McCann v. King

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _________________________________

No. 98-40213 Summary Calendar _________________________________

MICHAEL A. MCCANN,

Plaintiff-Appellant,

v.

JOE KING, Sheriff; CLARENCE BALL, Agent; INTERNAL REVENUE SERVICE,

Defendants-Appellees.

--------------------------------- Appeal from the United States District Court for the Southern District of Texas (G-97-CV-673) --------------------------------- March 22, 1999

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Michael A. McCann appeals from the judgment of the

district court dismissing his action against the Internal

Revenue Service (“IRS”) and an IRS revenue agent. On

appeal, he contends that the district court erred in failing

to remand to state court his action for replevin which he

had originally filed in the state court. McCann’s appeal

and the arguments contained in his brief are not only devoid

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 of merit, but are wholly frivolous. It is firmly

established and beyond dispute that because McCann brought

his suit in state court against a federal officer and a

federal agency, it was removable under 28 U.S.C. § 1442.

The fact that federal law prohibits a replevin action for

the return of property seized pursuant to federal revenue

laws is not germane to the issue of removability. Appellant

confuses the non-availability of a remedy with the

jurisdiction of the federal court to declare that no such remedy is available under the law. The remedy McCann seeks

is not available in any court, not simply the federal

courts. See 26 U.S.C. § 7421(a).

The judgment of the district court is affirmed and the

appellees request for sanctions pursuant to 28 U.S.C. § 1912

and Rule 38 is granted. In addition to costs, damages in

the amount of $2,000 are adjudged against the appellant.

AFFIRMED, SANCTIONS ORDERED.