Opposition — Siebert v. Baptist

ee Court, U.S.

ILED

No. 83-807 FEB 27 topq

Iu the Supreme Court of the United States

OCTOBER TERM, 1983

CARL MICHAEL SIEBERT, PETITIONER

v.

D. T. BAPTIST, DISTRICT DIRECTOR OF

INTERNAL REVENUE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS

IN OPPOSITION

Rex E. LEE

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Cases: Page

Davis v. Scherer, Nos. 82-5813 and 83-3034 (11th

Cir. June 30, 1983), prob. juris. noted, No. 83-490

REESE SEES EE SES SERS ee 6

Hall v. United States, 704 F.2d 246, cert. denied,

eS SE Ss ee 1,7

Harlow v. Fitzgerald, 457 U.S. 800 ~.............2........ 4-5, 6,7

Irving V. Gray, 344 F. Supp. 567, aff’d, 479 F.2d 20.. 5

Laing V. United States, 364 F. Supp. 469, aff’d, 496

pf |) Be hs 5, 6

Phillips v. Commissioner, 283 U.S. 589 ................... 6

Rambo v. United States, 492 F.2d 1060, cert. de-

lg ne eee 6

Schreck v. United States, 301 F. Supp. 1265 ............ 5, 6

Scheuer Vv. Rhodes, 416 U.S. 282 ......----.-2.---eeeeeeeeeee 4

Williamson V. United States, 31 A.F.T.R.2d (P-H)

EY cciichinaistianidtiione bamniahabeinmnincsdeanemne

Wood Vv. Strickland, 420 U.S. 308 -..0..2202..-20..eeeeeeseee

Constitution, statutes and rule:

U.S. Const. :

Amend. IV .. pauiisciuitaitteni

§ 6831 (a)

§ 6851 5

§ 6851 (a) (1) _... 2,6

§ 6861 5

§ 6861(b) _.. 7

42 U.S.C. (& Supp. V) 1985 3,8

42 U.S.C. 1986 8

Fed. R. Civ. P. 56(c) R

In the Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-807

CARL MICHAEL SIEBERT, PETITIONER

Vv.

D. T. BAPTIST, DISTRICT DIRECTOR OF

INTERNAL REVENUE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS

IN OPPOSITION

™~™

Petitioner brought this action for damages against

three IRS officials, contending that certain tax assess-

ment and levy procedures violated his constitutional

rights. The court of appeals affirmed an award of

' summary judgment in favor of respondents, holding

them entitled to a defense of qualified immunity. Pe-

titioner challenges that holding, making essentially

the same arguments proffered by the petitioner in

Hall vy. United States, No. 83-514, in which certiorari

was denied on November 28, 1983.

1. The pertinent facts may be summarized as fol-

lows: On July 7, 1972, petitioner was arrested on

drug-related charges by Alabama state police (Pet.

App. A4). The police seized the car petitioner was

(1)

driving and its contents, including a guitar and $460

in cash (id. at A4, F16). The police also seized

$2,000 discovered in a search of petitioner’s room at

his parents’ home (id. at F18).

Three days later, respondent Magill, as Acting

District Director of Internal Revenue in Birming-

ham, Alabama, determined that petitioner’s involve-

ment in drug activities “tend[ed] to prejudice or to

render * * * ineffectual proceedings to collect [his]

income tax for the current * * * taxable year,” within

the meaning of Section 6851(a)(1) of the Code.’ In

accordance with that Section, Magill terminated peti-

tioner’s 1972 taxable year and declared his income

tax for the first seven months of the year “immedi-

ately due and payable.” Magill assessed a tax of

$6,458 for that period, basing the assessment on an

estimate of petitioner’s earnings from drug sales

(Pet. App. F22-F23).

Respondent Willingham, an IRS collection officer,

served petitioner with the notice of termination and

with a notice of levy under Code Section 6331(a)

(Pet. App. F26). The latter notice informed peti-

tioner that the property impounded by the Alabama

police was being seized in partial satisfaction of the

unpaid tax assessment (id. at A4-A5, F19-F20)2 A

notice of deficiency for the tax period at issue was

sent to petitioner in August 1974, about two years

later (id. at A5, F14). That notice was approved by

respondent Baptist, the District Director of Internal

Revenue in Birmingham (id. at F27-F28). Baptist

1 Unless otherwise noted, all statutory references are to the

Internal Revenue Code of 1954 (26 U.S.C.), as amended (the

Code or I.R.C.).

2 Upon a later determination that the car was owned by

petitioner’s father, it was released (Pet. 9).

was absent from his office when the notices of termi-

nation and levy were served and took no part in their

issuance (id. at F17).

Petitioner brought this action for damages in the

United States District Court for the Northern Dis-

trict of Alabama, contending that respondents’ en-

forcement of the Code’s termination and levy proce-

dures violated his constitutional rights (Pet. 15).

His chief allegations were that respondents had con-

spired with the Alabama police “to interfere with

[his] civil rights” (42 U.S.C. (& Supp. V) 1985),

and that the IRS’s failure to send him a notice of defi-

ciency before terminating his tax year and levying on

his property violated the Fifth Amendment (Pet.

App. F44-F46). He also alleged violations of (and

conspiracies to violate) the Fourth, Sixth, Eighth, and

Fourteenth Amendments (Pet. 15).

The district court awarded summary judgment in

favor of respondents (Pet. App. E1-E4, F1-F2).

While expressing “serious doubt” that any of their

actions violated the Constitution (id. at F32), the

court held that they were entitled in any event to a

defense of qualified immunity. It found that Magill,

in “routinely * * * approving the termination [no-

tice]” (id. at F25), and Baptist, in approving the

notice of deficiency “upon the recommendations of

his subordinates” (id. at F39), were acting within

the scope of their duties in a good faith belief that

their actions were proper (id. at F40-F41). It found

that Willingham, in serving the notices and effecting

the levy, was likewise acting “in good faith within

the scope of his discretionary authority” (id. at

F51).* It found that petitioner had introduced “no

* The court declined to grant summary judgment on the

question whether Willingham, after seizing petitioner’s guitar

4

evidence to show that [respondents] acted with sub-

jective malice” (id. at F43, F25-F27, F39-F40, F51),

“no evidence to show that [respondents] knew or

reasonably should have known that they were violat-

ing [his] constitutional rights” (id. at F43, F46,

F48 n.17), and “absolutely no evidence” to show

that respondents had conspired with each other or

with state officials to deprive him of his civil liberties

(id. at F25-F26, F27-F28). The district court ac-

cordingly held that respondents were entitled to qual-

ified immunity under Wood v. Strickland, 420 U.S.

308 (1975), and Scheuer v. Rhodes, 416 U.S. 232

(1974).* The court of appeals affirmed in an unpub-

lished judgment order (Pet. App. K1).

2. The courts below correctly applied the principles

of qualified immunity to the facts of this case. In

Harlow v. Fitzgerald, 457 U.S. 800 (1982),* this

Court held that “government officials performing dis-

cretionary functions generally are shielded from lia-

bility for civil damages insofar as their conduct does

not violate clearly established statutory or constitu-

and “currency collection,” had improperly disposed of them,

holding that this question might raise a genuine issue of mate-

rial fact (Pet. App. F48-F50). This question was subsequently

decided against petitioner at trial (id. at H1-H2) and he does

not pursue it here.

* The district court also dismissed petitioner’s claim against

Frank McCammon, an IRS official, holding that McCammon’s

alleged rudeness and refusal to investigate other taxpayers on

petitioner’s request did not violate his constitutional rights

(Pet. App. E2-E3), and denied petitioner’s motion to add

Frank Hyatt, another IRS official, as a party defendant (id.

at-D1). Petitioner does not appear to seek review of these

holdings.

* Harlow was decided after the district court’s decision in

this case, but before the court of appeals’ affirmance.

5

tional rights of which a reasonable person would have

known.” 457 U.S. at 818. In July 1972, when the

actions of which petitioner complains occurred, a tax-

payer had no “clearly established right,” under ei-

ther the Internal Revenue Code or the Due Process

Clause, to receive a notice of deficiency before termi-

nation or levy procedures were invoked against him.

The only court of appeals that had considered the

statutory question as of July 1972 had held that the

Code afforded no such right,* and the district courts

in the other circuits were divided.’ In 1976, this

Court interpreted Section 6851 (on analogy with

Section 6861, governing jeopardy assessments) to re-

quire that the IRS send a deficiency notice to a tax-

payer within 60 days after making a termination

assessment and before selling the taxpayer’s prop-

erty. Laing v. United States, 423 U.S. 161 (1976).

The Court reached that result, however, by a 5 to 3

vote, following reargument of the case, and after

noting that it had granted certiorari to resolve what

by then had become a conflict among the circuits on

the question. 423 U.S. at 167, 169. Under these cir-

cumstances, it can scarcely be contended that peti-

tioner in July 1972 had a “clearly established statu-

tory right” to receive a notice of deficiency before

the IRS levied on his guitar.*

* Williamson Vv. United States, 31 A.F.T.R.2d (P-H) § 78-456

(7th Cir. 1971).

7 Compare, ¢.g., Irving v. Gray, 344 F. Supp. 567, 571-572

(S.D.N.Y. 1972), aff'd, 479 F.2d 20 (2d Cir. 1973) (holding

that a deficiency notice was not required), with Schreck v.

United States, 301 F. Supp. 1265, 1267-1268, 1284 (D. Md.

1969) (holding that a deficiency notice was required).

* Since there was no “clearly established statutory right” at

play in this case, the question of what effect the violation of

6

A taxpayer’s right under the Due Process Clause

to receive a notice of deficiency in these circum-

stances, furthermore, was even more speculative. No

court had decided that question as of July 1972.°

The only court to decide it subsequently has held

that no such right exists." And this Court specifi-

cally reserved the question in Laing.”

In short, because neither the statutory nor the

constitutional law on the subject was “clearly estab-

lished” at the time in issue, respondents under Har-

low were plainly shielded from liability for civil dam-

such a right would have on the assertion of a qualified immu-

nity defense to a constitutional Bivens claim is not presented

here. Cf. Davis v. Scherer, Nos. 82-5813 and 83-3034 (11th Cir.

June 30, 1983), prob. juris. noted, No. 83-490 (Dec. 12, 1983).

* But cf. Schreck, 301 F. Supp. at 1281 (suggesting, without

deciding, that failure to send a deficiency notice in termina-

tion situations “raises constitutional questions of equal pro-

tection and due process”’).

10 Laing V. United States, 364 F. Supp. 469, 471 (D. Vt.

1973), aff’d, 496 F.2d 858, 854 (2d Cir. 1974), rev’d on other

grounds, 423 U.S. 161 (1976). But cf. Rambo v. United States,

492 F.2d 1060, 1065 (6th Cir. 1974), cert. denied, 423 U.S. 1091

(1976) (suggesting that failure to send a deficiency notice in

termination situations “could very well raise” due process

questions).

11 423 U.S. at 183-184 n.26. Compare id. at 187 (Brennan,

J., concurring) (suggesting that Section 6851(a)(1) “falls

short * * * of meeting due process requirements”) with id.

at 206 (Blackmun, J., dissenting) (concluding that due

process does not require a deficiency notice in termination sit-

uations because “the taxpayer has a variety of remedies to test

the validity of the Commissioner’s action”). See Phillips v.

Commissioner, 283 U.S. 589, 595-596 (1981) (holding that the

Constitution does not require a prepayment forum to adjudi-

cate tax disputes).

7

ages. Even if some court should eventually hold that -

Magill, in approving the termination assessment, and

Baptist, in not issuing a notice of deficiency until

August 1974, violated petitioner’s due process rights,

neither respondent could “reasonably be expected to

[have] anticipate[d such] subsequent legal develop-

ments, nor could [they] fairly be said to [have]

know[n] that the law forbade conduct not previously

identified as unlawful.” Harlow, 457 U.S. at 818;

Hall v. United States, 704 F.2d 246, 250 (6th Cir.

1983), cert. denied, No. 83-514 (Nov. 28, 1983). Sim-

ilarly, the record here is barren of evidence that Wil-

lingham failed to follow prescribed procedures in

serving the termination and levy notices, or otherwise

violated any of petitioner’s constitutional or statutory

rights. The court of appeals thus correctly affirmed

the district court’s determination that respondents

were entitled to a defense of qualified official immu-

nity.

3. Petitioner asserts (Pet. 26-30) that respondents

violated his rights by ignoring provisions of the In-

ternal Revenue Manual which, on his view, required

IRS personnel to send a deficiency notice to a tax-

payer within 60 days after terminating his tax year.

This contention is unfounded. The Manual as it then

existed (see Pet. App. 011) did provide that IRS

personnel should follow the same internal review pro-

cedures in making jeopardy and termination assess-

ments. Administration (CCH) Internal Revenue

Manual { 4585.1(2) (1972). The Manual, however,

did not require that a notice of deficiency be issued

in termination cases; it enjoined that requirement

only in jeopardy cases, simply tracking the language

of Section 6861(b) as then in effect. Compare

Administration (CCH) Internal Revenue Manual

{ 4585.1(2) (1972) with id. at J 4584.8.

4. Petitioner’s contention (Pet. 19-32) that the

district court misallocated the burden of proof as to

qualified immunity is beside the point, since the trial

judge found that petitioner’s allegations were unsup-

ported by any evidence sufficient to raise a triable

issue of material fact. Respondents demonstrated

that they had acted in subjective good faith and that

they had no reason to believe that their actions vio-

lated any “clearly established rights” of petitioner

(Pet. App. F40-F41, F51). The district court ac-

corded petitioner (id. at F41-F43, F51) the op-

portunity to present competent summary judgment

materials demonstrating a genuine issue of material

fact on these questions. Viewing these materials in

the light most favorable to petitioner (id. at F15),

the district court concluded that he had failed to meet

this burden (id. at F43-F46) and properly awarded

summary judgment to respondents under Fed. R. Civ.

P. 56(c).

5. Petitioner makes a number of miscellaneous

contentions, all of which are frivolous. His assertion

(Pet. 32) that the district court erroneously held

the instant action barred by the statute of limitations

is wrong and, in any event, is irrelevant since the

court ruled against him on the merits. His discus-

sion (id. at 42-45) of 42 U.S.C. 1985 and 1986 is like-

wise irrelevant, since the district court found that he

had introduced “absolutely no evidence” of conspiracy

(Pet. App. F25). And his charge that discovery was

unduly curtailed (Pet. 46-51) is groundless, since

the district court afforded him liberal discovery (Pet.

App. F11) and allowed him to depose all of the re-

spondents (as well as a host of others) before grant-

ing summary judgment (id. at F11-F12).

9

It is therefore respectfully submitted that the pe-

tition for a writ of certiorari should be denied.

Rex E. LEE

Solicitor General

FEBRUARY 1984

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