United States v. Nordberg ( 1996 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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        No. 96-1432



                              UNITED STATES OF AMERICA,



                                 Plaintiff, Appellee,



                                          v.



                                    PAUL NORDBERG,



                               Defendants, Appellants.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Nathaniel M. Gorton, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                            Cyr and Stahl, Circuit Judges.
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            Paul Nordberg on brief pro se.
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            Loretta   C.  Argrett,  Assistant  Attorney  General,  William  S.
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        Estabrook, Thomas V.M. Linguanti, Tax Division, Department of Justice,
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        and Donald K. Stern, United States Attorney, on brief for appellee.
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                                   October 10, 1996

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                 Per  Curiam.   We  have  reviewed de  novo  the district
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            court's  grant of summary judgment in favor of the plaintiff-



            appellee.   We conclude  that that determination  was correct



            and  see no need to write separately.  We, therefore, affirm,
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            essentially for  the reasons  stated in the  district court's



            memorandum and order, dated  April 8, 1996.  We add  only the



            following comments.



                 At page  6  of its  memorandum and  order, the  district



            court made  a  slip of  the  pen.   In reciting  the  summary



            judgment standard, the  court stated  that it  must view  the



            entire record in the light most favorable to the "plaintiffs"



            and indulge  all reasonable  inferences in  their favor.   In



            this case, the  government was the  plaintiff and the  moving



            party.  Obviously, the  district court meant to refer  to the



            "defendants",  as the non-moving party.  It is clear from the



            next  paragraph and  the remainder  of the  opinion  that the



            district court understood the  relative burdens of the moving



            and  non-moving parties, understood which party carried which



            burden  in  this  case,  and applied  the  correct  standard.



            Contrary to the  appellants' attempt to create an  issue that



            does not  exist, the  district court  did not  "reverse[] the



            rule for inferences."  Brief at p. 35.



                 In addition,  we note  that the government  has conceded



            that, because  it has already applied  the appellants' income



            tax  overpayments  for the  tax years  1991  and 1992  to the







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            balance  it  claimed that  appellants owed  for the  tax year



            1987, the amount of  these overpayments was properly credited



            to the amount owed by the taxpayers.



                 Appellants' request  for oral  argument is denied.   The
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            alternate  request that  we accept  supplemental  material in



            lieu  of oral argument is denied.   The supplemental material
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            should  have been  included  within the  permitted number  of



            pages in the  reply brief.   In any  event, we have  reviewed



            this  supplemental  material  and  it  does  not  change  our



            decision.



                 The "emergency motion" is denied as moot.
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                 Affirmed.  Loc. R. 27.1.
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