12-2438-cv
Donnelly v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
15th day of January, two thousand fourteen.
PRESENT:
GUIDO CALABRESI,
REENA RAGGI,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
TIMOTHY B. DONNELLY,
Plaintiff-Appellant,
v. No. 12-2438-cv
UNITED STATES OF AMERICA,
Defendant-Appellee.
_____________________________________
FOR PLAINTIFF-APPELLANT: Timothy B. Donnelly, pro se, Rensselaer, New
York
FOR DEFENDANT-APPELLEE: Patricia McDonald Bowman, Trial Attorney;
Michael J. Huangs, Supervisory Attorney, United
States Department of Justice, Tax Division,
Washington D.C.
Appeal from a judgment of the United States District Court for the Northern District of
New York (Norman A. Mordue, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court entered on May 5, 2012, is AFFIRMED.
Pro se plaintiff Timothy B. Donnelly, who sues the United States for a tax refund, appeals
from the judgment dismissing his action under Fed. R. Civ. P. 12(b)(1) for lack of subject matter
jurisdiction. We assume the parties’ familiarity with the underlying facts, the procedural history of
the case, and the issues on appeal.
On appeal from a judgment dismissing a complaint for lack of subject matter jurisdiction,
we review the district court’s factual findings for clear error and its legal conclusions de novo. See
Maloney v. Soc. Sec. Admin., 517 F.3d 70, 74 (2d Cir. 2008). Dismissal of a complaint is proper
“when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000). While we disfavor dismissing a complaint without
giving a pro se litigant an opportunity to amend, leave to amend is not necessary when it would be
futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
Upon such review, we conclude that Donnelly’s action was correctly dismissed for lack of
subject matter jurisdiction, substantially for the reasons stated in the district court’s memorandum
decision and order. In particular, Donnelly did not comply with 26 U.S.C. § 7422(a) because he
failed to specify any facts that could plausibly constitute the basis of a claim for a refund. Absent
compliance with the statutory requirements set forth in 26 U.S.C. § 7422(a) and its accompanying
regulations regarding the filing of a valid claim for refund, Donnelly cannot assert that the United
States waived sovereign immunity. See United States v. Dalm, 494 U.S. 596, 608–10 (1990). The
district court also did not err in declining to grant Donnelly leave to amend, as an amendment to the
complaint would not have cured this jurisdictional bar. See id.
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We have considered Donnelly’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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