Tuesday, August 11, 2009

Due Process, Liberty and Property Interests

Procedural Due Process

The issues: What constitute protected "liberty" or "property" interests under the Due Process Clause? When the government deprives a person of a protected interest, what process is due?


The most obvious requirement of the Due Process Clause if that states afford certain procedures ("due process") before depriving individuals of certain interests ("life, liberty, or property").

Although it is probably the case that the framers used the phrase "life, liberty, or property" to be a shorthand for important interests, the Supreme Court adopted a more literal interpretation and requires individuals to show that the interest in question is either their life, their liberty, or their property--if the interest doesn't fall into one of those three boxes, no matter how important it is, it doesn't qualify for constitutional protection.
Thus, for example, the Court has ruled that the government may severely damage an individual's reputation (by, for example, putting his name on a list of "known shoplifters") without affording process.

The Due Process Clause serves two basic goals. One is to produce, through the use of fair procedures, more accurate results: to prevent the wrongful deprivation of interests. The other goal is to make people feel that the government has treated them fairly by, say, listening to their side of the story.

The Due Process Clause is essentially a guarantee of basic fairness. Fairness can, in various cases, have many components: notice, an opportunity to be heard at a meaningful time in a meaningful way, a decision supported by substantial evidence, etc. In general, the more important the individual right in question, the more process that must be afforded. No one can be deprived of their life, for example, without the rigorous protections of a criminal trial and special determinations about aggravating factors justifying death. On the other hand, suspension of a driver's license may occur without many of the same protections.

The cases on this page demonstrate the Supreme Court's approach to key questions concerning procedural due process. Board of Regents v Roth shows how the Court has defined "property" interests for purposes of the due process clause. The case involved the decision of a public college not to renew the contract of an untenured professor. The Court concluded that the professor had no "liberty" interest in any specific teaching job, and that he had no "property" interest in his job because he lacked "a legitimate claim of entitlement" under state law to his job. The Court noted that he would have had such a claim of entitlement had he been tenured, because then the college would have had to make a specific showing of poor performance in order to sustain its dismissal. Without a legitimate claim of entitlement to his job, the Court reasoned, there is nothing to have a hearing about. Property interests, the Court stressed, must be found in the statutory or common law of the jurisdiction.

Unlike property interests which have their source in state law, the Court sees "liberty" interests as having their source in the Constitution. Deprivations of certain basic liberties (such as the freedom to travel, the freedom to live with and raise children, the freedom from incarceration, or the freedom to not be subjected to physical violence or forced medical treatment) will trigger a requirement that the government afford due process. But not every serious injury inflicted by the government is necessarily a deprivation of a liberty interest, according to the Court. In 1971, in Constantineau v Wisconsin, a case involving a governmental posting of the names of "excessive drinkers," the Court concluded that some sort of hearing had to be afforded before such a list of names could be sent out--an individual has a protected liberty interest in her good name and reputation, the Court said. However, five years later in Paul v Davis, a case involving the government's distribution of a list of "active shoplifters," the Court reversed course and held that damage to an individual's reputation--standing alone--is not deprivation of a protected liberty interest. The Court distinguished Constantineau, now finding that the individual's additional loss of a right to purchase alcohol was a key element in the outcome of that earlier case. In Vitek v Jones (1980), the Court found that due process must be afforded before an inmate in solitary confinement was transferred from a state prison to state mental hospital, where he would be forced to undego behavioral modification. The Court rejected the state's argument that inmates had already lost their liberty, so that transfer from one state institution to another shouldn't trigger a requirement of due process.

The last two cases demonstrate how the Court has balanced individual interests against government interests to determine how much process is due in specific contexts.

In Mackey v Montrym, the Court considered whether the state can suspend for 90 days without a prior hearing the driver's license of a motorist who refused to take a breathalyzer test following a motor vehicle accident. The Court, voting 5 to 4, held that the state could immediately suspend licenses in such cases. The majority gave considerable weight to the state's asserted interests in removing drunk drivers from highways as soon as possible and in providing drivers with a strong incentive to take the test. Although the Court recognized that people today have a "substantial" interest in keeping licenses to drive, it also stressed that the risk of erroneous deprivation was low because only rarely will there be a real dispute as to whether the motorist refused or did not refuse to take the breathalyzer test. The dissenters saw a greater likelihood of factual disputes (e.g., did the refusal follow a clear demand with a warning of the consequences?) and noted that the state's argument about getting drunks off the road fast was undercut by the fact that a person who failed the breathalyzer test would be allowed to continue to drive until his trial date.

In Cleveland Board of Education v Loudermill (1985), the Court considered whether two school district employees could be suspended without pay until hearings were held to determine whether they had, in fact, violated school district rules as the district had alleged. The Board of Education argued that since it never had to give its employees ANY right to a hearing, it should have the flexibility to give them a right to a hearing, but allow a pre-hearing suspension without pay. The Court rejected this "bitter-with- the-sweet" approach, and said that the minimum process due is determined as a matter of federal constitutional law, not state statutory law.

Aspects of Due Process ("Fundamental Fairness")

1. The government must provide notice of the charges against you.
2. The government must be able to show that there is an articulated (non-vague) standard of conduct which you are accused of violating.
3. The government must provide you with an opportunity to rebut their charges against you in a meaningful way and at a meaningful time (the "hearing requirement").
4. In order to sustain its position (i.e., its deprivation of your liberty or property), the government must establish--at a minimum--that there is substantial and credible evidence supporting its charges.
5. The government must provide some explanation to the individual for the basis of any adverse finding.

Some examples of procedural protections that may be required for certain types of deprivations:

1. Elevated burdens of proof that the government must satisfy, such as "beyond a reasonable doubt" (criminal cases) or "clear and convincing evidence" (termination of parental rights).
2. The right to counsel.
3. The right to a pre-deprivation hearing.
4. The right to cross-examine witnesses.
5. The right to have a neutral person review an adverse decision.
6. The right to recover compensation for a wrongful deprivation.
7. The right to be present when adverse evidence is presented to the fact-finder.

Due Process Clause (14th Amendment)
[No State shall] deprive any person of life, liberty, or property, without due process of law.
How to prove a procedural due process violation:




1. Show that the government has deprived* you of a non-trivial protected interest, one that the Supreme Court would recognize as falling into one of the three boxes above.

*The deprivation by the government must not be based on simple negligence (e.g., prison officials losing the personal property of an inmate.)
(Note: Critics of this atomistic approach believe that it would be more consistent with framers' intent (and more sensible) to simply require a showing of a governmental deprivation that caused a serious injury.)

2. Show that your loss of the process you claim is owed you (taking into account the seriousness of your deprivation and including the added risk of an erroneous deprivation) outweighs the government's interests in not affording the process in question.


What is a protected "property" interest?
Board of Regents v Roth (1972)
What is a protected "liberty" interest?
Wisconsin v Constantineau (1971)
Paul v Davis (1976)
Vitek v Jones (1980)
The balancing test: What process is due?
Mackey v Montrym (1979)
Cleveland Bd. of Educ. v Loudermill (1985)


Norma Constantineau, above, challenged a Wisconsin law that allowed the chief of police to identify her as "an excessive drinker" and deny her the right to buy alcohol. Constantineau successfully argued that the due process clause entitled her to a hearing before the state could post her name on the "excessive drinker" list.

To explore the meaning of procedural due process in the context of student punishment, suspension, and expulsion cases see:
Due Process Rights of Students
Three student procedural due process cases:
Goss v. Lopez (1975)
Ingraham v. Wright (1977)
Horowitz v. Board of Curators, University of Missouri (1978)

UMKC School of Medicine, attended by Charlene Horowitz until her expulsion, which led to a procedural due process challenge decided in Horowitz v Board of Curators, University of Missouri.

1. Who is protected by the Due Process Clause? Does it protect, for example, aliens?

2. How does the Court determine whether an individual interest is a property interest within the meaning of the Due Process Clause? What might create "a legitimate claim of entitlement in law"?

3. How does the Court determine whether an individual interest is a liberty interest within the meaning of the Due Process Clause? Should damage to one's reputation be enough to trigger or due process, or is the Court right in insisting upon a showing of damage to reputation plus the loss of some traditionally recognized right (such as the right to purchase alcohol, in Constantineau)?

4. If a state might create property interests through contracts, why can it not at the same time limit the process it will afford when it takes away those interests it has created?

5. What two factors does the Court look to in weighing an individual interest to determine how much process must be afforded before it is taken away?

6. In weighing an individual interest to determine the amount of process to be afforded, should we look at the importance of the interest in question to the particular litigant before the court, or instead look at the interest's importance to the category of persons who might object to its deprivation by the government?
7. If the government never had to create a property right in the first place, why shouldn't it be free to create the property right ("the legitimate claim of entitlement"), but at the same time limit the amount of process it will extend?

"John TV"

Cities trying to combat prostitution have tried an innovative approach: "John TV." Believing that the potential embarrassment of being identified on local access television as someone who has attempted to solicit a prostitute will discourage persons from seeking prostitution services, some cities have televised mugshots of persons arrested, but not yet convicted, of soliciting prostitution. Is such a scheme consistent with the due process clause?

Exploring Constitutional Conflicts Homepage

Click on title above to go there; http://www.law.umkc.edu/faculty/projects/FTRIALS/conlaw/proceduraldueprocess.html

Monday, August 3, 2009

Suing Gov't Agents Generally

Govt agents not immune to suit if acting outside the bounds of their legal authority

Click on title above to go to website where the links are clickable

INSTRUCTIONS: 5.12. Sue Government/Agent In Equity for Violation of Fiduciary Duty, Trespass, and “Truth Evasion”

Resources to use against employers or federal agencies who discriminate:

Westfall Act, 28 U.S.C. 2679-Deals with suing federal employees for torts within the authority of their office. Acts outside the authority are precluded from suit against the government and instead require a personal suit against the employee.

Equal Employment Opportunity Commission (EEOC)-will litigate against employers at public expense if they discriminate against you because of your decision not to withhold or pay taxes or obtain or use a Socialist Security Number because of your religious beliefs

EEOC Laws, Regulations, and Policy Guidance

EEOC: Filing a Charge (against an employer)

Title 42, Chapter 21, United States Code: Civil Rights
"religion" defined
Great IRS Hoax, Section 1.9.1: "Government as idolatry/religion"
Secrets of the Legal Industry-by Richard Cornforth. Instructions on how to sue people who violate your rights.
Federal Civil Procedure Before Trial-Rutter Group
Federal Civil Trials and Evidence-Rutter Group
Related references:

Rule 4 of Federal Rules of Civil Procedure (FRCP): Summons
Tucker Act, 28 U.S.C. §1491-claims against the United States arising out of contract
42 U.S.C. §1983 Civil Action for Deprivation of Rights
Hafer v. Melo, 502 U.S. 21 (1991)-Supreme Court held that state officials acting outside the color of law may be held personally liable for the injuries or torts they case and that official or sovereign immunity may not be asserted.
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971)-pro per successfully sued six federal narcotics agents for acting outside the law. Official immunity asserted but denied.
Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894 (1978)- federal agent of Dept. of Agriculture not entitled to absolute immunity from suit when acting outside of lawful authority and violating constitutional rights.
Bell v. Hood, 327 U.S. 678 (1946)-FBI agents who violated Constitutional rights of a petitioner were held personally liable and not afforded official immunity.
Belknap v. Schild, 161 U.S. 10 (1896)-patent infringement by federal officers. Supreme court said they could be held personally liable and remanded case for another trial.
NOTE: When private parties acting for a non-governmental employer or financial institution improperly honor a Notice of Lien or a Notice of Levy, they are acting as "voluntary government agents under color of law" and can be personally held responsible for damages and violation of Constitutional rights.

The following cite establishes below that the government may not assert sovereign immunity to protect itself from acts that are outside the law. It establishes why we should work hard to hold our public servants liable for violations of law in the illegal collection of federal income taxes. :

“… the maxim that the King can do no wrong has no place in our system of government; yet it is also true, in respect to the State itself, that whatever wrong is attempted in its name is imputable to its government and not to the State, for, as it can speak and act only by law, whatever it does say and do must be lawful. That which therefore is unlawful because made so by the supreme law, the Constitution of the United States, is not the word or deed of the State, but is the mere wrong and trespass of those individual persons who falsely spread and act in its name."

"This distinction is essential to the idea of constitutional government. To deny it or blot it out obliterates the line of demarcation that separates constitutional government from absolutism, free self- government based on the sovereignty of the people from that despotism, whether of the one or the many, which enables the agent of the state to declare and decree that he is the state; to say 'L'Etat, c'est moi.' Of what avail are written constitutions, whose bills of right, for the security of individual liberty, have been written too often with the blood of martyrs shed upon the battle-field and the scaffold, if their limitations and restraints upon power may be overpassed with impunity by the very agencies created and appointed to guard, defend, and enforce them; and that, too, with the sacred authority of law, not only compelling obedience, but entitled to respect? And how else can these principles of individual liberty and right be maintained, if, when violated, the judicial tribunals are forbidden to visit penalties upon individual offenders, who are the instruments of wrong, whenever they interpose the shield of the state? The doctrine is not to be tolerated. The whole frame and scheme of the political institutions of this country, state and federal, protest against it. Their continued existence is not compatible with it. It is the doctrine of absolutism, pure, simple, and naked, and of communism which is its twin, the double progeny of the same evil birth."
[Poindexter v. Greenhow, 114 U.S. 270; 5 S.Ct. 903 (1885)]

In order that we can have a basis to sue the government, our proceeding must proceed on the basis of equity and not law. There is no legal basis in the Internal Revenue code that authorizes a “nontaxpayer” to sue, jail, or punish an agent for wrong doing. Furthermore, if our greedy Congress wants to steal our money and exceed its jurisdiction, do you think it would pass a law to punish wrongdoers who try to collect taxes illegally? We must therefore sue as a tort by suing the individual agent and not the state or government that he works for. In doing so, we must show that the agent was acting outside the bounds of his delegated authority and outside the lawful bounds of his employment. If the government proves that the agent was acting within his lawful authority, they will try to invoke what is called the Westfall Act, 28 U.S.C. §2679, and substitute themselves in place of the individual defendant under 28 U.S.C. §2679(d )(1), which makes the litigation against the government and not the agent. This makes it far less likely that you will win because then you need permission from the government in order to sue and you will be litigating against an enemy with relatively unlimited resources compared to your own.

We must sue the individual IRS agent in equity jurisdiction and the state or government may not invoke sovereign immunity or the Eleventh Amendment and substitute itself for such a party, because the injuring party was acting outside the law and the authority of the state. Here’s a cite from Poindexter v. Greenhow, 114 U.S. 270; 5 S.Ct. 903 (1885) confirming this:

“The second head of that classification is thus described: 'Another class of cases is where an individual is sued in tort for some act injurious to another in regard to person or property, to which his defense is that he has acted under the orders of the government. In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him.' And in illustration of this principle reference was made to Mitchell v. Harmony, 13 How. 115; Bates v. Clark, 95 U.S. 204 ; Meigs v. McClung's Lessee, 9 Cranch, 11; Wilcox v. Jackson, 13 Pet. 498; Brown v. Huger, 21 How. 315; [114 U.S. 270, 288] Grisar v. McDowell, 6 Wall. 363; and U. S. v Lee, 106 U.S. 196 ; S. C. 1 SUP. CT. REP. 240.”

Most of the remedies identified in the I.R.C. are for taxpayers, which most of us aren’t. The most important exception to this rule is found in 26 U.S.C. §7426, which relates to Civil Actions by Persons Other than “Taxpayers”. A person who is a "nontaxpayer", if he needs statutory standing to sue, should use 26 U.S.C. §7426 and may not use any section that refers to "taxpayers" as authority to sue in a civil action involving taxation. The reasons for this is described in the article below:


Bouvier’s Law Dictionary, Vol. II, Third Revision, Eighth Edition, 1914, pp. 3230-3238 defines how to recover income taxes collected illegally and against a person under duress who is a nontaxpayer under the definition of “income tax”.

"Income tax: In order to invoke the powers of a court of equity to restrain the collection of illegal taxes, the case must be brought within the well recognized foundations of equitable jurisdiction [* * *] and it must clearly appear not only that the tax is illegal, but that the property owner has no adequate remedy at law, and that there are special circumstances bringing the case under some recognized head of equity jurisdiction…” [Cites omitted.]”

As we pointed out in section 2.1, people who hold public office or work for the government are recipients of the public trust and must maintain the highest ethical and moral standards in all their dealings with the public as “public servants”. In the legal field, this kind of responsibility is referred to as “fiduciary duty”. Fiduciary duty is defined as follows:

Fiduciary duty: A duty to act for someone else’s benefit, while subordinating one’s personal interests to that of the other person. It is the highest standard of duty implied by law (e.g. trustee, guardian).
[(Black’s Law Dictionary, Sixth Edition, page 625)]

Fiduciary or confidential relation: A very broad term embracing both technical and fiduciary relations and those informal relations which exist wherever one person trusts in or relies upon another. One founded on trust or confidence reposed by one person in the integrity and fidelity of another. Such relationship arises whenever confidence is reposed on one side, and domination and influence result on the other; the relation can be legal, social, domestic, or merely personal. Heilman’s Estate, Matter of, 37 Ill.App.3d 390, 345 N.E.2d 536, 540.

A relation subsisting between two persons in regard to a business, contract, or piece of property, or in regard to the general business or estate of one of them, of such a character that each must repose trust and confidence in the other and must exercise a corresponding degree of fairness and good faith. Out of such a relation, the law raises the rule that neither party may exert influence or pressure upon the other, take selfish advantage of his trust, or deal with the subject-matter of the trust in such a way as to benefit himself or prejudice the other except in the exercise of the utmost good faith and with the full knowledge and consent of that other, business shrewdness, hard bargaining, and astuteness to take advantage of the forgetfulness or negligence of another being totally prohibited as between persons standing in such a relation to each other. Examples of fiduciary relations are those existing between attorney and client, guardian and ward, principal and agent, executor and heir, trustee and cestui que trust, landlord and tenant, etc.
[Black’s Law Dictionary, Sixth Edition, page 625]

Examples of persons who must act in a fiduciary capacity are all those persons who work at financial institutions, spouses, attorneys, government employees, and elected or appointed political officials. If you attempt to prosecute an IRS employee for malfeasance, fraud, or illegal taking of taxes, it will be much easier to get a conviction with the jury if you focus on the fiduciary duty and high moral standard of care they have to the public at large. These fiduciary duties give rise to a "contract" or "implied contract" cognizable under the Tucker Act, 28 U.S.C. §1491. The contract is the Constitution, and the obligation to obey the contract arises out of the oath of public office taken by "public officers" pursuant to 5 U.S.C. §3331. Remember item X in the Code of Ethics for Government Service, part of Public Law 96-303, which we talked about earlier in section 2.1 of the Great IRS Hoax.

“X. Uphold these principles, ever conscious that public office is a public trust.”

Also remember the content of Executive Order 12731, Part 1, Section 101, item (a) in that same section:

"(a) Public service is a public trust, requiring employees to place loyalty to the Constitution, the laws, and ethical principles above private gain.”

The federal courts agree with the above conclusions. Below is one significant example of that:

The right to sue a tax collector to recover back taxes illegally exacted is derived from the common-law and does not depend on statute. The rule is this. If the payment is made voluntarily, there can be no recovery. But if the payment is made under compulsion and with protest, sufficient to notify the collector that he will be sued to recover it back, he is personally liable whether he has covered the money into the treasury or not.

There is no statute of the United States expressly giving the right to sue a tax collector to recover back taxes illegally exacted, but the common law has been greatly modified by various statutes in this respect. These statutes recognize the right and by necessary implication grant it as to suits against federal tax collectors.

“A statute will not be construed as taking away a common-law right existing at the date of its enactment, unless that result is imperatively required.” Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 354, 51 L.Ed. 553, 9 Ann. Cas. 1075. “All laws should receive a sensible construction. General terms should be so limited to their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character.” U.S. v. Kirby, 7 Wall. 482, 486, 19 L.Ed. 278; Lau Ow Bew v. U.S., 144 U.S. 47, 12 S.Ct. 517, 36 L.Ed. 340; Jacobson v. Mass., 197 U.S. 11, 26 S.Ct. 358, 49 L.Ed. 643, 3 Ann.Cas. 765.”
[White v. Hopkins, 41 F.2d 159 (1931)]

It is quite common for IRS revenue agents to hide behind a cloak of secrecy and anonymity in order to evade being prosecuted for their misconduct. For instance, IRS agents you will talk to on the phone will refuse to give their real last name, and refer to themselves only by number. They do this because this makes them more difficult to prosecute for wrongdoing or bad advice. These same agents also have a habit of putting fictitious names on the correspondence they sign for the same reason. If you decide to prosecute one of these anonymous agents and find it difficult to track him or her down, be advised that an easier approach may be to just prosecute his supervisor, who is easier to identify. For instance, you might prosecute the Commissioner of the Internal Revenue Service, for instance. However, there must be a causal relationship between the wrongdoing committed by an IRS employee and his supervisor. One such causal relationship, for instance, could be that the employee was not properly trained or supervised and therefore was either negligent or malicious. Below is what one federal court said about this subject:

The Defendants, as IRS agents, are not prosecutors, nor are the cases granting absolute immunity to prosecutors helpful to them. Rather, their duties are merely investigative. They gather facts and refer cases to prosecutors, who then decide whether or not to prosecute. Considering these duties, an IRS agent is analogous to a complaining witness at common law—both are detached from the judicial process by the interposition of the prosecutor. For this reason, a complaining witness was not entitled to absolute immunity at common law. [Cites omitted.] It follows that the Defendants, IRS agents, should not be entitled to absolute immunity on the same basis.

Accordingly, we find that when IRS agents investigate and refer cases for criminal investigations, they do not enjoy absolute immunity for their actions. Accord, Cameron v. I.R.S., 773 F.2d 126, 128 (7th Cir. 1985) (IRS agents are not entitled to absolute immunity).

A supervisor can be held liable for civil rights violations where his “conduct is causally related to constitutional violation committed by his subordinate.” Greason v. Kemp, 891 F.2d 836 (citing, Wilson v. Attaway, 757 F.2d 1227, 1241 (11th Cir. 1985)) (personal participation is not required to impose liability for a civil rights deprivation. There must be some causal connection between the actions of the superior and the alleged deprivation); see also Rizzo v. Goode, 423 U.S. 362, 375-76, 96 S.Ct. 598, 606 L.Ed.2d 561, 572 (1976) (for liability under §1983, supervisory officials have direct responsibility for actions of officials who had engaged in misconduct).
[Heller v. Plave, 743 F.Supp. 1553 (1990)]

When the IRS prosecutes individuals for tax evasion, they use the following criteria, right from their Internal Revenue Manual Part 9, Chapter 1, Section 3 found at http://www.irs.gov/irm/part9/ch01s03.html: (08-11-2003)
IRC §7201—
Elements of the Offense

The elements of the offense of willfully attempting in any manner to evade or defeat any tax or the payment of any tax are the same, but the courts have interpreted the terms differently in some instances. The differences are noted in the explanation. The elements of the offense are:

Additional tax due and owing.

An attempt in any manner to evade or defeat any tax.

Willfulness. (08-11-2003)
Attempt to Evade or Defeat Any Tax

The substance of the offense under IRC 7201 is the term "attempt in any manner" . The statute does not define attempt, nor does it limit or define the means or methods by which the attempt to evade or defeat any tax may be accomplished.

However, it has been judicially determined that the term "attempt" implies some affirmative action or the commission of some overt act. The actual filing of a false or fraudulent return is not requisite for the commission of the offense though the filing of such a return is the usual attempt to evade or defeat the tax. A false statement made to Treasury agents for the purpose of concealing unreported income has also been judicially determined to be an attempt to evade or defeat the tax.

The willful omission of a duty or the willful failure to perform a duty imposed by statute does not per se constitute an attempt to evade or defeat. However, a willful omission or failure (such as a willful failure to make and file a return) when coupled with affirmative acts or conduct from which an attempt may be inferred would constitute an attempt. In the case of Spies v. United States , the Supreme Court gave certain illustrations of acts or conduct, which may infer "the attempt to evade or defeat any tax" ; such as:

Keeping a double set of books.

Making false entries, alterations, invoices, or documents.

Destroying books or records.

Concealing assets or covering up sources of income .

Handling one's affairs to avoid making the records usual in transactions of the kind.

Any conduct, the likely effect of which would be to mislead or to conceal.

Attempt does not mean that one whose efforts are successful cannot commit the crime of willful attempt. The crime is complete when the attempt is made and nothing is added to its criminality by success or consummation, as would be the case with respect to attempted murder. It has been held that "attempts cover both successful and unsuccessful endeavors or efforts." As the courts have stated, "The real character of the offense lies, not in the failure to file a return or in the filing of a false return, but rather in the attempt" to evade any tax.

It is well settled that a separate offense may be committed with respect to each year. Therefore, an attempt for 1 year is a separate offense from an attempt for a different year.

There may also be more than one violation in one year resulting from the same acts such as the willful attempt to evade the payment of tax and the willful attempt to evade tax. Likewise, there may be charged a willful attempt to evade tax and a willful failure to file a return for the same year.

In an attempt to evade or defeat the payment of any tax, the mere failure or willful failure to pay any tax does not constitute an attempt to evade or defeat the payment of any tax. The comments set out above with respect to attempts also apply to this offense. The attempt implies some affirmative action or the commission of some overt act. Examples of such action or conduct relating to the attempted evasion of the payment of the tax are found in the Giglio case. These are:

Concealing assets.

Reporting income through others.

Misappropriating, converting, and diverting corporate assets.

Filing late returns.

Failing to withhold taxes as required by law.

Filing false declarations of estimated taxes.

Filing false tentative corporate returns. (07-29-1998)

The attempt in any manner to evade or defeat any tax must be willful. Willfulness has been defined as an act or conduct done with a bad or evil purpose. Mere understatement of income and the filing of an incorrect return does not in itself constitute willful attempted tax evasion. The offense is made out when conduct such as exemplified in the Spies case (supra) is present.

Courts have held that disbursement of available funds to creditors other than the government , or to corporate stockholders is not of itself an attempt to evade or defeat payment of taxes.

This definition of willfulness applies to all Title 26 offenses where willfulness is an element, unless stated otherwise.

Why is this relevant when applied to prosecuting the IRS and revenue officers? Because we can apply the same standards for concealment and fraud against the IRS when prosecuting them for breach of fiduciary duty. We can then focus on “extortion under the color of office” and “theft” in front of the jury and apply nearly the same standards. We therefore summarize the elements that would make up a good claim of breach of fiduciary duty:

Elements of “extortion under the color of office”:

1. A refund was due and owing or a lack of liability should have been disclosed but wasn’t.

2. There was an attempt to evade or defeat the refund or disclosure of the laws and lack of liability that would facilitate the refund or lack of liability to file.

3. Willfulness.

Attempt to evade or defeat the truth about lack of liability:

1. A false statement made by Treasury agents for the purpose of concealing lack of liability or lawful authority is a clear attempt evade or defeat the truth.

2. The willful omission of a duty or the willful failure to perform a duty imposed by the fiduciary relations ships does not per se constitute an attempt to evade or defeat the truth about nonliability. However, a willful omission or failure (such as a willful failure to make or respond to a disclosure of the truth about nonliability) when coupled with affirmative acts or conduct from which an attempt may be inferred would constitute an attempt.

A. Making false entries, alterations, invoices, or documents.

B. Destroying books or records.

C. Concealing laws or covering up their implementing regulations or lack thereof.

D. Handling one's affairs to avoid making the records usual in transactions of the kind.

E. Any conduct, the likely effect of which would be to mislead or to conceal.

3. Attempt does not mean that one whose efforts are successful cannot commit the crime of willful attempt. The crime is complete when the attempt is made and nothing is added to its criminality by success or consummation, as would be the case with respect to attempted murder. It has been held that "attempts cover both successful and unsuccessful endeavors or efforts." As the courts have stated, "The real character of the offense lies, not in the failure to disclose the truth, but rather in the attempt" to evade disclosing lack of liability for any tax or provide the refund requested.

4. In an attempt to evade or defeat the payment of any tax, the mere failure or willful failure to pay any tax does not constitute an attempt to evade or defeat the payment of any tax. The comments set out above with respect to attempts also apply to this offense. The attempt implies some affirmative action or the commission of some overt act. Examples of such action or conduct relating to the attempted evasion of the payment of the tax are found in the Giglio case. These are:

A. Concealing laws or regulations or discussing either.

B. Reporting information or rendering assistance through agents who are not qualified or who do not know the truth about the law to prevent the subject of the law from coming up in interactions with a Citizen.

C. Misappropriating, converting, and diverting private assets for personal gain or as illegal tax revenues (extortion under the color of office).

D. Filing inadequate or incomplete responses to taxpayer inquiries about their lack of liability..

E. Completely ignoring or not responding to taxpayer affidavits of fact about their lack of liability and not refuting such nonliability with quotes of the law.

F. Failing to refund taxes not owed as required by law.

G. Sending false or frivolous CP notices in response to legitimate inquiries by Citizens about their liability and in fulfillment of their rights to due process under the Administrative Procedures Act, 5 U.S.C. 556(d).

This is good stuff for stirring up mud on your favorite IRS agent when you drag his ass in court, folks! We invite you to add to this.

Judicial jurisdiction over agency acts and omissions that adversely affective substantive and procedural due process rights are prescribed by 5 U.S.C. §702 and 28 U.S.C. §1361:

5 USCS § 702 (2002)

§ 702. Right of review

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.


28 USCS § 1361 (2002)

§ 1361. Action to compel an officer of the United States to perform his duty

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

These two sections work together. Original jurisdiction for judicial review of agency actions under 5 U.S.C. §§ 701-706 is vested in circuit courts; the mandamus section at 28 U.S.C. § 1361 was enacted to expand jurisdiction to district courts. The scope of judicial authority is prescribed by 5 U.S.C. § 706:

5 USCS § 706 (2002)

§ 706. Scope of review

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall--

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be--

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be

Suing the Gov't in a Bivens Action / Money Damages Only

Published By Citizens' Justice Programs

Post Office Box 90, Hull, Massachusetts 02045


Suing Your Federal Government for Civil Rights Violations
By David C. Grossack, Constitutional Attorney
Common Law Copyright © 1994
All Rights Reserved

On the occasion of the 200th anniversary of the Bill Of Rights, many attorneys may not realize that these rights each contain within them an intrinsic enabling authority for the purpose of redressing violations of these rights by those federal employees entrusted to uphold and protect them.

It is worth remembering that the authors of the Bill Of Rights were heavily influenced by Anglo-Saxon legal theorists such as Sir William Blackstone, who declared that there were "three absolute rights ... the right of personal security, the right of personal liberty and the right of personal property. [1] Blackstone believed the principal aim of society is to protect individuals in the enjoyment of these absolute rights which were vested in them by the immutable laws of nature. [2]

Blackstone's ideas became embodied in the Federalist papers, and in the writings of James Madison on property interests, which he defined in quite broad terms:

"In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right, and which leaves to every one else the like advantage ... [A] man has a property in his opinions, and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties, and free choice of the objects on which to employ them."

"The protection of these faculties" Madison wrote in The Federalist No. 10, "is the first object of government."

As Madison might have anticipated, and as modern students of law and history may realize, in the pursuit of its various other objectives, the federal government from time to time treads on these rights and "faculties" and on the natural rights of mankind whose protection is found in the Ninth Amendment of the U.S. Constitution.

When Congress enacted Title 42 U.S. Code §1983 and other federal civil rights laws for the redress of violations of these rights, it did not extend liability to federal officials and employees. Instead, these laws were held to apply to "state action", and the actions of county and municipal government (except when federal officials conspired with others. See Fonda v. Gray, 1983(CA 9) CAL 707 F.2d. 435.)

The dilemma on how to obtain compensation for victims of "constitu tional torts" by federal actors remained essentially unresolved until the case of Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971).

Bivens has had more impact on the accountability of federal government officials than perhaps any other decision in the history of American law. The central issue in Bivens was whether the Fourth Amendment of the Federal constitution created an implied right of action. This was decided affirmatively in a claim for damages by individuals whose home was searched unreasonably (and hence unconstitutionally) by federal narcotic agents. Jurisdiction was not claimed under title 42 U.S. Code § 1983, which as of this writing, has not yet been held to extend liability to federal officials in most circumstances. Instead the enabling legislation was found under Title 28 U.S. Code § 1331 which grants general jurisdiction on the basis of a federal question.

Subsequent cases have held the Bivens theory of recovery applies to other claims under the various rights enumerated in the Constitution. (For decisions concerning redress of Fifth Amendment claims with Bivens actions, See Young v. Pierce, (DC Tex. 544 F.Supp. 1010) and Eight Amendment claims Mackey v. Indiana Hospital, (DC PA 562 F.Supp. 1251. [3]

Litigants who seek to bring claims against federal officials for abuses of their authority have been confused concerning the proper way to characterize their actions in the pleadings. Generally speaking, how one drafts a complaint and not what evidence is to be introduced determines whether a claim can survive as a federal cause of action. Tully v. Mott Supermarkets, Inc., 337 F.Supp. 834, 844 D.N.J. (1972).

For example, cases have held that if other theories of recovery are pleaded, a Bivens action must fail. This has forced attorneys to select whether they wish to use the Federal Tort Claims Act (Title 28 U.S. Code § 2679) and its strict presentment requirements and other federal law or to rely on a Bivens theory. A complaint alleging both theories are at risk of a dispositive motion. Serra v. Pichardo, 786 F.2d. 237 (6th Cir.)

Another easy mistake to make is in deciding who to name as a defendant. A lawsuit naming the FBI or United States Department of Justice per se as defendants may fail because the agencies are likely to raise certain immunity defenses which have yet to be abolished.

Federal employees may become personally liable for constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which constitutional practices occur or gross negligence in managing subordinates who cause violations. (Gallegos v. Haggerty, Northern District of New York, 689 F.Supp. 93)

Although certain federal officials have absolute immunity from private suit, most executive officials enjoy only qualified immunity. The rationale for the distinction is that higher officials require greater liability than officials with less complex and discretionary responsibilities. Hatori v. Haya, 751 F.Supp. 1401.

Any action is considered to be against the "sovereign" and hence fails to state a claim if judgment would "interfere with public administration, or compel the United States to act in foreign policy, or enjoin foreign policy. (Sanchez Espinola v. Reagan, 770 F.2d. 202, Rochfort v. Gibbs, 696 F.Supp. 1151, WD Michigan, 1988.)

Many litigants facing civil lawsuits in which the United States is the plaintiff have erroneously sought to counterclaim against the U.S. The United States, however, to this date has not waived sovereign immunity for claims for damages, (See United States v. Northside Realty Associates, 324 F.Supp. 287, 291 (N.D. GA 1971) (dismissing a counterclaim asserted against the Attorney General where plaintiff in the suit was the United States on the ground that although the suit was initiated by the Attorney General, the real party in interest was the United States).

When lawsuits are brought against federal officials, they must be brought against them in their "individual" capacity not their official capacity. The theory appears to be that when federal officials perpetrate constitutional torts, they do so ultra vires and lose the shield of sovereign immunity. Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991).

Bivens actions, again, are by no means an exclusive remedy for redressing abuses of authority by federal government employees, even in a political context. In the celebrated case of Socialist Workers Party v. Attorney General, 596 F.2d. 58 (1979), 444 U.S. 903 (1979) (cert. denied) one of the many claims of the plaintiff, a Trotskyite communist organization, was for 193 surreptitious entries or burglaries committed by the F.B.I. Another set of claims was for the use of disruptive informants in the organization, which successfully proved itself to be a non-violent, educational group more involved in promoting and discussing ideas rather than in any violent act.

Judge Thomas Griesa's final decision in the case allowed recovery under the Federal Tort Claims Act for the intentional torts of invasion of privacy for the use of informants as well as for the F.B.I.'s burglaries, under a theory of trespass. Many other counts were dismissed in the case for failure to adhere to the procedural requirements of the Federal Tort Claims Act (FTCA).

Why plaintiff's counsel selected the FTCA rather than the Bivens theory of recovery is not known.

The social consequences of having available remedies such as Bivens and the FTCA are significant. Together with the Freedom of Information Act, The Privacy Act, and the willingness of disillusioned persons within government to act as "whistleblowers," a limited deterrent effect exists to serious violations of civil rights by government.

The sensation caused by the illegal federally sponsored research experiments on mentally disabled children sequestered for nearly 40 years and revealed only recently indicates the changes in public sentiments.

Nevertheless, many courts have considered civil rights claims to be "disfavored actions." Consider the court in Littleton v. Berbling, 468 F.2d. 390 (7th Cir. 1971):

"The civil damages suit is worthless, especially if the victim of oppression is a social misfit or an unsavory character."

The words of Justice Louis Brandeis however, offer another view:

"Decency, security and liberty alike demand that government officials shall be subjected to the rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law, it invites every man to come a law unto himself. It invites anarchy. (United States v. Olmstead, 277 U.S. 438 (1928).


1. Unfinished Business: A Civil rights Strategy For America's Third Century. Clint Bolick Pacific Research Institute For Public Policy, San Francisco, CA 1990.

2. Ibid.

3. First Amendment litigation concerning IRS tax exempt status for minority political and religious movements is also common. For an historical perspective see Income Disadvantages of Political Activities, (Colum. L. Rev. 273 (1957). Also, Clark, The Limitation On Political Activities: A Discordant Note In the Law Of Charities, 46 VA L.Rev. 439 (1960). See also, Communist Party v. Commissioner of Internal Revenue, 332 F.2d. 325, 329(D.C. Cir. 1964; Wolfe v. U.S. Tax Court, (1981) (D.C. Colo. 513 F.Supp. 912.


The author is an attorney in private practice in Boston.