Project Posner

Lead opinion by POSNER

    265 POSNER, Circuit Judge.

   The government appeals from an order quashing a summons (actually, several summonses, but for simplicity's sake we shall pretend there was only one) directing the respondents, Mr. and Mrs. Michaud, to appear in a Green Bay police station to be fingerprinted and give handwriting exemplars in connection with the Internal Revenue Service's investigation of the tax liability of a corporation of which the Michauds are shareholders, directors, and officers. For reasons wholly unclear to us, the agent of the Internal Revenue Service who issued the summons is named as a petitioner (plaintiff) and appellant along with the government; the practice is common, but we can find no ground or reason for it.

   In addition to quashing the subpoena, Judge Evans ordered the government to pay the Michauds' attorney's fees, precipitating a second appeal, the disposition of which follows automatically from our disposition of the first.

   The Michauds, accompanied by their lawyer, had come to the Green Bay police station as the summons directed them to do, but they refused to be fingerprinted. And although Agent Hill asked each of them to fill five pages with their handwriting, each refused, on the advice of their lawyer, to write more than a page and a half. The lawyer's position was that a page and a half was enough for the government's purpose and anything more would be oppressive.

   The government petitioned for enforcement of the summons under 26 U.S.C. § 7604. The petition was in the form of an affidavit by Agent Hill in which he stated that he was investigating the corporation "to verify the correctness of [its] federal employment and unemployment tax returns and to determine its correct tax liabilities. If it is determined that the [corporation's] tax returns are incorrect or that additional taxes are due and owing, I will also determine whether any of the criminal 266 provisions 3 of the Internal Revenue Code have been violated, [and] whether James Michaud, Mary Michaud, or others will be recommended to the United States Department of Justice [for prosecution]." But, the affidavit adds, "as of the date of this declaration, the Internal Revenue Service has not recommended criminal prosecution of the taxpayer or either [Mr. or Mrs. Michaud] to the United States Department of Justice." Then, after summarizing the summons and explaining how it was served, the affidavit states that "on March 23, 1988 [the return date in the summons, and the date on which the Michauds appeared at the Green Bay police station], the [Michauds] failed to appear before me, or to comply with the summons by providing handwriting exemplars and allowing fingerprints to be taken of them." The affidavit goes on to explain that the fingerprints and handwriting exemplars are necessary to determine whether the Michauds filled out or handled the corporation's tax returns and other pertinent documents. The use of the summons authority to compel handwriting exemplars has been held to be proper. United States v. Euge, 444 U.S. 707 , (1980).

   The district judge refused to enforce the summons on a combination of grounds: the affidavit was false in stating that the Michauds had not appeared on March 23; the government had been "heavy-handed" in demanding that the Michauds be fingerprinted at a police station rather than at an Internal Revenue Service office or some other federal office; the fingerprints and handwriting of the Michauds were not germane to the stated purpose of the investigation, which was to determine their corporation's tax liabilities. At oral argument, the Michauds' counsel acceded to a description of the implicit standard used by the district judge to quash the subpoena as an "aroma test," and argued that it is the right test to use in these cases.

   It may be the right test in some ultimate ethical or political sense, but it is not the statutory test, and judges are obliged to enforce constitutional statutes. The only express statutory ground for quashing a tax summons is that the Internal Revenue Service has referred the matter under investigation to the Justice Department for criminal prosecution. 26 U.S.C. § 7602(c). Agent Hill denied that there had been such a referral, and the judge accepted the denial. Since a summons is process, and abuse of process is a tort, the issuance of a tax summons may also be resisted -- courts have said -- if the summons was issued in bad faith, that is, "for an improper purpose, such as to harass the taxpayer or to put pressure on him to settle a collateral dispute." United States v. Powell, 379 U.S. 48, 58 , (1964). See also United States Millman, 822 F.2d 305, 308-09 (2d Cir. 1987); Groder v. United States, 816 F.2d 139, 144 (4th Cir. 1987); United States v. Author Services, Inc., 804 F.2d 1520, 1524-25 (9th Cir. 1986); Pickel v. United States, 746 F.2d 176 (3d Cir. 1984). Moreover, we may assume without having to decide that since an order to enforce a summons is a form of injunction, the courts retain their normal powers to withhold the issuance of an injunction that would violate the principles of equity because the injunction had been sought in bad faith (but this just duplicates the abuse of process ground), or because the injunctive process was being used to harass the defendant with redundant litigation (ditto) or would impose unnecessary costs on innocent third parties, or because the injunction has a broader sweep than can be justified. (Of course the fact that an order is equitable in character does not mean that it necessarily is appealable as an injunction without regard to finality. 28 U.S.C. § 1292(a)(1); Conticommodity Services, Inc. v. Ragan, 826 F.2d 600, 601 (7th Cir. 1987).)

   But the fact that an application for enforcement contains an immaterial mistake or that the government (or other plaintiff or petitioner) is acting "heavy-handed" in some undefined sense will not do. These derelictions do not constitute abuse of process. And the equitable discretion of a modern federal judge is not the uncanalized discretion of a medieval Lord Chancellor. 267 Okaw Drainage District v. National Distillers & Chemical Corp., 882 F.2d 1241, 1245 (7th Cir. 1989). Moreover, tax summons proceedings, being summary, Alphin v. United States, 809 F.2d 236 (4th Cir. 1987); United States v. Kis, 658 F.2d 526, 535 (7th Cir. 1981), are not the right occasion for free-wheeling inquiries into the motives and methods of the tax authorities. Cf. In re Grand Jury Proceedings, 894 F.2d 881, slip op. at 6 (7th Cir. 1990). All the talk about abuse of process and equitable defenses may be, in the tax-summons setting, just that. The cases in which an appeal to equitable discretion or an invocation of the tort concept of abuse of process will actually defeat the the issuance of the summons may well constitute a null set. Cf. Alphin v. United States, supra; Pickel v. United States, supra, 746 F.2d at 183-85.

   Agent Hill should not have said that the Michauds had not appeared, since they did appear. But from the government's standpoint, appearing and refusing to be fingerprinted or to give handwriting exemplars was the functional equivalent of nonappearance, so it is possible that the agent was innocently if ineptly interpreting "appear" rather than trying to mislead the court. A more important point is that if there was misrepresentation, deliberate or otherwise, it was immaterial. The dismissal of a proceeding is an excessive sanction for a mistake that, being immaterial, could not have harmed the defendant; the days when courts dismissed proceedings to express displeasure with governmental conduct even when there was no prejudice to defendants are over. United States v. Hasting, 461 U.S. 499 , (1983); Bank of Nova Scotia v. United States, 487 U.S. 250, (1988). Nor is there any basis for Michaud's argument that the request for a five-page exemplar was so burdensome as to constitute an abuse of process. Maybe handwriting experts would testify that five pages were more than enough; but Michaud offered no such testimony -- and it was just as well, since even if five pages are unnecessary, the burden of filling five pages with one's handwriting is not an onerous one.

   As for the government's "heavy-handedness" in ordering the Michauds to appear at a police station to give their fingerprints and handwriting exemplars, we cannot agree that it is a ground for quashing the summons. The summons procedure is a lawful method of criminal investigation, 26 U.S.C. § 7602(b); United States v. Millman, 822 F.2d 305, 308 (2d Cir. 1987); Pickel v. United States, 746 F.2d 176, 183-84 (3d Cir. 1984), and the Green Bay police station is a proper site at which to conduct it. It would be different if the government had gratuitously ordered the Michauds to appear at an inconvenient location, or an indecorous one (for example, a prison). It did not do so, and therefore we need not decide whether the district judge would have the power to impose reasonable conditions in the order enforcing the summons. If he did have this power, then even if the police station was not a proper site at which to direct the Michauds to appear, all that would follow is that the judge should have directed them elsewhere; he should not have quashed the summons altogether unless persuaded on adequate evidence that the government was deliberately harassing the Michauds.

    United States v. Author Services, Inc., 804 F.2d 1520, 1525 (9th Cir. 1986), holds that district courts do have power to impose conditions in orders enforcing tax summonses. United States v. Barrett, 837 F.2d 1341, 1349-51 (5th Cir. 1988) (en banc) (per curiam), however, is to the contrary -- and we are distressed that the government, far from citing Barrett, assured us in its brief (citing a decision overruled by Barrett) that the judge can impose reasonable conditions, contrary to the position the government had taken in both Barrett and Author Services. We expect more honest advocacy than this from the government, and we begin to understand Judge Evans' distress at what he believed to be misrepresentations in Agent Hill's affidavit.

   The issue of a conditioning power may have little practical significance. If the judge turns down a request for enforcement 268 on grounds that could be cured by changes in the subpoena, the government will be back before him with a revised subpoena, and it will be as if the judge had granted the request conditionally. The court in Barrett seems to have been concerned with conditions that might enmesh the court in the tax investigation if the taxpayer complained that a condition was not being honored. 837 F.2d at 1349. That problem is unlikely to arise if all the court is doing is directing the taxpayer to appear at one location rather than another.

   Turning to the district judge's last ground, we point out that the investigation was not limited to determining the corporation's tax liabilities, contrary to the judge's suggestion. As the first passage that we quoted from Agent Hill's affidavit makes clear, another -- and entirely lawful -- object of the investigation was to determine whether the Michauds should be recommended to the Justice Department for prosecution, presumably for filing false returns on behalf of the corporation. (The statute bars the use of the summons procedure for criminal investigation only after the decision to prosecute has been made. 26 U.S.C. § 7602(b).) To this arm of the investigation the fingerprints and handwriting exemplars were directly pertinent.

   There was no basis for quashing the summons on the record before the district judge, but at argument the Michauds' lawyer advised us without contradiction from the government's lawyer that another officer of their corporation has been prosecuted for criminal violations of the federal tax laws and has pleaded guilty. We therefore asked the government to advise us whether the government had yet recommended that the Michauds be prosecuted. By letter dated December 7, 1989, the government responded "that no recommendation for prosecution of the Michauds has been made, and that the special agent who issued the summons still requires the handwriting exemplars and fingerprints for his investigation."

   The judgment quashing the summonses is reversed and the case remanded with directions to enforce them. The award of attorneys' fees to the Michauds is also reversed. Circuit Rule 36 shall apply on remand.

   REVERSED AND REMANDED, WITH DIRECTIONS.