     Case: 13-31057      Document: 00512649531         Page: 1    Date Filed: 06/02/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-31057
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             June 2, 2014
S. P. DAVIS, SR.,
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

UNITED STATES OF AMERICA,

              Defendant - Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:06-CV-158


Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       S.P. Davis, Sr. (“Davis”) appeals the district court’s denial of his motions
to modify an installment-payment order and for a hearing. For the reasons
that follow, we AFFIRM the district court’s denial of Davis’s motions.
                                             I.
       Davis filed suit to recover payments made toward federal tax liabilities
assessed against him for the trust fund portion of unpaid employment taxes of




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                     No. 13-31057
three entities for which he was a board director. 1 On October 7, 2008, the
district court granted the government’s motion for summary judgment, finding
Davis jointly and severally liable for $3,152,652.85. After Davis unsuccessfully
appealed to this court and the Supreme Court denied his petition for writ of
certiorari, the government filed a motion for an installment-payment order and
the imposition of a ten-percent surcharge with the district court. On October
6, 2011, after denying two of Davis’s motions for oral argument on the issue,
the court granted the United States’ installment motion, ordering Davis to pay
$3,327 on a monthly basis. After Davis appealed, this court affirmed the
district court’s installment-payment order.
        On February 28, 2013, Davis filed a motion to modify the installment-
payment order based on what he describes as a “significant change in his
financial circumstances,” due primarily to the decline of his legal practice. He
also filed a motion for a hearing and a motion to stay the installment-payment
order. The district court denied his motions to stay the payments and for a
hearing on March 11, 2013, stating that “[t]he Court will review the record
once briefing on the Motion to Modify is complete and determine at the time if
a hearing would assist the Court.” On September 25, 2013, the court denied
Davis’s motion to modify, concluding that “Davis did not experience a
substantial change in income which would warrant a modification of the
Installment Payment Order.”
        Davis appeals, arguing that by failing to modify the installment-
payment order, the district court rendered it impossible for him to comply. He




   1 On August 16, 2002, the United States assessed Davis a total of $2,233,514.43 for
various tax periods in 1996, 1997, and 1998. For fuller versions of the underlying
proceedings, see Davis v. United States, 479 F. App’x 601 (5th Cir. 2012) (per curiam), and
Davis v. United States, 402 F. App’x 915 (5th Cir. 2010) (per curiam).
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                                  No. 13-31057
claims that the court erred by failing to consider his 2012 income, and by failing
to grant his requests for a hearing, which he asserts is statutorily required.
                                       II.
      “Because the Federal Debt Collection Procedures Act (FDCPA) accords
district courts broad discretion in issuing installment-payment orders, we
review for abuse of that discretion.” Davis, 479 F. App’x at 602; see also FTC
v. Nat’l Bus. Consultants, Inc., 376 F.3d 317, 321 (5th Cir. 2004) (applying
abuse of discretion standard for discretionary provision of FDCPA).
      Pursuant to the FDCPA, a district court may enter an installment-
payment order “if it is shown that the judgment debtor--(1) is receiving or will
receive substantial nonexempt disposable earnings from self employment that
are not subject to garnishment; or (2) is diverting or concealing substantial
earnings from any source, or property received in lieu of earnings.” 28 U.S.C.
§ 3204(a). But “[a]n order may not be issued under subsection (a) with respect
to any earnings of the debtor except nonexempt disposable earnings.” 28
U.S.C. § 3204(c)(2).
      The statute further provides that:
      In fixing the amount of the payments, the court shall take into
      consideration after a hearing, the income, resources, and
      reasonable requirements of the judgment debtor and the judgment
      debtor’s dependents, any other payments to be made in
      satisfaction of judgments against the judgment debtor, and the
      amount due on the judgment in favor of the United States.
28 U.S.C. § 3204(a). It also provides that “the court may modify” installment-
payment orders “upon a showing that the judgment debtor’s financial
circumstances have changed or that assets not previously disclosed by the
judgment debtor have been discovered.” 28 U.S.C. § 3204(b) (emphasis added).
      Davis’s main challenge to the district court’s denial of his motion to
modify is based on his contention that his income decreased significantly since
the original installment calculation. But the district court did not, as Davis
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                                      No. 13-31057
asserts, ignore his 2012 earnings in denying his motion. It noted that Davis’s
average income from 2008 to 2010 was $159,716. In comparison, his average
income from 2009 to 2011 was $158,794. “Based on these calculations,” the
court found “that Davis did not experience a substantial change in income
which would warrant a modification of the Installment Payment Order.”
        The district court’s decision to compare Davis’s three-year average
incomes was consistent with the way it originally calculated his monthly
payment amount, which this court affirmed in June 2012. Davis, 479 F. App’x
at 603–04. And while the district court order did not specifically mention
Davis’s 2012 earnings, 2 it commented on ways he could reduce expenses so as
to meet his monthly payment obligations:
        Davis continues to make spending choices which fail to indicate
        the necessity of a modification to this Court’s Order. Davis
        continues to provide his adult son with approximately $1,700 each
        month and provided what amounts to $1,406.50 each month to
        charitable organizations. This $3,100 each month would go a long
        way in helping Davis satisfy the monthly $3,327 he owes the
        United States.
Based on its review of his income (both current and historical) and expenses,
the court found that Davis was able to meet his payment schedule. We hold
that the district court did not abuse its discretion in finding that Davis failed
to show a substantial change in circumstances warranting a modification of
his payment plan.
        We also hold that the remainder of Davis’s appeal is either meritless or
foreclosed by our court’s previous rulings. Davis claims that the district court
erroneously considered amounts he paid in taxes as disposable income, and
improperly included in its average-income figure exempt retirement earnings.



   2The court previously granted Davis’s motion to enter as exhibits his 2012 U.S. Individual
Income Tax Return and 2012 U.S. Return of Partnership Income for his law practice.
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                                 No. 13-31057
But, as this court held in rejecting his previous appeal, Davis’s “arguments are
premised on an incorrect reading of the statute.” Id. at 603. Any error in
calculating his average income would not render the payment plan unlawful
because “[t]he requirement that a judgment debtor have ‘substantial
nonexempt disposable earnings’ merely preconditions the district court’s
authority to issue an installment-payment order; it does not delimit that
authority.” Id. Indeed, “the [district] court was not required to use 25% of
Davis’s income—or earnings—as its basis,” id. at 604, and could instead have
ordered any amount supported by the totality of his finances, so long as
substantial nonexempt disposable earnings were available.         We hold that
Davis’s challenges to the district court’s computation of his monthly-payment
amount are meritless.
      Finally, Davis argues that the district court erred by denying him
hearings (1) for determining the appropriate payment amounts, and (2) to show
that a modification was necessary based on changed financial circumstances.
He raises essentially the same arguments we rejected in his previous appeal.
In that appeal, this court held: “we see no merit in Davis’s contention that he
was entitled to oral argument in satisfaction of his right to due process.” Id.
(internal quotation marks and alterations omitted). “Davis . . . received all the
process he was due under [§ 3204(a)]” because “the district court explained it
would set argument, if needed, after the briefing was complete,” and then
“heard from both parties and considered the factors enumerated by § 3204(a)
in fixing the payment amounts.” Id. As before, the district court allowed both
parties to fully brief the motion for modification, allowed Davis to submit
evidence of a change in his financial condition, and considered the § 3204(a)
factors in its order denying Davis relief.     Because a district court is not
statutorily required to hold oral argument for a motion such as Davis’s, it did
not abuse its discretion by denying his motion for a hearing.
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                                No. 13-31057
                                     III.
      For the foregoing reasons, we AFFIRM the district court’s orders in their
entirety.




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