Joseph W. Dorn v. United States , 249 F. App'x 164 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 26, 2007
No. 07-11115 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00089-CV-FTM-29-DNF
JOSEPH W. DORN,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
DISCLOSURE OFFICERS, Ft. Myers, FL,
DISCLOSURE OFFICERS, Atlanta, Georgia,
DISCLOSURE OFFICERS, Jacksonville, FL,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 26, 2007)
Before BIRCH, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Joseph Dorn appeals pro se the summary judgment against his complaint for
an income tax refund, see 26 U.S.C. § 7422, and damages for wrongful tax
collection, see 26 U.S.C. § 7433. Although Dorn argues the merits of his tax
liability, we must decide whether the district court correctly entered summary
judgment on the ground that Dorn failed to exhaust his administrative remedies.
We affirm.
We review a summary judgment de novo and apply the same legal standards
as the district court. See United States v. Mount Sinai Medical Center of Florida,
Inc., 486 F.3d 1248, 1250 (11th Cir. 2007).
The district court correctly determined that it lacked subject matter
jurisdiction over Dorn’s claim for a tax refund, see 26 U.S.C. § 7422. The United
States, as a sovereign, is immune from suit unless it consents to be sued. United
States v. Dalm, 494 U.S. 596, 608, 110 S. Ct. 1361, 1368 (1990). “The terms of
[the United State’s] consent to be sued in any court define that court’s jurisdiction
to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586–87, 61 S. Ct.
767, 769 (1941). The United States has waived its sovereign immunity to allow
taxpayers to file suit for tax refunds, see 28 U.S.C. § 1346(a)(1), but the taxpayer
must first file an administrative claim for the refund “according to the provisions of
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law,” see 26 U.S.C. § 7422. “If the requirements of § 7422(a) are not met, a court
has no subject matter jurisdiction to hear the claim for refund.” Wachovia Bank,
N.A. v. United States, 455 F.3d 1261, 1264 (11th Cir. 2006).
The district court correctly determined that it lacked subject matter
jurisdiction to hear Dorn’s complaint for a tax refund because Dorn failed to file an
administrative claim for refund. See Wachovia Bank, 455 F.3d at 1264. Although
Wachovia Bank addressed the failure of a taxpayer to file a claim for refund within
the established time limit, see id. at 1263–64, its reasoning also applies where the
taxpayer filed no claim for refund.
The district court also correctly entered judgment against Dorn’s claim for
damages under section 7433. Section 7433, like section 7422, requires that
administrative remedies be exhausted:
(1) Requirement that administrative remedies be exhausted. A
judgment for damages shall not be awarded under subsection (b)
unless the court determines that the plaintiff has exhausted the
administrative remedies available to such plaintiff within the Internal
Revenue Service.
See 26 U.S.C. § 7433(d)(1). Because Dorn failed to exhaust his administrative
remedies, the district court correctly entered summary judgment against Dorn’s
complaint for damages.
Dorn’s remaining arguments also fail. Contrary to Dorn’s contention, it is
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well settled that Federal Rule of Civil Procedure 56(c) does not require an oral
hearing. See Milburn v. United States, 734 F.2d 762, 765 (11th Cir. 1984).
“Rather, 10-day advance notice to the adverse party that the motion and all
materials in support of or in opposition to the motion will be taken under
advisement by the trial court as of a certain day satisfies the notice and hearing
dictates of Rule 56.” Id. (quotation and emphasis omitted). The district court gave
notice that a motion for summary judgment had been filed, no oral hearing would
take place, and the district court would “consider [the] motion and take the motion
under advisement twenty (20) days after the motion [was] filed.”
To the extent Dorn argues that the district court erred when it dismissed his
complaint against the individual defendants, his argument again fails. The district
court did not err when it dismissed without prejudice the complaint against C. Sills,
Deborah MacMillan, and Melanie Romano because there is no evidence that Dorn
effectively served them. The district court also correctly dismissed the complaint
against the remaining individual defendants because Dorn’s complaint sought
damages for wrongful assessment and collection. Section 7433 provides the
exclusive remedy for these alleged wrongs in the form of a civil action against the
United States. See 26 U.S.C. § 7433.
Finally, even liberally construing Dorn’s brief, see Tannenbaum v. United
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States, 148 F.3d 1262, 1263 (11th Cir. 1998), Dorn abandons any argument about
the dismissal of his remaining claims, see 26 U.S.C. §§ 7426, 7431. See Allison v.
McGhan Medical Corp., 184 F.3d 1300, 1317 n.17 (11th Cir. 1997).
The summary judgment is
AFFIRMED.
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