
USCA1 Opinion

	




          September 13, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2105                                 JOSEPH E. SIMANONOK,                                Plaintiff, Appellant,                                          v.                          UNITED STATES OF AMERICA, ET AL.,                                Defendants, Appellees.                                 ____________________                     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.                                           ______________                                 ____________________            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).                                           ___                                         -3-            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                                            ____________________            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).            ______                                         -4-            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                                            ____________________            2.  In  any  event, this  claim  was  never  asserted in  the            complaint.                                         -5-            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                                         -6-            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.                                         -7-            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                                         -8-            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.                      _______________________                                         -9-
