Petition for Writ of Certiorari — Haas v. Schalow

ee Supreme Court, U.S.

‘i FILED

9 815438 MAR 22109

IN THE

Supreme Court of the United States

October Term, 1998

GERARD N. HAAS, Jr.,

Petitioner,

vs.

JAN J. SCHALOW and LARRY LOCKE,

Respondents.

On Petition for Writ of Certiorari

To The United States Court of Appeals

For The Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

Gerard N. Haas, Jr.

600 21st Street

Racine, WI 53403

(414) 634-5682

i 1X

i

QUESTION PRESENTED

Whether a Bivens action lies against IRS agents who

conspire and execute an agreement to (1) defraud a district

court into issuing an entry order against a third party by

feigning an attempt to levy another taxpayer’s property, (2)

exceed the scope of the order by searching and seizing the

third party’s personal papers and property, (3) exceed the

scope of the order by shutting down the third party’s

business by padlocking his premises, and (4) eventually

return and release the seized property, considering that the

Internal Revenue Code grants no relief whatsoever to third

yarties once his property has been returned.

il

LIST OF PARTIES

All parties appear in the caption of the case on the

cover page.

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TABLE OF CONTENTS

Page

QUESTION PRESENTED .........---.eeeeeeee I

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TALE OF AU LPI 1c cc ee cee ee eees Vv

SEI igen de bode kes ce sbe sess l

EEO eke et cvs n eee vier ean ene l

CONSTITUTIONAL PROVISIONS AND STATUTES

Eg hero Wine sce tee teeeee s l

STATEMENT OF THE CASE .......+.....-...- 3

REASON FOR GRANTING THE WRIT .......... 6

The Court of Appeals Erred as a Matter of Law Ruling

That a Bivens Action Does Not Lie to Redress a

Wanton Conspiracy to Deprive a Person of

Constitutional Rights

iV

B. Schweiker and the Appellate Courts ........ 11

hs. DOO TOF TS on ss eae ence. 1]

2. Meaning of “not perfectly comprehensive”

:, Mique neni asa eceiied

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5. Special factors verses express congressional

COETRRO ois s RW eee 17

CRIME ALAIGALIDN fo un Casa Ek aw eee ea woe 18

INDEX TO APPENDICES

APPENDIX A

Decision of the Court of Appeals

APPENDIX B

Decision of the District Court

V

TABLE OF AUTHORITIES

Cases Page

Baddour v. United States

BOz F260 Si i Cr: 2986) ie ees ees 16

Bagola v. Kindt

134 F356 652 07 Ce. 199) ag ck sews 13

Bivens v. Six Unknown Fed. Narcotics Agents

WS Uy See LASTED 5 cee oa Se oN hw eens 6,7,9

Bush v. Lucas

BOE WT Oe LENS) 2 oko os ka Cate k sees 7-9, 13, 17

Cameron v. I_R.S.

Fis te bak C7 CR P99} oe ieee 12, 15, 16

Carlson v. Green

GAB CR SC os sk ov dc oe ea es eee 7

Chappell v. Wallace

WE EL PE Oe) ks cea dibecic oN pee owes 7

Dahn v. United States

L27 Fae hae Cn le ESP) ha eine bss 14

Davis v. Passman

OAe TE Zee) vcs es Cs bee Vee 7,9

V1

FDIC v. Meyer

Nat a Td CAPPER eek chee eee 8,17

McMillen v. United States Dept. of Treasury

960 E26 T6/ (ASCO, TFT oo hice ei 16

NCBA v. Gibbs

886 F.2d 1240 (10 Ca. 1989): oii ee 14

Schweiker v. Chilicky

ABT VID. Sik Cee) Oi oes 658 Eee 8, 9, 11-13, 17

United States v. Stanley

WES A Ge Cee) sk ko awe cea eee 8

Vennes v. An Unknown Number of Agents

26 F.3d 1468 Co Cie. 1 a 15

Wages v. IRS

915 B20 1250 Ce Cor. 1999) oe 6 556 a eae 16

Statutes

Os Se PO hh a ee eo aw Wa ee eee 10

20 Vs BPG Bee Eee aeeiwee es ee eras ies 15

fs BURA OR Te («Sera a re ma aeg a Geo ms hae 15

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OPINIONS BELOW

The opinion of the Court of Appeals issued in support

of its judgment is unpublished, but reported as Gerard N.

Haas, Jr. v. Jan J. Schalow and Larry Locke, 1998 U.S.

App. LEXIS 32654, 99-1 U.S. Tax Cas. (CCH) $50,191

(November 17, 1998) and is reprinted in Appendix A.

The opinion of the District Court is published as Haas

v. Schalow, 991 F. Supp. 1074 (E.D. Wis. 1998) and is

reprinted in Appendix B.

JURISDICTION

The opinion of the Court of Appeals in this case was

filed on December 23, 1998. This petition is therefore

timely under Supreme Court Rule 13.1 & 3 if filed before

March 23, 1999.

This Court has jurisdiction to review the judgment of

the Court of Appeals pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

This case involves application of the following

constitutional provisions and statutes.

2

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated...

Fourth Amendment

No person shall . . . be deprived of life, liberty, or

property, without due process of law.

Fifth Amendment

Civil actions by persons other than taxpayers.

(a) Actions permitted.

(1) Wrongful levy. If a levy has been made on

property or property has been sold pursuant to a levy,

any person (other than the person against whom is

assessed the tax out of which such levy arose) who

claims an interest in or lien on such property and that

such property was wrongfully levied upon may bring a

civil action against the United States in a district court

of the United States. Such action may be brought

without regard to whether such property has been

surrendered to or sold by the Secretary.

(2) Surplus proceeds. . .

(3) Substituted sale proceeds. . .

3

(4) Substitution of value. . .

(b) Adjudication. The district court shall have

jurisdiction to grant only such of the following forms

of relief as may be appropriate in the circumstances:

(1) Injunction. . .

(2) Recovery of property. ..

(3) Surplus proceeds. . .

(4) Substituted sale proceeds. . .

(5) Substitution of value. . .

26 U.S.C. § 7426(a) & (b) (1988)

Civil damages for failure to release lien.

(a) In general. If any officer or employee of the

Internal Revenue Service knowingly, or by reason of

negligence, fails to release a lien under section 6325 on

property of the taxpayer, such taxpayer may bring a

civil action for damages against the United States in a

district court of the United States.

26 U.S.C. § 7432(a) (1988)

Civil damages for certain unauthorized collection

4

actions. (a) In general. If, in connection with any

collection of Federal tax with respect to a taxpayer, any

officer or employee of the Internal 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. § 7433(a) (1988)

STATEMENT OF THE CASE

The Seventh Circuit affirmed the district court’s

dismissal of Haas’ Bivens complaint for failure to state a

claim. The following facts are reasonably alleged in the

Complaint.

IRS Revenue Officer Jan J. Schalow and others

obtained an order for entry onto Haas’ premises to effect

a levy on property allegedly belonging to Romanite

Building Products, a defunct corporation. Schalow’s

affidavit in support of her application to enter premises

was perjurious in that she affirmed to the court that Haas’

premises contained property owned by Romanite after

receiving notice from Haas that Romanite had been

FPR es Cape ty ae eT ae ee

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dissolved.

The entry order allowed the seizure and levy of

specifically listed items.' Exceeding the alleged authority

of the entry order, Schalow and others:

(1) conducted an illegal search and seized the

personal papers of Haas;

(2) issued notices of levy to individuals and entities

whose names were obtained by said unconstitutional

rummaging through Haas’ records;

(3) padlocked Haas’ premises and prohibited him

from entering his premises to conduct business;

(4) after verifying that Romanite had indeed been

dissolved, Schalow refused to release Haas’ business

premises and personal property; and

(5) after receiving notice that Haas’ had filed a

Chapter 13 bankruptcy, Schalow and her supervisor, Larry

Locke, refused to release Haas’ business premises and

personal property in violation of the automatic stay

provisions of bankruptcy.

ce The specified items were “work tables, mixing

vats, bags of sand, bags of sheetrock compound, bags of

drywall compound, drywall, sheetrock.”

OTe nee

6

All of the above was part of a conspiracy, done in bad

faith and in fraud of the court, having the specific intent to

unlawfully obtain entry onto Haas’ premises to execute an

impermissible search of Haas’ personal records and

property. Another object of the conspiracy was to cause

Haas financial harm by padlocking his business.

As a direct and proximate result, Haas suffered

substantial expense in getting his property released, great

mental anguish, and irreparable harm to his reputation.

The conduct violated Haas’ Fourth Amendment right not

to be subject to an unreasonable search and seizure, Fifth

Amendment right not to be deprived of property without

due process of law, and statutory right to an automatic stay

in bankruptcy, among others.

The district court dismissed the Complaint seeking

compensatory and punitive damages for failure to state a

claim finding that 26 U.S.C. §§ 7432 and 74337 constitute

Haas’ exclusive remedy.

On appeal, Schalow and Locke conceded that Haas’ has

no standing to bring a claim under §§ 7432 and 7433

because he is not the delinquent taxpayer, since the levy

and writ of entry were directed against Romanite. The

Seventh Circuit, however, held that Haas’ exclusive

statutory remedy is § 7426. As the court noted, § 7426

z Unless otherwise noted, all statutory references

are to 26 U.S.C. :

7

does not permit recovery of compensatory or punitive

damages. Because Haas eventually attained the return of

his property and the release of his building, he has no

remedy for the constitutional violations unless he can bring

a Bivens action.

Characterizing the Complaint as alleging merely

“heavy-handed, insensitive, and careless” conduct by

Schalow and Locke, the Seventh Circuit held that

Congress had created an adequate remedial mechanism for

third party wrongful levy claims which precludes a Bivens

claim.

This timely petition follows.

REASON FOR GRANTING THE WRIT

The Court of Appeals Erred as a Matter of Law by

Ruling That a Bivens Action Does Not Lie to Redress a

Wanton Conspiracy to Deprive a Person of

Constitutional Rights

A. Bivens and Supreme Court Progeny

In Bivens v. Six Unknown Fed. Narcotics Agents, 403

U.S. 388, 397 (1971), this Court held that the victim of a

Fourth Amendment violation by federal officers acting

under color of their authority may bring suit for money

damages against the officers in federal court. The Court

suggested in dictum that inferring such an action directly

8

from the Constitution might not be appropriate when there

are (1) “special factors counseling hesitation in the absence

of affirmative action by Congress” or (2) where there is an

“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.” Bivens, 403 U.S. at 396-97.

Subsequently, this Court held that actions for damages

could be brought directly under the Due Process Clause of

the Fifth Amendment, Davis v. Passman, 442 U.S. 228

(1979), and under the Eighth Amendment’s proscription

against cruel and unusual punishment, Car/son v. Green,

446 U.S. 14 (1980). Both cases repeated the dictum that

“special factors” or “explicit congressional declaration”

might bar an action.

In Chappell v. Wallace, 462 U.S. 296 (1983), and Bush

v. Lucas, 462 U.S. 367 (1983), decided the same day, that

dictum became holding.

ee ee ee a es ee ee a “ a]

Since Bivens, this Court has only delineated two narrow

categories of “special factors.” The first is where the _

defendants “enjoy such independent status in our —

constitutional scheme as to suggest that judicially created

remedies against them might be inappropriate.” Carlson,

446 U.S. at 19; see Davis, 442 U.S. at 246 (finding that

“special factors” counsel no greater protection for |

Congressmen than that provided by the Speechand Debate —

,

9

Clause); Chappell, 462 U.S. at 304 (the unique disciplinary

structure of the military and Congress’ constitutional

involvement in the field constitutes special factors against

allowing enlisted men to bring Bivens actions against

superior officers); United States y. Stanley, 483 U.S. 669,

683 (1987) (special factor is “the fact that congressionally

uninvited intrusion into military affairs by the judiciary is

inappropriate”’).

The second is where the question involves “federal

fiscal policy.” See FDIC y. Meyer, 510 U.S. 471, 486

(1993) (federal agencies - “If we were to recognize a

direct action for damages against federal agencies, we

would be creating a potential enormous financial burden

for the Federal Government.” This Court specifically

differentiated cases where the actual financial burden

would be the same because Congress made a policy

decision to indemnify agents; holding the policy decision

itself is not for the court to make); Bush, 462 U.S. at 389

(federal employees - Congress is in a far better position

than a court to evaluate the impact of [Bivens-like claims]

between federal employees [for wrongful discipline] on the

efficiency of the civil service’); Schweiker vy. Chilicky, 487

U.S. 412, 425 (1988) (social security disability recipients -

“Congressional competence at balancing governmental

efficiency and the rights of [individuals] is no more

questionable in the social welfare context than it is in the

civil service context”).

When denying Bivens relief in deference to

10

congressional policy-making power, this Court has

consistently noted that: (1) the plaintiffs received damages

returning them to the status quo, and (2) the congressional

scheme provided comprehensive administrative and

judicial safeguards against improper actions. Schweiker,

487 U.S. at 417 & 425; Bush, 462 U.S. at 371 & 385.

Conversely, this Court has consistently granted Bivens

relief when “it is damages or nothing.” Bivens, 403 U.S.

at 410 (Harlan, J., concurring in judgment); Davis, 442

U.S. at 245.

Applying the instant facts to this Court’s legal

standards, Bivens relief is appropriate. The complaint

alleges a knowing conspiracy on the part of Schalow and

others to search and seize Haas’ personal and business

property without lawful authority in violation of his Fourth

and Fifth Amendment nights. To effectuate the agreement,

the defendants agreed to and executed a fraud on the

federal district court by seeking an order for entry onto

Haas’ premises to effect a levy on property owed by an

alleged delinquent taxpayer after having been informed by

Haas and public records that the corporate taxpayer had

been dissolved. Despite the fact that the district court

granted limited authority to the agents to levy and seize

enumerated items, Schalow and others searched Haas’

personal papers and property and padlocked his business

premises. The agents issued levy notices to individuals

identified by the illegally seized personal papers of Haas.

Furthermore, Schalow and Locke abysmally refused to

release the property when given notice that Haas sought

1]

refuge in the automatic Stay provision of Chapter 13

bankruptcy.

These facts lack a “fiscal policy” question, as defined

by this Court’s decisions. Haas’ complaint does not

“directly” assault the public treasury, nor is Haas in a

special financial relationship (e.g. employee or disability

recipient) that requires the judiciary to bow to

Congressional will. Therefore, the “special factors” test is

inapplicable. Since the lack of remedy afforded by the tax

code to Haas cannot be as equally effective as a Bivens

action, the “express congressional declaration” test cannot

be met.

Even assuming arguendo a “fiscal policy” question

existed, the “special factors” test is still not met.

Because Haas is not the delinquent taxpayer, the

Internal Revenue Code allows him only an injunction to

prohibit enforcement of the levy or sale of the property, or

return of property, or monetary relief for property sold. 26

U.S.C. § 7426. Because Haas was eventually successful

in getting all his property released to him, § 7426 remedies

are moot.

The statutory scheme clearly did not return Haas to the

Status quo. Haas has not received any compensation for

lost business profits due to the padlocking of his business.

Furthermore, for Haas, as for Davis and Bivens, “it is

damages or nothing.”

12

It simply is not the law that a federal agent can illegally

search, seize, and use the papers and property of a subject

citizen, with impunity, by knowingly deceiving a district

court into issuing an entry order and subsequently

returning the seized papers and property.

Therefore, this Court should grant a writ of certiorari

and reverse the Seventh Circuit’s decision because it is

contrary to this Court’s precedents.

B. Schweiker and the Appellate Courts

Citing Schweiker, 487 U.S. at 421-23, and two Seventh

Circuit cases relying thereupon, the Seventh Circuit held

that:

Courts have declined to create new Bivens

remedies, even if the remedies Congress has created

are not perfectly comprehensive, as long as the

remedies supply “meaningful safeguards or

remedies for the rights of the persons situated,” and

establish “that Congress has provided what it

considers adequate remedial mechanisms for

constitutional violations that may occur in the

[administration of tax laws].”

(App. p. 9).

While generally a true statement of the law, the

application by the Seventh Circuit was misplaced as

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et eo ae

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follows.

1. No new remedy.

This case does not seek a “new” Bivens remedy. This

case seeks the exact remedy granted in Bivens, damages

for violation of search and seizure provisions of the Fourth

Amendment.

The Seventh Circuit virtually admitted Haas is entitled

to relief when it stated “if Haas were seeking the kind of

relief which the Internal Revenue Code does not provide,

he could proceed under Bivens,” relying on Cameron v.

LR.S., 773 F.2d 126, 128 (7th Cir. 1985). (App. pp. 7-8).

That case states “[i]f in the course of enforcing the tax

laws internal revenue agents . . . violate the Fourth

Amendment, the argument for a damage remedy against

the agents is a powerful one, since suit for a tax refund

would not be an adequate substitute.” Jd. Similarly, Haas’

remedy is inadequate.

The Seventh Circuit sidestepped applying its own rule

by characterizing the alleged conduct of Schalow and

Locke as merely “heavy-handed, insensitive, and careless.”

(App. p. 8). Haas respectfully submits that the alleged

conspiracy to violate his Fourth & Fifth Amendment rights

by perpetrating a fraud on the courts cannot fairly be so

characterized.

14

2. Meaning of “not perfectly comprehensive”.

As noted above, the “not perfectly comprehensive”

language used by this Court referred to statutory schemes

that returned the injured party to the status quo, and then

denied additional damages for the constitutional injury.

Indeed, this Court observed in Schweiker, 487 U.S. at 425,

that Congress “has not failed to provide meaningful

safeguards or remedies for the rights of persons situated as

respondents were.”

Because Haas was not returned to the status quo, and

the Internal Revenue Code does not even consider

allowing third parties to be so restored, the Code fails to

meet this Court’s definition of a “meaningful safeguard or

remedy.”

3. Adequate remedial mechanisms considered.

There is no evidence that Congress considered adequate

remedial mechanisms for constitutional violations to the

rights of third parties. In Schweiker, 487 U.S. at 426, this

Court noted that “Congress chose specific forms and levels

of protection for the rights of persons affected by incorrect

determinations under [the Social Security Administration’s

continuing disability review program].” Further, as this

Court stated in Bush, 462 U.S. at 385, comprehensive

schemes include “procedures — administrative and judicial

— by which improper action may be redressed.”

15

Thus, such administrative systems were effective in

exposing unconstitutional conduct that had occurred.

Bagola v. Kindt, 131 F.3d 632, 643 (7th Cir. 1997).

“[W]hen the procedural safeguards of an administrative

scheme are inadequate protectors of constitutional rights,

courts should not readily assume that a Bivens claim is

precluded. /d. The Internal Revenue Code simply cannot

be interpreted to allow agent conduct against third Parties

violative of the Constitution without being addressed or

redressed.

4. Cited appellate cases support Haas.

The Seventh Circuit cites seven appellate cases for the

Proposition that Congress has created an exclusive,

comprehensive administrative scheme to resolve tax-

related disputes. To the extent these cases can be read

contrary to the above analysis of this Court’s precedents,

Haas urges they are wrongly decided. The cases, however,

do not support the Seventh Circuit’s application of them

here.

Only one case considers “third party” Bivens suits and

its conclusory pronouncement that Bivens actions against

IRS agents are precluded by the tax code relies solely on

cases involving “taxpayers”, and under a fact pattern

unrelated to Haas. Dahn y. United States, 127 F.2d 1249,

SF Dahn relies solely on NCBA and Wages, both

discussed below.

16

1254 (10th Cir. 1997) (Bivens action brought by third party

seeking relief identical to § 7426 after failing to bring suit

within the statute of limitations).

Though not directly applicable because they consider

“taxpayer” Bivens actions, the remaining cases do not

carry the weight the Seventh Circuit places on them.

NCBA v. Gibbs, 886 F.2d 1240, 1248 (10th Cir. 1989)

(conspiracy and RICO to unlawfully collect from taxpayer)

specifically holds that a taxpayer “may bring a Bivens

action for violation of the first and fourth amendments,”

because “certain values, such as those protected by [the]

amendments, may be superior to the need to protect the

integrity of the internal revenue system.”

Vennes v. An Unknown Number of Agents, 26 F.3d

1448, 1454 (8th Cir. 1994) (conspiracy to coerce, entrap,

and seize taxpayer’s property) held that the tax code

provides “specific and meaningful remedies” for

“overzealous tax assessment and collection activities,”

because the “taxpayer” has various administrative and

judicial remedies including “damages” under “§§ 7432 and

7433.” The court held these “carefully crafted legislative

remedies confirm that . . . Congress’ refusal to permit

unrestricted damage actions by taxpayers has not been

inadvertent.” Damages under those sections are not

available to third parties like Haas. 26 U.S.C. §§ 7432 &

7433. Since these two sections were enacted in 1988, there

is no basis to believe anything except that Congress

17

desired that violations of a third party’s constitutional

rights would continue to be addressed in Bivens actions.

Vennes also relied upon Cameron, 773 F.2dat 129. The

discussion at that page, however, concerned “completely

untenable claims” such as when “the only claim is that the

agents made mistakes, subjected the taxpayer to

unnecessary inconvenience, failed to explore possibilities

for settlement, or otherwise failed to come up to the

highest standards of conduct for government officers

dealing with citizens.” Cameron, 773 F.2d at 128-29. It

is simply incredible that Cameron is cited as authority for

the proposition that taxpayers cannot bring Bivens actions

for violation of constitutional ri ghts, because that case held

that “[i]f in the course of enforcing the tax laws internal

revenue agents . . . violate the Fourth Amendment, the

argument for a damage remedy against the agents is a

powerful one, since suit for a tax refund would not be an

adequate substitute.” Cameron, 773 F.2d at 128.

McMillen v. United States Dept. of Treasury, 960 F.2d

187, 190-91 (1st Cir. 1991) (taxpayer’s property liened)

also relies upon §§ 7432 and 7433 to conclude that

Congress has created a comprehensive remedy. The court

cites Cameron, Gibbs, Wages, infra, and Babbour. infra,

as supporting its decision.

Wages v. IRS, 915 F.2d 1230, 1235 (9th Cir. 1990)

(taxpayer’s wages garnished) summarily agreed with

Cameron that Bivens actions are foreclosed to taxpayers

18

seeking redress in collection actions. The court also

asserted that Baddour, infra, supported its decision.

Baddour v. United States, 802 F.2d 801, 807-08 (Sth

Cir. 1986) (taxpayer’s property seized from third party’s

premises), held the taxpayer had no Fourth Amendment

claim because the case “involves no invasion of [his]

premises.” Addressing a Fifth Amendment claim, the

court noted that where an agent “deliberately harassed the

taxpayers”, thereby “sketching a portrait of lawless and

arbitrary vendetta,” the “taxpayer might be entitled to

relief beyond that available in a refund suit.” The court

remanded “for a determination whether taxpayers’ clearly

established substantive due process rights had been

violated.”

5. Special factors verses express congressional

declaration.

The appellate cases can be read as blurring the

distinction between this Court’s “special factors” and

“explicit congressional declaration” tests. As discussed

above, the “federal fiscal policy” prong of the “special

factors” test requires more than mere assault on federal

funds. FDIC, 510 U.S. at 486 (a suit against federal

agency would interfere with Congress’ constitutional

power to control the expenditure of funds from the public

treasury, because the court’s damage award would directly

assault public funds; specifically distinguishing the same

fiscal damage due to congressional decision to indemnify

19

agent); Bush, 462 U.S. at 389 (a suit by federal employees

would interfere with Congress’ unique ability to evaluate

the impact of Bivens claims between federal employees for

wrongful discipline on the efficiency of the civil service);

Schweiker, 487 U.S. at 425 (a suit by social security

disability recipients would interfere with Congress

exercising its peculiar competence at balancing

governmental efficiency and the rights of individuals).

Haas’ Complaint, however, does not relate to any of

these factors; he does not seek damages from the United

States, and he has no special financial relationship with the

United States (e.g. employee or disability recipient). Haas’

sole relationship with the United State is that he is an

aggrieved American.

Therefore, any congressional decision falls not under

the “fiscal policy” rational, but the “express declaration”

rationale. As this Court has made Clear, such

congressional declaration must provide “another remedy,

equally effective in the view of Congress.” Obviously, “no

remedy” cannot be equally effective with damages from a

Bivens action.

For each and all of these reasons, a writ of certiorari

Should be granted and this Court should reverse the

decisions below.

To the extent that the appellate cases can be read as

allowing a congressionally created scheme to bar Haas any

Fe

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remedy for deliberate violations of his constitutional rights

without first showing the “fiscal policy” interest as defined

by this Court, certiorari should be granted to correct this

misstatement of the law. Because this is an area of law

that affects every taxpaying citizen, this Court should

expand its focus to include clarifying the law relative to

“taxpayers,” not just “third parties.”

CONCLUSION

Because this petition asserts that the Seventh Circuit

decision conflicts, and appellate cases from five other

circuit courts of appeals have been read as conflicting, with

this Court’s Bivens decision and its progeny, this Court

should issue a writ of certiorari. A writ is further justified

because this petition raises a question of constitutional law

applicable to every taxpaying citizen.

The decisions below should be reversed.

Respectfully submitted,

Gerard N. Haas, Jr.

600 21st Street

Racine, WI 53403

(414) 634-5682

APPENDIX A

GERARD N. HAAS, JR., Plaintiff-Appellant,

v.

JAN J. SCHALOW and LARRY LOC KE,

Defendants-Appellants.

No. 98-1777

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

1998 U.S. App. LEXIS 32654:

99-1 U.S. Tax Cas. (CCH) P50,19]

November 17, 1998 *, Submitted

* After an examination of the briefs and the record, we

have concluded that oral argument is unnecessary, and the

appeal is submitted on the briefs and the record. See Fed.

R. App. P. 34(a); Cir. R. 34(f).

December 23, 1998. Decided

NOTICE: RULES OF THE SEVENTH CIRCUIT

COURT OF APPEALS MAY LIMIT CITATION TO

UNPUBLISHED OPINIONS. PLEASE REFER TO THE

RULES OF THE UNITED STATES COURT OF

APPEALS FOR THIS CIRCUIT.

PRIOR HISTORY: Appeal from the United States District

Court for the Eastern District of Wisconsin. No. 97 C 182.

A-2

Myron L. Gordon, Judge.

DISPOSITION: AFFIRMED.

CORE TERMS: tax code, levied, motion to dismiss,

exclusive remedy, third parties, seized, wrongfully, Fourth

Amendment, Westfall Act, sovereign immunity, personal

property, remedies provided, punitive damages, monetary

relief, writ of entry, unidentified, compensatory, extending,

searched, unknown, existing statutory, money damages,

remedial

COUNSEL: GERARD N. HAAS, JR., Plaintiff -

Appellant, Pro se, Racine, WI.

For JAN J. SCHALOW, LARRY LOCKE, Defendants -

Appellees: Jonathan S. Cohen, DEPARTMENT OF

JUSTICE, Washington, DC USA.

JUDGES: Before Hon. RICHARD A. POSNER, Chief

Judge, Hon. JOHN L. COFFEY, Circuit Judge, Hon.

DIANE P. WOOD, Circuit Judge.

OPINION: ORDER

Gerard Haas, Jr., sued Jan Schalow, a revenue officer

in the Collection Division of the Internal Revenue Service

("IRS"), and Larry Locke, a group manager in the

Collection Division of the IRS, in their individual

capacities. nl He alleged that Schalow and Locke violated

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his Fourth, Fifth, and Ninth Amendment rights when

Schalow searched and seized his business property and

then both defendants refused to return the property

immediately. The district court granted the defendants'

motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), and Haas appeals. We affirm.

nl Haas also named as defendants "John Does

I through X," unknown IRS employees, but these

defendants have not been identified or served and

are not parties to this appeal. Omni Capital Int'l y.

Rudolf Wolff & Co., Ltd., 484 US. 97, 104, 98 L.

Ed. 2d 415, 108 S. Ct. 404 (1987).

Because the district court dismissed Haas's complaint

for failure to state a claim, we accept as true all well-

pleaded factual allegations in the complaint and construe

them in the light most favorable to Haas. Fries v. Helsper,

146 F.3d 452, 456 (7th Cir.), cert. denied, 142 L. Ed. 2d

278, 119 S. Ct. 337 (1998). On January 9, 1997, Schalow

and other unidentified persons entered Haas's business

premises. Three days earlier, Schalow had obtained an

order authorizing her to enter the premises and seize

certain assets belonging to Romanite Building Products,

Inc., in satisfaction of Romanite's unpaid federal taxes.

Romanite, however, had been dissolved in late 1995 or

early 1996, and Haas alleges that he has owned the

property since the dissolution. According to Haas, the IRS

employees conducted a search that exceeded the scope of

the writ of entry, seized his personal papers, and padlocked

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the premises, thereby preventing him from conducting his

business. On January 13, 1997, Haas filed a bankruptcy

petition, and he contends that the IRS should have released

the seized property in light of the automatic stay provision

in 11 U.S.C. § 362. Haas acknowledges on appeal that the

IRS employees did not sell any of his personal property,

and that they released his business and its contents

approximately three weeks after the seizure.

Haas filed the underlying action against Schalow and

Locke seeking only compensatory and punitive damages.

The defendants moved to dismiss the action on three

grounds: (1) Haas did not plead his complaint with enough

specificity to maintain an action under Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971); (2)

Haas's exclusive remedy is set forth in the Internal

Revenue Code; and (3) the defendants are entitled to

qualified immunity. The district court found the

defendants’ second argument dispositive and dismissed the

action because the Internal Revenue Code provides Haas's

exclusive remedy and he therefore could not bring a

Bivens claim.

Before we reach the merits, we address the defendants’

argument, which they raise for the first time on appeal, that

the district court lacked subject matter jurisdiction over

Haas's suit based on the doctrine of sovereign immunity.

The defendants contend that, because their complained-of

actions were taken in the course of their official duties,

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they were acting on behalf of the United States. Therefore,

they argue Haas's suit must be deemed one brought solely

against the United States, which is protected from suit

except when Congress has "unequivocally expressed" a

waiver of sovereign immunity. See United States v. Nordic

Village, Inc., 503 U.S. 30, 33, 117 L. Ed. 2d 181, 112 S.

Ct. 1011 (1992). The defendants also suggest that Haas's

action should be considered one against the United States

under the Federal Torts Claims Act ("FTCA"), 28 U.S.C.

§§ 1346(b), 2671-2680.

We reject the defendants' argument. A suit in which a

plaintiff alleges that a federal officer has acted in violation

of the Constitution or statutory authority generally is not

deemed to be one against the sovereign. Dugan v. Rank,

372 U.S. 609, 621-22, 10 L. Ed. 2d 15, 83 S. Ct. 999

(1963); Ogden v. United States, 758 F.2d 1168, 1177 n.5

(7th Cir. 1985). Although the United States may be

substituted for a federal employee accused of committing

a tort within the scope of his employment under the

Westfall Act, 28 U.S.C. § 2679(b), the Act does not apply

to an action against an employee which is brought for a

violation of the Constitution. 28 U.S.C. § 2679(b)(2)(A).

See also Sterling v. United States, 85 F.3d 1225, 1228 (7th

Cir. 1996). Instead, an action seeking only monetary relief

from individual federal officials for a constitutional

violation may brought as a Bivens action "to avoid the

sovereign immunity that would block an action against the

United States." Sterling, 85 F.3d at 1228-29. See also

Apampa v. Layng, 157 F.3d 1103, 1104 (7th Cir. 1998)

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(Westfall Act does not supplant Bivens remedy). A Bivens

action can be maintained against a defendant only in his or

her individual capacity; it cannot be maintained against the

United States. F.D.I.C. v. Meyer, 510 U.S. 471, 485, 127

L. Ed. 2d 308, 114 S. Ct. 996 (1994); Carlson v. Green,

446 U.S. 14, 21, 64 L. Ed. 2d 15, 100 S. Ct. 1468 (1980).

Here, Haas seeks damages against Schalow and Locke in

their individual capacities, claiming that they used false

pretenses to obtain a writ of entry and then searched and

seized his personal property in violation of the Fourth

Amendment. The defendants’ alleged misconduct is

excepted from coverage under the FTCA. Accordingly, the

district court properly construed Haas's complaint as

attempting to bring a Bivens action, and Haas confirms this

construction on appeal.

We turn then to whether Haas's Bivens action properly

was dismissed. We review de novo the grant of a motion

to dismiss. Fries, 146 F.3d at 456. A motion to dismiss

under Federal Rule of Civil Procedure 12(b)(6) may be

granted only if it appears from the allegations of the

complaint that the plaintiff can prove no set of facts which

would entitle him to relief. Id. Haas argues on appeal that

the district court erred in finding that he may seek relief

only through the remedies provided by the tax code.

Because he believes that he has no claim under an

available statutory remedy, he concludes that he is entitled

to bring an action for damages under Bivens.

In Bivens, the Supreme Court held that a plaintiff could

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recover money damages for Fourth Amendment violations

committed by federal agents. 403 U.S. at 397; See also

Bagola v. Kindt, 131 F.3d 632, 637 (7th Cir. 1997).

Subsequently, courts expanded the Bivens remedy to

encompass violations of other constitutional provisions.

See, e.g., Butz v. Economou, 438 U.S. 478, 57 L. Ed. 2d

895, 98 S. Ct. 2894 (1978) (extending right to actions

arising under the Due Process Clause of the Fifth

Amendment). The Supreme Court, however, repeatedly

has warned that federal courts should exhibit caution in

"extending Bivens remedies into new contexts." Bagola,

131 F.3d at 638 (citing Meyer, 510 U.S. at 484; Schweiker

v. Chilicky, 487 U.S. 412, 421, 101 L. Ed. 2d 370, 108 S.

Ct. 2460 (1988)). No Bivens remedy exists where

Congress already has created "comprehensive procedural

and substantive provisions giving meaningful remedies

against the United States." Bush v. Lucas, 462 U.S. 367,

368, 76 L. Ed. 2d 648, 103 S. Ct. 2404 (1983): see also

Schweiker, 487 U.S. at 423; Chappell v. Wallace, 462 U.S.

296, 76 L. Ed. 2d 586, 103 S. Ct. 2362 (1983); Gorden v.

Kreul, 77 F.3d 152, 155 (7th Cir. 1996).

Congress has created an exclusive, comprehensive

administrative scheme created to resolve tax-related

disputes, and the provision of this statutory scheme

precludes a Bivens claim in the present action. See Dahn

v. United States, 127 F.3d 1249, 1254 (10th Cir. 1997);

Vennes v. An Unknown Number of Unidentified Agents of

the United States, 26 F.3d 1448, 1453-54 (8th Cir. 1994):

McMillen v. United States Dept. of Treasury, 960 F.2d

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187, 190-91 (1st Cir. 1991); Wages v. Internal Revenue

Service, 915 F.2d 1230, 1235 (9th Cir. 1990); National

Commodity and Barter Ass'n v. Gibbs, 886 F.2d 1240,

1248 (10th Cir. 1989); Baddour, Inc. v. United States, 802

F.2d 801, 807-8 (Sth Cir. 1986). We note that if Haas were

seeking the kind of relief which the Internal Revenue Code

does not provide, he could proceed under Bivens. For

example, if IRS agents used excessive force in seizing a

person, a damage remedy against the agents may exist

because a suit under the tax code would not be an adequate

substitute. See Cameron v. Internal Revenue Service, 773

F.2d 126, 128 (7th Cir. 1985). However, no damage

remedy exists in an action like Haas's where the complaint,

if true, "shows only that internal revenue agents acted in a

heavy-handed, insensitive, and careless fashion." Id. at

129. Congress already has provided taxpayers numerous

rights "against an overzealous officialdom" in the Internal

Revenue Code. Id.

That Haas may not be able to recover under the

remedies provided by the tax code does not alter this

result. The district court found that Haas was entitled to

seek relief under 26 U.S.C. § 7432 or § 7433, but the

defendants concede on appeal that Haas has no standing to

bring a claim under either of these sections because he was

not the taxpayer liable for the tax which the defendants

were seeking to collect. Instead, the tax code provides that

third parties who claim their property was wrongfully

levied in the collection of tax owed by another party may

seek to recover their property under 26 U.S.C. § 7426.

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"Section 7426(a)(1) is the exclusive remedy of third parties

who seek to assert claims on IRS-levied property." Miller

v. Tony and Susan Alamo Found, 134 F.3d 910, 916 (8th

Cir. 1998). Under § 7426(b), a third party may seek an

injunction to prohibit the United States from enforcing the

levy or selling the levied property or may seek the return

of wrongfully levied property or monetary relief if the

property was sold. But § 7426 does not permit a party to

recover compensatory or punitive damages, so Haas argues

that no existing statutory remedy provides his desired relief

and he therefore is entitled to bring a Bivens action.

"The absence of statutory relief for a constitutional

violation . . . does not by any means necessarily imply that

courts should award money damages against the officers

responsible for the violation." Schweiker, 487 U.S. at 421-

22 (declining to create remedy under Bivens, even though

existing statutory scheme did not provide for damages).

Courts have declined to create new Bivens remedies, even

if the remedies Congress has created are not perfectly

comprehensive, as long as the remedies supply

"meaningful safeguards or remedies for the rights of

persons situated," and establish "that Congress has

provided what it considers adequate remedial mechanisms

for constitutional violations that may occur in the

[administration of the tax laws]." Jd. at 423, 425: Bagola,

131 F.3d at 641; Robbins v. Bentsen, 41 F.3d 1195, 1201

(7th Cir. 1994)). Through the tax code, Congress has

created adequate remedial mechanisms for third parties

who claim their property has been levied wrongfully.

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Therefore, Haas may not maintain a Bivens action against

Schalow and Locke.

Because the district court did not err in finding that

Haas failed to state a Bivens claim, we need not address

the alternative arguments raised by the parties on appeal.

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

APPENDIX B

GERARD N. HAAS, JR., Plaintiff.

v. JAN J. SCHALOW, LARRY LOCKE, and

DOES I through X, Defendants.

Case No. 97-C-182

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF WISCONSIN

991 F. Supp. 1074; 1998 U.S. Dist. LEXIS 834

January 26, 1998, Filed

DISPOSITION: Defendants’ motion to dismiss granted.

Plaintiffs motion for leave to file a supplemental

complaint and to add defendants denied.

CORE TERMS: collection, motion to dismiss, exclusive

remedy, statutory remedy, dissolved, damages resulting,

writ of entry, civil action, declarations, seizure, dicta,

failure to state a claim, bankruptcy petition, qualified

immunity, personal property, leave to file, supplemental,

specificity, notified, manager, unnaid, levy

COUNSEL: Gerard N. Haas, Plaintiff, Pro Se, Racine, WI.

Thomas Schneider, United States Attorney, Milwaukee,

WI, For Defendants.

LaQuita Taylor-Phillips, Raymond R. Mulera, United

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States Dept. Of Justice, Washington, D.C., For Defendants.

JUDGES: Myron L. Gordon, United States District Judge.

OPINIONBY: Myron L. Gordon

OPINION: DECISION AND ORDER

Gerard N. Haas, Jr. filed this pro se action against Jan

J. Schalow, an officer in the collection division of the

Internal Revenue Service ["IRS"] in Racine, Wisconsin,

and Larry Locke, a group manager with the collection

division of the IRS in Green Bay, Wisconsin. Mr. Haas has

also named as defendants "Does | through X," whom he

describes in his complaint as employees of the IRS. The

crux of Mr. Haas' complaint, which alleges several

constitutional violations, arises from an incident at his

business premises in Racine, Wisconsin, on January 9,

1997. The defendants have moved to dismiss this action on

three different grounds: (1) that the plaintiff has not pled

his complaint with enough specificity to maintain a Bivens

action; (2) that Mr. Haas' exclusive remedy for relief can

be found only in the IRS code, not in the United States

Constitution, and his complaint therefore fails to state a

claim; and (3) that the defendants have qualified immunity.

Both parties, in briefing their positions on the motion

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to dismiss, have provided the court with material outside

of the pleadings. For example, the defendants have

attached the declarations of both Ms. Schalow and Mr.

Locke, as well as several other documents, to their motions

to dismiss. Mr. Haas followed suit and attached to his

response his own and his brother Matthew's declarations,

along with several other documents. If the court were to

consider these documents in reaching its decision, it would

have to treat the motion as one for summary judgment and

give the parties "reasonable opportunity to present all

material made pertinent to such a motion." F.R.C.P. 12(b);

see General Elec. Capital Corp. v. Lease Resolution Corp.,

128 F.3d 1074, 1080 (7th Cir. 1997). Because these

extraneous materials will not assist me in my decision,

however, I will not consider them. Therefore, I will treat

the defendant's motion as one to dismiss.

I. Factual Background

At this point in the proceedings, I must liberally

construe Mr. Haas' allegations and take as true his well-

pleaded factual claims. Sidney S. Arst Co. v. Pipefitters

Welfare Educ. Fund, 25 F.3d 417, 420 (7th Cir. 1994).

Accordingly, the following version of the facts is his.

On January 6, 1997, Ms. Schalow obtained from

another branch of this court an order to enter the premises

at 2400 Racine Street in Racine. The court granted the

order based on Ms. Schalow's representation that Romanite

Building Products, Inc. ["Romanite"], located there, owed

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delinquent taxes. However, Mr. Haas alleges that Ms.

Schalow's statements to the court were "unreasonable and

incorrect" because Mr. Haas had already notified Ms.

Schalow that Romanite had been dissolved. The court's

order authorized Ms. Schalow and "other designated

employees" of the IRS to seize property in satisfaction of

Romanite's unpaid income taxes.

On January 9, 1997, Ms. Schalow entered the premises

with the intent to seize the plaintiff's business premises,

conduct a search for other property, and then obtain

another entry order for the personal property. When she

arrived, Ms. Schalow and "others" conducted an illegal

search and seizure of Mr. Haas' personal papers. Based on

what she found in the papers at the premises, Ms. Schalow

then issued notices of levy to other individuals and entities.

On January 13, 1997, the plaintiff filed a Chapter 13

bankruptcy petition in the United States Bankruptcy Court

for the Eastern District of Wisconsin, and on the next day,

he delivered a copy of that petition to Ms. Schalow. He

also called Larry Locke, who was Ms. Schalow's group

manager, on January 14, 1997. Mr. Locke said that he was

aware of the bankruptcy petition, but he nevertheless

refused to release plaintiff's business premises, and its

contents, to the plaintiff. Ms. Schalow called the

Wisconsin Secretary of State on January 14, 1997 and was

notified that the plaintiff's corporation had been dissolved.

She still "refused," however, to release Mr. Haas' business

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premises and personal property.

Mr. Haas claims that both Ms. Schalow and Mr. Locke

"knew or should have known" that there were no

reasonable grounds with which to obtain a writ of entry

against a dissolved corporation and that, in obtaining such

a writ of entry and directing that the locks at the premises

be changed and padlocked, the defendants acted in bad

faith. The plaintiff alleges that the defendants have

violated his Fourth, Fifth, and Ninth Amendment rights

and that their refusal to release the property violated the

automatic stay provisions of // U.S.C. § 362. He further

alleges that the was damaged in the amount of $4000 a day

due to the seizure of the premises.

II. Analysis

I will first address the defendants’ second argument--

that Mr. Haas' exclusive remedy is a statutory, not

constitutional one--because that argument is dispositive.

Specifically, the defendants argue that a Bivens action, one

against individual federal officers for a violation of a

plaintiff's federal constitutional rights, is not proper when

Congress has already provided a statutory remedy that

purports to be the exclusive remedy. Here, the defendants

claim, Mr. Haas' exclusive remedy is provided by the IRS

code.

In Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d

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619, 91 S. Ct. 1999 (1971), the U.S. Supreme Court

provided plaintiffs with a judicially created cause of action

against federal officers. However, the Court also expressly

said that the federal courts must refrain from extending

Bivens when Congress has indicated that a parallel

statutory remedy is exclusive, see Bush v. Lucas, 462 U.S.

367, 378, 76 L. Ed. 2d 648, 103 S. Ct. 2404 (1983). In

Bush, the Court said that "when Congress provides an

alternative remedy, it may, of course, indicate its intent, by

statutory language, by clear legislative history, or perhaps

even by the statutory remedy itself, that the courts’ power

should not be exercised." 462 U.S. at 378; see also

Schweiker v. Chilicky, 487 U.S. 412, 423, 101 L. Ed. 2d

370, 108 S. Ct. 2460 (1988) ("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."); Cameron v. IRS, 773 F.2d 126, 129 (7th Cir.

1985) ("Courts will not create a damage remedy for the

violation of a constitutional right when Congress has

created explicit remedies or when a court-created remedy

would interfere with the effective functioning of the

government.").

Ms. Schalow and Mr. Locke claim that two separate

sections of the IRS code provide Mr. Haas with his only

remedies. The first section states:

If, in connection with any collection of Federal

ee

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tax with respect to a taxpayer, any officer or

employee of the Internal Revenue Service

recklessly or intentionally 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. § 7433 (emphasis added). The second section,

26 U.S.C. § 7432(a), allows a plaintiff to sue the United

States if "any officer or employee of the Internal Revenue

Service knowingly, or by reason of negligence, fails to

release a lien . . . on property of the taxpayer."

As seen above, section 7433 explicitly states that it is

the sole redress for a plaintiff seeking to recover for the

actions of IRS officials in their collection activities. While

section 7432 does not make the same explicit statement,

section 7433's mention of section 7432 is a recognition

that, as far as exclusivity, those sections should be treated

the same. Several courts have found that Congress

intended section 7432, along with 7433, to prevent a

plaintiff from making constitutional Bivens-like claims

against individual IRS agents. For example, in Vennes v.

An Unknown Number of Unidentified Agents of the United

States, 26 F.3d 1448, 1453 (8th Cir. 1994), cert. denied,

513 U.S. 1076, 130 L. Ed. 2d 627, 115 S. Ct. 721 (1995),

B-8

the plaintiff claimed that IRS agents illegally confiscated

his business, sold its assets, and forced him out of business,

even though he did not owe any taxes. The court of appeals

for the eighth circuit said that the plaintiff's Bivens action

could not go forward because Congress, in enacting

sections 7432 and 7433, intended to preclude such actions:

"These carefully crafted legislative remedies confirm that,

in the politically sensitive realm of taxation, Congress's

refusal to permit unrestricted damage actions by taxpayers

has not been inadvertent." Vennes, 26 F.3d at 1454.

Similarly, in Fishburn v. Brown, 125 F.3d 979, 982-83

(6th Cir. 1997), the court of appeals for the sixth circuit

dismissed for lack of subject matter jurisdiction a claim in

which a plaintiff claimed that an individual IRS agent

violated her Fifth Amendment right to due process by

seizing her car. Noting the existence of section 7433, the

court said that "since Congress has created statutory

provisions that enabled Fishburn to challenge the IRS

agents’ actions, she does not have an actionable Bivens

claim for a violation of due process." Fishburn, 125 F.3d

at 983.

In another relevant case, the court of appeals for the

seventh circuit found that the plaintiff suing the IRS had

not stated a claim for a violation of his constitutional

rights. The court went on to say in dicta, however, that

even if the court could give the plaintiff a remedy, the

plaintiff could not recover damages from individual

employees of the IRS. The court said:

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Congress has given taxpayers all sorts of rights

against an overzealous officialdom, including, most

fundamentally, the right to sue the government for

a refund if forced to overpay taxes, and it would

make the collection of taxes chaotic if a taxpayer

could bypass the remedies provided by Congress

simply by bringing a damage action against

Treasury employees. It is hard enough to collect

taxes as it is; additional obstructions are not needed.

Cameron v. IRS, 773 F.2d 126, 129 (7th Cir. 1985); see

also McMillen v. United States Dept. of Treasury, 960 F.2d

187, 190-91 (Ist Cir. 1991) (stating, in dicta, that

"Congress has deemed Sections 7432 and 7433 the

exclusive remedies for damages resulting from such

abuses"); Wages v. IRS, 915 F.2d 1230, 1235 (9th Cir.

1989), cert. denied, 498 U.S. 1096, 112 L. Ed. 2d 1071,

111 S. Ct. 986 (1991).

Mr. Haas, in his brief in response to the defendants'

motion to dismiss, repeats his statement that, generally,

plaintiffs may recover damages for a violation of their

Fourth Amendment rights by federal officials. He does not

address, however, the defendants’ specific argument that

sections 7432 and 7433 are his exclusive remedies, and he

does not argue that the government actions for which he is

suing were not "in connection with any collection of

Federal tax."

I believe that Ms. Schalow's entry onto the property,

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her search of "papers" at the property, and her subsequent

levy of property were all in connection with the collection

of Romanite's unpaid taxes. I also find that Ms. Schalow's

and Mr. Locke's alleged refusal to release property that had

been levied in order to satisfy Romanite's taxes was related

to the collection of taxes. Therefore, based on the extensive

caselaw cited above, Mr. Haas cannot maintain a Bivens

action against these individual defendants. His sole remedy

can be found in the tax code. I need not address the

defendants’ specificity and qualified immunity arguments.

The plaintiff may have anticipated the court's finding

that he cannot sue Ms. Schalow and Mr. Locke, because

after the defendant's motion to dismiss was fully briefed,

the plaintiff filed a motion for leave to file a supplemental

complaint and to add defendants. Specifically, Mr. Haas

proposes to add the Town of Mount Pleasant, employees

of the Mount Pleasant Police Department, and "federal

employees" as defendants. He then goes on to describe the

alleged harassment that special agents of the IRS and

employees of Mount Pleasant have committed upon his

brother, Matthew Haas.

Apart from the issue of whether the plaintiff has

standing to sue for injuries his brother may have suffered,

Mr. Haas' proposed amended complaint cures none of the

deficiencies discussed above. His motion to amend will be

denied, and I will dismiss this action, with prejudice, for

the plaintiff's failure to state a claim against the named

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defendants.

Therefore, IT IS ORDERED that the defendants’

motion to dismiss be and hereby is granted.

IT IS ALSO ORDERED that the plaintiff's motion for

leave to file a supplemental complaint and to add

defendants be and hereby is denied.

IT IS FURTHER ORDERED that the clerk of court be

and hereby is directed to dismiss this action, with

prejudice, for the plaintiff's failure to state a claim upon

which relief can be granted.

Dated at Milwaukee, Wisconsin, this 26th day of

January, 1998.

Myron L. Gordon

United States District Judge