Ades v. United States ( 2022 )

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opinion should not be published and is not precedent except under the limited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.
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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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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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