                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                      No. 08-1481
                                      __________

                                HAROLD JOHNSON,
                                        Appellant

                                           v.

                           UNITED STATES OF AMERICA
                                   __________

                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. Civil No. 07-cv-0935)
                      District Judge: Honorable J. William Ditter
                                      __________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 on March 26, 2010

                  Before: RENDELL and FUENTES, Circuit Judges,
                           and KUGLER, District Judge*.

                                (Filed: April 14, 2010)
                                      __________

                              OPINION OF THE COURT
                                    __________


__________________

    *Honorable Robert B. Kugler, Judge of the United States District Court for the
District of New Jersey, sitting by designation.
RENDELL, Circuit Judge.

       Harold Johnson filed a complaint in District Court challenging the entry of a

default judgment against him in a federal tax collection action. Johnson sought either a

declaratory judgment that the prior judgment was void, or relief from the prior judgment

under Federal Rule of Civil Procedure 60(b), based on his contention that the prior suit

was foreclosed by the statute of limitations. Johnson did not challenge the “lawfulness or

the amount” of the tax deficiency. A.34. The District Court granted the Government’s

motion to dismiss. We write only for the parties and assume their familiarity with the

factual and procedural history of this case.1

       Johnson urges that the District Court should have granted him relief from the

default judgment under Federal Rule of Civil Procedure 60(b). We review the District




   1
     On appeal, the Government challenges, for the first time, the District Court’s
jurisdiction, arguing that there has been no waiver of sovereign immunity. Johnson states
that jurisdiction is premised upon 28 U.S.C. § 2410. Supplemental Br. 1, A.32. We
conclude that the District Court did have jurisdiction because 28 U.S.C. § 2410(a) waives
sovereign immunity for suits to quiet title to property on which the United States has a
lien. Section 2410(b) requires that the “complaint or pleading . . . set forth with
particularity the nature of the interest or lien of the United States,” including “the identity
of the internal revenue office which filed the notice, and the date and place such notice of
lien was filed.” Here, Johnson brought suit to quiet title alleging that the Internal
Revenue Service has a “judgment lien” and sought the discharge and release of “any and
all liens and encumbrances of Plaintiff’s real and personal property.” A.31, 35. The
government argues that Johnson’s complaint does not identify with sufficient particularity
any lien held by the United States as required by 28 U.S.C. § 2410(b). This is an
argument regarding a pleading defect that is waived on appeal as it was not raised before
the District Court. We also note that this could have been cured by an amended
complaint if it had been raised in the District Court.

                                                2
Court’s decision for abuse of discretion. Harris v. Martin, 834 F.2d 361, 364 (3d Cir.

1987). Rule 60(b) states the following reasons for relief:

              (1) mistake, inadvertence, surprise, or excusable neglect;
              (2) newly discovered evidence that, with reasonable diligence,
              could not have been discovered in time to move for a new
              trial under Rule 59(b);
              (3) fraud (whether previously called intrinsic or extrinsic),
              misrepresentation, or misconduct by an opposing party;
              (4) the judgment is void;
              (5) the judgment has been satisfied, released or discharged; it
              is based on an earlier judgment that has been reversed or
              vacated; or applying it prospectively is no longer equitable; or
              (6) any other reason that justifies relief.

       Johnson does not specify under which provision 2 of Federal Rule of Civil

Procedure 60(b) he seeks relief, but urges that he meets the “exceptional circumstances”

requirement, which applies to Rule 60(b)(6). Appellant’s Br. 15-16, 24-25 (citing Budget

Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir. 2008)). We will assume, therefore, that

Johnson seeks relief under Rule 60(b)(6).

       The District Court relied on a test for granting relief from a default judgment that

we established without referring to Rule 60(b). Emasco Ins. Co. v. Sambrick, 834 F.2d

71, 73 (3d Cir. 1987); see also Budget Blinds, 536 F.3d at 257. Under Emasco, a court

must consider “(1) whether lifting the default would prejudice the plaintiff; (2) whether




   2
    Johnson is foreclosed from seeking relief under Rule 60(b)(1), (2), and (3) because
Rule 60(c)(1) requires motions for relief under those provisions to be filed within a year
after the entry of the default judgment. Johnson’s motion was filed nearly four years after
the default judgment was entered.

                                             3
the defendant has a prima facie meritorious defense; (3) whether the defaulting

defendant’s conduct is excusable or culpable; and (4) the effectiveness of alternative

sanctions.” 3 Id. However, after the District Court’s opinion in this case was written, we

clarified that the Emasco Court described the standard for evaluating motions brought

under Rule 60(b)(1) and that Emasco’s test is inapplicable to a Rule 60(b)(6) motion.

Budget Blinds, Inc., 536 F.3d at 257-58.

       Instead, a litigant seeking relief under Rule 60(b)(6) must show that

“extraordinary circumstances” exist, which requires a showing of “an extreme and

unexpected hardship.” Budget Blinds, Inc., 536 F.3d at 255 (quotations omitted). In

Budget Blinds we noted that, when a court is deciding whether or not to vacate another

court’s judgment, as is the case here, the “circumstances must be even more

‘extraordinary’ because of the additional interest in comity among the federal district

courts.” Id. at 252. Johnson alleges that the mere existence of an IRS lien satisfies this

requirement as it “impairs the ability of an individual to qualify as credit-worthy for most,

if not all, major purchase necessities.” Appellant’s Br. 25. However, Johnson makes no

argument as to why this hardship was “unexpected,” as he does not contest the lawfulness

or the amount of the tax assessment, nor does he explain why he did not respond to the




   3
    Johnson is correct that the District Court did not properly consider the Emasco factors
because it based its decision solely on one factor, but the Emasco test is not the proper
standard to apply to a motion brought under Rule 60(b)(6). Budget Blinds, Inc., 536 F.3d
at 257-58.

                                              4
initial suit before the default judgment was entered. We have noted that “extraordinary

circumstances rarely exist when a party seeks relief from a judgment that resulted from

the party’s deliberate choices.” Budget Blinds, 536 F.3d at 255. Therefore, because we

find that Johnson did not demonstrate extraordinary circumstances, we will AFFIRM the

District Court’s dismissal of his suit requesting relief from a default judgment under

Rule 60(b).




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