Simanonok v. United States

Opinion

USCA1 Opinion

September 13, 1995

                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


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No. 94-2105



                                 JOSEPH E. SIMANONOK,



                                Plaintiff, Appellant,



                                          v.



                          UNITED STATES OF AMERICA, ET AL.,



                                Defendants, Appellees.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE


[Hon. Joseph A. DiClerico, U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                            Cyr and Stahl, Circuit Judges.
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                                 ____________________



            Joseph E. Simanonok on brief pro se.
            ___________________

            Russell F.  Hilliard, Kimberly Kirkland,  Upton, Sanders &  Smith,
            ____________________  _________________   _______________________

        on brief for Northeast Defendants.

            Loretta C.  Argrett, Assistant  Attorney General,  Gary R.  Allen,
            ___________________                                ______________

        Kenneth  L. Greene  and Randolph L.  Hutter, Attorneys,  Tax Division,
        __________________      ___________________

        Department of Justice, brief for federal appellees.


____________________



                                 ____________________



Per  Curiam.   Joseph  Simanonok  appeals  from the
                      ___________



            district  court's dismissal  of his  complaint under  Fed. R.



            Civ. P.  12(b)(1) and  (6) and  its denial  of his  motion to



            amend his complaint.  We affirm.



                                I.  Background
                                    __________



                      Simanonok sued  the Northeast Federal  Credit Union



            (NEFCU)  and  one  of  its employees  for  alleged  negligent



            compliance with Internal Revenue  Service (IRS) levies on his



            bank account.  He  sued IRS employees for issuing  the levies



            and  for  filing  notices of  lien  on  his  property in  New



            Hampshire,  claiming that he had no obligation to pay federal



            income tax since the IRS could not tax or sanction members of



            the  United States Armed Forces and that the IRS's levies and



            notices of lien were invalid.   In part, he asserted that the



            IRS had  levied on exempt  property and had  violated certain



            statutorily required procedures in assessing his tax.



                      Questioning    the   court's    jurisdiction   over



            Simanonok's suit, a magistrate judge ordered him to amend his



            complaint  in  specific   ways  to  establish   jurisdiction.



            Simanonok moved to vacate the order, and the magistrate judge



            treated his  motion as  an amended complaint.   Subsequently,



            the magistrate  judge denied a separate  attempt by Simanonok



            to  file an  amended complaint.   The  district court  denied



            Simanonok's motion to reconsider the denial.  In  response to



            defendants'   Rule  12(b)   motions,  the   magistrate  judge



recommended dismissing some counts  of the complaint for lack



            of jurisdiction and others  for failure to state a  claim for



            relief.   The  district  court issued  orders dismissing  the



            complaint.



                                     II.  Discussion
                                          __________



                      A.   District Court's Failure to  Reject Magistrate

                           Judge's Actions                               
                           _____________________________________________



                      Simanonok challenges the district  court's adoption



            of the magistrate judge's  reports recommending dismissal  of



            the  complaint  and  rejection   of  the  amended  complaint.



            According  to Simanonok,  the  magistrate  judge should  have



            issued  proposed findings of fact  and held a  hearing on the



            motions.   Simanonok also asserts as error the failure of the



            court  to obtain  his  consent to  action  by the  magistrate



            judge.



                      We find  no error  in the proceedings  below.   The



            Federal Magistrates Act clearly  permitted the district court



            to  refer to the magistrate  judge the Rule  12(b)(1) and (6)



            motions  for a  report and  recommendation, see  28 U.S.C.   
                                                        ___



            636(b)(1)(B),  and the motion to amend for decision.  See id.
                                                                  ___ ___



               636(b)(1)(A); Pagano v. Frank, 983 F.2d 343, 346 (1st Cir.
                             ______    _____



            1993).    The magistrate  judge was  not  required to  hold a



            hearing on the Rule 12(b) motions, see Fed. R. Civ. P. 72(b);
                                               ___



            accord C. Wright, A. Miller & F. Elliott, 12 Federal Practice
            ______                                       ________________



            &  Procedure     3076.7, at  56  (1995  Supp.),  or to  issue
            ____________



            proposed  findings of  fact.   See  Fed.  R. Civ.  P.  72(b).
                                           ___


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Because the case was not referred to the magistrate judge for



            entry   of  final  judgment,   Simanonok's  consent  was  not



            required.  See 28 U.S.C.   636(c)(1)-(2).
                       ___



                      Moreover,  the  district court  did  not abuse  its



            discretion in  denying Simanonok's  motion to reconsider  the



            denial  of  his amended  complaint.    Simanonok's motion  to



            vacate the order  to amend  his complaint was  treated as  an



            amended  complaint.  Thus, as of the time Simanonok sought to



            file  the  amended  complaint,  he had  already  amended  the



            complaint once as of right within the meaning of Fed. R. Civ.



            P. 15(a).  See Elliott v. Foufas, 867 F.2d 877, 882 (5th Cir.
                       ___ _______    ______



            1989).  Nor did the amended complaint cure the jurisdictional



            deficiencies  of  the  complaint, or  allege  any  wrongdoing



            whatever by the persons Simanonok sought to add as parties to



            the  amended complaint.  Hence, denial  was appropriate.  See
                                                                      ___



            Long  v.  United States,  972  F.2d  1174,  1183  (10th  Cir.
            ____      _____________



            1992).1



                      B.     Dismissal  for   Lack   of  Subject   Matter
                             ____________________________________________



            Jurisdiction
            ____________



                      The district court dismissed  certain counts of the



            complaint  against the  IRS  defendants for  lack of  subject


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            1.  Because other  grounds in the record  support the court's

            denial of Simanonok's motion to  amend his complaint, we need

            not consider his claim that he properly served the defendants

            or was prevented  from doing  so or that  the defendants  had

            actual notice of the  amended complaint.  See Acha  v. United
                                                      ___ ____     ______

            States, 910 F.2d 28, 30 (1st Cir. 1990).
            ______



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matter jurisdiction, construing those counts to seek a refund



            or  to challenge  Simanonok's  underlying tax  liability.   A



            taxpayer who seeks a refund  or who challenges his underlying



            tax liability must allege that he has paid his taxes  in full



            and has  filed an administrative refund  claim before seeking



            relief  in district  court.   See  McMillen v.  United States
                                          ___  ________     _____________



            Department of Treasury,  960 F.2d 187, 188-89 (1st Cir. 1991)
            ______________________



            (per  curiam).  Simanonok did  not, and so  the dismissal was



            correct  to the  extent  that Simanonok  sought  a refund  or



            challenged his underlying tax liability.  



                      Simanonok  has asserted  various objections  to the



            dismissal, none of which we find meritorious.  His claim (and



            certain  related  claims) that  the  IRS  had assessed  taxes



            against  him with respect to income paid to his former spouse



            directly challenges his underlying  tax liability.  Given his



            failure  to allege that he had paid  the tax in full or filed



            an administrative refund claim, the court had no jurisdiction



            over this claim.   See id.2   The same  is true of his  claim
                               ___ ___



            that  the IRS  had no  jurisdiction over  him since  he  is a



            member of the United States Armed Forces.



                      Although  Simanonok also  argues that  28 U.S.C.   



            1442a,  the Federal Tax Lien  Act of 1966  (together with the



            Uniform  Commercial  Code),  and  5 U.S.C.     706  conferred


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            2.  In  any  event, this  claim  was  never  asserted in  the

            complaint.



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jurisdiction on the court  over his suit, those  laws plainly



            did not do so.  Moreover, long ago we rejected the claim that



            28 U.S.C.   2463 confers jurisdiction on district courts with



            respect to  suits involving  property  seized by  levy.   See
                                                                      ___



            Morris v. United States,  303 F.2d 533, 535 (1st  Cir. 1962),
            ______    _____________



            cert. denied, 371 U.S. 827 (1962).  
            ____________



                      Simanonok correctly asserts that  28 U.S.C.   1340,



            together with the waiver of sovereign immunity in 28 U.S.C.  



            2410, confers  jurisdiction  on district  courts over  "quiet



            title"  suits alleging defects in IRS levies and liens.  See,
                                                                     ____



            e.g., Harrell v. United States, 13 F.3d 232, 234-35 (7th Cir.
            ____  _______    _____________



            1993).  However, he fails to specify any claim  of his which,



            under  those statutes,  should  have survived  the motion  to



            dismiss for lack of  jurisdiction.  As a consequence,  he has



            waived any error  the district  court may have  made in  that



            respect.  See United States v.  Zannino, 895 F.2d 1, 17  (1st
                      ___ _____________     _______



            Cir.), cert. denied, 494 U.S. 1082 (1990)  (claims are deemed
                   ____________



            waived  if  they  are merely  adverted  to  in  a perfunctory



            fashion without any attempt at developed argumentation).



                      C.   Dismissal  for Failure  to  State a  Claim For
                           ______________________________________________



            Relief
            ______



                      Simanonok argues that the court erred in dismissing



            certain  counts of the complaint for failure to state a claim



            for relief.  His argument  that he stated a claim  for relief



            against  the NEFCU defendants is  unpersuasive in view of the


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immunity accorded them under  26 U.S.C.   6332(e).3   We also



            reject his  arguments relative  to the following  claims: (1)



            that his bank account and  retirement income were exempt from



            levy under 26 U.S.C.    6334(a)(10) and (d)(3); (2)  that the



            IRS was required to file a notice of lien before it levied on



            his  property; and  (3) that  the lien  notices filed  in New



            Hampshire failed to  comply with  26 U.S.C.    6065 and  N.H.



            Rev. Stat. Ann.   454-B:3 & B:4.  



                      By failing to develop  any argument whatever on the



            issue, Simanonok has waived  his claim that his  bank account



            and  retirement income were  exempt from levy.   See Zannino,
                                                             ___ _______



            895 F.2d at 17.  His  other two claims did not state a  claim



            for relief.  The  Internal Revenue Code does not  require the



            IRS to file  notices of  lien before it  levies on  property.



            See  26  U.S.C.      6331(a),   (d)(1)-(2)  (describing   the
            ___



            prerequisites  for  levying on  property).    In addition,   



            6065's verification  requirement  applies only  to  documents



            which taxpayers send  to the IRS.  See In  re White, 168 B.R.
                                               ___ ____________



            825,  833 (D.  Conn. 1994),  appeal dismissed,  95-1 U.S.T.C.
                                         ________________



            (CCH)    50,215 (D. Conn. 1995).  Hence,   6065 did not apply



            to  the  notices in  question here.    Moreover, even  if New



            Hampshire  law  required IRS  officials  to  certify or  sign



            notices of lien, the form and content of IRS  notices of lien



                                
            ____________________



            3.  The   district   court   apparently    asserted   pendent

            jurisdiction  over the  state  law claims  against the  NEFCU

            defendants.



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are  not subject to state law  requirements.  See 26 U.S.C.  
                                                          ___



            6323(f)(3). 



                                III.  Motion for Sanctions
                                      ____________________



                      In a separately filed motion, the IRS has requested



            sanctions of  $2,000 in  lieu of  costs and  attorney's fees,



            asserting that Simanonok's appeal was frivolous.  See Fed. R.
                                                              ___



            App.  P.  38(a).     In  part,  this  appeal  was  frivolous.



            Simanonok claimed that his  military status exempted him from



            federal income taxation, a claim which he knew was frivolous.



            Other courts have told him so, and he has been sanctioned for



            making it.   He also  should have known  that his  allegation



            that 28 U.S.C.    1442a and 2463, the Federal Tax Lien Act of



            1966  (and the Uniform Commercial  Code), and 5  U.S.C.   706



            authorized the  court's jurisdiction over his  claims was not



            meritorious.   Furthermore, he failed to  develop obvious and



            possibly  meritorious arguments on  appeal, casting  doubt on



            the  sincerity with which  he brought  certain claims  in the



            first  place.  Finally, he has not objected to the imposition



            of sanctions, e.g., on the ground that he cannot pay them.  



                      However, we  do not  think that all  of Simanonok's



            claims on appeal were frivolous, even though we found none of



            them  to  be  persuasive.     For  example,  Simanonok  might



            reasonably have  believed  that the  magistrate judge  should



            have held a hearing or issued proposed findings of fact.  The



            district  court  referred  the  Rule  12(b)  motions  to  the


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magistrate judge under 28 U.S.C.   636(b)(1)(B), which states



            that  "a judge  may also  designate  a magistrate  to conduct



            hearings [and] to  submit to  a judge of  the court  proposed



            findings of fact."  



                      Since the  appeal was  frivolous in part,  we order



            payment of double costs.



                      Affirmed; double costs.
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