Unpublished Disposition, 874 F.2d 816 (9th Cir. 1989)

MEMORANDUM^* 

Drew and Dorothy Roddy failed to respond formally to a notice of deficiency issued by the IRS. After the IRS initiated efforts to collect the deficiency, the Roddys filed suit against the Service and individual Revenue Officers alleging that these defendants had acted in bad faith, violated the Roddys' civil rights, clouded title to their property, and engaged in a pattern of racketeering activity. After a series of skirmishes over the pleadings and the Roddys' request for a preliminary injunction, the district court dismissed all claims and denied all relief. The district court also denied the Roddy's motion for reconsideration and for leave to file an amended complaint. We affirm.

The Roddys contend that (1) the IRS had not made lawful assessments with respect to the underlying taxes; (2) that the IRS failed to provide the required notice before levying on the property; and (3) that the lack of notice and a valid assessment precluded application of the IRC's anti-injunction provision. These contentions were advanced for the first time in the Roddys' Rule 59(e) motion to amend the order denying the preliminary injunction. The district court declined to consider the arguments because of the Roddys' undue delay in raising the issues.

The district court did not abuse its discretion in refusing to entertain these arguments. The Roddys did not satisfactorily explain their failure to raise these issues in the previous amendment to their complaint. See Ascon Properties v. Mobil Oil Co., 866 F.2d 1149, 1160-61 (9th Cir. 1989). In addition, any amendment would be futile in view of the Anti-Injunction Act.

The Anti-Injunction Act, 26 U.S.C. § 7421(a), provides, with certain exceptions, that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person." The exception allowing injunctive relief if "a levy or sale would irreparably injure rights in property which the court determines to be superior to the rights of the United States in the property" does not apply to the Roddys because it is available only to persons "other than the person against whom is assessed the tax out of which the levy arose." Id. Sec. 7426(a) (1), (b) (1). The judicially created exception to the statute for cases in which "it is clear that under no circumstances could the Government ultimately prevail" also does not apply because it is by no means clear that the Government could not conceivably prevail in their efforts to collect the taxes the Roddys owe. See Enochs v. Williams Packing Co., 370 U.S. 1, 7 (1961).

The Roddys' vague allegations that IRS agents committed unspecified acts outside their statutory authority in violation of the Fourth and Fifth Amendments are insufficient to support a Bivens -type cause of action. See Anderson v. Creighton, 107 S. Ct. 3034, 3039 (1987). (general allegation of unreasonable search insufficient to overcome qualified immunity). The claim under 42 U.S.C. § 1985 is barred by the IRS agents' qualified immunity. Stankevitz v. IRS, 640 F.2d 205 (9th Cir. 1981) (per curiam).

AFFIRMED.