Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.gilbert T. Gonsalves, Plaintiff, Appellant, v. Internal Revenue Service, et Al, Defendants, Appellees, 986 F.2d 1407 (1st Cir. 1993)

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 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.

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.

* "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 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 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 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 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 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 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 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 

The judgment of the district court is affirmed.