     Case: 11-10513     Document: 00511686297         Page: 1     Date Filed: 12/06/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         December 6, 2011

                                     No. 11-10513                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



HERBERT FLETCHER,

                                                  Plaintiff-Appellant
v.

UNITED STATES OF AMERICA,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:10-CV-2018


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        On June 14, 2010, the Internal Revenue Service issued Plaintiff–Appellant
Herbert Fletcher a notice of deficiency regarding his 2007 income taxes.
Fletcher responded by filing a pro se suit in Texas state court seeking an
injunction to prevent Defendant–Appellee United States of America from
collecting the taxes and a declaratory judgment that he was not required to pay
his 2007 income taxes. The United States removed to district court and moved


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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to dismiss. The district court dismissed Fletcher’s suit for failing to comply with
the requirements of the Internal Revenue Code’s Anti-Injunction Act, as well as
the Declaratory Judgment Act. Fletcher now appeals the removal of his case
from state court and its dismissal. We affirm.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       On June 14, 2010, the Internal Revenue Service (“IRS”) issued a notice of
deficiency (the “Notice”) to Herbert Fletcher (“Fletcher” or “Appellant”) for his
2007 income taxes in the amount of $15,111.00. The Notice included additions
of $3,399.98 for failing to file a timely tax return under 26 U.S.C. § 6651(a)(1),
$687.75 for failing to pay his estimated taxes under 26 U.S.C. § 6654(a), and
$1,813.52 for failing to pay his taxes under 26 U.S.C. § 6651(a)(2). The Notice
made clear that Fletcher could contest this determination in advance of making
any payments by filing a petition in the United States Tax Court within 90 days
of receipt of the Notice, giving Fletcher until September 13, 2010, to contest the
IRS’s determination. The Notice also stated that if Fletcher did not file a
petition within 90 days or waive his right to petition, then the IRS would assess
the deficiency and begin to bill him.
       On September 8, 2010, Fletcher filed a pro se action in the Judicial District
Court of Kaufman County, Texas, against the United States and the United
States of America (on appeal, “the United States” or “Appellee”).                        In his
complaint, Fletcher argued that because “‘taxpayer’ means ‘fiduciary’” and he
never entered into a trust agreement with the federal government, he could not
be taxed. As relief, Fletcher sought an injunction against the United States to
prevent collection of his 2007 income taxes, as well as a declaratory judgment
that “Fletcher owes nothing in response to the [IRS]’ claims.”1 Fletcher also


       1
         Meanwhile, since Fletcher had not filed a petition in the Tax Court within the 90 day
period for contesting tax deficiencies, the IRS proceeded assessed his deficiency at $23,849.46,
including interest, as well as failure-to-pay penalties for all three of his violations. Fletcher

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argued that this case was governed by the law of trusts, and because trust law
is an issue of state law, there was no federal jurisdiction over his case making
removal to federal district court impermissible.
       On October 6, 2010, the United States removed Fletcher’s case from state
court to the United States District Court for the Northern District of Texas,
pursuant to 28 U.S.C. §§ 1441, 1442, and 1446. After removing, the United
States filed a motion to extend its time to respond to Fletcher, which was
granted by the assigned magistrate judge. On October 27, 2010, Fletcher filed
three motions simultaneously seeking to remand the case to state court, strike
the United State’ motion to extend, and to prevent the use of a magistrate judge.
On November 1, 2010, the district court unfiled these motions for failing to
comply with Federal Rule of Civil Procedure 11(a), as Fletcher had failed to
properly sign them. See FED. R. CIV. P. 11(a) (“Every . . . written motion . . . must
be signed . . . by a party personally if the party is unrepresented.”). The district
court also “admonish[ed] [Fletcher], that after further review of his motions, they
appear[ed] to be devoid of merit and [were] frivolous,” warning Fletcher that if
“he cho[se] to re-file them, he could subject himself to sanctions.” Undeterred by
the district court’s warning, Fletcher would re-file two of these motions, this time
with proper signatures, along with a new third motion, on January 20, 2011.
       Prior to this, however, on December 14, 2010, the United States moved to
dismiss Fletcher’s complaint for want of subject matter jurisdiction, arguing that
Fletcher’s suit sought an injunction in violation of the Anti-Injunction Act of the




filed for a temporary injunction to preclude assessment of the deficiency in the United States
District Court for the Northern District of Texas, arguing that he was not a taxpayer and so
any collection against him would be illegal. The district court denied Fletcher’s motion for a
temporary injunction on grounds that he did not meet any of the prerequisites for that relief.
Fletcher appealed to this court, but we dismissed his appeal for want of prosecution on April
27, 2011. Fletcher’s subsequent petition for a writ of certiorari was denied by the Supreme
Court on October 3, 2011.

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Internal Revenue Code, 26 U.S.C. § 7421(a),2 and a declaratory judgment in
violation of the Declaratory Judgment Act, 28 U.S.C. § 2201(a).3 The United
States contended, in essence, that sovereign immunity barred Fletcher’s suit, as
Fletcher had not met the prerequisites required for filing a refund action, the
sole procedure by which the United States has consented to be sued for the
repayment of improperly assessed taxes.
       Fletcher moved again for a default judgment in response, arguing that the
United States’ motion to dismiss was untimely because he did not consent to use
of “non-judicial decision-makers” and thus the magistrate judge could not grant
the United States’ motion to extend its time to filed. Fletcher also filed a further
motion to strike the United States’ motion to dismiss, again arguing that he did
not consent to the use of a magistrate judge. Along with this motion, Fletcher
submitted a draft order to the court in which he implied that the government
had engaged in “criminal violations” against him and that the district court
judge and magistrate judge had colluded in “harrass[ing] [and] intimidat[ing]”
him. The United States responded to Fletcher’s motions as being frivolous and
requested that the district court grant it relief from having to respond to
Fletcher’s repeated motions.

       2
           The statute provides, in relevant portion, that:
       No suit or proceeding shall be maintained in any court for the recovery of any
       internal revenue tax alleged to have been erroneously or illegally assessed or
       collected, or of any penalty claimed to have been collected without authority, or
       of any sum alleged to have been excessive or in any manner wrongfully
       collected, until a claim for refund or credit has been duly filed with the
       Secretary, according to the provisions of law in that regard, and the regulations
       of the Secretary established in pursuance thereof.
26 U.S.C. § 7422(a).
       3
        The statute provides that: “In a case of actual controversy within its jurisdiction,
except with respect to Federal taxes . . . , any court of the United States, upon the filing of an
appropriate pleading, may declare the rights and other legal relations of any interested party
seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C.
§ 2201(a) (emphasis added).

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      Fletcher continued to file more motions, however. On January 20, 2011,
Fletcher re-filed two of the motions that had been unfiled by the district court
in late October, along with a new third motion. First, Fletcher filed still another
motion to strike the United States’ motion to dismiss, renewing his standing
objection to the use of “non-judicial decision-makers” and arguing, it appears,
that either the United States itself or the Department of Justice lacked
“signature authority” to issue the motions filed against him. Second, Fletcher
filed a motion to remand his case to state court on grounds that there was no
federal jurisdiction over his case, as “‘[f]ederal tax law’ is trust law [and] trust
law is state law.’” (emphasis omitted). Third, Fletcher filed a motion contesting
the United States’ request to be excused from responding to Fletcher’s pleadings,
describing the United States’ motion as being “facially nuts.” Fletcher also
contended that the Anti-Injunction Act did not apply to him as he is not a
“taxpayer,” describing its requirement that he pursue his tax claims through a
refund suit as “nuts on its face.” The United States replied to all three motions,
reasserting that removal jurisdiction was proper and that Fletcher’s filings were
frivolous and procedurally improper.
      The district court granted the United States’ motion to dismiss on March
22, 2011. The court found that the United States had consented to suit for
improperly assessed taxes, but only under the particular conditions outlined
under 26 U.S.C. § 7422. The district court observed that Fletcher had failed to
meet these prerequisites and so the court was without power to hear his claims.
The court likewise rejected federal question jurisdiction under 28 U.S.C. § 1331,
as § 1331 does not constitute a waiver of the United States’ sovereign immunity.
The court also declined to exercise subject matter jurisdiction based upon
Fletcher’s request for equitable, non-monetary relief because such jurisdiction
is barred by the Internal Revenue Code’s Anti-Injunction Act and Declaratory



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Judgment Act. The district court also denied all of Fletcher’s outstanding
motions, include the three motions submitted on January 20, 2011.
        On May 18, 2011, Fletcher timely appealed the district court’s dismissal.
While Fletcher’s brief contains a range of interrelated challenges and claims,
they can be reduced to two fundamental assertions. First, Fletcher argues that
the district court improperly rejected his motion to remand his case to state
court because removal of his case to federal court was improper. Second,
Fletcher contends that the district court’s dismissal of his case was incorrect.
                                II. DISCUSSION
A.      Fletcher’s Motion to Remand
        We first address whether the district court’s denial of Fletcher’s motion to
remand was proper. “[A] district court’s denial of [a] motion to remand, the
propriety of removal under the various governing statutes [including 28 U.S.C.
§ 1442], and the existence of subject-matter jurisdiction . . . are all interrelated
questions of law subject to de novo review.” Oviedo v. Hallbauer, 655 F.3d 419,
422 (5th Cir. 2011). We construe the briefs of pro se litigants like Fletcher more
liberally than those of litigants represented by counsel and afford them “all
reasonable inferences which can be drawn from them.” Williams v. Valenti, 432
F. App’x 298, 303 (5th Cir. 2011) (internal quotations and citation omitted).
        Under 28 U.S.C. § 1442(a)(1), “[t]he United States or any agency
thereof . . . sued in an official or individual capacity for any act under color of
such office or on account of any right, title or authority claimed under any Act
of Congress for . . . the collection of the revenue” may remove a civil action
commenced in state court to the proper district court.             See Arizona v.
Manypenny, 451 U.S. 232, 242 (1981) (“[T]his Court has held that the right of
removal is absolute for conduct performed under color of federal office, and has
insisted that the policy favoring removal ‘should not be frustrated by a narrow,
grudging interpretation of § 1442(a)(1).’” (quoting Willingham v. Morgan, 395

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U.S. 402, 407 (1969))). This language is straightforward: Where the United
States is sued in state court for an act under the color of its office involving the
collection of revenues, it may remove the suit to federal district court.
        Fletcher’s response to this seemingly unambiguous language is to assert
that he is only nominally the plaintiff in this suit. Accordingly to Fletcher, it is
the United States who is actually the de facto plaintiff as it is the “debt collector”
seeking to assess his tax deficiencies. Unfortunately for Fletcher, it was he who
initially filed a state court action complaint seeking injunctive and declaratory
relief against the United States. See Cavallini v. State Farm Mut. Auto Ins. Co.,
44 F.3d 256, 264 (5th Cir. 1995) (removal jurisdiction is determined on the basis
of the claims in the state court complaint at the time of removal). Thus,
Fletcher’s contrary notions aside, he was the plaintiff in his state court suit and
the United States, as the defendant, had the power to remove the case from
Texas court to federal court under § 1442(a)(1).4 We affirm the district court’s
denial of Fletcher’s motion to remand.
B.      Dismissal of Fletcher’s Suit
        We now turn to the dismissal of Fletcher’s suit. This Court reviews claims
of sovereign immunity de novo. See Jacobs v. Nat’l Drug Intelligence Ctr., 548
F.3d 375, 377 (5th Cir. 2008). “Absent a waiver, sovereign immunity shields the
Federal Government and its agencies from suit. Sovereign immunity is
jurisdictional in nature. Indeed, the ‘terms of [the United States’] consent to be
sued in any court define that court’s jurisdiction to entertain the suit.’” F.D.I.C.
v. Meyer, 510 U.S. 471, 475 (1994) (quoting United States v. Sherwood, 312 U.S.
584, 586 (1941)) (citations omitted, alteration in original). A “guiding principle
is that waivers of sovereign immunity should be narrowly construed in favor of


        4
        Fletcher also contends that there is no federal question or diversity jurisdiction. Since
we find that there was removal jurisdiction under § 1442, we do not address these additional
issues.

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the United States.” In re Supreme Beef Processors, Inc., 468 F.3d 248, 253 (5th
Cir. 2006); see also United States v. Nordic Vill. Inc., 503 U.S. 30, 34 (1992)
(noting “the traditional principle that the Government’s consent to be sued must
be construed strictly in favor of the sovereign . . . and not enlarge[d] . . . beyond
what the language [of the statute] requires”) (internal quotations and citations
omitted).
      The district courts have jurisdiction over “[a]ny civil action against the
United States for the recovery of any internal-revenue tax alleged to have been
erroneously or illegally assessed or collected, or any penalty claimed to have
been collected without authority or any sum alleged to have been excessive or in
any manner wrongfully collected under the internal-revenue laws,” under 28
U.S.C. § 1346(a)(1). However, this waiver of the United States’ sovereign
immunity is subject to additional conditions set forth in Internal Revenue Code’s
Anti-Injunction Act, 26 U.S.C. § 7422(a). See United States v. Dalm, 494 U.S.
596, 601 (1990) (“Despite its spacious terms, § 1346(a)(1) must be read in
conformity with other statutory provisions which qualify a taxpayer’s right to
bring a refund suit upon compliance with certain conditions.            The first is
§ 7422(a), which . . . limits a taxpayer’s right to bring a refund suit . . . .”); see
also 26 U.S.C. § 6532(a) (imposing additional conditions on suits brought under
§ 7422(a)). The Supreme Court has “interpreted the principal purpose of
[§ 7422(a)] to be the protection of the Government’s need to assess and collect
taxes as expeditiously as possible with a minimum of preenforcement judicial
interference, ‘and to require that the legal right to the disputed sums be
determined in a suit for refund.’” Bob Jones Univ. v. Simon, 416 U.S. 725
736–737 (1974) (quoting Enochs v. Williams Packing & Navigation Co., 370 U.S.
1, 7 (1962)). Under § 7422(a), before a taxpayer can bring a refund suit, he or
she must first fully pay the assessed tax, file an administrative claim for refund



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with the IRS, and wait until either the IRS denies the claim or six months have
expired since filing the administrative claim. See 26 U.S.C. §§ 6532(a), 7422(a).
        Fletcher has not pleaded or provided any evidence that he has complied
with § 7422(a)’s prerequisites, and there is no indication in the record that he
has fully paid the deficiency assessed on him or even filed an administrative
claim for a refund. Indeed, in his motions before the district court, Fletcher
repeatedly declared that he had no intention of complying with the refund
system, a “booby-trapped” forum, as he styles it. Accordingly, the district court
held correctly that because Fletcher has failed to meet the prerequisites of the
Anti-Injunction Act, his claims for injunctive relief must be dismissed.5
        Similarly, the Declaratory Judgment Act, 28 U.S.C. § 2201(a), denies
jurisdiction to the district courts to grant declaratory relief with respect to
federal taxes. 28 U.S.C. § 2201(a) (“In a case of actual controversy within its
jurisdiction, except with respect to Federal taxes . . . , any court of the United
States . . . may declare the rights and other legal relations of any interested
party . . . .”); see also Bob Jones Univ., 416 U.S. at 732 n.7 (“The congressional
antipathy for premature interference with the assessment or collection of any
federal tax also extends to declaratory judgments.”).                   This bars federal
jurisdiction over any declaratory relief that Fletcher seeks. Consequently, the
district court had no jurisdiction over any of Fletcher’s claims and so we affirm
its decision to dismiss.
C.      Remaining Issues


       5
         In Williams Packing, the Supreme Court crafted a narrow exception to the Anti-
Injunction Act’s prerequisites for filing a refund suit for plaintiffs who could show (1)
irreparable injury and the other elements necessary for injunctive relief, and (2) certainty of
success on the merits of the claim. See Williams Packing, 370 U.S. at 6–7; see also Bob Jones
Univ., 416 U.S. at 737. Without addressing the first factor, it is clear that Fletcher fails to
meet the second. His lawsuit boils down to an generalized attack on the legitimacy of the tax
system and Fletcher nowhere demonstrates the possibility of, much less certain, success on
the merits of this claim.

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         Fletcher raises two final issues, both without merit. First, Fletcher objects
to the district court’s denial of his motion for a default judgment against the
United States since he did not consent to the use of “non-judicial decision
makers” and a magistrate judge granted the United States’ motion to extend its
time to file its answer. A motion to extend time falls within the plain language
of Federal Rule of Civil Procedure 72(a), which provides that “a pretrial matter
not dispositive of a party’s claim or defense” may be heard by a magistrate judge.
FED. R. CIV. P. 72(a); see Tucker v. United States Dep’t of Army, 56 F.3d 1384,
1995 WL 337670, at *2 (5th Cir. May 16, 1999) (per curiam) (holding that motion
for default judgment was properly denied by the district court because
magistrate judge had authority under Rule 72(a) to grant party’s motion to
extend time). Accordingly, the magistrate judge could grant the United States’
motion to extend time and so the district court properly rejected Fletcher’s
motion for a default judgment.
         Fletcher also argues that the district court improperly unfiled his three
October 27, 2010, motions with any notice or opportunity to cure. This is flatly
wrong. Fletcher was given notice of the defects in his motions and later re-filed
two of the three motions properly. His decision to not re-file the third unsigned
motion does not affect our conclusion that he had proper notice and the
opportunity to correct his motions. His claim is without merit.
                                 III. CONCLUSION
         For all of the foregoing reasons, we AFFIRM the judgment of the district
court.




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