investigations to harass, illegal mail interference, illegal wiretapping-which, if proven, would plainly violate the Constitution, the Internal Revenue Code, and the criminal laws of the United States.
Defendants next contend that no cause of action exists. This contention is contradicted by Bivens.
Finally, defendants restate their argument concerning the Tax Anti-Injunction Act. The Act, however, does not apply to the portions of the complaint which relate to past activities by the defendants or to activities outside the scope of tax investigations. Thus, this argument is also insufficient to compel dismissal.
1. Absolute Immunity
Defendants contend that immunity compels dismissal for three reasons. The first is that the United States Attorney is absolutely immune from liability for acts within the scope of his "judicial" capacity. Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S. Ct. 984, 995, 47 L. Ed. 2d 128 (1976); see Butz v. Economou, 438 U.S. 478, 508-17, 98 S. Ct. 2894, 2911-16, 57 L. Ed. 2d 895 (1978). A decision to enforce a summons or seek contempt citations is like a decision to press charges, and thus is within the scope of absolute immunity. See Davis v. Rendell, 659 F.2d 374, 378 (3d Cir. 1981). Because the allegations concerning Mr. Vaira all relate to immune acts, the complaint must be dismissed as to him.
Defendants rely on Butz for the proposition that an IRS Special Agent has absolute quasi-prosecutorial immunity. See Butz, 438 U.S. at 511-16, 98 S. Ct. at 2913-2915. On the current record, I disagree. Butz held that administrative employees are absolutely immune when their duties make them functionally equivalent to "judicial" officials with absolute immunity. Thus, hearing examiners and administrative law judges have absolute judicial immunity, id. at 514, 98 S. Ct. at 2914, agency officials have absolute prosecutorial immunity for decisions to initiate or continue agency adjudicative proceedings, id. at 515-16, 98 S. Ct. at 2915, and agency attorneys have absolute prosecutorial immunity in presentation of evidence at agency proceedings. Id. at 516-17, 98 S. Ct. at 2915. The Special Agent's affidavit is insufficient to convince me that he played any such role in relation to the undismissed claims of the plaintiff. No agency adjudicative proceeding is involved. The Special Agent's role in the events complained of appears to be investigative, and thus gives rise to only a qualified immunity.
2. Qualified Immunity
Defendants' third immunity argument is that qualified immunity insulates the Special Agent from this lawsuit. The qualified-immunity defense, as propounded in Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975), has two elements which a defendant must prove. See, e.g., Fowler v. Nicholas, 522 F. Supp. 655, 657-58 (E.D.Pa.1981). He must first satisfy the subjective element of good faith, which requires that he act sincerely with a belief that he is doing right. Wood, 420 U.S. at 322, 95 S. Ct. at 1001. He must also satisfy the objective element by proving that he neither knew nor reasonably should have known that his actions violated the plaintiff's rights. Id.; see Fowler, 522 F. Supp. at 657.
In an apparent effort to meet these tests, defendants have submitted affidavits stating that the Special Agent believes that he "was acting in good faith ... and with a reasonable belief in the validity of (his) ... conduct."
The affidavit passes neither prong of the qualified-immunity defense. It fails the subjective test because it is vague, fails to respond specifically to the activities alleged in the complaint, and because it is couched in terms of legal conclusions. It fails the objective test because it is irrelevant. Defendant's belief in the legality of his actions has no bearing on the question whether he ought to have realized that he acted illegally. Therefore, I cannot find that defendant Hilferty is immune.
The claims against the United States and United States Attorney Vaira are dismissed. All claims relating to actions within the scope of present or future tax investigations, assessments, collections, and prosecutions are also dismissed. Likewise, all claims relating to IRS summonses and summons-enforcement proceedings are dismissed. The only claim remaining is that against Special Agent Hilferty for actions outside the scope of tax investigations.
My decision today does not mean that plaintiff will prevail-only that this litigation must progress further. Defendant Hilferty is free to attempt to prove qualified immunity, and I do not preclude him from renewing the absolute-immunity argument if he can show in detail that his job is, in whole or part, functionally equivalent to those directly involved in the judicial process.
The motion is granted in part and denied in part. An appropriate order follows.
AND NOW, this 22nd day of December, 1981, it is hereby ORDERED that:
1. Defendants' Motion to Dismiss is GRANTED in part and DENIED in part.
2. Defendants United States and Peter F. Vaira are DISMISSED.
3. Within twenty days after entry of this order, plaintiff shall file a More Definite Statement as to defendant Special Agent Hilferty, specifying, for each allegedly illegal act:
a. the nature of the alleged act;
b. the date of the alleged act;