
USCA1 Opinion

	




          June 10, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1027                                             JONATHAN S. HAGGERT,                                Plaintiff, Appellant,                                          v.                                 BEN HAMLIN, ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ___________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               Jonathan S. Haggert, on brief pro se.               ___________________               Jonathan B. Huntington and Eaton, Peabody, Bradford & Veague               ______________________     _________________________________          on brief for appellees.                                  __________________                                  __________________                      Per  Curiam.      Jonathan  B.  Haggert  appeals  a                      ___________            district  court order granting  appellees' motion for summary            judgment.  We affirm.                                I.  Background                                    __________                      Haggert sued  the appellees,  who are employees  of            Haggert's employer, Guilford of Maine, seeking to enjoin them            from complying with an  Internal Revenue Service (IRS) notice            of  levy received by Guilford.  The notice of levy instructed            Guilford to remit a  certain, non-exempt portion of Haggert's            wages directly to the IRS to satisfy unpaid income taxes owed            by Haggert.   After  Haggert filed suit,  Guilford apparently            began complying with the notice of levy.                       Haggert filed his suit  in state court, serving the            appellees  with  the  summons  and complaint  on  August  26,            1993.1  The appellees removed the action to  federal district            court on September 24,  alleging that Haggert was challenging            the levy  procedure established in the  Internal Revenue Code            and   that   the  court   therefore   had  federal   question                                            ____________________            1.  In  his  brief, Haggert  says  that  appellees failed  to            timely answer  his complaint.   That argument  appears to  be            based on  Haggert's belief  that he served  the complaint  on            appellees on or  about August 9, 1993, when he unsuccessfully            attempted  to have  them sign  a receipt  for the  complaint,            rather than on August 26, when the summons and complaint were            served together on appellees as required under Maine R.  Civ.            P.  4(d).   Since Haggert  acknowledges that  appellees filed            their answer on or  about September 8, 1993 (the  record does            not show when the  answer was filed), we conclude  that their            answer was timely.   See  Maine R. Civ.  P. 12(a)  (requiring                                 ___            defendants to serve their answer within 20 days after service            of the summons and complaint).                                         -2-            jurisdiction  under  28 U.S.C.    1331.    They also  filed a            motion for summary judgment, claiming that they were required            by law to  comply with the notice of levy  and that they were            immune from being sued by Haggert for their compliance.              Haggert  filed a  motion for  remand on  the ground  that the            appellees' notice  of removal was untimely.2   In affidavits,            he  asserted that he  had given a  copy of the  complaint "in            hand" to the  appellees on  August 9, well  over thirty  days            before they filed their notice  of removal.  See 28 U.S.C.                                                            ___            1446(b) ("The notice of  removal . . . shall  be filed within            thirty  days  after the  receipt  by  the defendant,  through            service  or otherwise,  of  a copy  of  the initial  pleading            setting  forth the claim for relief upon which such action or            proceeding is  based, . . .  .").  Without denying  that they            had received  the complaint,  the appellees argued  that some            cases held that  only proper service of process triggered the            removal period under section 1446(b).   Because they had  not            been served until August  26, they claimed that their  notice            of removal on September 24 was timely.  They also argued that            Haggert's affidavits did not clearly state that the appellees            had received a  copy of the complaint,  but indicated instead            that  the appellees had refused to accept a proffered copy of            the complaint.                                            ____________________            2.  Haggert has  also argued  that the district  court lacked            jurisdiction  but, for  reasons  explained below,  this issue            does not alter the outcome and need not be resolved.                                         -3-                                          3                      The  district court  denied  Haggert's  motion  for            remand,  and subsequently granted  the appellees'  motion for            summary judgment.                                  II.  Discussion                                     __________                      We need not determine  whether it is proper service            or receipt of the complaint that triggers the  removal period            under section 1446(b), or  whether the appellees' removal was            timely  here.   As we  explain, Haggert  stands no  chance of            success in any  court of law.  Even if  we ordered remand, we            are certain that the state court would promptly grant summary            judgment for the appellees.  For that reason, remand would be            unquestionably  futile and is not required.  Cf. Bell v. City                                                         ___ ____    ____            of Kellogg,  922 F.2d 1418, 1424-25 (9th  Cir. 1991) (despite            __________            the district court's lack of  jurisdiction over the case once            it  had determined  that  the appellants  lacked standing  to            pursue their federal  claims, the court of appeals found that            the  district court had  properly resolved the  merits of the            remaining state claim; the court was "certain" that the state            court  would  have dismissed  the  action  due to  appellees'            "fatal  failure" to  meet  state  statutory prerequisites  to            suit, and so the district court's resolution of that question            prevented "any  further waste  of valuable judicial  time and            resources").                      Turning  to  the  merits,  it  is  clear  that  the            district court  properly granted  the  appellees' motion  for                                         -4-                                          4            summary  judgment.  It has been long established that the IRS            may constitutionally satisfy outstanding income taxes  by way            of nonjudicial, administrative levy under 26 U.S.C.   6331 et            seq.  See  United States  v. National Bank  of Commerce,  472                  ___  _____________     __________________________            U.S. 713, 720-21 (1985); Christensen v. United States, 733 F.                                     ___________    _____________            Supp.  844 (D.N.J. 1990) (citing the  cases), aff'd, 925 F.2d                                                          _____            416 (3d Cir.  1991) (table).   Custodians of property  levied            upon by  the IRS must comply with the notice of levy; if they            do not, they become "liable in [their] own person and estate"            to  the  government for  the sum  in  question and  may incur            further penalty as  well.  See 26 U.S.C.    6332(d)(1) & (2);                                       ___            National  Bank of  Commerce,  472 U.S.  at 721.   If  they do            ___________________________            comply,  however,  they  are   immunized  from  liability  to            delinquent taxpayers for delivering such  taxpayers' property            to  the  IRS.    Id.  (citing  the  statutory  language,  now                             ___            contained in 26 U.S.C.   6332(e), which discharges the person            honoring  the levy "from  any obligation or  liability to the            delinquent  taxpayer with  respect  to such  property  . .  .            arising  from such  surrender  or payment").   Custodians  of            property levied upon have  only two defenses:  that  they are            not  in possession of the  property, or that  the property is            subject  to a prior judicial attachment or execution.  Id. at                                                                   ___            722,  727;  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                                         -5-                                          5            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.").                        Haggert   does  not   dispute  that   Guilford  was            obligated  to pay  him his  wages; he  does not  dispute that            Guilford received  an IRS notice of  levy, directing Guilford            to remit to the IRS certain, non-exempt portions of the wages            which  Guilford owed to Haggert;3 he does not allege that his            wages  were  subject  to   a  prior  judicial  attachment  or            execution.   Thus,  there is  no  question that  Guilford had            "possession of (or [was]  obligated with respect to property)            . . .  upon which a levy has been made,"  and was required to            surrender  that  property to  the IRS.    See Sims  v. United                                                      ___ ____     ______            States, 359  U.S. 108,  110-11 (1959) ("accrued  salaries are            ______            property  . . . subject to levy"; state auditor, who deducted            taxes from  state employees' salaries and  issued warrants to            pay such salaries, was  a person "obligated with respect  to"            those salaries under  26 U.S.C.    6332(a)).   Those are  the            material   facts  in   this   case;   they  are   undisputed.            Accordingly, Guilford  had no choice  but to comply  with the            notice  of levy, its employees may not be enjoined from doing                                            ____________________            3.  As noted above, the appellees began remitting portions of            Haggert's wages to the IRS after Haggert filed suit.  Haggert            has  not alleged that the  sums remitted to  the IRS included            exempt portions of his wages.                                         -6-                                          6            so or be sued by Haggert for damages for having  done so, and            the district  court  correctly granted  summary  judgment  in            appellees'  favor.   See Burroughs  v. Wallingford,  780 F.2d                                 ___ _________     ___________            502,  503 (5th  Cir.  1986) (affirming  the district  court's            dismissal of  delinquent taxpayers' suit against employees of            the  taxpayers' employer  who  had complied  with tax  levies            ordering  payment of a portion of the taxpayers' wages to the            IRS).                        On  appeal, Haggert  makes  certain arguments  that            challenge  the  levy  procedure,  the income  tax  system  as            applied to him, or the IRS's compliance with other provisions            of  the tax code or other statutes.  Strictly speaking, those            arguments are not relevant to the present action which  seeks            only to prevent the appellees  from complying with the notice            of levy despite a  statutory mandate that Guilford do  so and            statutory immunity  from  liability to  Haggert.    Haggert's            arguments  are  inappropriate  in  an  action  against  these                                                                    _____            appellees, see id. at 503 (arguments challenging the tax levy                       ___ ___            are  more  appropriately brought  in  an  action against  the            government), and  so we  need not consider  his arguments  in            order to affirm the district court's decision.  See Schiff v.                                                            ___ ______            Simon  & Schuster,  Inc., 780  F.2d 210,  212 (2d  Cir. 1985)            ________________________            ("the  fact  that  appellant  disputes the  validity  of  the            underlying  tax   assessment  does  not   alter  [appellee's]            obligation to honor the levy, . . . .").                                           -7-                                          7                      Since the appellees seek attorneys' fees and double            costs, however, we  note that some of Haggert's  arguments or            close variants thereon have been rejected by the courts, most            of them  long ago, and that others  are either based on false            premises or misreadings of  the law or are just  plain wrong.            In  other words,  none  has any  merit.   We  recognize  that            Haggert raised legitimate fact  issues relating to the remand            question.  Nonetheless, even if  we had found the  appellees'            notice of  removal to have  been untimely, resolution  of the            merits of this case in favor of the appellees was inevitable.            Precedent was overwhelmingly  against Haggert's suit;  he had            no ground for relief against these appellees, as the district            court   explained  before   Haggert   brought   his   appeal.            Therefore, his  appeal was frivolous  under Fed. R.  App. 38.            See E.H. Ashley & Co. v. Wells Fargo Alarm Services, 907 F.2d            ___ _________________    __________________________            1274, 1280 (1st Cir. 1990).                      Accordingly, we grant appellees' request for double            costs.   Kelly v.  United States, 789  F.2d 94, 98  (1st Cir.                     _____     _____________            1986) (awarding double  costs against a  pro se taxpayer  for            bringing a frivolous appeal);  Sullivan v. United States, 788                                           ________    _____________            F.2d 813, 816 (1st  Cir. 1986) (same).4  We  deny the request            for attorneys' fees.                                            ____________________            4.  We  hereby deny Haggert's motion for oral argument on the            question of sanctions.                                         -8-                                          8                      Affirmed.  Double costs  are awarded to appellees.                       __________________________________________________                                         -9-                                          9
