James Bucholz v. Janet Yellen

• Court: Court of Appeals for the D.C. Circuit
• Decided: July 23, 2021
• Docket: 20-5338
• Status: Unpublished

Opinion

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT ____________ No. 20-5338 September Term, 2020 1:19-cv-01730-ABJ Filed On: July 23, 2021 James S. Bucholz,

Appellant

v.

Janet L. Yellen, in her official capacity as Secretary of the United States Department of the Treasury, et al.,

Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BEFORE: Rogers, Millett, and Katsas, Circuit Judges

JUDGMENT

This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See Fed. R. App. P. 34(a)(2); D.C. Cir. Rule 34(j). It is

ORDERED AND ADJUDGED that the district court’s order filed September 10, 2020, be affirmed. The district court correctly concluded that appellant failed to state a claim that the assessment of the shared responsibility payment against him is a violation of his due process rights under the Fifth Amendment. See 26 U.S.C. § 5000A; National Federation of Independent Business v. Sebelius, 567 U.S. 519, 575 (2012); Association of American Physicians and Surgeons v. Sebelius, 746 F.3d 468, 470 (D.C. Cir. 2014). Additionally, the only proper defendant in a refund suit is the United States, see 26 U.S.C. § 7422(f), and appellant has not alleged a cause of action under the Administrative Procedure Act, 5 U.S.C. § 702. The district court also correctly concluded that appellant failed to state a cause of action under Bivens against the two federal employees in their personal capacities. Appellant has not identified a constitutional violation by these employees. See Association of American Physicians and Surgeons, 746 F.3d at 470; Phillips v. Commissioner, 283 U.S. 589, 595 (1931). United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT ____________ No. 20-5338 September Term, 2020

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41.

Per Curiam

FOR THE COURT: Mark J. Langer, Clerk

BY: /s/ Daniel J. Reidy Deputy Clerk

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