W.J. TERRY, PETITIONER V. HANS BOTHKE

   No. 83-1506

   In the Supreme Court of the United States

   October Term, 1983

   The Solicitor General, on behalf of W.J. Terry, a revenue officer
of the Internal Revenue Service, petitions for a writ of certiorari to
review the judgment of the United States Court of Appeals for the
Ninth Circuit in this case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit

                       PARTIES TO THE PROCEEDING

   In addition to the parties shown in the caption, Fluor Engineers
and Constractors, Inc.; Susan Meyers;  and Michael Castrogiovani were
named as appellees in the court of appeals.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutes involved
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix

                            OPINIONS BELOW

   The opinion of the court of appeals dated August 26, 1983 (App.,
infra, 1a-19a), is reported at 713 F.2d 1405.  An earlier opinion of
the court of appeals (App., infra, 20a-21a) is not yet reported.  The
opinion of the district court (App., infra, 22a-25a) is not yet
reported.

                             JURISDICTION

   The judgment of the court of appeals (App., infra, 26a) was entered
on August 26, 1983.  A petition for rehearing was denied on November
16, 1983 (App., infra, 27a).  By order dated February 2, 1984, Justice
Rehnquist extended the time in which to file a petition for a writ of
certiorari to March 15, 1984.  The jurisdiction of this court is
invoked under 28 U.S.C. 1254(1).

                           STATUTES INVOLVED

   The relevant provisions of Sections 6213 and 6331 of the Internal
Revenue Code of 1954 (26 U.S.C. (& Supp. V)) are set forth in App.,
infra, 28a-30a.

                          QUESTION PRESENTED

   Whether a government employee's qualified immunity from a
constitutional damages suit, alleging conduct that did not violate any
clearly established constitutional right of the plaintiff, is
abrogated because a court subsequently determines that certain
administrative actions violated a provision of the Internatal Revenue
Code.

                               STATEMENT

   1. Respondent Hans Bothke filed a federal income tax form 1040 for
1977.  The form contained only asterisks in place of figures to show
respondent's income and tax.  Respondent claimed a refund of all
amounts withheld from his salary as shown on the accompanying W-2 form
(App., infra, 31a-32a).  Along with the 1040 form, respondent
submitted a typewritten affidavit objecting to the treatment of his
1976 return, and six typewritten pages of "lengthy exegesis on why he
had not provided the information" (App., infra, 2a, 22a-24a).

   On March 5, 1979, the Internal Revenue Service (IRS) sent
respondent a notice of correction of arithmetic pursuant to 26 U.S.C.
6213(b) on the ground that the return exhibited a mathematical or
clerical error.  The notice, sent from the IRS Center at Fresno,
California, informed respondent that income taxes for 1977 in the
amount of $6,177.87 had been assessed against him (App., infra,
2a-3a).  The notice further informed respondent that if he believed
the balance due was incorrect for reasons other than uncredited
payments, he should return the notice with the correct payment and an
explanation to account for the difference (id. at 16a).

   Respondent replied to the notice on March 15, 1979, with a letter
in which he asserted, among other things, that the notice was null and
void because some of the figures showed no dollar sign, that his 1977
return and attachments thereto substantiated his position and
furnished explanations why the balance due shown in the notice was
incorrect, and that the lack of a signature on the notice was a
violation of his rights to equal protection and due process of law
(App., infra, 33a-36a).  A letter from the Fresno Center on May 2 told
respondent that the claimed refund had been disallowed (App., infra,
3a).  On June 6, 1979, the IRS Field Office in Santa Ana, California,
sent respondent a notice of intent to levy on his salary or wages,
informing him that he must pay the total amount due within 10 days to
avoid such enforcement action (ibid.; 26 U.S.C. (& Supp. V) 6331)(a)).

   Pursuant to 26 U.S.C. 6213(b)(1), following the issuance of a
notice of correction of arithmetic and a 10-day notice of intent to
levy (26 U.S.C. 6331(a)), the IRS may levy upon a taxpayer's wages
without serving a notice of deficiency under the provisions of 26
U.S.C. (& Supp. V) 6212, 6213(a).  /1/ However, if within 60 days the
taxpayer requests an abatement of any assessment specified in a notice
of correction of arithmetic, the regular provisions of the Code come
into play and a levy can only be imposed following deficiency
proceedings.  26 U.S.C. 6213(b)(2)(A).  Respondent's March 15 letter
in response to the notice of correction of arithmetic was not
construed by IRS employees at the Fresno Center as a request for an
abatement.

   On August 3, 1979, at the Santa Ana Field Office, respondent's case
was turned over to petitioner, Revenue Officer Wendy J. Terry, who
received a tax delinquent account showing respondent's assessed 1977
tax liability.  Petitioner's duty was to investigate and collect the
delinquent account (App., infra, 3a).  On November 21, 1979,
petitioner contacted respondent by telephone and demanded payment of
the taxes.  Respondent, protesting that the IRS had violated his
rights, refused payment.  After ascertaining that a notice of intent
to levy had been sent to respondent, petitioner served a levy of wages
and salary on respondent's employer, which was thereafter executed in
the amount of $3,415.43 on December 3, 1979 (id. at 4a).

   In response, respondent resigned his employment (allegedly to
prevent further levies), filed an amended return seeking a refund of
the amount collected by the levy, and instituted this pro se lawsuit
(App., infra, 4a).  Respondent asserted that petitioner's failure to
provide a notice of deficiency under 26 U.S.C. (& Supp. V) 6213 prior
to the assessment and levy deprived him of his "rights, privileges and
immunities guaranteed under the federal Constitution, and constitute
an action in bad faith, bad motive not authorized by law" (Complaint
at 8).  Petitioner sought $100,000 in compensatory and $150,000 in
punitive damages from petitioner (id. at 14).  /2/

   2. On motion for summary judgment, the district court held for
petitioner, concluding that she was entitled to official immunity from
suit (App., infra, 22a-25a).  /3/ The court of appeals, after first
issuing a memorandum opinion affirming the district court, /4/
reversed (id. at 1a-19a).  The court concluded that petitioner was not
entitled to absolute immunity from suit, /5/ and was also likely to be
ineligible for the more limited shield of qualified immunity (id. at
14a-18a).  Quoting this Court's recent decision in Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982), the court of appeals stated that
public officials are not entitled to qualified immunity from a
constitutional damages action if they violate "clearly established
statutory or constitutional rights'" (App., infra, 15a (emphasis
omitted)).  The court concluded that respondent's "statutory" rights
had been violated by the IRS in this case because his March 15 letter
replying to the notice of correction of arithmetic should have been
"construed" as a request for an abatement of the assessment, thereby
triggering the deficiency procedures of the Internal Revenue Code
prior to the levy on his wages (id. at 15a-16a).  /6/ The court
accordingly remanded the case for a determination whether petitioner
knew of respondent's reply to the notice of correction of arithmetic,
noting that if she "had this protest or was aware of its substance, it
is questionable whether she can meet the objective good faith
standard" of Harlow (id. at 17a (footnote omitted)).  /7/

                   REASONS FOR GRANTING THE PETITION

   This case raises an important issue regarding the proper scope of
official qualified immunity, one that is currently pending before the
Court in Davis v. Scherer, No. 83-490:  whether the violation of a
statute or administrative regulation abrogates a government official's
immunity to a suit claiming damages for a constitutional violation.
/8/ Like the lower courts' decisions in Davis, the court of appeals'
construction of the objective qualified immunity test recently set
forth by this Court in Harlow v. Fitzgerald, supra, is erroneous, and
will have a significant adverse impact upon the performance of
official duties by government officers.

   1. Contrary to the court of appeals' apparent assumption, violation
of a "statutory" right is not sufficient to abrogate an official's
immunity to a constitutional damages action.  As we explained in our
Amicus Brief in Davis (at 8-23), violation of "clearly established
statutory * * * rights" (Harlow, 457 U.S. at 818) is relevant to a
public official's immunity defense only where, as in Harlow (457 U.S.
at 805, 811 n.16, 820 n.36), and as may occur with some frequency
under 42 U.S.C. (Supp. V) 1983 (Maine v. Thiboutot, 448 U.S. 1
(1980)), the plaintiff is pressing a statutory cause of action.  Where
the plaintiff seeks damages for violation of his constitutional
rights, a defendant public official is entitled to qualified immunity
unless he violates the "clearly established" constitutional rights of
the plaintiff.  See, e.g., Wood v. Strickland, 420 U.S. 308, 322
(1975);  Procunier v. Navarette, 434 U.S. 555, 565 (1978).  Because
petitioner did not violate any clearly established constitutional
right of the respondent, /9/ she is immune from a suit proceeding on
constitutional grounds.  /10/

   2. The decision of the court of appeals will constitute a huge
escalation of the risk of ruinous personal liability run by Internal
Revenue Officers, and will inevitably cast a chilling pall on their
ability zealously to perform their duties.  Under Harlow, government
employees could assume that they were immune from personal
constitutional damages liability arising out of the performance of
their official duties so long as they were careful to comply with
clearly established constitutional norms.  The decision below,
however, suggests that IRS employees may be forced to litigate a
constitutional damages suit any time a court concludes, long after the
fact, that notwithstanding their subjective good faith (App., infra,
17a n.5) their conduct (or actions taken by their co-workers) did not
comply with all the complexities of the Internal Revenue Code.  The
decision, in effect, transforms the Code and its implementing
regulations into a mine field in which IRS employees labor at their
own risk.  Cf. Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949),
cert. denied, 339 U.S. 949 (1950).

   Abrogation of official immunity on the basis of nonconstitutional
violations of statutory (and, perhaps, administrative) regulations
could well paralyze the tax collection arm of the Internal Revenue
Service.  The Internal Revenue Code is replete with complex technical
provisions.  Their good-faith interpretation and application can lead
to what a court, later, will nevertheless conclude to be some variety
of procedurally irregular assessment or collection of tax.  IRS
employees are given specialized training to deal with the complexities
of the Code provisions that they are required to administer, but, like
other individuals who perform highly technical tasks, they are capable
of error.  The decision of the court below, which dissolves the shield
of official immunity any time a tax assessment or levy turns out to be
procedurally vulnerable, will unjustifiably chill the vigorous
enforcement of the nation's revenue laws.  IRS employees like
petitioner will henceforth think twice before taking any action that
might anger a potential plaintiff.  The reins of the qualified
immunity doctrine should not be so tightly drawn.  As the Court noted
in Scheuer v. Rhodes, 416 U.S. 232, 242 (1974), the doctrine of
qualified immunity assumes that officials may err, but nevertheless
recognizes that "it is better to risk some error and possible injury
from such error than not to decide or act at all." See also Wood v.
Strickland, 420 U.S. at 319-320.

   The decision in this case poses special problems because of the
encouragement that it gives to members of the tax protest movement in
this county.  Many of these individuals target front-line IRS
employees, such as revenue officers, for vexatious damages suits.
/11/ The constitutional claims raised in these suits are almost always
rejected by the courts, and the doctrine of qualified official
immunity has been -- to this point -- an effective means of disposing
of frivolous actions without the necessity of trial.  See, e.g.,
Harlow v. Fitzgerald, 457 U.S. at 817-818 (newly formulated objective
qualified immunity test is designed to prevent public officials from
being unnecessarily subjected "either to the costs of trial or to the
burdens of broad-reaching discovery").  /12/ But, under the approach
of the court of appeals, tax protesters will be able to avoid
dismissal of their suits on immunity grounds any time they can locate
in their files a paper misstep that results in a violation of any
provision of the Internal Revenue Code.  Because of the complexity of
the Code -- and the prolixity of most taxpayers in respondent's
position /13/ -- the decision below creates a host of possibilities
for vexation and harassment of public officials by litigious citizens
eager to seize on any means to delay the disposition of otherwise
meritless constitutional damages actions.  Such a result will disrupt
the carrying out of public responsibilities and will deter able
persons from entering upon a career in the public service.

   The Court reformulated the doctrine of qualified immunity in Harlow
to prevent undue "distraction of officials from their governmental
duties, inhibition of discretionary action, and deterrence of able
people from public service" (457 U.S. at 816).  The court below has
fortified the very evils Harlow was designed to dispel.  For the
reasons articulated in our Amicus Brief in Davis, the violation of a
statutory provision should not lead to abrogation of a public
official's qualified immunity to a constitutional damages action, and
the court of appeals, contrary conclusion in this case should be
disapproved.

                              CONCLUSION

   The petition for a writ of certiorari should be held pending the
Court's decision in Davis v. Scherer, No. 83-490 and then disposed of
as appropriate in light of that decision.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   MARCH 1984

   /1/ A notice of deficiency gives the taxpayer 90 days to petition
the Tax Court to review the asserted deficiency.  26 U.S.C. (Supp. V)
6213(a).

   /2/ Fluor Engineers and Constructors, Inc. (respondent's employer),
Susan Meyers (Fluor's attorney) and Michael Castrogiovani (head of
Fluor's corporate payroll department) were also named as defendants by
respondent, but were dismissed as parties soon after the filing of the
suit (App., infra, 5a).

   /3/ The district court found that petitioner was either entitled to
qualified immunity because her actions were taken in good faith, or to
absolute immunity because she was "responsible for the decision to
initiate or continue a proceeding subject to agency adjudication'"
(App., infra, 24a (quoting Butz v. Economou, 438 U.S. 478, 516
(1978)).

   /4/ In its first opinion (App., infra, 20a-21a), the court of
appeals concluded that petitioner was immune from liability under its
prior decision in Stankevitz v. IRS, 640 F.2d 205, 206 (9th Cir.
1981), which accords absolute quasi-prosecutorial immunity to
officials who initiate or continue a proceeding subject to agency
adjudication.  The court further agreed that, in any event, petitioner
was shielded by the doctrine of qualified immunity because her actions
were taken in good faith and were within the scope of her authority
(App., infra, 21a).

   /5/ The court limited its prior holding in Stankevitz v. IRS,
supra, to those situations where the actions taken by the government
official are reviewable by an impartial decisionmaker in a proceeding
closely analogous to a judge-supervised trial.  Because respondent did
not receive a notice of deficiency entitling him to petition the Tax
Court in this case, the court concluded that petitioner's collection
activites were not reviewable in a manner that warranted application
of absolute immunity (App., infra, 7a-11a).  The court also rejected
the argument that revenue officers are entitled to absolute immunity
based upon the sensitivity of their collection activities and their
concomitant vulnerability to retributive litigation (id. at 11a-14a).
We do not seek review of that holding here.

   /6/ Although respondent's March 15 letter replying to the notice of
correction of arithmetic did not explicitly request an abatement of
the assessment set forth in the notice, the letter did state that the
1977 return and attachments "furnish explanations * * * why the
alleged balance due I.R.S. is incorrect" (App., infra, 34a).  The
court of appeals construed this passage as a request for an abatement
(id. at 16a).

   /7/ The court did not disturb the district court's finding that
petitioner had acted in subjective good faith (App., infra, 17a n.5).

   /8/ We are serving respondent with a copy of our Amicus Brief in
No. 83-490.

   /9/ Respondent plainly was not denied any "clearly established" due
process right.  There are, as far as we can ascertain, no cases
holding that the violation of a taxpayer's right to abatement under 26
U.S.C. 6213(b)(2) constitutes a denial of due process.  Indeed, prior
to the enactment of the Tax Reform Act of 1976, Pub. L. No. 94-445, 90
Stat. 1520 et seq., a taxpayer did not even have a statutory right to
claim abatement of any income tax assessment when a notice of a
mathematical error was sent to him.  Under the prior statutory
provisions, the taxpayer was permitted by the IRS to explain why he
believed there was no mathematical error, and the assessment was, in
the discretion of the Service, abated if the explanation had merit.
Staff of the Joint Comm. on Taxation, 94th Cong., 2d Sess., General
Explanation of the Tax Reform Act of 1976, at 372 (1976), reprinted in
1976-3 Cum. Bull. (Vol. 2) 1, 384;  H.R. Rep. 94-658, 94th Cong., 1st
Sess. 289-290 (1975);  S. Rep. 94-938, 94th Cong., 2d Sess, 375
(1976).  No cases decided prior to the enactment of 26 U.S.C.
6213(b)(2) suggested that this procedure was in any way
unconstitutional.  Cf. Phillips v. Commissioner, 283 U.S. 589 (1931).

   /10/ To the extent that the court of appeals' decision can be read
as suggesting that the mere violation of a provision of the Internal
Revenue Code gives a taxpayer a statutory damages action against an
erring IRS official (see App., infra, 18a-19a n.7), the decision flies
in the face of this Court's precedents controlling the creation of
implied statutory damages actions.  See, e.g., Middlesex County
Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 13-15,
19-21 (1981).  Congress has narrowly limited its express statutory
authorization for damages claims against IRS officials.  See 26 U.S.C.
7214(a).  The legislative history of 26 U.S.C. 6213(b)(2), moreover,
makes it quite clear that Congress did not affirmatively intend to
create an implied damages remedy for the enforcement of the taxpayer's
right to abatement.  Staff of the Joint Comm. on Taxation, supra, at
372;  H.R. Rep. 94-658, supra, at 289-290;  S. Rep. 94-938, supra, at
375.  See generally Merrill Lynch, Pierce, Fenner & Smith v. Curran,
456 U.S. 353, 377-378 (1982).

   In any event, the statutory violation cited by the court of appeals
occurred at the Fresno Service Center -- prior to the date that
respondent's collection account was assigned to petitioner.  It is,
therefore, quite unclear why the statutory violation could justify a
damages claim against petitioner.

   /11/ We are advised that, as of mid-1983, there were 547
constitutional damages actions pending against 1,360 employees of the
IRS.  A sizeable number of these suits were brought by tax protesters.
 The government currently expends significant resources and staff
hours defending such actions.

   /12/ The personal burdens attending the defense of a constitutional
damages action can be substantial.  Even should a defendant ultimately
prevail on the merits of a constitutional claim, his credit may be
adversely affected for months or years by the appearance of the case
on the lis pendens docket.  In this case, for example, petitioner has
had to live with a potential liability of $250,000 for over four
years.

   /13/ The portion of respondent's March 15 letter that the court of
appeals construed as a request for an abatement was buried in the
middle of a rambling communication that began and ended with a host of
frivolous legal arguments (App., infra, 33a-36a).

                               APPENDIX