Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1821
NICOLAS NOGUERAS-CARTAGENA,
Plaintiff, Appellant,
v.
UNITED STATES, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Boudin, Chief Judge,
Lipez and Howard, Circuit Judges.
Lixandra Osorio Felix on brief for appellant.
Peter D. Keisler, Assistant Attorney General, Phyllis J.
Pyles, Director, Torts Branch, and Matthew L. Zabel, Deputy
Associate Attorney General, United States Department of Justice.
March 22, 2005
Per Curiam. Appellant, Nicolas Nogueras-Cartagena,
filed two lawsuits based largely on the same nexus of fact: an
earlier suit, the dismissal of which we affirmed in Nogueras-
Cartagena v. United States Dept. of Justice, 75 Fed. Appx. 795, 798
(1st Cir. 2003) (per curiam) (Nogueras-Cartegena I), and a later
suit, the dismissal of which is now before us on appeal. The
differences between this and the earlier case are few.
In the earlier case, appellant sought money damages
pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§
1346(b) & 2671-80, and Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), from the United States
and several individuals, including a United States Attorney, a
Federal Bureau of Investigation agent, an Internal Revenue Service
agent, and two Assistant United States Attorneys. Here, appellant
again seeks money damages from the United States and various
individuals pursuant to the FTCA and Bivens1, but he has also filed
claims pursuant to 26 U.S.C. § 7433 for improper tax collection.
Moreover, the individual defendants have, for the most part,
changed; as they now are five IRS employees, only one of whom was
named in the prior civil action.2
1
We note that appellant has not adequately raised any argument
on appeal with respect to the dismissal of his Bivens claims, and
we therefore do not further consider the Bivens claims.
2
Jose E. Gonzalez was named in the earlier case.
-2-
BACKGROUND
The following is a brief summary of appellant's
allegations, which must be accepted as true for the purposes of
this appeal. TAG/ICIB Servs., Inc. v. Pan Am Grain Co., Inc., 215
F.3d 172, 175 (1st Cir. 2000).
The earlier case arose in the wake of the failed
prosecution of appellant, then a prominent politician in Puerto
Rico, on charges relating to tax fraud and violations of the Ethics
in Government Act. After the government had given up on the
prosecution, the IRS allegedly negligently and maliciously
persisted in attempting to collect taxes from appellant. Appellant
bases the instant lawsuit upon both the failed prosecution and the
tax collection. On January 4, 2000, appellant filed an
administrative claim with the IRS. Less than six months later, on
June 21, 2000, he filed a complaint in the United States District
Court for the District of Puerto Rico, thereby commencing the
earlier federal court case.
On October 30, 2000, the IRS denied the administrative
claim.
After filing the earlier federal court case, but prior to
its dismissal, appellant commenced the instant federal court case
by filing a separate complaint in the district court on February 8,
2002. The following week, he filed motions in both cases to
consolidate the instant case with the earlier one. The district
-3-
court judge assigned to the earlier case (Dominguez, J.), denied
the motion. The earlier case would be dismissed with prejudice
later that year.
On April 25, 2002, the United States moved to dismiss the
instant case for lack of jurisdiction and for failure to state a
claim, and it moved to substitute itself as a party for the
individual defendants. On June 20, 2002, the district court
granted the motion to substitute and terminated the individuals as
parties. On July 7, 2002, appellant filed an opposition to the
motion to dismiss. On April 10, 2003, the United States replied to
the opposition. On March 31, 2004, the district court dismissed
the case. Thereafter, appellant filed a timely notice of appeal.
DISCUSSION
The issues here are purely legal, so we review them de
novo. Gonzalez v. United States, 284 F.3d 281, 287 (1st Cir.
2002).
As in Nogueras-Cartegena I, "[w]e have carefully perused
the record and find no reason to disturb the district court's
rulings" and affirm substantially on the basis of the district
court's opinion--Nogueras-Cartagena v. United States, 321 F. Supp.
2d 265 (D.P.R. Mar. 31, 2004)--adding only a few brief comments.
75 Fed. Appx. at 797.
-4-
A. The FTCA Claims
First, we conclude the district court correctly dismissed
the FTCA claims, but we add the following to respond to two
alternative arguments the district court did not address.
Nogueras-Cartagena, 321 F. Supp. 2d 270-71.
First, appellant argues, as he did below, that we should
consider the filing of his earlier federal court case, rather than
the filing of this federal court case, as the basis for satisfying
the procedural requirement that a tort claim against the United
States shall be forever barred unless a suit is filed in federal
court3 "within six months after the date of mailing . . . of notice
of final denial of the claim by the agency to which it was
presented." 28 U.S.C. § 2401(b) (2000); Gonzalez-Bernal v. United
States, 907 F.2d 246, 248 (1st Cir. 1990). To be sure, the
district court correctly concluded that the instant federal court
case was begun well after section 2401(b)'s six-month deadline; as
the administrative claim was denied on October 30, 2000, and the
federal court case was filed on February 8, 2002. Nogueras-
Cartagena, 321 F. Supp. 2d at 270-71. Appellant argues in the
alternative, however, that the instant federal court case should
relate back to the filing of his earlier federal court case on June
21, 2000, which he contends would satisfy section 2401(b). As
3
As a shorthand for the suit filed in the federal court, we
are here using the term "federal court case."
-5-
appellant's reliance on this earlier filing is misplaced, we need
not decide whether, generally speaking, an entirely different
federal court case could satisfy the requirements of section
2401(b).
We held in Nogueras-Cartagena I that the filing of this
earlier federal court case, itself, ran afoul of statutory
requirements. 75 Fed. Appx. at 797. In addition to section
2401(b), tort claims against the government are subject to 28
U.S.C. § 2675(a), which provides that one must either await final
denial of a claim by an administrative agency or must wait for six
months after the filing of the administrative claim before
instituting a tort claim against the United States by filing a
federal court case. We concluded that appellant failed to meet the
requirements of section 2675(a) because he filed his federal court
case approximately five months and two weeks after he filed the
administrative claim but before final denial of the administrative
claim by the IRS. Nogueras-Cartagena I, 75 Fed. Appx. at 797.
This prior holding illustrates appellant is pressing a
non sequitur, as he attempts to render the current filing proper by
having it stand in the shoes of an earlier improper filing. That
is, even if his reliance upon the filing of the earlier federal
court case would survive section 2401(b), it would run afoul of
section 2675(a). Accordingly, the argument does not advance his
cause, and we reject it.
-6-
Second, we address appellant's argument that he did not
receive "final denial" of his administrative claim pursuant to
section 2675(a) until the IRS issued a "final determination of the
administrative claim" on January 9, 2002. Accordingly, he argues,
January 9, 2002 should serve as the date upon which to begin the
six-month limitations period, and therefore the filing of his
complaint on February 8, 2002 would have been timely. As appellant
failed to raise this argument below, it is forfeited. Teamsters,
Chauffeurs, Warehousemen and Helpers Union, Local No. 59 v.
Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) ("If any
principle is settled in this circuit, it is that, absent the most
extraordinary circumstances, legal theories not raised squarely in
the lower court cannot be broached for the first time on appeal.").
Even had he preserved the argument for appeal, it would
not have been successful. The so-called "final determination"
(actually entitled "Notice of Determination Concerning Collection
Action(s) Under Section 6320 and/or 6330") does not have anything
to do with appellant's administrative claim, which appellant used
to commence the earlier lawsuit for alleged torts committed by the
federal government and its agents in connection with the failed
criminal prosecution of appellant. Rather, the notice indicates
merely that the IRS had reached a determination concerning whether
the lien and levy on appellant was appropriate for the efficient
-7-
collection of taxes. Thus, it cannot be considered "final denial"
of his administrative claim pursuant to section 2675(a).
B. The Section 7433 Claims
Second, we conclude the district court properly dismissed
the section 7433 claims for wrongful tax collection. Nogueras-
Cartagena, 321 F. Supp. 2d at 271-72. The district court
apparently concluded that appellant's wrongful tax collection suit
was more appropriately a suit for wrongful tax assessment and
therefore evaluated whether appellant met the filing guidelines for
wrongful tax assessment claims. Id. The court concluded that
since appellant failed to fulfill the jurisdictional requirements
for wrongful assessment claims (which require the filing of a
refund and the payment of the assessment before bringing suit), his
claim should be dismissed for lack of jurisdiction. See 26 U.S.C.
§§ 7422(a) & (g)(1)(A). Appellant maintains, however, that his
suit is for wrongful collection. We write here only to dispel any
contention that the result would be any different had his claims
been accepted as claims for wrongful tax collection.
Much like FTCA claims, section 7433 claims may only be
brought after exhaustion of administrative remedies. The
exhaustion requirements under section 7433 are governed by 26
C.F.R. § 301.7433-1. Among these requirements are that claimants
mark their claims with attention to particular individuals and
identify the grounds for relief, the injuries incurred, and the
-8-
dollar value of each claim. 26 C.F.R. § 301.7433-1(e). There is
no indication that appellant has complied with these filing
guidelines. There is no copy of the administrative claim in the
record4, and appellant fails in his brief to discuss these
requirements at all. Indeed, the district court stated that it is
"undisputed" that appellant has not met the prerequisites of
section 7433. Accordingly, he has not established jurisdiction,
and the complaint was properly dismissed. Murphy v. United States,
45 F.3d 520, 522 (1st Cir. 1995) (stating, "the party invoking the
jurisdiction of a federal court[,] carries the burden of proving
its existence"); Nogueras-Cartagena I, 75 Fed. Appx. at 798
(failure to exhaust administrative remedies is a jurisdictional
defect).
Affirmed.
4
We note that we were able to retrieve a copy of the
administrative claim from the record of Nogueras-Cartagena I.
Having reviewed it, we conclude it concerns only the alleged torts
committed in connection with the government's failed prosecution of
appellant and therefore does not support the wrongful tax
collection claims.
-9-