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Ades v. United States

Court: Court of Appeals for the Fifth Circuit
Date filed: 2022-04-22
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Case: 22-10044     Document: 00516291893         Page: 1     Date Filed: 04/22/2022




              United States Court of Appeals
                   for the Fifth Circuit                       United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
                                                                  April 22, 2022
                                  No. 22-10044                   Lyle W. Cayce
                                                                      Clerk

   Bruce Allan Ades,

                                                           Plaintiff—Appellant,

                                       versus

   United States of America,

                                                           Defendant—Appellee.


                  Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 3:21-CV-257



   Before Wiener, Dennis, and Haynes, Circuit Judges.
   Per Curiam:*
          Plaintiff-Appellant Bruce Allen Ades proceeding pro se appeals the
   dismissal of his lawsuit. Ades sued under the Administrative Procedure Act
   (“APA”), 5 U.S.C. § 551, et seq., alleging that officers and employees of the
   government committed criminal offenses under 26 U.S.C. § 7214 by


          *
            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 22-10044      Document: 00516291893            Page: 2    Date Filed: 04/22/2022




                                      No. 22-10044


   “demand[ing] other or greater sums than are authorized by law … fail[ing]
   to perform numerous duties of his/her office or employment (including the
   loss and destruction of pertinent records to the lawsuit … [and] sign[ing]
   fraudulent entries in any book.” His claims arise from a 2006 closing
   agreement between the I.R.S., Ades, and his then-wife. (“2006 Agreement”)
   Ades agreed to pay a penalty fee because he underreported federal income
   taxes by relying on offshore payment cards or financial arrangements.
          The government moved to dismiss Ades’s lawsuit. The district court
   granted the motion and dismissed it without prejudice. Pro se litigants are
   given liberal construction in their briefing, but they are still required to follow
   the rules of procedure and to brief relevant points. Yohey v. Collins, 985 F.2d
   222, 225 (5th Cir. 1993). Ades contends that the district court erred by: (1)
   dismissing his lawsuit as time-barred and (2) denying his motion for an
   emergency temporary restraining order (“TRO”) and preliminary
   injunction.
          Ades contends that there is not a statute of limitations defined in the
   APA. However, an “APA challenge is governed by the general statute of
   limitations provision of 28 U.S.C. § 2401(a), which provides that every civil
   action against the United States is barred unless brought within six years of
   accrual.” Dunn-McCampbell Royalty Int., Inc. v. Nat’l Park Serv., 112 F.3d
   1283, 1286-87 (5th Cir. 1997). Missing the deadline is not without
   consequences. “[A] ‘failure to sue the United States within the limitations
   period’ for a specific cause of action ‘is not merely a waivable defense. It
   operates to deprive federal courts of jurisdiction.” Am. Stewards of Liberty v.
   Dep’t of Interior, 960 F.3d 223, 229 (5th Cir. 2020) (quoting Dunn-
   McCampbell, 112 F.3d at 1287). Ades’s lawsuit is barred by the statute of
   limitations because his claims stem from the 2006 Agreement.




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Case: 22-10044      Document: 00516291893           Page: 3   Date Filed: 04/22/2022




                                     No. 22-10044


          Ades contends that the government’s demand letter in December
   2019 “and its complete lack of response for months” placed the final agency
   action “sometime in the middle part of 2020.” Such enforcement actions,
   however, do not create new legal obligations. Nat’l Pork Producers Council v.
   U.S. E.P.A., 635 F.3d 738, 756 (5th Cir. 2011) (holding guidance letters issued
   by the EPA do not constitute final agency actions because they “neither
   create new legal consequences nor affect their rights or obligations”). Ades’s
   claims stem from the settlement he signed in 2006 so his lawsuit was filed
   long after the six-year statute of limitations expired.
          As for the denial of his TRO, “[t]his court has long held that the denial
   of an application for a temporary restraining order is not appealable.” In re
   Lieb, 915 F.2d 180, 183 (5th Cir. 1990). We do not, therefore, consider his
   appeal of the TRO denial.
          We do have jurisdiction to review the denial of a request for
   preliminary injunction. 28 U.S.C. § 1292(a)(1). “The decision to grant or
   deny a preliminary injunction lies within the sound discretion of the trial
   court and may be reversed on appeal only by a showing of abuse of
   discretion.” White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989) (quoting
   Apple Barrel Prods., Inc. v. Beard, 730 F.2d 384, 386 (5th Cir. 1984)). “A
   preliminary injunction ‘is an extraordinary and drastic remedy, not to be
   granted routinely, but only when the movant, by a clear showing, carries the
   burden of persuasion.’” Id. (quoting Holland Am. Ins. Co. v. Succession of Roy,
   777 F.2d 992, 997 (5th Cir. 1985)). The district court did not abuse its
   discretion in denying the preliminary injunction because Ades did not show
   he would prevail on the merits of his underlying claims.
          AFFIRMED.




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