IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 31, 2008
No. 08-10238 Charles R. Fulbruge III
Summary Calendar Clerk
GARY D BROWN
Plaintiff - Appellant
v.
UNITED STATES OF AMERICA; TERESA HARLEY, Individually and in
her capacity as Operations Manager, Collection, for the Internal Revenue
Service; CATHY BENSON, Individually and in her capacity as Settlement
Officer for the Internal Revenue Service
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:07-CV-67
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
The Internal Revenue Service determined that Gary D. Brown owed
income taxes for the years 2000 and 2002. The IRS assessed the taxes due, and
it prepared to collect those taxes by sending Brown a notice of federal tax-lien
filing and a final notice of tax levy. Brown challenged the IRS’s actions by
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 08-10238
initiating a civil action in the U.S. District Court for the Northern District of
Texas. The district court dismissed the action for lack of subject-matter
jurisdiction. See Brown v. United States, No. 4:06-CV-691-Y, slip op. at 2 (N.D.
Tex. Dec. 27, 2006). Brown did not appeal. Instead, Brown filed a second action
in the same district court challenging the same IRS actions. The district court
dismissed Brown’s complaint, and Brown now appeals. The government argues
that Brown’s appeal is frivolous, and it seeks to sanction Brown $8,000 for
persisting in the appeal.
We have carefully reviewed the record on appeal, as well as the record
from Brown’s prior proceeding in civil action 4:06-CV-691-Y. Our review
satisfies us that Brown’s arguments on appeal are not only wholly without merit
but are so baseless in law as to be frivolous. See FDIC v. Meyer, 510 U.S. 471,
475 (1994); 26 U.S.C. § 6330(d)(1); id. §§ 6213(a), 7442. This conclusion does not
change in the light of the authorities upon which Brown relies. See Beall v.
United States, 336 F.3d 419, 422 (5th Cir. 2003), abrogated on other grounds by
Hinck v. United States, 127 S.Ct. 2011, 2016 (2007); Shaw v. United States, 20
F.3d 182, 184 (5th Cir. 1994). Although Brown also raises several new
arguments on appeal, “[i]t is well settled that we do not consider issues raised
for the first time on appeal.” Wagstaff v. U.S. Dep’t of Educ., 509 F.3d 661, 664
n.2 (5th Cir. 2007) (per curiam) (quoting Turner v. Baylor Richardson Med. Ctr.,
476 F.3d 337, 344 n.3 (5th Cir. 2007)). This is so irrespective of whether the
litigant proceeds pro se. See, e.g., id.
With respect to the motion for sanctions, the government requests a lump-
sum sanction of $8,000 in lieu of calculating the costs and attorney’s fees it
incurred in responding to Brown’s appeal. We agree this appeal is frivolous and
thus grant the motion for sanctions even though Brown proceeds pro se. See
FED. R. APP. P. 38; Stearman v. Comm’r, 436 F.3d 533, 538 (5th Cir. 2006);
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No. 08-10238
Wallis v. Commissioner of I.R.S., 203 Fed.Appx. 591 (5th Cir. Oct. 24, 2006);
Clark v. Green, 814 F.2d 221, 223 (5th Cir. 1987).
We DISMISS this appeal and GRANT the motion for sanctions in the
amount of $8,000 for persisting in this frivolous appeal. All costs of these
proceedings are to be assessed against Brown.
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