
USCA1 Opinion

	




        November 10, 1994       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1453                                 MICHAEL J. HAGGERT,                                Plaintiff, Appellant,                                          v.                        PHILIPS MEDICAL SYSTEMS, INC., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Michael Ponsor, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            Michael J. Haggert on brief pro se.            __________________            Loretta C.  Arsgett, Assistant  Attorney General,  Gary R.  Allen,            ___________________                                ______________        David English  Carmack and S.  Robert Lyons, Attorneys,  Tax Division,        ______________________     ________________        Department of Justice, on brief for appellees Philips Medical Systems,        Inc.,  Heritage  Bank for  Savings,  Ann McDonald,  Elaine  Dionne and        United States of America.            Ann S. Duross, Assistant General Counsel, Robert D.  McGillicuddy,            _____________                             _______________________        Senior Counsel, and Marta  W. Berkley, Counsel, on brief  for appellee                            _________________        Federal Deposit  Insurance Corporation  As Receiver for  Heritage Bank        for Savings.                                 ____________________                                 ____________________                                                Per Curiam.   Michael Haggert appeals the  district                      __________            court's  grant of  summary judgment  in  favor of  the United            States,  Philips Medical  Systems,  Inc., Heritage  Bank  for            Savings,  and  two  of   Heritage's  employees.    We  affirm            essentially for  the reasons given  by the district  court in            its decisions dated March 24, 1992 and March 24, 1994, adding            only the following comments.                        Haggert complains that  the district court did  not            address  his  allegation  that the  notice  of  levy  sent to            Heritage  Bank violated  certain  provisions of  the Internal            Revenue  Code  ("Code").   His  complaint  is without  merit,            however, since  the court  did address the  alleged statutory            violations.  It correctly concluded that the Internal Revenue            Service  ("IRS")  could  effect  a  levy  on  Haggert's  bank            accounts at Heritage  Bank by  sending the bank  a notice  of            levy.   See 26 U.S.C.   6331(b)  ("The term 'levy' as used in                    ___            this title includes the power of distraint and seizure by any            means."); IRS Reg.    301.6331-1(a)(1) ("Levy may be made  by            serving a notice of levy on any person in possession of . . .            property subject to levy, including . . .  bank accounts, . .            .  ."); see also Schiff  v. Simon &  Schuster, Inc., 780 F.2d                    ___ ____ ______     _______________________            210,  212  (2d Cir.  1985) (levy  on  property has  long been            effected  by serving a notice  of levy, and  so an employee's            argument that  the IRS could not levy on his wages by sending            a notice of levy to his employer was "absolutely meritless").                                         -2-            The differing  language in  section 6331(a) to  which Haggert            points  -- the  statute permits  levying  on the  property of            delinquent taxpayers  "by levy," but provides  for levying on            the salaries  of federal  employees  by "notice  of levy"  to            their employers --  is not meaningful in view of the law just            cited.  See  also Sims v.  United States,  359 U.S. 108,  113                    ___  ____ ____     _____________            (1959) (   6331(a)'s provision relating to  levy upon federal            employees' salaries was enacted specifically to subject those            salaries "to the same  collection procedures as are available            against all other taxpayers").                      The district court also considered  Haggert's other            claims of procedural irregularity.  It essentially determined            that  it  need  not   consider  those  claims  in  evaluating            Haggert's  suit against the bank.   As the  court noted, pre-            levy procedural requirements are imposed only on the IRS, and            the IRS had been dismissed from the suit.  We see no error in            the court's reasoning.   See, e.g., 26 U.S.C.    6331(a) (the                                     _________            Secretary  of the  Treasury must  wait a specified  number of            days  after  providing  the   taxpayer  with  notice  of  his            outstanding taxes  and demand  for payment before  levying on            the taxpayer's  property); id.  (d)(1) (the Secretary  of the                                       ___            Treasury  may  not  levy  on  the  property  of  a delinquent            taxpayer until the  taxpayer has been given  a written notice                                            ____________________            1.  Although 26 U.S.C.    6332(c) requires banks to surrender            of intent  to levy); id. (d)(4)  (describing what information                                 ___            a delinquent  taxpayer's property  "only after 21  days after            service  of levy,"  Haggert  has not  claimed  that the  bank            the notice of  intent to  levy must contain).1   Moreover,  a            failed to wait the full 21 days after receiving the notice of            levy before complying with the notice.                                           -3-            bank which has  received an  IRS notice of  levy must  comply            with the  levy, and has only two defenses -- that the bank is            not  in possession of the  property, or that  the property is            subject  to a  prior judicial attachment  or execution.   See                                                                      ___            United States  v. National  Bank of  Commerce, 472  U.S. 713,            _____________     ___________________________            722,  727 (1985); see 26  U.S.C.   6332(a)  ("[A]ny person in                              ___            possession of (or obligated  with respect to) property .  . .            upon which  a levy has been  made shall . .  . surrender such            property . .  . to  the Secretary [of  the Treasury],  except            such part of  the property . . .  as is, at the time  of such            demand,  subject  to an  attachment  or  execution under  any            judicial process.").  Thus,  any procedural errors  committed            by  the IRS  in serving  the notice  of  levy would  not have            excused  the bank  from  its obligation  to  comply with  the            notice of  levy, and the  district court could  grant summary            judgment   for  the  bank   without  first   considering  the            substantive merits of the alleged errors by the IRS.2                      Haggert also avers that  the United States has lost            its sovereignty, having  previously declared bankruptcy,  and            so could not be substituted for the individual IRS defendants            originally sued  by Haggert.   Since  Haggert did  not assert            this  claim below,  however,  he  has  waived it  on  appeal.                                            ____________________            2.  In passing,  we also  note that Haggert's  claims of  IRS            error were meritless.                                         -4-            United  States  v. Ocasio-Rivera,  991  F.2d 1,  3  (1st Cir.            ______________     _____________            1993).                        Next,  Haggert says  that  the points  made in  his            "affidavits" were never answered, so that summary judgment in            his favor was warranted.  Those affidavits did not attempt to            dispute any  material fact in  this case,  however, but  were            used  exclusively  to  argue Haggert's  case.    Accordingly,            summary  judgment  for  the  defendants was  proper.    See 6                                                                    ___            Moore's  Federal Practice Pt. 2,   56.22[1], at 56-746 to 748            _________________________            (1993 ed.) ("The affidavit is no place for ultimate facts and            conclusions of law, nor for argument of the party's cause.").                      Haggert's  remaining  claims  were either  resolved            correctly  by  the  district  court  or  are  in  any   event            meritless, and so they need not be further discussed here.                      Finally,  the  United  States  asks   us  to  award            sanctions of  $1,500 against  Haggert for filing  a frivolous            appeal.  In a  previous appeal by Haggert in a  related case,            we said that Haggert's arguments in support of his claim that            he was  not required  to pay  federal income  tax -- some  of            which  are  reasserted in  this  appeal  -- were  "meritless,            indeed silly on their face."  See In re Haggert, No. 92-1519,                                          ___ _____________            slip  op. at  10 (1st  Cir. Dec.  22, 1992)  (unpublished per            curiam).  Haggert's  claim that the IRS  had violated certain            Code  provisions  apparently was  not  made  in his  previous            appeal,  but, as  the district  court found,  that  claim was                                         -5-            unavailing against the  bank.  Nonetheless, Haggert  appealed            the judgment  in favor of the bank, yet, on appeal, failed to            describe any error  in that  finding.  He  also appealed  the            grant of  summary judgment for his  employer, Philips Medical            Systems,  Inc.,   despite  the   court's  citation  of   Code            provisions which expressly immunized  Philips from this suit.            Since Haggert should have known that his appeal had no chance            of success, sanctions are  warranted.  See E.H. Ashley  & Co.                                                   ___ __________________            v.  Wells Fargo Alarm Services, 907 F.2d 1274, 1280 (1st Cir.                __________________________            1990) (it is enough to find an appeal frivolous under Fed. R.            App. P. 38 if the appellant  "should have been aware that the                                          ______            appeal  had no  chance of  success") (emphasis  in original);            Lefebvre v.  Commissioner, 830 F.2d 417, 421  (1st Cir. 1987)            ________     ____________            (a pro se taxpayer "whose  assertions have been found totally            frivolous  below,  runs  the  risk of  substantially  harsher            appellate  sanctions [than  double  costs] if  the appeal  is            objectively  frivolous, i.e.,  without  any legal  or factual            basis").     In   view   of   Haggert's   present   financial            circumstances, however, we only grant damages of $300.                      Affirmed.   Damages of  $300 awarded to  the United                      ___________________________________________________            States in addition to ordinary costs.                               _____________________________________                                         -6-
