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[NOT FOR PUBLICATION]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]
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Before
Torruella, Chief Judge,
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Cyr and Stahl, Circuit Judges.
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Joseph E. Simanonok on brief pro se.
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Russell F. Hilliard, Kimberly Kirkland, Upton, Sanders & Smith,
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on brief for Northeast Defendants.
Loretta C. Argrett, Assistant Attorney General, Gary R. Allen,
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Kenneth L. Greene and Randolph L. Hutter, Attorneys, Tax Division,
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Department of Justice, brief for federal appellees.
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Per Curiam. Joseph Simanonok appeals from the
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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
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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
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A. District Court's Failure to Reject Magistrate
Judge's Actions
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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.
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636(b)(1)(B), and the motion to amend for decision. See id.
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636(b)(1)(A); Pagano v. Frank, 983 F.2d 343, 346 (1st Cir.
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1993). The magistrate judge was not required to hold a
hearing on the Rule 12(b) motions, see Fed. R. Civ. P. 72(b);
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accord C. Wright, A. Miller & F. Elliott, 12 Federal Practice
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& Procedure 3076.7, at 56 (1995 Supp.), or to issue
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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).
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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.
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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
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Long v. United States, 972 F.2d 1174, 1183 (10th Cir.
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1992).1
B. Dismissal for Lack of Subject Matter
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Jurisdiction
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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
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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
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Department of Treasury, 960 F.2d 187, 188-89 (1st Cir. 1991)
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(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
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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
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Morris v. United States, 303 F.2d 533, 535 (1st Cir. 1962),
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cert. denied, 371 U.S. 827 (1962).
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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,
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e.g., Harrell v. United States, 13 F.3d 232, 234-35 (7th Cir.
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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
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Cir.), cert. denied, 494 U.S. 1082 (1990) (claims are deemed
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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
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Relief
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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,
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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
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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.
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825, 833 (D. Conn. 1994), appeal dismissed, 95-1 U.S.T.C.
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(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
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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.
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6323(f)(3).
III. Motion for Sanctions
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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.
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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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