Kenneth White v. James P. Boyle, 538 F.2d 1077, 4th Cir. (1976)

538 F.
2d 1077
76-2 USTC P 9597
Kenneth WHITE, Appellant,

v.
James P. BOYLE et al., Appellees.
No. 75-1491.
United States Court of Appeals,

Fourth Circuit.
Argued June 7, 1976.
Decided Aug. 10, 1976.
Kenneth White, pro se.

Michael J. Roach, Atty., Tax Div., Dept. of Justice (Scott P. Crampton,
Asst. Atty. Gen., Jonathan S. Cohen, Gilbert E. Andrews, Attys., Tax
Div., Dept. of Justice, Washington, D. C., and Paul R. Thomson, Jr., U. S.
Atty., Roanoke, Va., on brief), for appellees.
Before CRAVEN, RUSSELL and WIDENER, Circuit Judges.
CRAVEN, Circuit Judge:
Kenneth White, president of the Virginia Taxpayers Association, instituted a

civil rights action in the district court against the district director and various
agents of the Internal Revenue Service. In his official capacity, and as a
concerned citizen, White had occasion to address legislative panels and to
release statements to the press; his public stance consistently attacked
government spending habits and urged modification of the revenue-collecting
system. White maintained that as a result of his outspoken opposition to the
present taxing structure, he was designated a "sensitive case" and a "high
deterrent case," and was thereafter made an object of retaliatory investigatory
procedures aimed at harassment and the abridgment of his constitutionally
protected rights. Features of this program of harassment, he claimed, included a
trespass onto and destruction of White's property by IRS agents as well as
illegal investigation into White's bank accounts. White's complaint set forth
three counts, each seeking $75,000 compensatory and $200,000 punitive
damage as well as an injunction against further unconstitutional activity.

2
Having moved for summary judgment, the several defendants submitted

affidavits which stated that an investigation was routinely initiated when it
became apparent that the Form 1040 filed by White and his wife pertaining to
their 1972 federal income tax liability was unsigned, contained no information
from which a computation of tax liability could be derived, and had written
across its face "filed under protest."1 The inquiry, begun after referral from the
Memphis Service Center, was aimed at determining whether White had
violated any laws pertaining to the collection of revenues.
On the basis of these affidavits, the district court found that the actions of the
defendants were made pursuant to federal law, were within the scope of their
authority, and were reasonable, good faith actions taken in response to White's
defective 1972 return. As a result, the district judge determined that the
defendants enjoyed official immunity, and, accordingly, granted summary
judgment in their favor. In addition, that portion of the complaint seeking
injunctive relief was dismissed because the court was without power to
entertain the suit. See White v. Boyle, 390 F.Supp. 514 (W.D.Va.1975).
Clearly, if White can demonstrate an injury consequent upon the violation by

federal agents of his constitutionally protected rights, absent official immunity,
he is entitled to recovery. Bivens v. Six Unknown Federal Narcotics Agents,
403 U.S. 388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). However, White has
failed to make any such showing beyond mere conclusory allegations, and the
grant of summary judgment for the defendants was clearly proper.
5
When
a motion for summary judgment is made and supported as provided in this
rule, an adverse party may not rest upon the mere allegations or denials of his
pleading, but his response, by affidavits or as otherwise provided in this rule, must
set forth specific facts showing that there is a genuine issue for trial. If he does not
so respond, summary judgment, if appropriate, shall be entered against him.
6
Rule 56(e), Fed.R.Civ.P. " '(T)o resist a motion for summary judgment, the
party against whom it is sought must present some evidence to indicate that the
facts are in dispute . . . . His bare contention that the issue is disputable will not
suffice.' " Berry v. Atlantic Coast Line R. R. Co., 273 F.2d 572, 582 (4th Cir.
1960), cert. denied, 362 U.S. 976, 80 S.Ct. 1060, 4 L.Ed.2d 1011 (1960),
(quoting Zoby v. American Fidelity Co., 242 F.2d 76, 80 (4th Cir. 1957)).
White failed to carry the burden of showing that there is present here any
genuine issue of material fact. There is no evidence of the existence of any fact
which, when viewed in a light most favorable to the plaintiff, will support the
contention that the defendants invaded any right of the plaintiff secured by the
Constitution.
8
White's complaint alleged a retaliatory Internal Revenue investigation initiated

in response to his exercise of First Amendment rights. The defendants in their
affidavits stated that their actions were taken pursuant to federal law
(specifically 26 U.S.C. 6201, 7601-7605, 7622) upon receipt by them of a
return which did not adequately reflect his income tax liability for the year
1972. Additionally, the Internal Revenue Service's inspection of White's bank
accounts, it was asserted, was performed pursuant to similarly lawful authority.
At this point in the development of the pleadings, White was under the duty to
present to the court some facts which would put into dispute the motivation
behind the IRS action. Instead, he chose to file similarly conclusory counteraffidavits which reiterated his view that the IRS's activities were patently
recriminatory. Nothing factual was offered to support his assertion of illicit
motive on the part of federal officers.
Similarly, White's affidavits do not reveal any "right" which the agents in this
case violated. He failed to show how the initiation of the investigation was
unwarranted in view of the nature of his 1972 tax return, which contained no
information from which tax liability could be computed, or that the
investigation was conducted so as to violate any of his rights. His allegations
that he was not treated as the normal "Fifth Amendment Tax Protestor," even if
assumed to be accurate,2 do not demonstrate any violation of rights only that the
investigation was conducted under different procedures and his claim that his
Fourth Amendment rights were violated by a search of his house and his car
rest entirely upon conjecture3 and are without sufficient factual support to
withstand the agents' specific denial that any search whatsoever was conducted.
10
Thus, both as to the government's motivation in initiating its investigation of

him and as to that investigation's violation of his constitutional rights, we
believe White failed to meet the burden of Fed.R.Civ.P. 56(e), and since no
genuine issue of material fact remained, summary judgment was properly
granted against him.
11
Furthermore, even if White had demonstrated the existence of a genuine issue

of material fact, we believe that the district court correctly determined that
defendants were protected from liability by official immunity. The district court
found that "the actions of defendants Higginbotham and Moore in going to
plaintiff's home and leaving a note . . . as being reasonable, good faith efforts
taken in response to plaintiff's 1972 tax return. . . . " Under these findings,
which are uncontradicted except for White's conclusory allegations, defendants
are clearly protected from civil liability by qualified, good-faith immunity.
Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). See
also Economou v. Dept. of Agriculture, 535 F.2d 688, 44 U.S.L.W. 2516 (2d
Cir. 1976).
12
Dismissal of the complaint insofar as it requested injunctive relief was also

proper, whether White sought to restrain the collection of taxes, see 26 U.S.C.
7421(a), or to restrain an investigation of his tax liability, see Brittingham v.
Commissioner of Internal Revenue, 451 F.2d 315 (5th Cir. 1971). See also
United States v. Miller, --- U.S. ----, 96 S.Ct. 1619, 48 L.Ed.2d 71, 44 U.S.L.W.
4528 (1976).
13
Accordingly, the judgment of the district court is affirmed.
14
Affirmed.
Attached to White's 1972 income tax form was a seven-page statement which
set out his belief that the 1040 Form, the Internal Revenue Code, and/or the
Internal Revenue Service were in violation of the First, Fourth, Fifth, Sixth,
Seventh, Eighth, Ninth, and Fourteenth Amendments to the Constitution.
White's statement began with the following introductory paragraphs:
So that there is no misunderstanding, I am not refusing to pay a lawful income
tax, lawfully determined by regular judgment according to the procedures of
due process of law before a court which is part of the Judicial Branch of the
Government of the United States.
I am filing this Form 1040 U. S. Individual Income Tax Return for the year in
question, with explanation appended, but I do not wish to incriminate myself or
go along with any subversion or overthrow of the Constitution of the United
States.
I do not think it is possible under the law for me to supply the information in
the manner that is requested in Form 1040 for the year in question.
White's allegation that he was treated differently than other "Fifth Amendment
Tax Protestors" is based on an Internal Management Document from the office
of the IRS's Western Region Commissioner, which sets out procedures for
initiating contact with such individuals. We are told, however, by the
government that no such guidelines for the Southeastern Region existed at the
time White's 1972 tax return was filed and were not promulgated until 1974
3
White alleges that the IRS agents conducted a "search" of his home by looking
through its open windows as they walked around the house to knock on a rear
door and that they must have searched his car since subsequent to their visit he
found the car's glove compartment standing open. But there is no proof. Neither
White nor anyone else was at White's home at the time the agents visited it

Kenneth White v. James P. Boyle, 538 F.2d 1077, 4th Cir. (1976)

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Kenneth White v. James P. Boyle, 538 F.2d 1077, 4th Cir. (1976)

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538 F.

Kenneth WHITE, Appellant,

United States Court of Appeals,

Kenneth White, pro se.

Kenneth White, president of the Virginia Taxpayers Association, instituted a

damage as well as an injunction against further unconstitutional activity.

Having moved for summary judgment, the several defendants submitted

Clearly, if White can demonstrate an injury consequent upon the violation by

White's complaint alleged a retaliatory Internal Revenue investigation initiated

Thus, both as to the government's motivation in initiating its investigation of

Furthermore, even if White had demonstrated the existence of a genuine issue

Dismissal of the complaint insofar as it requested injunctive relief was also

Accordingly, the judgment of the district court is affirmed.

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