Cromar v. United States

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 12, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
PAUL KENNETH CROMAR; BARBARA
ANN CROMAR,

Plaintiffs - Appellants,

v. No. 19-4129
(D.C. No. 2:19-CV-00255-TDD)
UNITED STATES OF AMERICA; (D. Utah)
WILLIAM P. BARR, DOJ Attorney
General; RYAN S. WATSON; NANCY K.
PHILLIPS; R. A. MITCHELL; WANDA I.
MANLEY; JOAN FLACH, a/k/a Joan
Flack; ROBERT J. SHELBY,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before BRISCOE, BACHARACH, and McHUGH, Circuit Judges.
_________________________________

Paul and Barbara Cromar, proceeding pro se,1 appeal the district court’s

dismissal of their action against the United States and several federal officials,

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
We liberally construe the Cromars’ pro se filings but “will not act as [their]
advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
including a district judge, a Department of Justice (DOJ) trial attorney, and Internal

Revenue Service (IRS) employees, alleging various torts and constitutional violations

related to a federal tax proceeding brought by the United States against the Cromars.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.2

I. BACKGROUND

In 2017, the United States filed an action against the Cromars based upon

Mr. Cromar’s failure to pay income taxes between 1999 and 2005. In that action, the

district court determined that Mr. Cromar owed over $1 million in tax liabilities and

that those liabilities constituted liens on his real property in Cedar Hills, Utah. The

Cromars refused to answer the complaint on the merits and repeatedly challenged the

court’s subject-matter jurisdiction and the government’s taxing authority. The court

ultimately entered a default judgment followed by an order of foreclosure and

judicial sale, requiring the Cromars to vacate the property. We affirmed those orders.

United States v. Cromar, __ F. App’x __, 2020 WL 1488763 (10th Cir. Mar. 26,

2020).3

Shortly after the district court ordered the foreclosure and judicial sale, the

Cromars launched a collateral attack on the tax case and filed a pro se complaint in

2
Although the dismissal was without prejudice, the judgment is final and
appealable because the district court dismissed the action in its entirety and not solely
the complaint. See Moya v. Schollenbarger, 465 F.3d 444, 449-50 (10th Cir. 2006).
3
The district court has since entered an order confirming the sale. See
Guttman v. Khalsa, 669 F.3d 1101, 1127 n.5 (10th Cir. 2012) (noting “we may take
judicial notice of public records, including district court filings”).
2
Utah state court seeking injunctive relief and $120 million in damages. They alleged

the Defendants, “under color of law” and “color of office,” conspired to implement

an unconstitutional federal income tax and to “unlawfully convert private property in

the name of tax in order to enforce [a] socialist communistic philosophy.” R. Vol. 1

at 11, 21-22 (emphases omitted). In particular, the Cromars alleged: (1) IRS officials

forged the signatures of other IRS officials on Notices of Federal Tax Liens; and

(2) the DOJ trial attorney sought, and the district judge issued, a void judgment in the

tax case, without affording the Cromars due process and a jury trial.4

The United States removed the case pursuant to 28 U.S.C. § 1442(a)(1). The

Cromars then moved to remand the case to state court, and the Defendants moved to

dismiss on the grounds that, inter alia, the action was barred by sovereign immunity.

The Cromars objected to the Defendants’ motion and also filed a motion for leave to

amend their complaint, increasing their damages-claim to $150 million and adding

claims based on events occurring after they filed the complaint, including the judicial

sale of, and their removal from, their home. The court denied the Cromars’ motions

and granted the Defendants’ motion to dismiss. This appeal followed.

4
On appeal in the tax case, we rejected the Cromars’ challenges to the district
court’s judgment and the income tax in general. See Cromar, __ F. App’x at __,
2020 WL 1488763, at *3.

3
 II. ANALYSIS

I. Standards of Review

We review de novo the district court’s denial of the Cromars’ motion to

remand. See Garley v. Sandia Corp., 236 F.3d 1200, 1207 (10th Cir. 2001). We also

review the dismissal de novo. See Satterfield v. Malloy, 700 F.3d 1231, 1234

(10th Cir. 2012). In so doing, “we accept as true all well-pleaded factual allegations

in the complaint and view them in the light most favorable to the plaintiff.” Garling

v. U.S. E.P.A., 849 F.3d 1289, 1292 (10th Cir. 2017) (brackets and internal quotation

marks omitted). Finally, we review the denial of the Cromars’ motion for leave to

amend their complaint for an abuse of discretion. See Anderson v. Suiters, 499 F.3d

1228, 1238 (10th Cir. 2007). Because the court found the proposed amended

complaint would still be subject to dismissal based on sovereign immunity, “our

review for abuse of discretion includes de novo review of the legal basis for the

finding of futility.” Miller ex rel. S.M. v. Bd. of Educ., 565 F.3d 1232, 1249

(10th Cir. 2009).

II. The Cromars’ Motion to Remand

The Cromars first contend the case was improperly removed to federal court

and should have been remanded to state court. The United States removed the case

under 28 U.S.C. § 1442(a)(1), which authorizes removal of a state-court action

against the United States or federal officers for acts “under color of such office or on

account of any . . . authority claimed under any Act of Congress for . . . the collection

4
of the revenue.” This “right of removal is absolute for conduct performed under the

color of federal office.” Arizona v. Manypenny, 451 U.S. 232, 234 (1981).

The Cromars’ complaint repeatedly alleged the Defendants acted “under color

of law” and “color of office.” R. Vol. 1 at 21-22. However, they insist they only

raised state-law claims and that removal, therefore, was improper under § 1441(a).

The district court, though, properly noted the case was removed under § 1442(a)(1)

and that removability under that statute, unlike § 1441(a), does not hinge on

“‘whether the suit could originally have been brought in a federal court.’” Id. at 236

(quoting Willingham v. Morgan, 395 U.S. 402, 406 (1969)).5 Instead, “suits against

federal officers may be removed despite the nonfederal cast of the complaint; the

federal-question element is met if the defense depends on federal law.” Jefferson

Cty. v. Acker, 527 U.S. 423, 431 (1999) (emphasis added). This statute “cover[s] all

cases where federal officers can raise a colorable defense arising out of their duty to

enforce federal law.” Mesa v. California, 489 U.S. 121, 133 (1989).

The Defendants plainly had a colorable defense with sovereign immunity,

which resulted in the dismissal of the action. And § 1442(a)(1) was intended to

protect just such a defense. See Christensen v. Ward, 916 F.2d 1462, 1484 (10th Cir.

5
The court also found the Cromars’ characterization of their complaint as only
implicating state law to be “specious.” R. Vol. 1 at 236 n.4. Notwithstanding their
assertion that they “took care to avoid any federal questions,” Aplt. Reply Br. at 21,
the complaint unequivocally alleged violations of federal statutes and the federal
constitution, including “Article I, Section 2, Clause 3; and Article I, Section 9,
Clause 4; and Article I, Section 8[,] Clause 1 of the U.S. Constitution; and . . . the
4th Amendment; the 5th Amendment; the 7th Amendment; and the 14th Amendment
to the U.S. Constitution,” R. Vol. 1 at 10-11.
5
1990) (“The primary purpose for the removal statute is to assure that defenses of

official immunity applicable to federal officers are litigated in federal court.”).

Although the Cromars contest the validity of sovereign immunity, the doctrine’s

legitimacy is long beyond dispute. See id. at 1473 (“[T]he doctrine of sovereign

immunity, as embodied in the common law[,] . . . is constitutional.”). See generally

Nichols v. United States, 74 U.S. (7 Wall.) 122, 126 (1868) (“Every government has

an inherent right to protect itself against suits, and if, in the liberality of legislation,

they are permitted, it is only on such terms and conditions as are prescribed by

statute. The principle is fundamental, applies to every sovereign power, and but for

the protection which it affords, the government would be unable to perform the

various duties for which it was created. It would be impossible for it to collect

revenue for its support, without infinite embarrassments and delays, if it was subject

to civil processes the same as a private person.”).

Removal was proper under § 1442(a)(1). Accordingly, the district court did not

err in denying the Cromars’ motion to remand.6

6
Plaintiffs also contend removal was improper on the grounds that: (1) there
was no evidence the individual defendants joined in the removal, Aplt. Reply Br. at
16-17; (2) there was no evidence the United States had standing to represent the
individual defendants, id. at 17-18; and (3) the removal notice violated Rule 11
because it lacked a signature from counsel representing the individual defendants, id.
at 18-19. Although the district court rejected these arguments, the arguments are
waived on appeal because the Cromars raised them for the first time in their reply
brief. See Kientz v. Comm’r, 954 F.3d 1277, 1286 n.7 (10th Cir. 2020).
6
 III. The Defendants’ Motion to Dismiss

The Cromars next challenge the dismissal of their action. The Defendants

moved to dismiss because the Cromars failed to identify a waiver to sovereign

immunity so as to permit a suit against the United States and federal employees

acting in their official capacities. See generally Dahl v. United States, 319 F.3d

1226, 1228 (10th Cir. 2003) (noting “[s]overeign immunity is jurisdictional in

nature” and, “[a]bsent a waiver, . . . shields the Federal Government and its agencies

from suit” (internal quotation marks omitted)). As the district court aptly noted in

granting the Defendants’ motion, the Cromars did not dispute that the “defendants

[were] being sued for actions taken in their official capacities” and, instead, merely

“repeat[ed] legally nonsensical allegations of their Complaint” and made “frivolous

arguments that they and ‘We the People,’ not the federal government, are the ‘true’

sovereigns and immune from federal tax laws.” R. Vol. 1 at 236-37.

In addition to frivolously challenging the validity of sovereign immunity,

which we addressed above, the Cromars contend the court erred by not addressing

their motion to remand before addressing the motion to dismiss. But the court did

just that—it found removal proper under § 1442(a)(1), denied the motion to remand,

and then addressed and granted the motion to dismiss.

The Cromars also argue the Defendants should have been judicially estopped

from denying that the federal court had jurisdiction after asserting the court had

jurisdiction for purposes of removal. But because the Cromars did not raise estoppel

7
in district court and do not argue plain error on appeal, we decline to consider the

argument. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011).

Finally, the Cromars contend that if the court found it lacked subject-matter

jurisdiction on the basis of sovereign immunity, it was required to remand the case to

state court, rather than dismiss it. See 28 U.S.C. § 1447(c) (“If at any time before

final judgment it appears that the district court lacks subject matter jurisdiction, the

case shall be remanded.”). However, the action still would be barred in Utah state

court because of sovereign immunity. See Int’l Primate Prot. League v. Adm’rs of

Tulane Educ. Fund, 500 U.S. 72, 85-86 (1991). The United States need not prove its

entitlement to sovereign immunity twice. We decline to waste judicial resources by

requiring the district court to remand the case to state court, which would inevitably

apply sovereign immunity and dismiss for lack of subject-matter jurisdiction.

The district court properly found the case was barred by sovereign immunity.

See Christensen, 916 F.2d at 1465-66. Accordingly, the court did not err in

dismissing the action for lack of subject-matter jurisdiction.

IV. The Cromars’ Motion for Leave to Amend the Complaint

Finally, the district court denied the Cromars’ motion for leave to amend their

complaint because they identified “no basis to overcome the defense of sovereign

immunity” and the amendment, therefore, would be futile. R. Vol. 1 at 237. They

now appear to argue sovereign immunity was waived under statutes cited in their

amended complaint, including 26 U.S.C. §§ 7433, 7214, and 7608. We disagree.

8
 26 U.S.C. § 7433(a) permits an action for damages against the United States

“[i]f, in connection with any collection of Federal tax with respect to a taxpayer, any

officer or employee of the [IRS] recklessly or intentionally, or by reason of

negligence, disregards any provision of this title, or any regulation promulgated

under this title.” 26 U.S.C. § 7433(a). But as the court correctly found, the Cromars

“allege[d] no facts to support a colorable claim that any IRS officer or employee

recklessly or intentionally disregarded any specific provision of the Code or

regulation, as required for liability under § 7433.” R. Vol. 1 at 238 n.5.7

The Cromars claim §§ 7608(a) and (b) and 7214(a) constitute the provisions

that were violated for purposes of liability under § 7433. But these statutes offer no

such assistance. First, § 7608(a) describes the authority of IRS officers charged with

enforcing statutes not related to income taxes. Next, § 7608(b) defines the authority

of “criminal investigator[s] of the Intelligence Division,” and the Cromars concede

no such investigator “has ever been involved with the plaintiff in this dispute or civil

action,” Aplt. Opening Br. at 13. Finally, we have held that § 7214(a), which

criminalizes certain acts of IRS employees, does not waive sovereign immunity. See

Lonsdale v. United States, 919 F.2d 1440, 1443-44 (10th Cir. 1990); see also

Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007) (noting § 7214(a) is

“criminal statute[] that do[es] not provide for a private right of action”).

7
Moreover, the Cromars failed to allege they exhausted their administrative
remedies, as required by 26 U.S.C. § 7433(d)(1).

9
 The district court properly found the Cromars failed to identify a waiver of

sovereign immunity so as to confer subject-matter jurisdiction. Accordingly, the

court did not err in denying the Cromars’ motion for leave to amend their complaint.8

III. CONCLUSION

The district court’s judgment is affirmed.

Entered for the Court

Carolyn B. McHugh
Circuit Judge

8
The Cromars also identify 28 U.S.C. § 1346 as a basis for jurisdiction, which
they cited in response to the motion to dismiss, not in their amended complaint. But
they are not seeking “the recovery” of a tax, 28 U.S.C. § 1346(a)(1), nor did they pay
the full amount of the tax deficiency as necessary to proceeding under § 1346(a)(1),
see Ardalan v. United States, 748 F.2d 1411, 1413 (10th Cir. 1984). And to the
extent they rely on § 1346(b)(1), they failed to allege “injury or loss of property . . .
caused by the negligent or wrongful act or omission of any [federal] employee . . .
while acting within the scope of his office or employment, under circumstances
where the United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred.” 28 U.S.C.
§ 1346(b)(1).
10