                    NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                      is not citable as precedent. It is a public record.


 United States Court of Appeals for the Federal Circuit


                                          05-5026

                                  TIMMY C. RIGGLE and
                                    KELLY A. RIGGLE,

                                                  Plaintiffs-Appellants,

                                             v.

                                     UNITED STATES,

                                                  Defendant- Appellee.

                              ___________________________

                              DECIDED: May 4, 2005
                              ___________________________


Before MICHEL, Chief Judge, RADER, and BRYSON, Circuit Judges.

PER CURIAM.

                                         DECISION

          Timmy C. and Kelly A. Riggle appeal from a decision of the United States Court

of Federal Claims dismissing their complaint for lack of subject matter jurisdiction. We

affirm.

                                      BACKGROUND

          On April 7, 2004, the Internal Revenue Service (“IRS”) sent the Riggles a notice

of deficiency for the 2000 tax year.       The deficiency was due in part to the IRS’s

unfavorable treatment of certain partnership income and losses reflected in the Riggles’
form 1040. On that same day the IRS sent Mr. Riggle a notice of final partnership

administrative adjustment. In the notice of deficiency, the IRS advised the Riggles that

they could contest the deficiency by filing a petition in the United States Tax Court within

90 days.    The notice of deficiency did not contain any reference to litigating a tax

dispute in either a United States district court or the Court of Federal Claims. In the

notice of final partnership administrative adjustment, the IRS advised Mr. Riggle of all

three options and explained that he must deposit the tax due before filing a petition with

either a district court or the Court of Federal Claims.

       The Riggles did not pay the deficiency or contest it in the Tax Court. Instead, the

Riggles filed a complaint in the Court of Federal Claims alleging that the IRS had

improperly disallowed their deductions and had violated their due process rights. Riggle

v. United States, No. 05-5026. The IRS moved to dismiss the Riggles’ claims for lack of

jurisdiction, and the Court of Federal Claims granted the motion, dismissing both claims.

This appeal followed.

                                       DISCUSSION

       The Tucker Act gives the Court of Federal Claims jurisdiction over claims

“against the United States founded either upon the Constitution, or any Act of Congress

or any regulation of an executive department . . . or for liquidated or unliquidated

damages not sounding in tort.” 28 U.S.C. § 1491. Because the jurisdiction of the Court

of Federal Claims is limited to actions for the recovery of money damages or unlawful

exactions, the court has jurisdiction to adjudicate a tax dispute only in the form of a tax

refund action.   See Shore v. United States, 9 F.3d 1524, 1526 (Fed. Cir. 1993);

Tonasket v. United States, 218 Ct. Cl. 709, 711 (Ct. Cl. 1978); see also Flora v. United




05-5026                                       2
States, 357 U.S. 63, 65 (1958) (same rule in actions brought in the district courts under

28 U.S.C. § 1346(a)). Thus, before litigating a tax dispute in the Court of Federal

Claims, the taxpayer must first pay the tax, submit a claim for a refund to the IRS, and

wait until the IRS either denies the claim or fails to respond to the claim within six

months. See 26 U.S.C. §§ 6532(a)(1), 7422(a); United States v. Williams, 514 U.S.

527, 533 (1995).

      The Riggles argue that the IRS consented to jurisdiction in the Court of Federal

Claims because the notice of deficiency gave the Court of Federal Claims the right to

hear their case. That argument fails not only because the notice of deficiency contains

no language conferring jurisdiction on the Court of Federal Claims but also, and more

importantly, because “no action of the parties can confer subject-matter jurisdiction

upon a federal court.” Ins. Corp. of Ir. v. Compagnie Des Bauxites De Guinee, 456 U.S.

694, 702 (1982).

      The Riggles argue that they were not required to pay the tax due before

contesting the deficiency, because prepayment was not required by the notice of

deficiency. That argument is also incorrect. The fact that the notice of deficiency did

not refer to the requirement that a taxpayer pay the claimed deficiency before suing for

a refund in the Court of Federal Claims does not override the statutory limitation on that

court’s jurisdiction. Moreover, nothing in the notice of deficiency suggested that suit

could be brought in the Court of Federal Claims without payment of the deficiency; in

fact, the notice of deficiency contained no reference at all to the Court of Federal

Claims. It referred instead to the Riggles’ right to contest the deficiency in the Tax




05-5026                                     3
Court, which does have jurisdiction to consider tax disputes before the amount in

dispute is remitted and a request for a refund is made. 26 U.S.C. § 6213.

       In their motion for reconsideration in the Court of Federal Claims, the Riggles

argued that the notice of final partnership administrative adjustment conferred

jurisdiction on the Court of Federal Claims. The court denied the motion, correctly

holding that the statutory requirement to make a payment to the IRS before filing suit

applies to their claim based on the notice of final partnership administrative adjustment

as well. See 26 U.S.C. § 6226(e).

       The Court of Federal Claims was also correct in holding that it lacked jurisdiction

to consider the Riggles’ due process violation claims. The due process clause of the

Fifth Amendment is not a money-mandating provision, and claims under that clause

therefore do not fall within the jurisdiction of the Court of Federal Claims under the

Tucker Act. See Murray v. United States, 817 F.2d 1580, 1582-83 (Fed. Cir. 1987).

The Riggles argue that Murray does not apply to their case because the IRS stipulated

to jurisdiction in the Court of Federal Claims. As noted above, however, the IRS could

not create jurisdiction in the Court of Federal Claims by stipulation, and in any event, we

find no indication that the IRS purported to enter into any such stipulation.

       The Riggles argue that if the Court of Federal Claims lacks jurisdiction over their

claims, they are left without legal recourse to contest the deficiency. We disagree. The

Riggles had 90 days from the date on the notice of deficiency to file a petition with the

United States Tax Court challenging the deficiency. Even though the time for filing a

challenge in that court has expired, the Riggles can still pay the deficiency, request a

refund, and proceed in the Court of Federal Claims if the IRS denies that request.




05-5026                                      4
      In their reply brief in this court the Riggles make additional arguments that were

not made in their opening brief or in the Court of Federal Claims. Arguments not made

in an opening brief are normally considered waived, as are arguments not made in the

court or tribunal whose order is under review. See, e.g., Hannon v. Dep’t of Justice,

234 F.3d 674, 680 (Fed. Cir. 2000) (arguments made after the opening appeal brief that

are not in the opening brief come too late to be considered); Caterpillar Inc. v. Sturman

Indus., Inc., 387 F.3d 1358, 1368 (Fed. Cir. 2004) (a party who fails to make an

argument at trial waives that argument on appeal). Because there are no exceptional

circumstances in this case warranting a departure from that general rule, we decline to

address the new arguments made for the first time in the Riggles’ reply brief.




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