No. 96-8041, Watts v. USA

The Order Granting Defendant’s Motion to Dismiss attached to the Order and Judgment
is not available electronically.
                   UNITED STATES COURT OF APPEALS
Filed 11/6/96
                                 TENTH CIRCUIT
                              _____________________

 MARVIN WATTS,

      Plaintiff-Appellant,

 v.                                                    No. 96-8041
                                                  (D.C. No. 95-CV-61-D)
 MICHAEL S. BIGELOW; TIMOTHY                          (D. Wyoming)
 TOWNES, individually; UNITED
 STATES OF AMERICA,

      Defendants-Appellees.
                          _____________________

                             ORDER AND JUDGMENT *
                              _____________________

Before BRORBY, EBEL and HENRY, Circuit Judges.
                      _____________________



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Mr. Watts, a pro se litigant, appeals the dismissal of his law suit. We

affirm.



      The Internal Revenue Service (IRS) levied on Mr. Watts' wages. Mr. Watts

then filed this suit challenging the validity of the procedures employed by the

IRS. Mr. Watts named two IRS employees as defendants. The gist of his

complaint, which was based upon 28 U.S.C. § 1361 (1994) ("district courts shall

have ... jurisdiction of any action in the nature of mandamus to compel ... an

employee of the United States or any agency ... to perform a duty owed to the

plaintiff"), was to require the employees to set aside the levy. Mr. Watts asserted

the named defendants improperly executed the notices of intent to levy and the

notice of levy by failing to sign them under penalty of perjury; defendants

improperly failed to release the levies; and finally, he asserted the notices did not

contain the required information about the levy process.



      Defendants moved to dismiss under Fed. R. Civ. P. 12 for lack of subject

matter jurisdiction and moved to substitute the United States as a defendant. The

district court substituted the United States as a defendant and dismissed the case.

The trial court concluded the acts of which Mr. Watts complained were taken by

the individual defendants in their official capacity and opined the United States


                                          -2-
was the only proper defendant. The trial court then concluded the mandamus

statute did not provide subject matter jurisdiction for Taxpayer's suit and

alternatively concluded that even if jurisdiction did exist, dismissal for failure to

state a claim would be appropriate because of the Anti-Injunction Act, which

forbids any "suit for the purpose of restraining the assessment or collection of any

tax." 26 U.S.C. § 7421(a) (1994). The trial court further concluded no mandamus

jurisdiction existed because Mr. Watts had failed to show he had a clear and

undisputable right to any relief.



      Mr. Watts appeals this judgment asserting, inter alia, the trial court

"appeared to be biased and prejudiced against the appellant and in favor of the

government"; as the individual defendants were operating outside the scope of

their employment, "the Justice Department had no authority to represent them" (p.

6); the trial court was "apparently convinced ... the collection of taxes is not

based on statutory law, but on discretion"; "most government employees have

absolutely no understanding of the laws they are ordered to enforce"; and Mr.

Watts basically asserts the trial court ignored the plain meaning of the applicable

statutes. Specifically, Mr. Watts criticizes the federal courts for "the flagrant

disregard and disrespect for the laws of the United States by the judiciary ... a

crime against the United States Constitution." He furthermore accuses the courts


                                          -3-
of violating the Code of Conduct by failing to preserve "the integrity and

independence of the judiciary."



      Mr. Watts misperceives the law. The district court in its ten-page Order

Granting Defendant's Motion to Dismiss patiently and correctly explained the

applicable law to Mr. Watts. Mr. Watts, in his brief to this court, offers no

authority specifically showing the legal analysis of the trial court to be incorrect.

Mr. Watts answers the trial court's reasoned analysis with emotional and false

charges against the trial court. Had Mr. Watts read the Supreme Court cases cited

by the trial court, possibly he would have realized the trial court was following

the law rather than following a dishonest path to exercise its prejudices against

him. Litigants, especially those who lose, often become emotional and convinced

dishonesty must exist simply because they have lost. As this case shows, litigants

sometimes lose because the law does not favor their position.



      The judgment of the trial court is AFFIRMED for substantially the same

reasons set forth in the Order Granting Defendant's Motion to Dismiss, a copy

thereof being attached.

                                        Entered for the Court:

                                        WADE BRORBY
                                        United States Circuit Judge

                                          -4-
-5-
