USCA1 Opinion
November 10, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1453
MICHAEL J. HAGGERT,
Plaintiff, Appellant,
v.
PHILIPS MEDICAL SYSTEMS, INC., ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael Ponsor, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Selya and Cyr, Circuit Judges. ______________
____________________
Michael J. Haggert on brief pro se. __________________
Loretta C. Arsgett, Assistant Attorney General, Gary R. Allen, ___________________ ______________
David English Carmack and S. Robert Lyons, Attorneys, Tax Division, ______________________ ________________
Department of Justice, on brief for appellees Philips Medical Systems,
Inc., Heritage Bank for Savings, Ann McDonald, Elaine Dionne and
United States of America.
Ann S. Duross, Assistant General Counsel, Robert D. McGillicuddy, _____________ _______________________
Senior Counsel, and Marta W. Berkley, Counsel, on brief for appellee _________________
Federal Deposit Insurance Corporation As Receiver for Heritage Bank
for Savings.
____________________
____________________
Per Curiam. Michael Haggert appeals the district __________
court's grant of summary judgment in favor of the United
States, Philips Medical Systems, Inc., Heritage Bank for
Savings, and two of Heritage's employees. We affirm
essentially for the reasons given by the district court in
its decisions dated March 24, 1992 and March 24, 1994, adding
only the following comments.
Haggert complains that the district court did not
address his allegation that the notice of levy sent to
Heritage Bank violated certain provisions of the Internal
Revenue Code ("Code"). His complaint is without merit,
however, since the court did address the alleged statutory
violations. It correctly concluded that the Internal Revenue
Service ("IRS") could effect a levy on Haggert's bank
accounts at Heritage Bank by sending the bank a notice of
levy. See 26 U.S.C. 6331(b) ("The term 'levy' as used in ___
this title includes the power of distraint and seizure by any
means."); IRS Reg. 301.6331-1(a)(1) ("Levy may be made by
serving a notice of levy on any person in possession of . . .
property subject to levy, including . . . bank accounts, . .
. ."); see also Schiff v. Simon & Schuster, Inc., 780 F.2d ___ ____ ______ _______________________
210, 212 (2d Cir. 1985) (levy on property has long been
effected by serving a notice of levy, and so an employee's
argument that the IRS could not levy on his wages by sending
a notice of levy to his employer was "absolutely meritless").
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The differing language in section 6331(a) to which Haggert
points -- the statute permits levying on the property of
delinquent taxpayers "by levy," but provides for levying on
the salaries of federal employees by "notice of levy" to
their employers -- is not meaningful in view of the law just
cited. See also Sims v. United States, 359 U.S. 108, 113 ___ ____ ____ _____________
(1959) ( 6331(a)'s provision relating to levy upon federal
employees' salaries was enacted specifically to subject those
salaries "to the same collection procedures as are available
against all other taxpayers").
The district court also considered Haggert's other
claims of procedural irregularity. It essentially determined
that it need not consider those claims in evaluating
Haggert's suit against the bank. As the court noted, pre-
levy procedural requirements are imposed only on the IRS, and
the IRS had been dismissed from the suit. We see no error in
the court's reasoning. See, e.g., 26 U.S.C. 6331(a) (the _________
Secretary of the Treasury must wait a specified number of
days after providing the taxpayer with notice of his
outstanding taxes and demand for payment before levying on
the taxpayer's property); id. (d)(1) (the Secretary of the ___
Treasury may not levy on the property of a delinquent
taxpayer until the taxpayer has been given a written notice ____________________
1. Although 26 U.S.C. 6332(c) requires banks to surrender of intent to levy); id. (d)(4) (describing what information ___
a delinquent taxpayer's property "only after 21 days after
service of levy," Haggert has not claimed that the bank the notice of intent to levy must contain).1 Moreover, a
failed to wait the full 21 days after receiving the notice of
levy before complying with the notice.
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bank which has received an IRS notice of levy must comply
with the levy, and has only two defenses -- that the bank is
not in possession of the property, or that the property is
subject to a prior judicial attachment or execution. See ___
United States v. National Bank of Commerce, 472 U.S. 713, _____________ ___________________________
722, 727 (1985); 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
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."). Thus, any procedural errors committed
by the IRS in serving the notice of levy would not have
excused the bank from its obligation to comply with the
notice of levy, and the district court could grant summary
judgment for the bank without first considering the
substantive merits of the alleged errors by the IRS.2
Haggert also avers that the United States has lost
its sovereignty, having previously declared bankruptcy, and
so could not be substituted for the individual IRS defendants
originally sued by Haggert. Since Haggert did not assert
this claim below, however, he has waived it on appeal.
____________________
2. In passing, we also note that Haggert's claims of IRS
error were meritless.
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United States v. Ocasio-Rivera, 991 F.2d 1, 3 (1st Cir. ______________ _____________
1993).
Next, Haggert says that the points made in his
"affidavits" were never answered, so that summary judgment in
his favor was warranted. Those affidavits did not attempt to
dispute any material fact in this case, however, but were
used exclusively to argue Haggert's case. Accordingly,
summary judgment for the defendants was proper. See 6 ___
Moore's Federal Practice Pt. 2, 56.22[1], at 56-746 to 748 _________________________
(1993 ed.) ("The affidavit is no place for ultimate facts and
conclusions of law, nor for argument of the party's cause.").
Haggert's remaining claims were either resolved
correctly by the district court or are in any event
meritless, and so they need not be further discussed here.
Finally, the United States asks us to award
sanctions of $1,500 against Haggert for filing a frivolous
appeal. In a previous appeal by Haggert in a related case,
we said that Haggert's arguments in support of his claim that
he was not required to pay federal income tax -- some of
which are reasserted in this appeal -- were "meritless,
indeed silly on their face." See In re Haggert, No. 92-1519, ___ _____________
slip op. at 10 (1st Cir. Dec. 22, 1992) (unpublished per
curiam). Haggert's claim that the IRS had violated certain
Code provisions apparently was not made in his previous
appeal, but, as the district court found, that claim was
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unavailing against the bank. Nonetheless, Haggert appealed
the judgment in favor of the bank, yet, on appeal, failed to
describe any error in that finding. He also appealed the
grant of summary judgment for his employer, Philips Medical
Systems, Inc., despite the court's citation of Code
provisions which expressly immunized Philips from this suit.
Since Haggert should have known that his appeal had no chance
of success, sanctions are warranted. See E.H. Ashley & Co. ___ __________________
v. Wells Fargo Alarm Services, 907 F.2d 1274, 1280 (1st Cir. __________________________
1990) (it is enough to find an appeal frivolous under Fed. R.
App. P. 38 if the appellant "should have been aware that the ______
appeal had no chance of success") (emphasis in original);
Lefebvre v. Commissioner, 830 F.2d 417, 421 (1st Cir. 1987) ________ ____________
(a pro se taxpayer "whose assertions have been found totally
frivolous below, runs the risk of substantially harsher
appellate sanctions [than double costs] if the appeal is
objectively frivolous, i.e., without any legal or factual
basis"). In view of Haggert's present financial
circumstances, however, we only grant damages of $300.
Affirmed. Damages of $300 awarded to the United ___________________________________________________
States in addition to ordinary costs. _____________________________________
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