United States Court of Appeals, District of Columbia Circuit
John J. Bowman, Jr., Appellant
Kimberly Iddon, et al., Appellees
November 8, 2016
from the United States District Court for the District of
Columbia (No. 1:14-cv-00520)
Jennifer J. Clark, appointed by the court, argued the cause
as amicus curiae in support of appellant. With her on the
briefs was Jeffrey T. Green.
J. Bowman Jr., pro se, was on the brief for appellant.
Jonathan S. Cohen, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Gilbert S. Rothenberg and Gretchen M. Wolfinger, Attorneys.
Before: Tatel and Wilkins, Circuit Judges, and Ginsburg,
Senior Circuit Judge.
John Bowman alleges that five Internal Revenue Service (IRS)
employees barred him from representing taxpayers before the
Service without due process in violation of the Fifth
Amendment. He seeks damages under Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1971). The district court dismissed the case,
concluding that the Internal Revenue Code's remedial
scheme for tax practitioners foreclosed a Bivens
action. Without reaching that issue, we affirm on the
alternative ground that Bowman has failed to state a claim
under Federal Rule of Civil Procedure 12(b)(6) because his
complaint contains no allegation that Defendants deprived him
of a constitutionally protected interest.
Internal Revenue Service recognizes four primary groups of
individuals who prepare tax returns: certified public
accountants (CPAs), lawyers, enrolled agents, and unenrolled
preparers ("tax preparers"). See 31 C.F.R.
§ 10.8(a); American Institute of Certified Public
Accountants v. IRS, 804 F.3d 1193, 1194-95 (D.C. Cir.
2015). CPAs, lawyers, and enrolled agents must be licensed,
while tax preparers are "subject to less stringent
regulation." American Institute, 804 F.3d at
1195. This case concerns a tax preparer.
2005, IRS regulations permitted the first three of these
groups-all but tax preparers-to "practice before the
IRS." See 31 C.F.R. §§ 10.2(d)-(e),
10.3(a)-(c) (2005). The regulation then governing practice
before the IRS, Circular 230, defined these groups as
"practitioners" and permitted them to act in
"all matters connected with a presentation to the [IRS]
or any of its officers or employees relating to a
taxpayer's rights, privileges, or liabilities, "
including through "filing documents, "
"corresponding . . . with the IRS, " and
"representing a client at conferences."
Id. §§ 10.2(d)-(e), 10.3. Tax preparers,
by contrast, could obtain only "limited practice"
authorization, which allowed them to represent taxpayers
before certain line officers of the IRS, excluding
"appeals officers, revenue officers, Counsel or similar
officers or employees." Id. §
2011, "after an IRS review found problems in the
tax-preparation industry, " the Service issued a new
rule governing tax preparers. Loving v. IRS, 742
F.3d 1013, 1015 (D.C. Cir. 2013) (citing Regulations
Governing Practice Before the Internal Revenue Service, 76
Fed. Reg. 32, 286 (June 3, 2011)). That rule created a new
category of "registered tax preparers, " who
counted as "practitioners" obligated to
"register with the IRS by paying a fee and passing a
qualifying exam." Id.; see 31 C.F.R.
§§ 10.2(a)(5), 10.3(f), 10.4(c), 10.5(b) (2011).
Under the rule, and except as otherwise prescribed, only
attorneys, CPAs, enrolled agents, and registered tax
preparers could "for compensation prepare or assist
with the preparation of all or substantially all of a tax
return or claim for refund." 76 Fed. Reg. at 32, 291;
see 31 C.F.R. § 10.8(a) (2011); see
also 26 C.F.R. § 301.7701-15 (2009) ("A tax
return preparer is any person who prepares for compensation,
or who employs one or more persons to prepare for
compensation, all or a substantial portion of any return of
tax or any claim to refund of tax under the Internal Revenue
Code."). This court invalidated these regulations in
Loving v. IRS, holding that tax-return preparers
fall outside the IRS's statutory authority to regulate
"'the practice of representatives of persons before
the Department of the Treasury.'" 742 F.3d at 1015
(quoting 31 U.S.C. § 330(a)(1)).
appellant John Bowman. While working as a tax preparer in
June 2005, he pleaded guilty to mail fraud, wire fraud, and
money laundering, and was sentenced to fifty-seven
months' incarceration. He began serving his sentence in
months later, while Bowman was still in prison, Defendant
Kimberly Iddon, an IRS Revenue Agent, submitted a report of
Bowman's suspected misconduct to the IRS Office of
Professional Responsibility (OPR). The form on which Iddon
submitted the report required her to identify whether Bowman
was an attorney, CPA, enrolled agent, or enrolled actuary.
Though Bowman had never been an enrolled agent, Iddon
erroneously identified him as one, citing "personal
knowledge" and attaching newspaper articles on
Bowman's prosecution. Bowman Mot. for Summ. J. at 21.