Calvin Kim v. United States , 707 F.3d 335 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided February 8, 2013
No. 12-5013
CALVIN KI SUN KIM AND CHUN CHA KIM,
APPELLANTS
v.
UNITED STATES OF AMERICA, ET AL.,
APPELLEES
______
Appeal from the United States District Court for the District
of Columbia
(No. 1:08-cv-01660-CKK)
______
Calvin K. Kim and Chun C. Kim, pro se, were on the brief
for appellants. Joseph P. Drennan entered an appearance.
Kathryn Keneally, Assistant Attorney General, U.S.
Department of Justice, Ronald C. Machen, Jr., U.S. Attorney,
and Michael J. Haungs and Gretchen M. Wolfinger,
Attorneys, were on the brief for appellees.
Before: GARLAND and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Since 2002, Calvin and
Chun Kim on the one hand and the Internal Revenue Service
on the other have been in regular correspondence regarding
the Kims’ alleged failure to file adequate tax returns between
1998 and 2002. This correspondence culminated in the Kims’
filing suit in district court in September 2008. In a previous
opinion, we discussed the factual and procedural background
at length. See Kim v. United States, 632 F.3d 713, 714-16
(D.C. Cir. 2011).
In Kim, we affirmed the district court’s dismissal of 19
counts of the Kims’ original 21, but reversed and remanded on
counts 20 and 21; as to those counts, the district court had
granted the government’s motion to dismiss on the basis of an
affirmative defense which the Kims had had no obligation to
contradict in their complaint. Id. at 719-20. On remand, the
government moved again to dismiss the case, this time
arguing that the Kims’ suit was untimely under the applicable
statute of limitations. See 26 U.S.C. § 7433(d)(3). The
district court agreed, and dismissed the remaining two counts.
Kim v. United States, 840 F. Supp. 2d 180 (D.D.C. 2012).
We understand the Kims’ pro se appeal to contend that
the government had waived the limitations defense by failing
to raise it in its first dispositive motion. See Fed. R. Civ. P.
12(g)(2). The government responds that limitations defenses
under § 7433 are conditions on a waiver of sovereign
immunity and therefore jurisdictional and unwaivable.
We express no opinion on the government’s jurisdictional
argument and conclude instead that the government has not
forfeited its limitations defense. Rule 12(g)(2) provides that
“[e]xcept as provided in Rule 12(h)(2) or (3), a party that
makes a motion under this rule must not make another motion
under this rule raising a defense . . . that was available to the
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party but omitted from its earlier motion.” Thus the
government was seemingly barred from raising the limitations
defense in its second motion to dismiss. But Rule 12(h)(2)(A)
permits a party to raise a legal defense “in any pleading
allowed or ordered under Rule 7(a),” which in turn lists a
number of pleadings including an answer to a complaint. See
Fed. R. Civ. P. 7(a)(2). The government as yet has filed no
answer, but could do so if we remanded. Thus we could
reverse and remand, giving the government an opportunity to
go through the formality of restating its limitations defense in
an answer. But “[w]e can conceive of no reason for such
judicial volleyball.” See Stanton v. DC Court of Appeals, 127
F.3d 72, 77 (D.C. Cir. 1997). As no forfeiture by the
government has yet occurred, and resolution of the issue does
not depend on any facts not in the record, addressing the issue
here and now in no way prejudices the Kims. See id. at 76-
77.
The merits of the limitations defense turn on whether the
right of action underlying counts 20 and 21 accrued within
two years of the Kims’ filing the complaint in September
2008. 26 U.S.C. § 7433(d)(3). The Kims’ claim is for certain
statutorily forbidden types of communications by the IRS in
connection with the collection of any unpaid tax. See id.§§ 6303 (describing the IRS’s notice requirements for liability
assessments); 6304(b) (prohibiting harassment or abuse “in
connection with an unpaid tax”); 7433(a) (creating a damages
remedy). None of the events the Kims allege to have occurred
within the limitations period, however, is one that could
trigger IRS liability under § 7433. The government’s only
communication with the Kims in that two-year period took the
form of a “Letter 3175C,” which is simply a “letter used . . . to
respond to [a] frivolous filer who send[s] frivolous
correspondence to [the] IRS.” Internal Revenue Manual
§ 4.19.10.1.6 (Feb 24, 2011). The letter here was the
antithesis of a collection effort: it was a narrow response to
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the Kims’ own correspondence, not an assertive effort to
collect allegedly unpaid taxes—much less an abusive one.
We have also considered the Kims’ argument that the
statute of limitations should have been tolled and find it to be
without merit. We accordingly affirm the district court’s
dismissal of the Kims’ complaint in its entirety.
So ordered.