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[NOT FOR PUBLICATION]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).
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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.
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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
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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
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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.
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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, . . . .").
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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.
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Affirmed. Double costs are awarded to appellees.
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