Unpublished Disposition, 900 F.2d 262 (9th Cir. 1988)

MEMORANDUM^** 

OVERVIEW

This appeal results from the district court's dismissal of The Copy Company, Inc.'s ("Copy Company") complaint against officials of the Internal Revenue Service (IRS). Copy Company alleges that appellees Joyce Haight, an IRS officer, Clair Hansen, Haight's Supervisor, and the Commissioner of the IRS, by their conduct, violated its constitutional right to be free from abusive tax collection practices. We affirm.

FACTS and BACKGROUND INFORMATION

The amended complaint alleges three causes of action entitled "Intentional Abusive Tax Collection Practice Causing Damage to Business Reputation of a Corporation", "Intentional Abusive Tax Collection Practice Causing Monetary Damage", and "Negligent Abusive Tax Collection Practices Causing Monetary Damage and Damage to the Business Reputation of a Corporation." On the basis of these causes of action, appellant seeks a total of $75,000 in damages plus costs.

Upon discovering that Copy Company was in arrears with regard to its employment taxes for tax periods in 1983 and 1984, Agent Haight is alleged to have demanded information regarding corporate officials, demanded proof of filing of appellant's 1986 corporate tax returns, contacted appellant's employees and stated that failure to provide the requested data by June 15, 1987 would result in forced collection procedures. Copy Company further charges that Haight communicated with it directly as opposed to dealing consistently with its attorney.

Haight filed a Notice of Tax Lien in an attempt to collect the 1983 and 1984 taxes on June 5, 1987. On approximately June 16, 1987, Haight discovered that Copy Company also failed to pay employment taxes for the first quarter of 1987. On that date Haight issued a Notice of Intent to Levy, which gave Copy Company ten days from the date of the letter to make payment.¹  Haight's letter specifically stated that enforcement action would be taken unless payment was made within the allotted time period. Copy Company alleges that Haight's collection activities were contrary to instructions contained in a notice of bank levy issued by the IRS's Fresno Service Center which gave appellant until July 2, 1987 to pay its overdue accounts. It alleges that Haight refused to release the levy even though she had been notified that Copy Company's overdue accounts had been paid by mail directly to the Fresno Center. Instead, Haight asked to see copies of the checks and demanded a previously unassessed additional sum of $263.96. Later, the company received a refund of that sum.

Copy Company further alleges that after the $263.96 was paid, Haight mailed, as opposed to hand delivered, the release of the bank levy. The $263.96 was delivered to Haight on July 3, 1987, but the release was not effectuated until July 10, 1987. None of the company's checks presented for payment during this period were honored except those written to the IRS.

Copy Company asserts that Haight made statements directly to its employees concerning possible criminal liability, assessed monthly reporting requirements on it and assessed penalties for nonpayment of taxes.

With regard to appellee Hansen, Copy Company alleges that although she was notified on numerous occasions of Haight's activities, she took no action to correct the situation. In light of this failure, Copy Company asserts that Hansen is liable for failure to supervise Haight.

LITIGATION HISTORY

The appellees filed a motion to dismiss or in the alternative a motion for summary judgment on the grounds that the complaint was subject to dismissal for lack of subject matter jurisdiction. They asserted that to the extent they were being sued in their official capacity they were immune from suit as there had been no waiver of sovereign immunity.²  Appellees further asserted that to the extent they were being sued in their individual capacities they were immune on qualified immunity grounds. On June 24, 1988 the district court granted appellees' motion. The court entered judgment dismissing Copy Company's suit with prejudice on June 27, 1988. Appellant timely filed its appeal on July 17, 1988. This court has jurisdiction pursuant to 28 U.S.C. § 1291.

STANDARD OF REVIEW

Appellee's claim of qualified immunity presents a question of law. Todd v. United States, 849 F.2d 365, 368 (9th Cir. 1988). A dismissal for failure to state a claim pursuant to F.R.Civ.P. 12(b) (6) is reviewed de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989).

DISCUSSION

The district court held that although it did not think that Copy Company stated a claim for a violation of constitutional rights, it did not reach that question in light of its conclusion that the appellees were entitled to qualified immunity. Even if we assume for purposes of argument that a constitutional violation has been alleged, dismissal is still proper.

Government officials are immune from Bivens³  damage suits "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 Supreme Court has held that such rights must be clearly established in a particularized sense. Anderson v. Creighton, 483 U.S. 635, 640 (1987). Although there are cases which suggest that one may have a constitutional right to be free from abusive tax practices so egregious that they would violate constitutionally protected liberty interests, Hall v. United States, 704 F.2d 246, 249 n. 1 (6th Cir.) cert. denied 464 U.S. 1002 (1983); Rutherford v. United States, 702 F.2d 580, 584 (5th Cir. 1983), the specific contours of that right as well as its nature are far from settled. Bothke v. Fluor Engineers & Constructors, Inc., 834 F.2d 804, 811 (9th Cir. 1987).

As the Supreme Court said in Anderson, 483 U.S. at 640, " [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what [she] is doing violates that right." Appellant's attorney acknowledged that although the "courts repeatedly suggest that there seems to be a constitutional right to be free from abusive tax collection procedure ... the law is unclear ... as to what guidelines we're suppose to follow to insure that we do not violate that standard." (TR-9). If the law is unclear to appellant's attorney, a reasonable person cannot be expected to structure her conduct in order to avoid liability.

CONCLUSION

The rights Copy Company alleges were violated were not clearly established in a particularized sense at the time of this incident such that a reasonable official would have understood that her conduct would violate appellant's constitutional rights.

The judgment of the district court is AFFIRMED.