USCA1 Opinion

December 21, 1994

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-2337
ANDREW TEMPELMAN & PRISCILLA TEMPELMAN,
Plaintiffs, Appellants,
v.
PATRICIA BEASLEY, EXAMINER FOR THE
U.S. TREASURY DEPARTMENT, INTERNAL REVENUE SERVICE,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge]
__________________________
____________________
Before
Torruella, Chief Judge,
___________
Selya and Cyr, Circuit Judges.
______________
____________________

Andrew Tempelman and Priscilla Tempelman on brief pro se.

________________
___________________
Paul M. Gagnon, United States Attorney, Loretta C. Argre
________________
__________________
Assistant Attorney General, Gary R. Allen, Jonathan S. Cohen,
______________ __________________
Sarah Knutson, Attorneys, Tax Division, Department of Justice,
______________
brief for appellee.
____________________
____________________

Per Curiam.
__________

Plaintiffs Andrew and Priscilla

Tempelman

are long-time tax protesters--proponents of the view that the

United States internal
based upon

audits of plaintiffs' returns for

through 1988,
inter alia,
___________
claimed

In 1992,

the years 1986

the Internal Revenue Service (IRS) determined,

that

and that

successfully

revenue system is invalid.

various deductions
additional

challenged

where a settlement with

this

had

taxes were

been
owed.

determination

in

the IRS resulted in the

improperly
Plaintiffs
tax court,
elimination

of

most or

instant
the

all

of such

pro se action

IRS agent

who

liability.

in state court,

had conducted

charged

that

imposed

further tax

liabilities

views,

violation

dissident

defendant

in

They

had

the

of

filed the

seeking damages from

audits.

deliberately
in

then

and

Plaintiffs
maliciously

retaliation for
various

their

statutory

and

constitutional provisions.
Defendant removed

the action to federal

court and then

moved to dismiss, claiming

that parts of the complaint

jurisdictionally defective

while other parts failed to state

claim.

agreed

In a

comprehensive

and dismissed

12(b)(1) &

(6).

were engaged

opinion, the

the complaint

The court

in a "vendetta"

district court

under Fed.

went on to find

were

R. Civ.

P.

that plaintiffs

against the IRS,

having filed

numerous frivolous cases against the agency and its employees

solely for the purpose of harassment.

enjoined

plaintiffs

from filing

any

As a result, the court

further

such actions

without

judicial

sanctions.

approval.

It

also

imposed

monetary

Plaintiffs, in summary fashion, challenge each of

these rulings on appeal.1

I.
We

need

not

linger

long

over

the

merits

of

the

complaint.

Plaintiffs have relied on a plethora of statutory

provisions

in

an attempt

state a claim.
criminal

Each

to establish

jurisdiction and/or

proves unavailing.

provisions on

which they

For example,

rely--18 U.S.C.

241,

242--do not

give rise to a

civil action for damages.

e.g.,
____

v. Ventetuolo,
__________

941 F.2d

Rodi
____

1991); Cok v. Cosentino, 876

___
_________
curiam).
7214, is

A third such

two

22,

29 n.8

F.2d 1, 2 (1st Cir.

provision, contained in

likewise inapposite; "a precondition

See,
___

(1st Cir.
1989) (per
26 U.S.C.

to a taxpayer

suit for damages against a revenue agent under this provision

is

the

Browning,
________

criminal
711 F.

conviction
Supp.

Plaintiffs' reliance on

of

the

1009, 1012
42 U.S.C.

jurisdictional counterpart,

agent."
n.2

Hollett
_______

(E.D. Cal.

1983, 1985 (and

28 U.S.C.

1343)

v.

1988).
their

is misplaced.

Section 1983 is inapplicable to federal officials not alleged

to

have

acted

"under color

District of Columbia v. Carter,

____________________
______
____________________

of

state

law."

See,
___

e.g.,
____

409 U.S. 418, 424-25 (1973);

1. Given the disposition we reach, there is no need

decide whether the notice of appeal was ineffective as
Priscilla Tempelman, as defendant suggests.

to
to

-3-

Soldevilla v. Secretary of Agric.,

__________
____________________
Cir.

1975).

In turn,

length, plaintiffs
under

as the

have not

512 F.2d

427, 429

district court

come close

(1st

discussed at

to stating

a claim

1985.
No more helpful is plaintiffs' invocation of the Federal

Tort

Claims Act, 28 U.S.C.

excluded from
respect
2680(c);

the FTCA's

1346(b), 2671-80.
ambit is

"[a]ny claim arising

of the assessment or collection of

see,
___

e.g.,
____

Treasury, 960 F.2d

________

McMillen
________

187, 188

Explicitly

any tax."

in

Id.
___

v. United States Dep't of

_________________________

(1st Cir.

1991) (per

curiam).

Contrary to plaintiffs' contention, the allegations here fall

readily within this exception.
and Barter Ass'n
________________

v. Gibbs,
_____

See, e.g., National Commodity

___ ____ __________________

886 F.2d 1240,

1246 (10th

Cir.

1989); Capozzoli v. Tracey, 663 F.2d 654, 658 (5th Cir. 1981)
_________
______
(

2680(c) has been "interpreted broadly" to cover activities

that were "in any

way related to the [IRS]

agents' official

duties").
Plaintiffs' reliance on 26
misplaced.

This

provision

U.S.C.

7433(a) also proves

authorizes a

civil action

for

damages whenever an IRS official "recklessly or intentionally

disregards" the tax laws
of federal taxes.
misconduct
of

Yet plaintiffs are complaining of

that occurred in

their

thereof.

in connection with "any collection"

tax liability,

alleged

connection with the calculation

rather

than

with the

Such a claim is not cognizable under

collection
7433.

See,
___

-4-

e.g., Shaw v.
____ ____

United States,
_____________

20 F.3d 182,

184 (5th

Cir.),

cert. denied, 63 U.S.L.W. 3181 (1994); Gonsalves v. IRS, 975

_____________
_________
___
F.2d 13, 16

(1st Cir.

1992) (per curiam).

Furthermore,

prerequisite to any such action is that the taxpayer

his

or

her

7433(d)(1),
"the

administrative
by filing

district

taxpayer
There

remedies,

a written

director ...

of

currently resides,"

is no

jurisdiction.

U.S.C.

the district

in

with

which the

301.7433-1(e)(1).

plaintiffs have

complied with

The failure to do so deprives the court of

See, e.g.,
___ ____

___, 1994 WL

26

administrative claim

26 C.F.R.

suggestion that

this requirement.

see
___

exhaust

567016, at

Venen v. United States, ___ F.3d

_____
______________
*2-*3 (3d Cir.

1994); Conforte
________

v.

United States, 979 F.2d 1375, 1377 (9th Cir. 1992).

_____________
Finally,

plaintiffs have

sought

to

advance a

claim against defendant in her personal capacity.

v.
403

Bivens
______

See Bivens
___ ______

Six Unknown Named Agents of Federal Bureau of Narcotics,

________________________________________________________
U.S.

388 (1971).

defendant's
Fourth,

Fifth, Eighth
on

"remedial

appeal

regard, they

and Fourteenth
have

courts have

in the

mentioned

for

the

point

Because
only

in

As we explained

context in

constitutional

Congress has already implemented

the First,

Amendments.

been disinclined to

internal revenue

mechanisms

contend that

their rights under

it suffices to note the following.

in McMillen,
________
remedies

this

actions abridged

plaintiffs
passing,

In

create Bivens
______
light of

violations"

in this area.

960

the
that

F.2d at

-5-

190-91

(quoting Schweiker
_________

(1988)).

In particular,

any Bivens remedy for

______
assessment and

v.

Chilicky, 487
________

U.S. 412,

423

courts have specifically disavowed

alleged violations associated with tax

collection activities.

See,
___

e.g., Vennes v.
____ ______

An Unknown Number of Unidentified Agents, 26 F.3d 1448, 1453________________________________________

54 (8th

Cir.), petition for cert. filed,

_________________________

(1994);

McMillen, 960 F.2d at 190-91; Wages v. IRS, 915 F.2d

________
_____
___

1230, 1235

(9th

(1991); Gibbs,
_____

Cir. 1990),
886 F.2d at

63 U.S.L.W.

cert. denied, 498

_____________
1247-48; Tonn v.
____

U.S.

3192

1096

United States,
_____________

847 F. Supp. 711, 716-18 (D. Minn. 1993), aff'd, 27 F.3d 1356
_____
(8th

Cir. 1994) (per curiam);

see also Cameron

________ _______

F.2d

126, 128-29 (7th Cir. 1985);

v. IRS, 773
___

cf. FDIC v. Meyer, 114 S.

___ ____
_____

Ct.

996, 1005-06

(1994) (declining

to imply

Bivens action
______

against federal agencies).

Most of
process

these cases, it

is true, involved

violations, whereas

abridgement of
At least

their First (and

under the facts

consequence.

plaintiffs

The Tenth

have

alleged due
also

Fourth) Amendment

alleged, however, this

claimed
rights.2

is without

Circuit's pair of opinions

in Gibbs
_____

("NCBA I"), 886 F.2d 1240, and National Commodity and Barter
_______
_____________________________
Ass'n
_____

v. Archer, 31 F.3d
______

1521 (10th Cir.

1994) ("NCBA II")

_______

(the appeal following remand), are instructive.

With respect

____________________
2. In their district court pleadings, plaintiffs conceded
that their Eighth Amendment claim was without merit.
A
similar conclusion applies as to their Fourteenth Amendment
claim. In turn, we have difficulty perceiving how the Fourth
Amendment is implicated by plaintiffs' allegations.
-6-

to

allegations that

misconduct

IRS

with respect

agents had
to a

engaged in

widespread

tax-protesting organization--

including repeated raids of its headquarters and its members'

homes and seizures of membership records--the court held that
a Bivens claim
______
Amendments.
at 1527-32.

had been

See
___

NCBA II, 31 F.3d

_______

to allegations that

to recognize

First or

Fourth Amendment

the
court

Bivens
______

afforded elsewhere."

Id.
___

So here, we think the panoply of statutory remedies

available militates against recognition

Amendment

Fourth

"wrongful jeopardy assessments," the

remedy "[i]n light of the remedies

at 1532.

First and

NCBA I, 886 F.2d at 1248;

______

However, with respect

IRS had effected

declined

stated under the

Bivens
______

remedy

with

respect

of a First or Fourth
to

the

wrongful

assessment of plaintiffs' tax liability.3

____________________
3. Plaintiffs also allege that their suit was improperly
removed to federal court.
Removal was plainly appropriate
under 28 U.S.C.
1442(a)(1) (pertaining to suits against
"[a]ny officer of the United States ... for any act under
color of such office"), inasmuch as defendant's relationship
to plaintiffs "derived solely from [her] official duties."
Willingham v. Morgan, 395 U.S. 402, 409 (1969); accord, e.g.,
__________
______
______ ____
Palermo v.
Rorex, 806 F.2d 1266,
1269-70 (5th Cir.)
_______
_____
(rejecting argument that defendants were not acting "under
color of federal office" because their acts were alleged to
have been maliciously motivated), cert. denied, 484 U.S. 819
____________
(1987); see also Arizona v. Manypenny, 451 U.S. 232, 242
________ _______
_________
(1981) ("the right of removal is absolute for conduct
performed under color of
federal office").
As such,
plaintiffs' inability to subpoena the United States Attorney
in order to examine the validity of his 28 U.S.C.
2679(d)
certification--about which they also complain--was without

consequence.
As well, plaintiffs object that the district judge
recused himself on the same day that he denied their motion
for reconsideration.
To the contrary, the record reveals
-7-

II.
Remaining for

consideration

sanctions

imposed

additional

background

district

upon

is necessary.

court's order

the

of

to

In

dismissal,

for

leaving

of and

which

some

response to

for

would "stand

that unless

with

"a co-conspirator in
is

coming

According

before

in

law."

"clear

They

the dismissal were

to their certificate

in

the

constitutional violations

a far larger Civil

court

then

rescinded he

of impeachment and of being

this

there castigated

"no remedy"

federal

liable" for possible

and would run the risk

the

filed

proceeded, in increasingly intemperate language, to warn

district judge

the

Displaying a lack of familiarity

them

contempt

of

plaintiffs

sovereign immunity doctrine, they

court

defiance

propriety

plaintiffs--as

motion for reconsideration.

with the

is the

named as

Rights matter which

series

of service,

of

actions."

plaintiffs sent

copies of

this

motion to

some 28

political officials

and

various media outlets.

The

district

judge held

a hearing

on the

motion, at

which plaintiffs enumerated at some length (and in reasonably

decorous fashion) their objections to the order of dismissal.
The

court

thereafter,

in

an

oral

ruling,

voiced

its

____________________
that plaintiffs' motion for recusal was denied on that date.
We are told that the judge subsequently recused himself from
other cases involving plaintiffs--an action that has no
bearing on the instant matter.
-8-

disapproval of plaintiffs' conduct.

that

the court had

bordered on

conspired with the

"criminal contempt."

personnel had

Their veiled suggestion

government, it held,

Their treatment

been "insulting" and "bully[ing]."

of court
And their

"vendetta against the IRS and its employees"--pursued through

a series
on

of "frivolous" and "harassing"

too long."

Accordingly,

lawsuits--had "gone

the court entered

a sua sponte
__________

order enjoining plaintiffs from filing any further actions in

the District

of New

Hampshire "against the

IRS," including

suits removable from state court, without judicial

approval.

It also imposed sanctions in the amount of $293 (representing

the travel costs incurred by government counsel to attend the
hearing).
ruling,
eleven

In a

subsequent written order in support

the court
actions

noted that

that

plaintiffs

Hampshire federal court

found

had involved

the instant

the

had

since 1986, ten

IRS

or

its

of this

case was

prosecuted

one of
in

of which the
agents.

The

New
court
court

reiterated its injunction as follows:

The clerk of this court is ordered not to
accept any more cases from the plaintiff unless
screened by a Judge Magistrate or Judge of this
court.
If the plaintiff by subterfuge, or any
other means[,] sues in a state court knowing that
it has to be removed by the government to this
court, he shall be subject to immediate sanctions
....
The court also there denied the motion for reconsideration.
Federal courts, of course, "possess discretionary powers
to regulate the conduct of abusive litigants."

-9-

Cok v. Family
___
______

Court of Rhode Island, 985 F.2d

______________________
curiam).

Accordingly,

32, 34 (1st Cir. 1993) (per

"in extreme

groundless encroachment

circumstances involving

upon the limited

time and resources

of the court and other parties, an injunction barring a party

from filing and processing

frivolous and vexatious

lawsuits

may

be appropriate."

Castro v. United States, 775 F.2d 399,

______
_____________

408

(1st Cir.

(per

1985)

litigation must

curiam).

be "narrowly tailored" to

vice

encountered."

Cir.

1984) (per curiam).

injunction "were

Sires v.
_____

couched in

of

courts."

on

future

"fit the specific

49, 51 (1st

explained, if such an

overly broad terms,

this could

litigator's right of access to

Castro, 775 F.2d at

______

such an injunction for

bar

Gabriel, 748 F.2d

_______

As we have

impermissibly infringe upon a

the

Any

410.

We review the entry

abuse of discretion.

See, e.g.,
___ ____

id. at 408.
___
We think

it obvious, under the

district

court intended to

actions

against the IRS or

restrict the

(as suggested

construed,
initial

the

problem

in

the written

injunction
is

that

filing of

its agents (as

oral order), rather than to restrict

board

circumstances, that the

raises

any new

indicated in the

court access across the

order).
several

plaintiffs were

Even

as

concerns.
not

"warned

so
An
or

otherwise

given

notice

that

contemplated," and thus were

filing

restrictions

were

not afforded "an opportunity to

respond" before entry thereof.

Cok, 985 F.2d at 35.

___

In Cok,
___

-10-

just

as in the instant case, the court entered an injunction

on a sua sponte
__________
noted

basis at the close of a

that where

the plaintiff

"informal" notice--such
defendant's

an

recommendation thereof--the
show cause order or

had been

as might

request for

motion hearing.

be

deprived of

provided by

injunction

or

customary route

a "cautionary" edict.

even

way of

magistrate's

was to
Id.
___

We

issue a

Nothing

of

the sort occurred here.4

Second, we are unconvinced that the circumstances here-at least as developed

on the present record--were as

"extreme" as to warrant such a

408.

Plaintiffs

contend

measure.

yet so

Castro, 775 F.2d at

______

that, contrary

to

the

court's

finding, only
against the
support

eight of

IRS or its agents.

therefor,

contention.5

their eleven lawsuits

Of

an

While they have

independent

these, the court

were directed

review

offered no

confirms

indicated in its

this

written

____________________
4. While the scheduling notice regarding the hearing is not
in the record, there is no indication from the docket sheet
that it
contained any
reference
to proposed
filing
restrictions. We also note that plaintiffs were not afforded
an opportunity to respond following imposition of the court's
oral order, nor were they invited to file an opposition
thereto prior to entry of the written order.
5. We can say with certainty that two of the listed cases,
Tempelman v. United States, No. 91-208, and Tempelman v.
_________
______________
_________
Philbrick, No. 92-409, did not involve the IRS, inasmuch as
_________
each was the subject of a recent appeal.
(The former
involved the Postal Service; the latter involved a town
moderator.) And a review of the docket sheet reveals that a
third such action, Tempelman v. Hebbel, No. 93-110, involved
_________
______
a private defendant.
-11-

order

that

involved

two others

in the instant

involved

a "rehash"

complaint; the nature

of

the issues
of the other

cases is undisclosed (as is the disposition thereof, although

it

appears safe to conclude that each was unsuccessful).

is thus

unclear to what

"propensity to

extent plaintiffs have

file repeated suits

agents] involving the same

Compare,
_______

Family Court

Castro,
______

exhibited a

against [the IRS

or similar claims."

Id.
___

or its
at 409.

e.g., Cok, 985 F.2d at 35, 36 (suggesting that more

____ ___

narrowly drawn ban on

from

It

775

challenges

further attempts to remove proceedings

divorce case

F.2d

at

409-10

to nonrenewal

of

would have
(upholding

been approved);
ban

on

appellants' appointment);

Pavilonis v. King, 626 F.2d 1075, 1079 (1st Cir.)

_________
____
that "litigiousness

further

alone will not support

see
___

(observing

an injunction"),

cert. denied, 449 U.S. 829 (1980).

____________
In turn, it

is worth noting

that the issue

the instant action--the propriety of

of

plaintiffs' tax

favor in tax

liability--was

court, and

defendant's calculation
resolved in

that their

underlying

plaintiffs'

First Amendment

Bivens
______

claim, while ultimately unavailing,

would seem to rise above

the

At

frivolous (albeit

narrowly).

least

a portion

of

plaintiffs' litigation efforts, in other words, has contained

a

glimmer

of

merit.

We

also

observe

measures such as the imposition of monetary

we uphold in the

that less

severe

sanctions--which

instant case as an appropriate

penalty for

-12-

plaintiffs'
to

aspersions against the court--might well suffice

forestall future

nature.

of a

frivolous and

vexatious

Cf. Cok, 985 F.2d at 36 (cautioning that injunction

___ ___

restricting court
"only

actions

when

access across

abuse is

so

the board should

continuous

be issued

and widespread

as

to

suggest no reasonable alternative").

Finally, several
give us pause.

The

aspects of

the injunction

restriction on state

as drafted

court filings

is

problematic, inasmuch as "[a]buse of state judicial processes

is not

per se a
______

courts."
1984)

threat to the

jurisdiction of Article

III

In re Martin-Trigona, 737 F.2d 1254, 1263 (2d Cir.

____________________

(vacating extension

of injunction

to

state courts);

accord, e.g., Anderson v. Mackall, 128 F.R.D. 223, 226

______ ____ ________
_______
Va. 1988).

We understand

that plaintiffs' propensity to sue

in state court, combined with the automatic right

available to

the United

(E.D.

States and its

of removal

employees, provided

the impetus for

such a measure.

indicated, a narrower
See, e.g., Sassower
___ ____ ________
(S.D.N.Y.

1993)

removal to
leave

court

continue).
provided

We

v. Abrams,
______

(issuing

would

permission

833 F. Supp.

injunction

have

be

what

253, 271,

directing

274

that, upon

any case brought

by plaintiff,

required

action

also observe

explaining

as other courts

restriction ordinarily should suffice.

federal court of

of

Yet

before

that no

guidelines have

plaintiffs

to file, see, e.g.,

___ ____

could

must

do

to

been
obtain

Werner v. State of Utah, 32

______
______________

-13-

F.3d 1446, 1448

(10th Cir.

here

broad category

given the

1994)--a matter
of

worthy of

actions embraced

note
by the

injunction.
It

is important

plaintiffs'

spurious

district court's
indeed,

the care

to

emphasize

accusations

that,
and

rancorous

evident exasperation was

it

devoted to

in the

face

of

tone, the

fully explicable;

case bordering

on

the

frivolous

is

commendable.

foregoing factors,
day before

Nonetheless,

we think it appropriate

taking the exceptional step

in

light of

the

to await another

of enjoining further

lawsuits.
The dismissal of plaintiffs'
is

the imposition

of

complaint is affirmed,
________

monetary sanctions.

barring further court filings is vacated.

_______
So ordered.
__________

-14-

The

as

injunction