United States v. Kerrigan ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 96-1558





                              UNITED STATES OF AMERICA,



                                Petitioner, Appellee,



                                          v.



                                 RICHARD M. KERRIGAN,



                                Respondent, Appellant.



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        No. 96-1559



                              UNITED STATES OF AMERICA,



                                Petitioner, Appellee,



                                          v.



                                 MILDRED E. KERRIGAN,



                                Respondent, Appellant.



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                    APPEALS FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. Nancy J. Gertner, U.S. District Judge]
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                                        Before



                        Selya, Cyr, and Boudin, Circuit Judges.
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            Richard M. Kerrigan on brief pro se.
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            Loretta C. Argrett,  Assistant Attorney General, Donald K.  Stern,
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        United  States   Attorney,  Charles  E.  Brookhart   and  Theodore  M.
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        Doolittle, Attorneys,  Tax Division,  Department of Justice,  on brief
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        for appellee.



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                                    April 28, 1997

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                 Per Curiam.  Richard and Mildred  Kerrigan appeal pro se
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            from district court orders enforcing Internal Revenue Service



            ("IRS") summonses.  We affirm.



                 The Kerrigans  argue that the summonses  were issued for



            improper  purposes  and that  the  testimony  and other  data



            sought were already in  the possession of the IRS.   Contrary



            to the Kerrigans' suggestion, the fact of having been audited



            for six and  a half  years is not,  by itself, sufficient  to



            raise  an inference  of bad  faith.   Moreover, we  think the



            Kerrigans failed  to create a  substantial question regarding



            their allegation that the IRS already possessed everything it



            sought.   With the exception of third party bank records, the



            Kerrigans  provided  no  specific   details  about  what  was



            provided, by whom, and when.



                 Nor do we think the fact that the revenue agent admitted



            to having bank records shows bad faith.  Cf. United States v.
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            Groos Nat'l Bank  of San Antonio, 661  F.2d 36, 37 (5th  Cir.
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            Unit A Oct. 1981) (per curiam) (rejecting argument       that



            because the IRS already had some of the information it sought
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            in its  possession  the summonses  were  not issued  in  good



            faith).   Rather,  at most,  it is a  reason to  restrict the



            scope  of the enforcement order.  See United States v. Davis,
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            636  F.2d 1028, 1037 (5th Cir.  Unit A Feb. 1981); cf. United
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            States v.  Medlin, 986 F.2d  463 (11th Cir.  1993) (upholding
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            enforcement order which  granted partial relief  by modifying







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            the summons).   Here, the district  court limited enforcement



            of the  summons so as not to require the Kerrigans to provide



            third party records already produced.



                 The  Kerrigans' remaining contentions are either waived,



            because they  are unaccompanied  by some effort  at developed



            argumentation,  or are  meritless.   We note,  in particular,



            that the district court did not err in declining to entertain



            the  Kerrigans'  counterclaim or  in denying  their discovery



            requests.    Enforcement  proceedings  are  designed   to  be



            summary.  See Donaldson  v. United States, 400 U.S.  517, 529
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            (1971);  United States v. Gertner, 65 F.3d 963, 966 (1st Cir.
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            1995).   Although the  Federal Rules  of Civil  Procedure are



            generally applicable  to such  proceedings, courts  may limit



            their application  when to apply them  literally would impair



            the summary  nature of the proceedings.   See Fed. R. Civ. P.
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            81(a)(3); Alphin  v. United  States, 809  F.2d 236, 238  (4th
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            Cir. 1987).   The Kerrigans' counterclaims  (assuming for the



            sake  of argument  that they  are viable) would  have greatly



            prolonged  the  proceedings,  and   there  was  no  abuse  of



            discretion  in  declining to  entertain  them.   And,  having



            concluded at  the hearing that the  Kerrigans' allegations of



            bad  faith largely  boiled down  to the  fact that  they have



            "disagreements with the IRS" (a conclusion we do not think is



            clearly erroneous), the court did not abuse its discretion in



            failing to allow the discovery requests.







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                 Affirmed.
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