10-4933-cv
 Maniolos v. United States

                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 2nd day
 of May, two thousand twelve.

 Present:
          ROBERT A. KATZMANN,
          BARRINGTON D. PARKER,
          RICHARD C. WESLEY,
                      Circuit Judges.
 ________________________________________________

 BERTHA ELIZABETH MANIOLOS

            Plaintiff-Appellant,

                   v.                                            No. 10-4933-cv

 UNITED STATES OF AMERICA

            Defendant-Appellee.

 ________________________________________________

 For Plaintiff-Appellant:                 CARLTON M. SMITH, Director, Benjamin N. Cardozo
                                          School of Law Tax Clinic, New York, N.Y.

 For Defendant-Appellee:                  JAIMIE LEESER NAWADAY, Assistant United States
                                          Attorney (Benjamin H. Torrance, Assistant United
                                          States Attorney, on the brief), for Preet Bharara, United
                                          States Attorney for the Southern District of New York,
                                          New York. N.Y.
       Appeal from the United States District Court for the Southern District of New York
(Peck, Mag.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Plaintiff-Appellant Bertha Elizabeth Maniolos appeals from the October 7, 2010

judgment of the United States District Court for the Southern District of New York (Peck,

Mag.),1 following an October 4, 2010 Opinion and Order granting the motion of Defendant-

Appellee the United States to dismiss Maniolos’s Complaint for failure to state a claim. In this

action, Maniolos contends that the United States wrongfully withheld from her a $300 payment

to which she was entitled under the Economic Stimulus Act of 2008 (“ESA”), Pub. L. No. 110-

185, 122 Stat. 613 (Feb. 13, 2008) (codified at I.R.C. § 6428). We presume the parties’

familiarity with the facts and procedural history of this case, as well as with the issues on appeal.

       We review de novo a district court’s dismissal of a complaint for failure to state a claim

upon which relief can be granted, “accepting all factual allegations in the complaint as true, and

drawing all reasonable inferences in the plaintiff’s favor.” Holmes v. Grubman, 

,

335 (2d Cir. 2009) (internal quotation marks omitted). “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 

, 1949 (2009) (internal quotation marks

omitted).




       1
        The parties consented to assignment of this case for all purposes to the magistrate. See
28 U.S.C. § 636(c).

                                                  2
       This appeal was heard by the Court in tandem with a related but not formally

consolidated action, Sarmiento v. United States, Nos. 11-3752-cv(L), 11-4495(XAP), which we

resolve by a separate Opinion filed simultaneously with this summary order. For the reasons

expressed in that Opinion, we conclude that all of the arguments Maniolos makes on appeal are

without merit and affirm the judgment of the district court. Notably, as we hold in Sarmiento,

payments made to taxpayers under the ESA “constitute tax refunds under the OIC agreements’

additional consideration provision” and “tax refunds made pursuant to the ESA apply to the 2007

tax year.” Id., slip op. at 4 (2d Cir. May 1, 2012) (brackets and internal quotations omitted).

Accordingly, the judgment of the district court is hereby AFFIRMED.

                                      FOR THE COURT:
                                      CATHERINE O’HAGAN WOLFE, CLERK




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