UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


GARDNER, BRUCE E.

v.

UNITED STATES


99-5065a

D.C. Cir. 2000


*	*	*


Edwards, Chief Judge: Bruce Gardner, appearing pro se,  appeals the
District Court's dismissal of his complaint for  failure to prosecute
and for lack of subject matter jurisdic- tion. Mr. Gardner alleges
that the Internal Revenue Service  ("the Service") unlawfully levied
his property without first  sending a notice of federal tax deficiency
to his last known  address. The District Court dismissed this
complaint sua  sponte for failure to prosecute under Fed. R. Civ. P.
41(b)  ("Rule 41(b)") and, upon defendant's motion, for lack of 
subject matter jurisdiction. On appeal, the Service defends  only the
Rule 41(b) dismissal, abandoning any claim that  federal courts lack
subject matter jurisdiction over Mr. Gard- ner's cause of action.


The District Court understandably sought to sanction Mr.  Gardner for
failing to appear at a motions hearing. Given  applicable Supreme
Court and D.C. Circuit precedent, howev- er, the District Court's
dismissal in the context of the instant  case constitutes an abuse of
discretion. Mr. Gardner's nonap- pearance, while arguably
irresponsible, did not justify a Rule  41(b) dismissal. In addition,
the District Court erroneously  found that it lacked subject matter
jurisdiction over the  complaint. Accordingly, we reverse and remand
for further  proceedings on the merits.


I. BACKGROUND


Mr. Gardner formerly worked as an attorney in the Office  of Chief
Counsel to the Service at the Treasury Department.  He was terminated
for his alleged failure to comply with  federal and state tax laws.
Mr. Gardner filed three com- plaints before the District Court, all
related to his compliance  with federal and state tax laws; all were
dismissed by the  District Court. One of the complaints was a tax
refund  action, the dismissal of which this court summarily affirmed


on October 8, 1999. The second complaint, appealed along  with the
instant case, seeks damages from a variety of  defendants for
allegedly unlawful disclosures of Mr. Gard- ner's private tax
information. The instant case involves Mr.  Gardner's pro se
complaint, filed December 23, 1997, claiming  that the Service
unlawfully levied Mr. Gardner's bank account  for an alleged 1990 tax
deficiency of almost $4,000 without  sending him a notice of
deficiency and an opportunity to  challenge the assessment in the
United States Tax Court.  Mr. Gardner, seeking to enjoin the Service
from levying his  property, bases his complaint on 26 U.S.C. s 6213(a)
(Supp.  IV 1998). Actions based on s 6213(a) to enjoin the Service's 
assessment of a tax deficiency before the Service mails a  notice of
deficiency to the taxpayer are exempt from the  Anti-Injunction Act of
Internal Revenue Code, 26 U.S.C.  s 7421(a) (Supp. IV 1998).


On February 18, 1998, the Service filed a motion to dismiss  for lack
of subject matter jurisdiction pursuant to Fed. R. Civ.  P. 12(b)(1)
("Rule 12(b)(1)"), arguing that Mr. Gardner must  meet traditional
equitable requirements (i.e., demonstrate  irreparable injury and the
lack of an adequate remedy at law)  as a prerequisite to obtaining
injunctive relief under  s 6213(a). On the day the Service filed its
motion, Mr.  Gardner filed an amended complaint affirmatively pleading
 grounds for equitable relief. The District Court struck the  amended
complaint from the record, because Mr. Gardner  had not sought leave


After delays that no one attributes to Mr. Gardner, the  District Court
scheduled a hearing on January 27, 1999, to  consider the motion to
dismiss, along with motions to dismiss  filed in Mr. Gardner's other
two cases. On January 21, Mr.  Gardner moved to continue the motions
hearing, contending  that a continuance was necessary because he had
the flu and  he had suffered burns during a fire in his home. The
District  Court, after a teleconference held on January 22, denied Mr.
 Gardner's motion. The District Court indicated that it would 
accommodate Mr. Gardner's physical condition during the  hearing. Mr.
Gardner failed to appear in court on January 27  and he telephoned the
court later that evening to state that  he had slept through the


On January 28, Mr. Gardner filed a motion to reschedule  the hearing;
the motion also offered an explanation for his  absence from the
January 27 hearing. He included a doctor's  note stating that, on
January 21, his physician treated him for  syncope and bronchitis,
prescribed antibiotics, and instructed  Mr. Gardner to get bed rest.
He also made several claims to  the effect that his illness, the fire
in his home, and his intense  preparation for the motions hearing had
combined to deprive  him of necessary sleep and stamina. According to
plaintiff,  he was so disoriented that, until he heard the evening
news  on January 27, he was under the impression that it was  January


On January 29, the District Court denied Mr. Gardner's  motion to
reschedule the hearing. The court also granted  defendant's motion to
dismiss on two grounds. First, the  District Court dismissed the
complaint under Rule 41(b) for  failure to prosecute the complaint.
See Gardner v. United  States, Civ. Act. No. 97-3075, Mem. Op. & Order
at 2 (D.D.C.  Jan. 29, 1999). The court noted that it previously had
denied  Mr. Gardner's motion for continuance and that Mr. Gardner  had
stated that he would appear on January 27. See id. at 1- 2. The court
also declared that it had not intended to hear  argument on January
27, because it already had decided to  issue orally its ruling
dismissing Mr. Gardner's complaint for  lack of subject matter
jurisdiction. See id. at 2. The District  Court found that it lacked
jurisdiction because Mr. Gardner  had failed to demonstrate
irreparable injury and a lack of an  adequate remedy at law. See id.
at 4. The court dismissed  as moot Mr. Gardner's motion for
reconsideration of the  order striking his first amended complaint


Mr. Gardner moved for reconsideration, further detailing  the events
leading up to his absence from the hearing. He  stated that on January
12, 1999, he began taking Nyquil and  Chlortrimeton, an antihistamine,
and that he was without  heat for one day in January because his house
lost electricity  during an ice storm, exacerbating his illness. Mr.
Gardner  also revealed that, on January 18, a fire had broken out in
his  children's room and he had sustained third-degree burns to  his
hands while dragging a burning mattress from the house. 


The court denied Mr. Gardner's motion for reconsideration.  This appeal
followed.


II. DISCUSSION


A. Rule 41(b) Dismissal


Under Rule 41(b), a court may dismiss an action "[f]or  failure of the
plaintiff to prosecute or to comply with ... any  order of court." In
the instant case, the District Court  dismissed the complaint because
Mr. Gardner failed to attend  the January 27, 1999, motions hearing.
We review for abuse  of discretion. See Bristol Petroleum Corp. v.
Harris, 901  F.2d 165, 167 (D.C. Cir. 1990). While this is a
deferential  standard, we have made it clear that, "under certain
circum- stances, dismissal may be an unduly severe sanction for a 
single episode of misconduct." Id. A District Court may  dismiss under
Rule 41(b) "only after less dire alternatives  have been explored
without success." Trakas v. Quality  Brands, Inc., 759 F.2d 185, 187


The Supreme Court established the framework for review- ing a sua
sponte dismissal for failure to prosecute in Links v.  Wabash Railroad
Co., 370 U.S. 626 (1962). In Links, plain- tiff's counsel missed a
pretrial conference but did not inform  the court of his impending
nonattendance until the day of the  conference. See id. at 627-28. The
District Court, after  reviewing the history of the case (including
plaintiff's re- peated untimely responses to defendant's
interrogatories),  found that plaintiff's counsel did not provide a
reasonable  explanation for his nonappearance and dismissed the com-
plaint for failure to prosecute. See id. at 628-29.


The Court affirmed the dismissal, failing to find an abuse of 
discretion because: (1) the District Court relied only in part  on
counsel's nonappearance; (2) the excuse offered by counsel  was
inadequate; and (3) "it could reasonably be inferred from  his
absence, as well as from the drawn-out history of the  litigation,
that petitioner had been deliberately proceeding in  dilatory
fashion." Id. at 633 (footnote and citation omitted).  The Court did
not reach "whether unexplained absence from 


a pretrial conference would alone justify a dismissal with  prejudice
if the record showed no other evidence of dilatori- ness on the part
of the plaintiff." Id. at 634 (first emphasis  added).


As we previously have noted, it is important to recall that  the
"lawyer's default [in Links] ... was merely the culmina- tion of a
protracted course of dilatory tactics and other  improper behavior in
litigation that had dragged on for six  years." Camps v. C & P Tel.
Co., 692 F.2d 120, 122 (D.C. Cir.  1982) (footnote omitted). In
contrast, this court has held  "that dismissal is rarely if ever
appropriate when there is but  a single instance of
attorney-misconduct," as in the instant  case. Id. This is because the
sua sponte dismissal of a  lawsuit on the merits is " 'a drastic step,
normally to be taken  only after unfruitful resort to lesser
sanctions.' " Id. at 123  (quoting Jackson v. Washington Monthly Co.,
569 F.2d 119,  123 (D.C. Cir. 1978)); see also Bristol Petroleum
Corp., 901  F.2d at 167 ("[D]ismissal is in order only when lesser
sanc- tions would not serve the interests of justice.").


There are three basic justifications for dismissal because of  attorney
misconduct: (1) prejudice to the other party; (2)  failure of
alternative sanctions to mitigate the severe burden  that the
misconduct has placed on the judicial system; and (3)  deterrence of
future misconduct. See Shea v. Donohoe  Constr. Co., 795 F.2d 1071,
1074 (D.C. Cir. 1986). These  justifications are not easily met.
Prejudice, for instance,  must be "so severe[ ] as to make it unfair
to require the other  party to proceed with the case." Id. Similarly,
a malfeasant  party places a severe burden on the judicial system if
"the  court [is required] to expend considerable judicial resources 
in the future in addition to those it has already wasted,  thereby
inconveniencing many other innocent litigants in the  presentation of
their cases." Id. at 1075-76. The final  rationale, deterrence,
justifies dismissals when there is some  indication that the client or
attorney consciously fails to  comply with a court order cognizant of
the drastic ramifica- tions. See id. at 1078.


Defendants have alleged no prejudice from Mr. Gardner's  failure to
appear at the January 27 conference. And given  the District Court's
observation that it would not hear argu- ment at the hearing and its
intention to resolve the case on  jurisdictional grounds despite Mr.
Gardner's failure to ap- pear, his nonappearance cannot be said to
have interfered  with the orderly administration of the trial court's
business.  Cf. id. at 1076-77 (concluding that "repeated failure to
attend  status conferences" in that case did not constitute prejudice 
to the judicial system). Of the enumerated justifications for  sua
sponte dismissal, then, only the last, deterrence, has any 
application to the instant case.


Mr. Gardner's situation, however, is not one to which the  deterrence
rationale speaks with great eloquence. There are  three reasons for
this: first, this was Mr. Gardner's only  failure to comply with an
order of the District Court; second,  there is no evidence that Mr.
Gardner acted in bad faith by  failing to appear at the hearing; and
third, the trial court  provided no warning to Mr. Gardner of the
consequences of  nonappearance. We also note that there is nothing in
the  record to indicate that the District Court considered alterna-
tive sanctions for Mr. Gardner's misbehavior.


The District Court did not identify any prior instance of  misconduct
on Mr. Gardner's part. Indeed, the court ob- served that Mr. Gardner's
absence was "atypical." That Mr.  Gardner had never before failed to
comply with the District  Court's orders argues in favor of reversal.
See Trakas, 759  F.2d at 188. In addition, as in Trakas, there is no
evidence in  the record of "bad faith, deliberate misconduct, or
tactical  delay." Id. In fact, Mr. Gardner provided a supportable 
explanation for why he failed to attend the hearing. Finally,  the
trial court did not warn Mr. Gardner that the case would  be dismissed
if he failed to appear. "Absent such advance  warning [of the
consequences], dismissal to drive a lesson  home, we think, is more
akin to overkill than judicial discre- tion." Camps, 692 F.2d at 125.
In short, dismissal in this  case was unwarranted.


We appreciate the difficulty faced by the District Court in  this case.
Mr. Gardner had filed three complaints before the  court. One of the
complaints consisted of 44 counts and  named as defendants the United
States, the Service, the State  of California, and several individual
Service employees,  among others. Prior to dismissing the complaint in
the  instant case, the District Court had denied Mr. Gardner's  motion
for a continuance, and had been assured that Mr.  Gardner would attend
the January 27 hearing. In this cir- cumstance, we cannot doubt that
Mr. Gardner's failure to  appear was an annoying occurrence.
Nonetheless, given that  this was Mr. Gardner's only "failure ... to
prosecute or to  comply with ... any order of court," Fed. R. Civ. P.
41(b), we  find that the District Court abused its discretion in
dismissing  his case. Here we do not have a case of an unexplained 
absence from the motions hearing, or any evidence that Mr.  Gardner
deliberately sought to delay adjudication of the  merits of his
complaints. Moreover, the record does not  show that the District
Court considered the availability of a  lesser sanction. While the
District Court's decision in the  instant case may not " 'comprehend[
] a pointless exaction of  retribution,' " Camps, 692 F.2d at 123
(quoting Jackson, 569  F.2d at 123), it does cross the line to abuse
of discretion. See,  e.g., Berry v. District of Columbia, 833 F.2d
1031, 1037 (D.C.  Cir. 1987) (reversing dismissal where attorney
failed to file a  pretrial brief by specified date, failed to attend a
status  conference, and failed to file a pleading specifically
requested  by the court); Tolbert v. Leighton, 623 F.2d 585, 587 (9th
Cir.  1980) (finding abuse of discretion where the only evidence of 
dilatoriness was attorney's failure to attend a pretrial confer- ence,
the court had not warned that nonappearance would  result in a


We emphasize that we do not call into question the District  Court's
denial of both Mr. Gardner's motion for a continuance  and his motion
to reschedule the hearing, because those  decisions are not before us.
Nor does our disposition of this  case revive Mr. Gardner's tax refund
complaint, the dismissal  of which this court summarily affirmed on
October 8, 1999.  We hold only that, given the particular facts of
this case, the 


District Court abused its discretion in dismissing Mr. Gard- ner's
complaint for failure to prosecute.


B. Subject Matter Jurisdiction


The District Court also dismissed Mr. Gardner's complaint  under Rule
12(b)(1), holding that Mr. Gardner was required  to plead equitable
grounds for relief in order to obtain an  injunction under 26 U.S.C. s
6213(a). Before this court, the  Government does not defend the
District Court's Rule  12(b)(1) dismissal. Accordingly, there is no
longer any dis- pute between the parties as to whether a federal court
may  entertain jurisdiction over Mr. Gardner's complaint. This  does
not moot the issue, however. We are a court of limited  jurisdiction
and must be satisfied through our own inquiry of  our power to hear
this dispute. See Mansfield, Coldwater &  Lake Michigan Ry. v. Swan,
111 U.S. 379, 382 (1884). In  contrast to the issue of personal
jurisdiction, parties may not  waive or concede a federal court's
subject matter jurisdiction.  See Jackson v. Ashton, 33 U.S. (8
Peters) 148, 148-49 (1834)  (reversing for lack of subject matter
jurisdiction even though  appellee had "no objection to the court's


Mr. Gardner seeks an injunction preventing the Service  from levying
his bank account to assess an alleged deficiency  in his 1990 federal
tax return. The Anti-Injunction Act, a  provision of the Internal
Revenue Code, states that, "[e]xcept  as provided in section[ ] ...
6213(a), ... no suit for the  purpose of restraining the assessment or
collection of any tax  shall be maintained in any court by any person,
whether or  not such person is the person against whom such tax was 
assessed." 26 U.S.C. s 7421(a). The District Court must  dismiss for
lack of subject matter jurisdiction any suit that  does not fall
within one of the exceptions to the Anti- Injunction Act. Mr. Gardner
seeks to bring his suit within  one of s 7421(a)'s exceptions, arguing
that the Service violat- ed s 6213(a) by levying his bank account
without first mailing  him a notice of deficiency. For the purposes of
deciding  whether we have jurisdiction over Mr. Gardner's complaint,


we will accept as true his allegation that the notice of  deficiency
was never mailed to him.


Section 6213(a) establishes the Service's authority and re-
sponsibility to send a notice of deficiency to a taxpayer prior  to
initiating proceedings to assess the deficiency. With a  notice of
deficiency in hand, a taxpayer may file suit in Tax  Court challenging
the assessment, and the Service is prohibit- ed from enforcing the
assessment until the Tax Court's  decision regarding the petition for
review becomes final. See  id. s 6213(a). If the taxpayer does not
file suit in Tax Court  in the time allotted after receipt of the
notice of deficiency,  the Service may, among other things, impose a
levy upon the  taxpayer's property, after notice, to recover unpaid
taxes.  See id. s 6331(a) (1994).


There is some dispute among the circuits whether a taxpay- er must
allege traditional grounds for equitable relief to  establish a prima
facie claim under s 6213(a) (i.e., irrepara- ble harm and lack of an
adequate remedy at law). The  District Court, following the Ninth
Circuit, dismissed the  complaint, because Mr. Gardner failed to
allege any equitable  grounds for relief. See Mem. Op. & Order at 4
(citing Elias  v. Connett, 908 F.2d 521, 523 (9th Cir. 1990)). The
Ninth  Circuit is in the lead among those circuits that imply this 
requirement in s 6213(a) claims, with the circuit's reasoning  set out
in Cool Fuel, Inc. v. Connett, 685 F.2d 309, 313 (9th  Cir. 1982).


In Cool Fuel, the District Court had granted summary  judgment for the
Service where a taxpayer alleging a viola- tion of s 6213(a) had not
met the requirements for equitable  relief. The Ninth Circuit
affirmed, finding both a presump- tion that equitable grounds be met
for a court to issue an  injunction and "that section 6213 does not
abolish equitable  tenets to support injunctive relief." Id. (relying
on Wein- berger v. Romero-Barcelo, 456 U.S. 305 (1982)). The court 
emphasized s 6213(a)'s permissive language. See Cool Fuel,  685 F.2d
at 313 (noting that s 6213(a) provides that an  assessment based on a
notice of deficiency "may be enjoined"  by a court). Because a
taxpayer retains the right to institute 


a refund suit after payment of taxes, and the taxpayer in Cool  Fuel
could afford to pay the disputed tax prior to an adjudica- tion of the
alleged deficiencies, the court found that an  equitable remedy was
not available. The Third and Eleventh  Circuits have followed the
Ninth Circuit's rule. See Flynn v.  Eggers, 786 F.2d 586, 591 (3rd
Cir. 1986); Lovell v. United  States, 795 F.2d 976, 977 (11th Cir.


The Tenth Circuit, in Guthrie v. Sawyer, 970 F.2d 733, 736- 37 (10th
Cir. 1992), reached a different result. Having re- viewed the
circuits' competing opinions, we think that the  Tenth Circuit clearly
has the best of the argument. Accord- ingly, we hold, in accord with
Guthrie, that


[t]he purpose of the statutory exception [in s 6213(a)] is  to preserve
the taxpayer's right to litigate his tax liability  in Tax Court
before paying the tax. If the availability of  a refund suit after
payment prohibits the taxpayer from  obtaining an injunction to
protect his right to litigate  first, that right is virtually
meaningless. Under this  approach, this right would be available only
upon a  showing that the taxpayer could not pay the tax. We  have
difficulty believing that Congress intended to give  with one hand and
take back with the other.


970 F.2d at 736.


The result that we reach is not contrary to the principles  announced
in Romero-Barcelo. In that case, the Supreme  Court merely observed
that courts should "not lightly assume  that Congress has intended to
depart from established [equi- table] principles." 456 U.S. at 313. In
Romero-Barcelo,  however, the Court expressly distinguished Tennessee
Valley  Authority v. Hill, 437 U.S. 153 (1978), in which the Court 
held that "Congress had foreclosed the exercise of the usual 
discretion possessed by a court of equity" when it passed the 
Endangered Species Act, 16 U.S.C. ss 1531-1544. Romero- Barcelo, 456
U.S. at 313 (citing Tennessee Valley Authority,  437 U.S. at 173).
According to the Romero-Barcelo Court,  the difference was that in
Hill, the statute providing the basis  for the challenge "contain[ed]
a flat ban" on the challenged  activity. 456 U.S. at 314. Similarly,


prohibits the activity challenged by Mr. Gardner. See 26  U.S.C. s
6213(a) (providing that the Service shall begin "no  levy or
proceeding" to collect on a notice of deficiency until a  period after
the notice has been mailed to the taxpayer).  This statutory scheme,
in combination with the Guthrie  Court's reasoning, convinces us that
Congress did not intend  that litigants need establish equitable
grounds for injunctive  relief under s 6213(a).


We decline to follow Cool Fuel for a third reason. The  Cool Fuel court
cited Bob Jones University v. Simon, 416  U.S. 725, 742 n.16 (1974),
to support its finding that "congres- sional history [of s 6213(a)] is
barren of indicated intent to  abandon historical principles of equity
jurisprudence." 685  F.2d at 313. Bob Jones University involved an
interpretation  of the Anti-Injunction Act, however, not s 6213(a). In
fact,  the Court explicitly noted that "[n]one of the exceptions in  s
7421(a) is relevant to this case." Bob Jones University,  416 U.S. at
732 n.6. Therefore, it is of no moment that the  Court in Bob Jones
University held that traditional equitable  principles were applicable
to an action under the Anti-  Injunction Act that did not fall into
any of the enumerated  exceptions. Of greater note, we think, is the
Supreme  Court's failure to discuss traditional grounds for equity
juris- diction when holding that taxpayers to whom the Service had 
not mailed notices of deficiency are entitled to bring suit  under s
6213(a). See Laing v. United States, 423 U.S. 161,  183-85 & 184 n.27


III. CONCLUSION


For the reasons articulated herein, we reverse the District  Court's
decision and remand for proceedings on the merits.