Hans Bothke v. Fluor Engineers & Constructors, Inc., and W.J. Terry

concurring:

Taxpayer Bothke brought this Bivens 1 action against Revenue Agent Terry for damages due to Terry’s allegedly wrongful levy on Bothke’s wages. Bothke claims that Terry violated due process when she levied on Bothke’s wages without first affording him a hearing on his tax liability. The district court held that Bothke stated a cause of action for constitutional violations, but that Terry acted within the scope of her qualified immunity. The court granted summary judgment for Terry.

Because Bothke has no constitutional right to a pre-levy hearing, I concur in the judgment on the basis that Bothke does not state a cause of action under Bivens. Accordingly, I would vacate the judgment and remand with instructions to dismiss the action for failure to state a claim upon which relief can be granted.

I

Bothke filed a timely tax return for 1977 claiming a refund for taxes withheld during that year. On March 5, 1979 the IRS sent Bothke a notice of “Correction to Arithmetic” stating that Bothke owed taxes based on the W-2 form attached to his return. The notice also advised Bothke to “[p]lease let us know if you believe the *813 balance due is incorrect for reasons other than…

This case has a protracted administrative and judicial history and is before this court for the third time. Hans Bothke, a pro se plaintiff, brought a Bivens 1 action alleging that an IRS agent, defendant W.J. Terry, violated his constitutional rights in conjunction with an IRS levy on his wages for nonpayment of taxes allegedly due in 1977. He appeals from the district court’s entry of summary judgment against him on the basis of defendant Terry’s qualified immunity. We affirm.

A brief description of the applicable statutory provisions is in order. Once the IRS determines that there is a payment deficiency with respect to a taxpayer’s income tax return, it is authorized to send a notice of such deficiency to the taxpayer. 26 U.S.C. § 6212 (a) (1982) 2 . Within ninety days after the notice is mailed, the taxpayer may file a petition with the United States Tax Court for a redetermination of the deficiency. Id. at § 6213(a). However, if the amount due exceeds the amount reflected on the taxpayer’s return merely because of “a mathematical or clerical error appearing on the return,” the IRS’s notice to the taxpayer “shall not be considered as a notice of deficiency” entitling the…

834 F.2d 804 99 A.L.R. Fed. 677, 61 A.F.T.R.2d 88 -305, 88-1 USTC P 9143 Hans BOTHKE, Plaintiff-Appellant, v. FLUOR ENGINEERS & CONSTRUCTORS, INC., et al., Defendants, and W.J. Terry, Defendant-Appellee. No. 85-6361. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 2, 1987. Decided Dec. 16, 1987. Hans Bothke, Orange, Cal., for plaintiff-appellant. Michael L. Paup, Chief Appellate Section, Elaine F. Ferris, Dept. of Justice, and Roger M. Olson, Washington, D.C. for defendant-appellee. Appeal from the United States District Court for the Central District of California. Before FERGUSON, NELSON and BEEZER, Circuit Judges. NELSON, Circuit Judge: 1 This case has a protracted administrative and judicial history and is before this court for the third time. Hans Bothke, a pro se plaintiff, brought a Bivens 1 action alleging that an IRS agent, defendant W.J. Terry, violated his constitutional rights in conjunction with an IRS levy on his wages for nonpayment of taxes allegedly due in 1977. He appeals from the district court's entry of summary judgment against him on the basis of defendant Terry's qualified immunity. We affirm. 2 A brief description of the…