding that "the unique disciplinary structure of the
Military Establishment and Congress' activity in thefield constitute
`special factors' which dictate that it would be inappropriate to provide
enlisted military personnel a Bivens-type remedy against their superior
officers"); United States v. Stanley, 483 U.S. 669, 683-84 (1987) (holding
that Chappell v. Wallace extends to deny Bivens actions "for injuries that

                               6
Schweiker is particularly relevant to our discussion here. In
Schweiker, the Supreme Court considered whether a
damages remedy should be implied under Bivens for alleged
due process violations in connection with the denial of
Social Security benefits. See Schweiker, 487 U.S. at 420.
The plaintiffs in Schweiker were three recipients of Social
Security benefits who had been dropped from the rolls after
the defendants adopted policies that the plaintiffs alleged
violated their due process rights. Each plaintiff had either
successfully appealed the determination or applied for
reinstatement, and had either received full retroactive
benefits or had an application for benefits pending. Each
plaintiff, then, sued for additional damages not available
through the congressionally provided measures.

The Supreme Court held that no Bivens remedy should
be implied. Reviewing the teachings of applicable precedent,
the Court reaffirmed that the absence of statutory relief for
a constitutional violation does not necessarily mean that
courts should create a damages remedy against the officer
responsible for the violation. See id. at 421-22. The Court
also referenced the importance of considering Congress's
activities in the area in question even if the remedies
provided did not afford complete relief. See id. at 423-24
(citing Bush v. Lucas, 462 U.S. 367, 368 (1983)). The Court
explained:

       In sum, the concept of "special factors counseling
       hesitation in the absence of affirmative action by
       Congress" has proved to include an appropriate judicial
_________________________________________________________________

`arise out of or are in the course of activity incident to [military]
service' "); Bush v. Lucas, 462 U.S. 367, 368 (1983) (refusing to create a
non-statutory damages remedy for a federal employee whose First
Amendment right to free speech was violated by a superior); Carlson v.
Green, 446 U.S. 14, 19 (1980) (permitting a suit for damages directly
under the Eighth Amendment's proscription against cruel and unusual
punishment); Davis v. Passman, 442 U.S. 228, 248-49 (1979) (implying
a damages remedy directly under the Due Process Clause of the Fifth
Amendment against a United States Congressman who allegedly fired the
plaintiff because of her sex); see also FDIC v. Meyer, 510 U.S. 471, 474
(1994) (refusing to imply a Bivens remedy directly against a federal
agency).

                               7
       deference to indications that congressional inaction
       has not been inadvertent. When the design of a
       Government program suggests that Congress has
       provided what it considers adequate remedial
       mechanisms for constitutional violations that may
       occur in the course of its administration, we have not
       created additional Bivens remedies.

Id. at 423.

Proceeding to discuss the merits of the appeal, the Court
noted that the remedial structure did not provide the
plaintiffs with the "complete relief " that would be available
by way of a Bivens suit, see id. at 424-25, 426-27, but
confirmed that this did not require the creation of a Bivens
remedy, see id. at 424-25 (discussing Bush v. Lucas). The
Court explained that Congress "ha[d] not failed to provide
meaningful safeguards or remedies," and deferred to
Congress's competence at balancing issues of governmental
efficiency and individual rights. See id. at 425, 429. The
Court also rejected the argument that a Bivens action
should be inferred in order to provide separate remedies for
those individuals who lost their benefits because of a
constitutional violation rather than a non-constitutional
violation. See id. at 426-27.

Applying these considerations to the case at hand, we
agree with the District Court that a Bivens action should
not be inferred to permit suits against IRS agents accused
of violating a taxpayer's constitutional rights in the course
of making a tax assessment. Rather than supporting
Shreiber's argument, the legislative history of 26 U.S.C.
S 7433(a) indicates that Congress did not inadvertently fail
to codify a cause of action for assessment conduct; rather,
Congress deleted "determinations" -- which would have
included assessments -- in passing the statutory provision.
Moreover, Congress modified what was in draft form a
remedy for violations of "federal law" and enacted instead a
remedy for violations only of the IRS code and regulations.
Congress chose to provide certain remedies, and not others,
as part of the complex statutory scheme which regulates
the relationship between the IRS and taxpayers. We will not
create a remedy where Congress has chosen not to.

                               8
Although Shreiber correctly argues that without a Bivens
action he cannot recover completely, Schweiker explains
that where Congress has provided meaningful remedies we
should exercise extreme caution in creating additional
relief. As with the administration of welfare benefits, the
organization of the tax system, and the balancing of
governmental efficiency and individual rights, is best left to
Congress. See id. at 429 ("Whether or not we believe that
its response was the best response, Congress is the body
charged with making the inevitable compromises required
in the design of a massive and complex welfare benefits
program.").

We also believe Shreiber's deterrence argument is
similarly misplaced. Although deterrence is one of the aims
of a Bivens action, see FDIC v. Meyer , 510 U.S. 471, 485
(1995) (citing Carlson v. Green, 446 U.S. 14, 21 (1980)), we,
again, should defer to Congress in this regard. Also, this
case is distinguishable from Bagola v. Kindt, 131 F.3d 632
(7th Cir. 1997), relied upon by Shreiber for his argument
regarding deterrence. In Bagola, the Court of Appeals for
the Seventh Circuit permitted a prison inmate to bring a
Bivens action complaining of a violation of his Eighth
Amendment rights based on deliberate indifference to his
safety in a prison factory. Notwithstanding the existence of
the remedy provided by 18 U.S.C. S 4126 and the teachings
of Schweiker and Bush v. Lucas, the Court found that the
limited nature of the remedy and the absence of deterrent
effect suggested that Congress had not intended the
statutory remedy to preclude a Bivens action. See id. at
642-45.6 The Court's analysis was guided by the
consideration of deterrence in Carlson v. Green , 446 U.S.
14, 19 (1980), in which the Supreme Court permitted a
Bivens action under the Eighth Amendment despite the
_________________________________________________________________

6. Under the applicable statute and regulations, Bagola received
compensation for his lost wages. See id. at 634. In addition, within
forty-
five days of his release from prison, he could apply for compensation for
his injury in a no-fault proceeding. See id. at 634, 634 n.2. The Seventh
Circuit found the remedy to be lacking in deterrent value because of the
potentially long delay and the possibility that the defendants' alleged
conduct would not be relevant to the claim evaluation process. See id. at
644.

                               9
remedy provided by the Federal Tort Claims Act, as   well as
the particular context of prisoner litigation. See   id. at 638-
40, 642-45. Due to the differences in the remedial   scheme
as well as the legislative backdrop of the statute   we are
examining, Bagola does not inform our analysis.

We note that our holding in this case is supported by the
decisions of a number of other Courts of Appeals that have
concluded that a Bivens action should not be inferred
against IRS agents. See Fishburn v. Brown, 125 F.3d 979,
982-83 (6th Cir. 1997) (refusing to permit a Bivens action
against IRS agents for seizure of property allegedly in
violation of the Fifth Amendment); National Commodity &
Barter Assoc. v. Archer, 31 F.3d 1521, 1532 (10th Cir.
1994) (finding no Bivens action for jeopardy assessments
allegedly in violation of the First and Fourth Amendments);
Vennes v. Unknown Number of Unidentified Agents , 26 F.3d
1448, 1453-54 (8th Cir. 1994) (denying a Bivens action
alleging numerous constitutional violations leading to illegal
tax assessments and collections); McMillen v. United States,
960 F.2d 187, 190-91 (1st Cir. 1991) (dicta) (per curiam)
(finding it unlikely that a Bivens action would exist to
dispute tax liability or demand the lifting of a lien); Wages
v. United States, 915 F.2d 1230, 1235 (9th Cir. 1990)
(dicta) (finding that it would be futile for the plaintiff to
amend her pleadings in part because a Bivens action would
not lie for the constitutionally impermissible collection of
taxes); Cameron v. IRS, 773 F.2d 126, 129-30 (7th Cir.
1985) (considering the issue before S 7433). Although none
of these cases explicitly consider the drafting of 26 U.S.C.
S 7433 in their analysis, and some involve collection actions
rather than tax determinations, many rely explicitly upon
Schweiker to conclude that the Bivens action against IRS
employees is foreclosed by the existence of comprehensive
statutory remedies. See Fishburn, 125 F.3d at 982; National
Commodity & Barter Assoc., 31 F.3d at 1532; Vennes, 26
F.3d at 1453; McMillen, 960 F.2d at 190-91.

Shreiber also argues that this case should be
distinguished from Schweiker, and the other decisions cited
above, because it involves religious animus. However,
Shreiber's pleading complains essentially of a denial of a
fair hearing which resulted in the wrongful assessment of

                               10
his tax, and of the proximate effects of the IRS agent's
actions. He does not contend that his right to religious
freedom was implicated; rather, he cites the evidence of
religious animus in support of his allegations that he was
denied his Fifth Amendment right to due process and equal
protection.7 As he explained during oral argument, he
would, however, have us hold that the type of
unconstitutional act that leads to the incorrect assessment
can alter the analysis of whether a Bivens action should be
inferred. We do not find this argument convincing. Our
focus at this time is not on the nature of the constitutional
violation that led to the allegedly incorrect assessment --
which the plaintiff must prove on the merits and we
assume at this time -- but whether it is appropriate to
create a damages action to remedy the wrong in light of
what Congress has done. See Schweiker, 487 U.S. at 427;
Bush, 462 U.S. at 381 (considering "what legal remedies are
available to him"); Davis v. Passman, 442 U.S. at 245
(separating the potential violation of the constitutional right
from the question "whether a damages remedy is an
appropriate form of relief "). The complaint focuses on
assessment activities asserted to be in violation of
Shreiber's civil rights, and, regardless of the type of illegal
motivation or the particulars of the violation, Congress has
established a statutory scheme providing remedies for
incorrect assessments. Our analysis focusing on the
remedy, rather than the wrong, is consistent with the
analysis used by the Supreme Court in Bush v. Lucas and
endorsed in Schweiker, and also applied by the Court of
Appeals for the Tenth Circuit in National Commodity &
_________________________________________________________________

7. We note that portions of Shreiber's complaint allege injuries caused in
part by the comments left on his voice mail. However, Shreiber candidly
states in his brief that he "does not contend that the telephone message
left by the IRS agent Mastrogiovanni was the violation of Appellant's
constitutional rights, but instead is evidence of the agent's religious
discrimination against Appellant." Appellant's Br. at 8. Even if Shreiber
had alleged the comments as a separate cause of action, the comments
would not necessarily establish a constitutional violation. See, e.g.,
Emmons v. Mclaughlin, 874 F.2d 351, 353 (6th Cir. 1989) (holding that
a police officer's threat did not constitute a constitutional violation
actionable under 42 U.S.C. S 1983); see also McMillen, 960 F.2d at 190;
Cameron, 773 F.2d at 128-29.

                               11
Barter Association v. Archer. However, our focus on the
remedy at this stage should not be construed as condoning
the alleged wrong.

Bush v. Lucas is particularly relevant to this aspect of
Shreiber's argument. In Bush, the Supreme Court held that
a Bivens action should not be inferred to permit federal
employees to sue their supervisors for alleged violations of
their First Amendment rights "[b]ecause such claims arise
out of an employment relationship that is governed by
comprehensive procedural and substantive provisions
giving meaningful remedies against the United States."
Bush, 462 U.S. at 368. Although the Court presumed that
the plaintiff 's First Amendment rights had been violated,
see id. at 372, the Court explained: "The ultimate question
on the merits in this case may appropriately be
characterized as one of `federal personnel policy.' When a
federal civil servant is the victim of a retaliatory demotion
or discharge because he has exercised his First Amendment
rights, what legal remedies are available to him?" Id. at
380-81.

In Schweiker, the plaintiffs argued that a Bivens action
should be inferred to provide them with additional remedies
because they had been denied benefits for constitutional
reasons. See Schweiker, 487 U.S. at 427. The Court,
however, explained that Bush "drew no distinction between
compensation for a `constitutional wrong' and the
restoration of statutory rights that had been
unconstitutionally taken away," and concluded that "[i]n
light of the comprehensive statutory schemes involved [in
Schweiker and Bush], the harm resulting from the alleged
constitutional violation can in neither case be separated
from the harm resulting from the denial of the statutory
right." Id. at 427-28. Further, in a case dealing with a suit
against IRS agents alleging wrongful "jeopardy"
assessments, the Court of Appeals for the Tenth Circuit
found no distinction between a Bivens action based on
violations of the plaintiff 's First or Fourth Amendment
rights, as compared to one based on alleged violations of
the plaintiff 's due process rights under the Fifth
Amendment. See National Commodity & Barter Assoc., 31
F.3d at 1532. The Court found that a Bivens action should

                               12
not be inferred for any of the claims because the remedies
for the wrongful jeopardy assessment were afforded by
statute. See id. ("This reasoning [denying a Bivens action
for a violation of the Fifth Amendment] is equally applicable
to the claim grounded on allegations of wrongful jeopardy
assessments here under the First and Fourth Amendments.
In light of the remedies afforded elsewhere, we decline to
recognize a First or Fourth Amendment Bivens remedy
based on the allegations of wrongful jeopardy assessments
made by the instant complaint . . . .").

In sum, Shreiber asks us to infer a federal damages
remedy under Bivens for violation of his Fifth Amendment
protections of due process and equal protection by an IRS
agent charged with auditing his tax returns. We decline to
do so because we believe that Congress's efforts to govern
the relationship between the taxpayer and the taxman
indicate that Congress has provided what it considers to be
adequate remedial mechanisms for wrongs that may occur
in the course of this relationship. See Schweiker, 487 U.S.
at 424. The fact that Shreiber's complaint seeks damages
not otherwise provided for in the legislative scheme and
alleges wrongful religious animus does not alter our
analysis.

For the reasons stated above, we will affirm.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               13
