John Bowman, Jr. v. Kimberly Iddon
2017 U.S. App. LEXIS 2906
D.C. Cir.2017Background
- John Bowman worked as a tax preparer; in 2005 he pled guilty to fraud and was incarcerated. While imprisoned, IRS employee Kimberly Iddon reported alleged misconduct to the Office of Professional Responsibility (OPR) and (erroneously) identified Bowman as an "Enrolled Agent."
- OPR initiated disciplinary proceedings, mailed charging documents to Bowman’s former business address (though the IRS knew he was incarcerated), and issued a default suspension for practice before the IRS. The suspension was published in an IRS bulletin and circulated internally.
- Bowman never was an enrolled agent; IRS records and Bowman’s later affidavit confirm he never held enrolled-agent status. He did not receive notice or an opportunity to contest the 2006 suspension.
- Bowman learned of the suspension years later, petitioned OPR for reinstatement after the IRS’s 2011 rule attempted (later invalidated) to regulate tax preparers, and eventually had his name removed from the barred list and limited practice rights restored.
- Bowman sued five IRS employees under Bivens, alleging violation of procedural due process (Fifth Amendment) and seeking damages; defendants moved to dismiss. The district court dismissed, concluding Circular 230’s remedial scheme foreclosed a Bivens action. The D.C. Circuit affirmed on a different ground: Bowman failed to allege deprivation of a constitutionally protected interest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bowman pleaded deprivation of a protected property interest under procedural due process | Bowman claimed he was indefinitely suspended as an "Enrolled Agent," damaging his reputation and business and depriving him of property interests tied to enrolled-agent status | Defendants argued Bowman lacked any entitlement to enrolled-agent status and thus no protected property interest was lost | Held: Dismissed under Rule 12(b)(6). Bowman disclaimed ever being an enrolled agent and thus alleged no legitimate entitlement; no protected property interest shown |
| Whether Bowman stated a cognizable liberty "stigma-plus" claim (ability to practice chosen profession) | Amicus argued suspension, later amplified by 2011 rule, effectively barred Bowman from preparing taxes and thus deprived his liberty to practice and harmed reputation | Defendants argued remedial schemes (Circular 230) covered practitioner discipline and precluded Bivens; alternatively, Bowman did not allege he was prevented from preparing taxes | Held: Court found complaint contains no allegation that Bowman was prevented from preparing taxes; the complaint alleges only loss of enrolled-agent status, so stigma-plus not pled |
| Whether Circular 230’s remedial scheme precludes a Bivens remedy (novel Bivens question) | Bowman/amicus argued Circular 230 did not lawfully cover tax preparers (Loving) and thus does not bar a Bivens action | Defendants argued Circular 230 furnishes a comprehensive remedial scheme for practitioner discipline, precluding Bivens relief | Held: Court did not decide this question; affirmed dismissal on failure-to-plead ground. (Concurring opinion explains why Circular 230 likely would not bar Bivens here if Bowman had alleged deprivation of tax-preparation rights.) |
| Pleading rule standard at Rule 12(b)(6) for pro se plaintiff | Bowman characterized his injury as loss of enrolled-agent status and resulting reputational/business harm; asked court to construe liberally | Defendants contended the complaint fails Iqbal/Twombly pleading requirements and lacks factual matter showing entitlement or deprivation | Held: Applying Iqbal standard and liberal construction for pro se filings, the court still finds the complaint lacks factual allegations establishing a constitutionally protected interest and thus fails to state a claim |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (recognition of implied damages remedy for certain constitutional violations)
- Loving v. Internal Revenue Serv., 742 F.3d 1013 (D.C. Cir.) (IRS lacked statutory authority under 31 U.S.C. § 330 to regulate tax-return preparers)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard for stating a plausible claim)
- Board of Regents v. Roth, 408 U.S. 564 (property interest requires legitimate claim of entitlement)
- Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524 (D.C. Cir. 2015) (treatment of pro se affidavits and exhibits on motion to dismiss)
- Meshal v. Higgenbotham, 804 F.3d 417 (D.C. Cir. 2015) (caution in expanding Bivens; case-by-case approach)
- Minneci v. Pollard, 565 U.S. 118 (considering alternative remedies before extending Bivens)
- Wilkie v. Robbins, 551 U.S. 537 (framework for assessing whether to recognize new Bivens claim)
- Schweiker v. Chilicky, 487 U.S. 412 (existence of comprehensive remedial scheme may preclude Bivens)
- Davis v. Billington, 681 F.3d 377 (D.C. Cir. 2012) (CSRA’s remedial scheme can preclude Bivens claims)
- Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988) (claim falls within ambit of a comprehensive congressional scheme)
- Trifax Corp. v. District of Columbia, 314 F.3d 641 (D.C. Cir. 2003) (liberty interest triggered by formal debarment from work)
- Gen. Elec. Co. v. Jackson, 610 F.3d 110 (D.C. Cir. 2010) ("stigma-plus" doctrine requires reputational injury plus deprivation of legal right)
- Kim v. United States, 632 F.3d 713 (D.C. Cir. 2011) (declining Bivens remedy for tax protesters in light of Internal Revenue Code remedies)
- True the Vote, Inc. v. Internal Revenue Serv., 831 F.3d 551 (D.C. Cir. 2016) (precluding Bivens-like relief where comprehensive statutory scheme governs tax-exemption challenges)