Attachment not available electronically.
*

 This order and judgment is not binding precedent, except under the doctrines of law of the case,

res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments;

nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

2

UNITED STATES COURT OF APPEALS

Filed 5/9/96

FOR THE TENTH CIRCUIT

________________________

ALVIN STJERNHOLM; ELSIE STJERNHOLM, )

)

Plaintiffs-Appellants, )

)

v. ) No. 95-1435

) (D.C. No. 94-S02412)

BARBARA PETERSON, DOROTHY A. BAN, ) (D. Colo.)

DEBBIE J. BROWN, individually and in their )

official capacities; INTERNAL REVENUE )

SERVICE; UNITED STATES OF AMERICA, )

)

Defendants-Appellees. )

__________________________

ORDER AND JUDGMENT*

_________________________

Before BRORBY, EBEL and HENRY, Circuit Judges.

__________________________

After examining the briefs and appellate record, this panel has determined unanimously that

oral argument would not materially assist the determination of this appeal. See Fed. R. App. P.

34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Mr. and Mrs. Stjernholm are pro se litigants whose tax liability was judicially established.
3

The Stjernholms commenced this action asserting illegal and negligent conduct occurred when the

United States levied upon their property. The trial court dismissed their complaint and Mr. and Mrs.

Stjernholm appeal this decision. We affirm the decision of the trial court.

The facts are neither complex nor disputed. The tax liability of Mr. and Mrs. Stjernholm was

judicially established in 1991. See Stjernholm v. Commissioner, 933 F.2d. 1019, 1991 WL 88498

(10th Cir. May 22, 1991), aff’g 58 T.C.M. (CCH) 389 (1989). The United States seized property

belonging to Mr. and Mrs. Stjernholm in April 1992, and this property was then sold at auction in

June 1992. The property was seized and sold in the state of Wyoming. In August 1992, Mr. and

Mrs. Stjernholm published a "Public Notice" in a newspaper of general circulation in Cheyenne,

Wyoming. This notice reflected Mr. and Mrs. Stjernholm's opinion that the manner of the seizure

and sale of their property violated the "1989 Taxpayers Bill of Rights." It also charged their property

was sold for a small fraction of its value and the Stjernholms complained of procedural violations

and IRS employees' violations of the IRS Code and illegal activities concerning the seizure and sale

of their property.

Mr. and Mrs. Stjernholm commenced an earlier suit which was dismissed due to the fact they

had not exhausted their administrative remedies by filing a claim as required by the FTCA. In

dismissing this suit, the trial court stated damages could not "be awarded until and unless the

available administrative remedies have been exhausted."

Mr. and Mrs. Stjernholm commenced this action on October 21, 1994, in the District of
1

 Bivens v. Six Unknown Agents, 403 U.S. 388 (1971).

4

Colorado, against the "United States," the "Internal Revenue Service" and three individuals who

were employed by the Internal Revenue Service, each being sued individually and in her official

capacity. The complaint set forth numerous causes of action, all of which can be characterized by

stating the Stjernholms alleged unconstitutional, illegal and negligent conduct concerning the

methods employed in seizing and selling their property.

The trial court granted Defendants' motions to dismiss. The Bivens1

 claims against the IRS

employees were dismissed because the existing statutory design was deemed the exclusive remedy

for damages caused by the reckless or intentional disregard of the Internal Revenue Code and the

regulations thereunder. The action against the IRS employees was also dismissed for improper

venue, the court noting that the transfer of the action to Wyoming would be futile since Plaintiffs'

claim was barred by the statute of limitations. The trial court dismissed plaintiffs' claim against the

IRS employees under I.R.C. § 7433 after concluding the United States and not the individual

employees is the proper defendant under this statute. The trial court dismissed plaintiffs' Bivens

action against the United States after concluding the United States had not waived sovereign

immunity in such action. The claim, based upon the Federal Tort Claims Act, was dismissed as

barred by the tax exception clause in the FTCA. Finally, the court dismissed the claim under I.R.C.

§ 7433(d)(3) as being barred by the two-year statute of limitations based upon the public notice

published by Mr. and Mrs. Stjernholm.
5

Mr. and Mrs. Stjernholm appeal this decision asserting: (1) the trial court erred in dismissal

of the complaint on the basis of the law of the case and the statute of limitations and argued they

merely followed the instruction of the court contained in the dismissal of their first suit in bringing

this action; (2) the United States has waived its sovereign immunity under I.R.C. § 7433(a); (3) the

FTCA does not apply as the actions of the individual defendants were not actions taken in respect

of the assessment or collection of a tax; (4) The trial court's order in dismissing the first suit

authorized them to file a Bivens claim against the individual defendants following exhaustion and

it is clear that the action of the employees amounted to an "unjust taking"; (5) The Fifth Amendment

is available as a remedy; and (6) the trial court had no basis to raise the venue issue.

Individual federal employees may be sued for violating rights protected by the United States

Constitution; however, such suits are not authorized where Congress has "expressly precluded the

creation of such remedy by declaring that existing statutes provide the exclusive mode of redress."

See Bush v. Lucas, 462 U.S. 367, 373 (1983); National Commodity & Barter Ass'n v. Gibbs, 886

F.2d 1240, 1248 (10th Cir. 1989). Plaintiffs' sole remedy, therefore, is an action based upon the

provisions contained in the Internal Revenue Code.

26 U.S.C. § 7433 allows a taxpayer to bring a civil action against the United States for

damages arising from reckless or intentional violation of the IRS Code or Regulation by its officers

or employees. The conduct set forth by the plaintiffs against the individual defendants falls directly

within the provision of § 7433. Plaintiffs' remedy for these violations is solely against the United

States.
6

26 U.S.C. § 7433 contains a statute of limitations. It provides "an action to enforce liability

created under this section ... may be brought only within 2 years after the date the right of action

accrues." The applicable regulation provides "A cause of action under ... this section accrues when

the taxpayer has had a reasonable opportunity to discover all essential elements of a possible cause

of action." I.R.C. 7433(g)(2). The August 21, 1992 "Public Notice" published by Mr. and Mrs.

Stjernholm plainly shows they then knew all essential elements of their claim. The disallowance of

the claim filed by Mr. and Mrs. Stjernholm did not commence the running of the statute of

limitations. Mr. and Mrs. Stjernholm ask us to apply the case of Gonsalves v. United States, 782 F.

Supp. 164 (Maine 1994). This case is inapposite as the current regulation defining the

commencement of the accrual was not adopted until after Gonsalves was decided.

The remaining errors asserted by Mr. and Mrs. Stjernholm are not persuasive and warrant no

further discussion. We affirm the decision of the trial court for substantially the same reasons set

forth by the trial court in its concise and well reasoned Memorandum Opinion and Order, a copy

thereof being attached.

Entered for the Court:

WADE BRORBY

United States Circuit Judge