Berman v. United States , 264 F.3d 16 ( 2001 )

United States Court of Appeals
For the First Circuit
No. 01-1266
JOHN R. BERMAN,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Bruce A. Singal with whom Donoghue, Barrett & Singal, P.C.
was on brief for appellant.
Kenneth W. Rosenberg, Tax Division, Department of Justice,
with whom Claire Fallon, Acting Assistant Attorney General,
Donald K. Stern, United States Attorney, and David English
Carmack, Tax Division, Department of Justice, were on brief for
the United States.
September 5, 2001
BOUDIN, Chief Judge. John Berman appeals from the
district court's order dismissing his motion to quash an
administrative summons served by the Internal Revenue Service;
the dismissal was based on the ground that the motion was not
timely filed. The pertinent facts are undisputed.
From 1991 until 1999, Berman was a partner in the
Boston law firm of Davis, Malm & D'Agostine ("the Davis firm").
He is the subject of an ongoing income tax investigation by the
IRS for the tax years 1993 through 1998. On May 1, 2000, the
IRS issued a summons to the keeper of records at the Davis firm,
requiring the production of various documents pertaining to
Berman. Included in the summons was a request for all
correspondence between Berman and the Davis firm or its
employees between January 1, 1998, and April 28, 2000.
The summons was a "third-party recordkeeper" summons
governed by section 7609 of the Internal Revenue Code. 26
U.S.C. § 7609 (1994 & Supp. 1998). Third-party recordkeepers
are defined as certain institutions and individuals--including
attorneys and law firms--that customarily maintain financial or
business records. Id. § 7603(b)(2) (Supp. 1998). By statute,
the IRS must provide notice of the summons not just to the
recordkeeper but also to the individual to whom the summons
pertains. Id. § 7609(a)(1) (Supp. 1998). The notice must
-3-
contain a copy of the summons and an explanation of the
noticee's right to initiate a proceeding to quash it. Id.
The IRS mailed a notice of summons to Berman's counsel
by certified mail dated May 2, 2000; Berman had previously
designated his counsel as the person to receive such notices.
The certified mail receipt returned to the IRS indicates that
Berman's counsel received the notice the next day, May 3.
Section 7609(a)(2) provides inter alia that the notice "shall be
sufficient if . . . mailed to" the person or his designated
representative. Section 7609(b)(2)(A) further provides in
relevant part:
Notwithstanding any other law or rule
of law, any person who is entitled to notice
of a summons under subsection (a) shall have
the right to begin a proceeding to quash
such summons not later than the 20th day
after the day such notice is given in the
manner provided in subsection (a)(2).
Twenty-two days after the summons was mailed by the
IRS--on May 24, 2000--Berman filed a petition to quash the
summons, alleging that a particular letter responsive to the
summons was privileged under the attorney-client, work product,
and joint defense privileges. The district court eventually
dismissed the petition to quash on the ground that it had not
been filed within the statutory 20-day period. This appeal
followed.
-4-
On appeal, Berman claims that his filing was timely
because, under a civil procedure rule, he had three extra days
to respond to a mailed notice. Alternatively, he says that the
IRS is barred by equitable estoppel from invoking the 20-day
deadline because an IRS agent said that the petition was timely
if filed by May 24. Lastly, Berman says that there are
alternative bases of jurisdiction independent of the statutory
petition to quash. These arguments turn on issues of law that
we resolve de novo.
Perhaps (we need not decide the point) an ordinary
reader of section 7609 might at first be uncertain whether, in
the case of mailed notices, the 20-day period runs from the date
of mailing or the date of receipt. Section 7609(b)(2)(A) says
that the proceeding to quash must be initiated "not later than
the 20th day after notice is given in the manner provided in
[section 7609](a)(2)," which in turn says that notice is
"sufficient" if "mailed."
However, the statutory provisions, taken together and
read carefully, literally say that the 20 days run from the date
that notice is "mailed." Even brief research would reveal that
the case law requires a motion to quash under section 7609 to be
filed within 20 days of the mailing of the notice, not of its
receipt. Faber v. United States, 921 F.2d 1118, 1119 (10th Cir.
-5-
1990); Stringer v. United States, 776 F.2d 274, 275 (11th Cir.
1985). A Treasury Department regulation confirms this reading.
26 C.F.R. § 301.7609-3(2) (2001) (proceeding to quash must be
commenced "not later than the 20th day following the day the
notice of the summons was . . . mailed").
In all events, Berman does not seriously dispute that
section 7609 requires that the petition to quash be filed within
20 days of the date the notice was mailed. (Here, as it
happens, using the date of receipt would not help Berman.)
Instead, Berman argues that he is entitled to the benefits of
Rule 6(e), which provides that "[w]henever a party has the right
or is required to do some act or take some proceedings within a
prescribed period after the service of a notice or other paper
upon the party and the notice or paper is served upon the party
by mail, 3 days shall be added to the prescribed period." Fed.
R. Civ. P. 6(e). If Rule 6(e) applied, Berman's petition would
be timely.
By its terms, Rule 6(e) is centrally concerned with
what a "party" does and a "party" operates within the framework
of an existing case. By contrast, statutes of limitation such
as section 7609 govern the time for commencing an action. The
prevailing view in the case law is that Rule 6(e) does not apply
-6-
to statutes of limitation,1 and at least two cases have held
explicitly that Rule 6(e) does not extend the 20-day period
prescribed by section 7609. Clay v. United States, 199 F.3d
876, 880 (6th Cir. 1999); Brohman v. Mason, 587 F. Supp. 62, 63
(W.D.N.Y. 1984). But see Turner v. United States, 881 F. Supp.
449, 451 (D. Haw. 1995) (dicta). We adopt the majority view, so
it is unnecessary to resolve several other, perhaps less
impressive, arguments pressed by the IRS to defeat the
application of Rule 6(e).2
Berman's second argument is that, even if Rule 6(e)
does not apply, the IRS is equitably estopped from asserting the
20-day statute of limitations because one of its agents
represented to Berman's counsel in a May 24 telephone
conversation that she believed that the deadline for filing the
petition was that day, May 24, when in fact the 20th day was two
1
E.g., Clay v. United States, 199 F.3d 876, 880 (6th Cir.
1999); United States v. Easement and Right-of-Way, 386 F.2d 769,
771 (6th Cir. 1967), cert. denied sub nom. Skaggs v. United
States, 390 U.S. 947 (1968); Whipp v. Weinberger, 505 F.2d 800,
801 (6th Cir. 1974) .
2
The IRS relies both on the "[n]otwithstanding" proviso that
introduces section 7609(b)(2)(A) and on the claim that the 20-
day limit is "jurisdictional" and cannot be extended by a civil
procedure rule, see Fed. R. Civ. P. 82. The proviso is less than
crystal clear, and if Rule 6(e) did apply to statutes of
limitation, it arguably would be possible to treat it as
incorporated into section 7609 by implication. Cf. Irwin v.
Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990).
-7-
days earlier, May 22. Whether equitable estoppel can be invoked
against the government in a case such as this is not settled.
The prexisting general rule-- that equitable estoppel, tolling,
and waiver do not apply against the government in the context of
a statutory deadline--was altered in Irwin v. Department of
Veterans Affairs, 498 U.S. 89 (1990), so that the presumption is
now the opposite at least so far as equitable tolling is
concerned.
Yet in United States v. Brockamp, 519 U.S. 347 (1997),
the Supreme Court limited Irwin's application in a particular
tax context. See also Oropallo v. United States, 994 F.2d 25,
28-31 (1st Cir. 1993), cert. denied, 510 U.S. 1050 (1994). For
policy as well as textual reasons the Court concluded that
equitable tolling did not apply to the statute of limitations
for filing tax refund claims under 26 U.S.C. § 6511, Brockamp,
519 U.S. at 354, a ruling in turn modified by Congress in 1998,
but only in part, 26 U.S.C. § 6511(h) (Supp. 1998). Just how
far Brockamp extends is debatable. Compare Capital Tracing,
Inc., v. United States, 63 F.3d 859, 861-63 (9th Cir. 1995),
with Compagnoni v. United States, 79 A.F.T.R.2d 97-2930, 97-
2932-33 (S.D. Fla. 1997), aff'd, 173 F.3d 1369 (11th Cir. 1999).
But we need not decide whether Irwin extends to equitable
estoppel or whether Brockamp extends to section 7609 because in
-8-
any event equitable estoppel could not be made out on these
facts.
Among the requirements for equitable estoppel is
justified reliance on the government's false or misleading
statement or conduct. E.g., Benitez-Pons v. Commonwealth of
Puerto Rico, 136 F.3d 54, 63 (1st Cir. 1998). Here, the
agent's statement or behavior, whatever its precise character,
occurred after the 20-day period had already expired. The
question of justification is beside the point; obviously,
Berman's counsel did not rely on the agent's statement in
failing to meet the deadline because the deadline had passed
before the statement was made.
The IRS brief also seeks to refute, on a precautionary
basis, a possible claim by Berman based on equitable tolling.
This is a somewhat different doctrine; it is based not just on
misconduct by the adverse party but also on broader equitable
concerns that might justify a late filing. Irwin, 498 U.S. at
96; Kale v. Combined Ins. Co. of Am., 861 F.2d 746, 752 (1st
Cir. 1988). However, Berman's brief contains no developed claim
of equitable tolling, so the argument is forfeit. United States
v. Bongiorno, 106 F.3d 1027, 1034 (1st Cir. 1997). Even if it
were preserved, and Brockamp were put to one side, the facts
suggest "at best a garden variety claim of excusable neglect"
-9-
and not a sufficient basis for equitable tolling. Irwin, 498
U.S. at 96; Salois v. Dime Sav. Bank, 128 F.3d 20, 25 (1st Cir.
1997).
Berman's final set of arguments is that his petition
to quash may be brought under jurisdictional statutes other than
section 7609(b)(2)(A)--specifically, 5 U.S.C. § 702 (1994); 28
U.S.C. § 1331 (1994); 28 U.S.C. § 1340 (1994); 28 U.S.C. §
1346(a)(2) (1994); and 28 U.S.C. § 1357 (1994). None of these
statutes assists Berman. General jurisdictional statutes such
as 28 U.S.C. § 1331 and 28 U.S.C. § 1340 do not waive sovereign
immunity and therefore cannot be the basis for jurisdiction over
a civil action against the federal government. Lonsdale v.
United States, 919 F.2d 1440, 1444 (10th Cir. 1990); cf.
Coggeshall Dev. Corp. v. Diamond, 884 F.2d 1, 3-4 (1st Cir.
1989).
Although the APA, 5 U.S.C. § 702, and the Little Tucker
Act, 28 U.S.C. § 1346(a)(2), do create limited waivers of
sovereign immunity, neither statute is applicable to Berman's
claim. The Little Tucker Act waives sovereign immunity for non-
tort claims against the United States "founded either upon the
Constitution, or any Act of Congress, or any regulation of an
executive department, or upon any express or implied contract
with the United States." 28 U.S.C. § 1346(a)(2). The
-10-
jurisdiction of the district courts is limited to claims for
money damages "not exceeding $10,000 in amount." Id. The
Little Tucker Act does not authorize claims that seek primarily
equitable relief. Richardson v. Morris, 409 U.S. 464, 465
(1973); Bobula v. U.S. Dep't of Justice, 970 F.2d 854, 858-59
(Fed. Cir. 1992).
Claims for non-monetary relief can be raised under
section 702 of the APA, but this section too is inapplicable to
Berman's petition. Section 702 waives the government's
sovereign immunity from claims for non-monetary relief from
administrative agency action. But section 702 specifically
limits the government's waiver of sovereign immunity by denying
the courts any "authority to grant relief if any other statute
that grants consent to suit expressly or impliedly forbids the
relief which is sought." 5 U.S.C. § 702. Section 7609(b)(2)(A)
is such an "other statute," and it "expressly forbids" any
relief if the petition is not timely filed. See Block v. North
Dakota, 461 U.S. 273, 286 n.22 (1983).
The remaining statute invoked by Berman, 28 U.S.C. §
1357, gives the district courts original jurisdiction over any
claim for money damages brought by an individual to recover for
any injury to his person or property on account of any act done
by him while enforcing any federal statute either for the
-11-
collection or protection of the revenues or to enforce the right
to vote. This provision is plainly inapplicable to Berman's
petition.
The order of the district court is affirmed.
-12-
United States Court of Appeals
For the First Circuit
No. 01-1266
JOHN R. BERMAN,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Bruce A. Singal with whom Donoghue, Barrett & Singal, P.C.
was on brief for appellant.
Kenneth W. Rosenberg, Tax Division, Department of Justice,
with whom Claire Fallon, Acting Assistant Attorney General,
Donald K. Stern, United States Attorney, and David English
Carmack, Tax Division, Department of Justice, were on brief for
the United States.
September 5, 2001
BOUDIN, Chief Judge. John Berman appeals from the
district court's order dismissing his motion to quash an
administrative summons served by the Internal Revenue Service;
the dismissal was based on the ground that the motion was not
timely filed. The pertinent facts are undisputed.
From 1991 until 1999, Berman was a partner in the
Boston law firm of Davis, Malm & D'Agostine ("the Davis firm").
He is the subject of an ongoing income tax investigation by the
IRS for the tax years 1993 through 1998. On May 1, 2000, the
IRS issued a summons to the keeper of records at the Davis firm,
requiring the production of various documents pertaining to
Berman. Included in the summons was a request for all
correspondence between Berman and the Davis firm or its
employees between January 1, 1998, and April 28, 2000.
The summons was a "third-party recordkeeper" summons
governed by section 7609 of the Internal Revenue Code. 26
U.S.C. § 7609 (1994 & Supp. 1998). Third-party recordkeepers
are defined as certain institutions and individuals--including
attorneys and law firms--that customarily maintain financial or
business records. Id. § 7603(b)(2) (Supp. 1998). By statute,
the IRS must provide notice of the summons not just to the
recordkeeper but also to the individual to whom the summons
pertains. Id. § 7609(a)(1) (Supp. 1998). The notice must
-3-
contain a copy of the summons and an explanation of the
noticee's right to initiate a proceeding to quash it. Id.
The IRS mailed a notice of summons to Berman's counsel
by certified mail dated May 2, 2000; Berman had previously
designated his counsel as the person to receive such notices.
The certified mail receipt returned to the IRS indicates that
Berman's counsel received the notice the next day, May 3.
Section 7609(a)(2) provides inter alia that the notice "shall be
sufficient if . . . mailed to" the person or his designated
representative. Section 7609(b)(2)(A) further provides in
relevant part:
Notwithstanding any other law or rule
of law, any person who is entitled to notice
of a summons under subsection (a) shall have
the right to begin a proceeding to quash
such summons not later than the 20th day
after the day such notice is given in the
manner provided in subsection (a)(2).
Twenty-two days after the summons was mailed by the
IRS--on May 24, 2000--Berman filed a petition to quash the
summons, alleging that a particular letter responsive to the
summons was privileged under the attorney-client, work product,
and joint defense privileges. The district court eventually
dismissed the petition to quash on the ground that it had not
been filed within the statutory 20-day period. This appeal
followed.
-4-
On appeal, Berman claims that his filing was timely
because, under a civil procedure rule, he had three extra days
to respond to a mailed notice. Alternatively, he says that the
IRS is barred by equitable estoppel from invoking the 20-day
deadline because an IRS agent said that the petition was timely
if filed by May 24. Lastly, Berman says that there are
alternative bases of jurisdiction independent of the statutory
petition to quash. These arguments turn on issues of law that
we resolve de novo.
Perhaps (we need not decide the point) an ordinary
reader of section 7609 might at first be uncertain whether, in
the case of mailed notices, the 20-day period runs from the date
of mailing or the date of receipt. Section 7609(b)(2)(A) says
that the proceeding to quash must be initiated "not later than
the 20th day after notice is given in the manner provided in
[section 7609](a)(2)," which in turn says that notice is
"sufficient" if "mailed."
However, the statutory provisions, taken together and
read carefully, literally say that the 20 days run from the date
that notice is "mailed." Even brief research would reveal that
the case law requires a motion to quash under section 7609 to be
filed within 20 days of the mailing of the notice, not of its
receipt. Faber v. United States, 921 F.2d 1118, 1119 (10th Cir.
-5-
1990); Stringer v. United States, 776 F.2d 274, 275 (11th Cir.
1985). A Treasury Department regulation confirms this reading.
26 C.F.R. § 301.7609-3(2) (2001) (proceeding to quash must be
commenced "not later than the 20th day following the day the
notice of the summons was . . . mailed").
In all events, Berman does not seriously dispute that
section 7609 requires that the petition to quash be filed within
20 days of the date the notice was mailed. (Here, as it
happens, using the date of receipt would not help Berman.)
Instead, Berman argues that he is entitled to the benefits of
Rule 6(e), which provides that "[w]henever a party has the right
or is required to do some act or take some proceedings within a
prescribed period after the service of a notice or other paper
upon the party and the notice or paper is served upon the party
by mail, 3 days shall be added to the prescribed period." Fed.
R. Civ. P. 6(e). If Rule 6(e) applied, Berman's petition would
be timely.
By its terms, Rule 6(e) is centrally concerned with
what a "party" does and a "party" operates within the framework
of an existing case. By contrast, statutes of limitation such
as section 7609 govern the time for commencing an action. The
prevailing view in the case law is that Rule 6(e) does not apply
-6-
to statutes of limitation,1 and at least two cases have held
explicitly that Rule 6(e) does not extend the 20-day period
prescribed by section 7609. Clay v. United States, 199 F.3d
876, 880 (6th Cir. 1999); Brohman v. Mason, 587 F. Supp. 62, 63
(W.D.N.Y. 1984). But see Turner v. United States, 881 F. Supp.
449, 451 (D. Haw. 1995) (dicta). We adopt the majority view, so
it is unnecessary to resolve several other, perhaps less
impressive, arguments pressed by the IRS to defeat the
application of Rule 6(e).2
Berman's second argument is that, even if Rule 6(e)
does not apply, the IRS is equitably estopped from asserting the
20-day statute of limitations because one of its agents
represented to Berman's counsel in a May 24 telephone
conversation that she believed that the deadline for filing the
petition was that day, May 24, when in fact the 20th day was two
1
E.g., Clay v. United States, 199 F.3d 876, 880 (6th Cir.
1999); United States v. Easement and Right-of-Way, 386 F.2d 769,
771 (6th Cir. 1967), cert. denied sub nom. Skaggs v. United
States, 390 U.S. 947 (1968); Whipp v. Weinberger, 505 F.2d 800,
801 (6th Cir. 1974) .
2
The IRS relies both on the "[n]otwithstanding" proviso that
introduces section 7609(b)(2)(A) and on the claim that the 20-
day limit is "jurisdictional" and cannot be extended by a civil
procedure rule, see Fed. R. Civ. P. 82. The proviso is less than
crystal clear, and if Rule 6(e) did apply to statutes of
limitation, it arguably would be possible to treat it as
incorporated into section 7609 by implication. Cf. Irwin v.
Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990).
-7-
days earlier, May 22. Whether equitable estoppel can be invoked
against the government in a case such as this is not settled.
The prexisting general rule-- that equitable estoppel, tolling,
and waiver do not apply against the government in the context of
a statutory deadline--was altered in Irwin v. Department of
Veterans Affairs, 498 U.S. 89 (1990), so that the presumption is
now the opposite at least so far as equitable tolling is
concerned.
Yet in United States v. Brockamp, 519 U.S. 347 (1997),
the Supreme Court limited Irwin's application in a particular
tax context. See also Oropallo v. United States, 994 F.2d 25,
28-31 (1st Cir. 1993), cert. denied, 510 U.S. 1050 (1994). For
policy as well as textual reasons the Court concluded that
equitable tolling did not apply to the statute of limitations
for filing tax refund claims under 26 U.S.C. § 6511, Brockamp,
519 U.S. at 354, a ruling in turn modified by Congress in 1998,
but only in part, 26 U.S.C. § 6511(h) (Supp. 1998). Just how
far Brockamp extends is debatable. Compare Capital Tracing,
Inc., v. United States, 63 F.3d 859, 861-63 (9th Cir. 1995),
with Compagnoni v. United States, 79 A.F.T.R.2d 97-2930, 97-
2932-33 (S.D. Fla. 1997), aff'd, 173 F.3d 1369 (11th Cir. 1999).
But we need not decide whether Irwin extends to equitable
estoppel or whether Brockamp extends to section 7609 because in
-8-
any event equitable estoppel could not be made out on these
facts.
Among the requirements for equitable estoppel is
justified reliance on the government's false or misleading
statement or conduct. E.g., Benitez-Pons v. Commonwealth of
Puerto Rico, 136 F.3d 54, 63 (1st Cir. 1998). Here, the
agent's statement or behavior, whatever its precise character,
occurred after the 20-day period had already expired. The
question of justification is beside the point; obviously,
Berman's counsel did not rely on the agent's statement in
failing to meet the deadline because the deadline had passed
before the statement was made.
The IRS brief also seeks to refute, on a precautionary
basis, a possible claim by Berman based on equitable tolling.
This is a somewhat different doctrine; it is based not just on
misconduct by the adverse party but also on broader equitable
concerns that might justify a late filing. Irwin, 498 U.S. at
96; Kale v. Combined Ins. Co. of Am., 861 F.2d 746, 752 (1st
Cir. 1988). However, Berman's brief contains no developed claim
of equitable tolling, so the argument is forfeit. United States
v. Bongiorno, 106 F.3d 1027, 1034 (1st Cir. 1997). Even if it
were preserved, and Brockamp were put to one side, the facts
suggest "at best a garden variety claim of excusable neglect"
-9-
and not a sufficient basis for equitable tolling. Irwin, 498
U.S. at 96; Salois v. Dime Sav. Bank, 128 F.3d 20, 25 (1st Cir.
1997).
Berman's final set of arguments is that his petition
to quash may be brought under jurisdictional statutes other than
section 7609(b)(2)(A)--specifically, 5 U.S.C. § 702 (1994); 28
U.S.C. § 1331 (1994); 28 U.S.C. § 1340 (1994); 28 U.S.C. §
1346(a)(2) (1994); and 28 U.S.C. § 1357 (1994). None of these
statutes assists Berman. General jurisdictional statutes such
as 28 U.S.C. § 1331 and 28 U.S.C. § 1340 do not waive sovereign
immunity and therefore cannot be the basis for jurisdiction over
a civil action against the federal government. Lonsdale v.
United States, 919 F.2d 1440, 1444 (10th Cir. 1990); cf.
Coggeshall Dev. Corp. v. Diamond, 884 F.2d 1, 3-4 (1st Cir.
1989).
Although the APA, 5 U.S.C. § 702, and the Little Tucker
Act, 28 U.S.C. § 1346(a)(2), do create limited waivers of
sovereign immunity, neither statute is applicable to Berman's
claim. The Little Tucker Act waives sovereign immunity for non-
tort claims against the United States "founded either upon the
Constitution, or any Act of Congress, or any regulation of an
executive department, or upon any express or implied contract
with the United States." 28 U.S.C. § 1346(a)(2). The
-10-
jurisdiction of the district courts is limited to claims for
money damages "not exceeding $10,000 in amount." Id. The
Little Tucker Act does not authorize claims that seek primarily
equitable relief. Richardson v. Morris, 409 U.S. 464, 465
(1973); Bobula v. U.S. Dep't of Justice, 970 F.2d 854, 858-59
(Fed. Cir. 1992).
Claims for non-monetary relief can be raised under
section 702 of the APA, but this section too is inapplicable to
Berman's petition. Section 702 waives the government's
sovereign immunity from claims for non-monetary relief from
administrative agency action. But section 702 specifically
limits the government's waiver of sovereign immunity by denying
the courts any "authority to grant relief if any other statute
that grants consent to suit expressly or impliedly forbids the
relief which is sought." 5 U.S.C. § 702. Section 7609(b)(2)(A)
is such an "other statute," and it "expressly forbids" any
relief if the petition is not timely filed. See Block v. North
Dakota, 461 U.S. 273, 286 n.22 (1983).
The remaining statute invoked by Berman, 28 U.S.C. §
1357, gives the district courts original jurisdiction over any
claim for money damages brought by an individual to recover for
any injury to his person or property on account of any act done
by him while enforcing any federal statute either for the
-11-
collection or protection of the revenues or to enforce the right
to vote. This provision is plainly inapplicable to Berman's
petition.
The order of the district court is affirmed.
-12-
United States Court of Appeals
For the First Circuit
No. 01-1266
JOHN R. BERMAN,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Bruce A. Singal with whom Donoghue, Barrett & Singal, P.C.
was on brief for appellant.
Kenneth W. Rosenberg, Tax Division, Department of Justice,
with whom Claire Fallon, Acting Assistant Attorney General,
Donald K. Stern, United States Attorney, and David English
Carmack, Tax Division, Department of Justice, were on brief for
the United States.
September 5, 2001
BOUDIN, Chief Judge. John Berman appeals from the
district court's order dismissing his motion to quash an
administrative summons served by the Internal Revenue Service;
the dismissal was based on the ground that the motion was not
timely filed. The pertinent facts are undisputed.
From 1991 until 1999, Berman was a partner in the
Boston law firm of Davis, Malm & D'Agostine ("the Davis firm").
He is the subject of an ongoing income tax investigation by the
IRS for the tax years 1993 through 1998. On May 1, 2000, the
IRS issued a summons to the keeper of records at the Davis firm,
requiring the production of various documents pertaining to
Berman. Included in the summons was a request for all
correspondence between Berman and the Davis firm or its
employees between January 1, 1998, and April 28, 2000.
The summons was a "third-party recordkeeper" summons
governed by section 7609 of the Internal Revenue Code. 26
U.S.C. § 7609 (1994 & Supp. 1998). Third-party recordkeepers
are defined as certain institutions and individuals--including
attorneys and law firms--that customarily maintain financial or
business records. Id. § 7603(b)(2) (Supp. 1998). By statute,
the IRS must provide notice of the summons not just to the
recordkeeper but also to the individual to whom the summons
pertains. Id. § 7609(a)(1) (Supp. 1998). The notice must
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contain a copy of the summons and an explanation of the
noticee's right to initiate a proceeding to quash it. Id.
The IRS mailed a notice of summons to Berman's counsel
by certified mail dated May 2, 2000; Berman had previously
designated his counsel as the person to receive such notices.
The certified mail receipt returned to the IRS indicates that
Berman's counsel received the notice the next day, May 3.
Section 7609(a)(2) provides inter alia that the notice "shall be
sufficient if . . . mailed to" the person or his designated
representative. Section 7609(b)(2)(A) further provides in
relevant part:
Notwithstanding any other law or rule
of law, any person who is entitled to notice
of a summons under subsection (a) shall have
the right to begin a proceeding to quash
such summons not later than the 20th day
after the day such notice is given in the
manner provided in subsection (a)(2).
Twenty-two days after the summons was mailed by the
IRS--on May 24, 2000--Berman filed a petition to quash the
summons, alleging that a particular letter responsive to the
summons was privileged under the attorney-client, work product,
and joint defense privileges. The district court eventually
dismissed the petition to quash on the ground that it had not
been filed within the statutory 20-day period. This appeal
followed.
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On appeal, Berman claims that his filing was timely
because, under a civil procedure rule, he had three extra days
to respond to a mailed notice. Alternatively, he says that the
IRS is barred by equitable estoppel from invoking the 20-day
deadline because an IRS agent said that the petition was timely
if filed by May 24. Lastly, Berman says that there are
alternative bases of jurisdiction independent of the statutory
petition to quash. These arguments turn on issues of law that
we resolve de novo.
Perhaps (we need not decide the point) an ordinary
reader of section 7609 might at first be uncertain whether, in
the case of mailed notices, the 20-day period runs from the date
of mailing or the date of receipt. Section 7609(b)(2)(A) says
that the proceeding to quash must be initiated "not later than
the 20th day after notice is given in the manner provided in
[section 7609](a)(2)," which in turn says that notice is
"sufficient" if "mailed."
However, the statutory provisions, taken together and
read carefully, literally say that the 20 days run from the date
that notice is "mailed." Even brief research would reveal that
the case law requires a motion to quash under section 7609 to be
filed within 20 days of the mailing of the notice, not of its
receipt. Faber v. United States, 921 F.2d 1118, 1119 (10th Cir.
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1990); Stringer v. United States, 776 F.2d 274, 275 (11th Cir.
1985). A Treasury Department regulation confirms this reading.
26 C.F.R. § 301.7609-3(2) (2001) (proceeding to quash must be
commenced "not later than the 20th day following the day the
notice of the summons was . . . mailed").
In all events, Berman does not seriously dispute that
section 7609 requires that the petition to quash be filed within
20 days of the date the notice was mailed. (Here, as it
happens, using the date of receipt would not help Berman.)
Instead, Berman argues that he is entitled to the benefits of
Rule 6(e), which provides that "[w]henever a party has the right
or is required to do some act or take some proceedings within a
prescribed period after the service of a notice or other paper
upon the party and the notice or paper is served upon the party
by mail, 3 days shall be added to the prescribed period." Fed.
R. Civ. P. 6(e). If Rule 6(e) applied, Berman's petition would
be timely.
By its terms, Rule 6(e) is centrally concerned with
what a "party" does and a "party" operates within the framework
of an existing case. By contrast, statutes of limitation such
as section 7609 govern the time for commencing an action. The
prevailing view in the case law is that Rule 6(e) does not apply
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to statutes of limitation,1 and at least two cases have held
explicitly that Rule 6(e) does not extend the 20-day period
prescribed by section 7609. Clay v. United States, 199 F.3d
876, 880 (6th Cir. 1999); Brohman v. Mason, 587 F. Supp. 62, 63
(W.D.N.Y. 1984). But see Turner v. United States, 881 F. Supp.
449, 451 (D. Haw. 1995) (dicta). We adopt the majority view, so
it is unnecessary to resolve several other, perhaps less
impressive, arguments pressed by the IRS to defeat the
application of Rule 6(e).2
Berman's second argument is that, even if Rule 6(e)
does not apply, the IRS is equitably estopped from asserting the
20-day statute of limitations because one of its agents
represented to Berman's counsel in a May 24 telephone
conversation that she believed that the deadline for filing the
petition was that day, May 24, when in fact the 20th day was two
1
E.g., Clay v. United States, 199 F.3d 876, 880 (6th Cir.
1999); United States v. Easement and Right-of-Way, 386 F.2d 769,
771 (6th Cir. 1967), cert. denied sub nom. Skaggs v. United
States, 390 U.S. 947 (1968); Whipp v. Weinberger, 505 F.2d 800,
801 (6th Cir. 1974) .
2
The IRS relies both on the "[n]otwithstanding" proviso that
introduces section 7609(b)(2)(A) and on the claim that the 20-
day limit is "jurisdictional" and cannot be extended by a civil
procedure rule, see Fed. R. Civ. P. 82. The proviso is less than
crystal clear, and if Rule 6(e) did apply to statutes of
limitation, it arguably would be possible to treat it as
incorporated into section 7609 by implication. Cf. Irwin v.
Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990).
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days earlier, May 22. Whether equitable estoppel can be invoked
against the government in a case such as this is not settled.
The prexisting general rule-- that equitable estoppel, tolling,
and waiver do not apply against the government in the context of
a statutory deadline--was altered in Irwin v. Department of
Veterans Affairs, 498 U.S. 89 (1990), so that the presumption is
now the opposite at least so far as equitable tolling is
concerned.
Yet in United States v. Brockamp, 519 U.S. 347 (1997),
the Supreme Court limited Irwin's application in a particular
tax context. See also Oropallo v. United States, 994 F.2d 25,
28-31 (1st Cir. 1993), cert. denied, 510 U.S. 1050 (1994). For
policy as well as textual reasons the Court concluded that
equitable tolling did not apply to the statute of limitations
for filing tax refund claims under 26 U.S.C. § 6511, Brockamp,
519 U.S. at 354, a ruling in turn modified by Congress in 1998,
but only in part, 26 U.S.C. § 6511(h) (Supp. 1998). Just how
far Brockamp extends is debatable. Compare Capital Tracing,
Inc., v. United States, 63 F.3d 859, 861-63 (9th Cir. 1995),
with Compagnoni v. United States, 79 A.F.T.R.2d 97-2930, 97-
2932-33 (S.D. Fla. 1997), aff'd, 173 F.3d 1369 (11th Cir. 1999).
But we need not decide whether Irwin extends to equitable
estoppel or whether Brockamp extends to section 7609 because in
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any event equitable estoppel could not be made out on these
facts.
Among the requirements for equitable estoppel is
justified reliance on the government's false or misleading
statement or conduct. E.g., Benitez-Pons v. Commonwealth of
Puerto Rico, 136 F.3d 54, 63 (1st Cir. 1998). Here, the
agent's statement or behavior, whatever its precise character,
occurred after the 20-day period had already expired. The
question of justification is beside the point; obviously,
Berman's counsel did not rely on the agent's statement in
failing to meet the deadline because the deadline had passed
before the statement was made.
The IRS brief also seeks to refute, on a precautionary
basis, a possible claim by Berman based on equitable tolling.
This is a somewhat different doctrine; it is based not just on
misconduct by the adverse party but also on broader equitable
concerns that might justify a late filing. Irwin, 498 U.S. at
96; Kale v. Combined Ins. Co. of Am., 861 F.2d 746, 752 (1st
Cir. 1988). However, Berman's brief contains no developed claim
of equitable tolling, so the argument is forfeit. United States
v. Bongiorno, 106 F.3d 1027, 1034 (1st Cir. 1997). Even if it
were preserved, and Brockamp were put to one side, the facts
suggest "at best a garden variety claim of excusable neglect"
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and not a sufficient basis for equitable tolling. Irwin, 498
U.S. at 96; Salois v. Dime Sav. Bank, 128 F.3d 20, 25 (1st Cir.
1997).
Berman's final set of arguments is that his petition
to quash may be brought under jurisdictional statutes other than
section 7609(b)(2)(A)--specifically, 5 U.S.C. § 702 (1994); 28
U.S.C. § 1331 (1994); 28 U.S.C. § 1340 (1994); 28 U.S.C. §
1346(a)(2) (1994); and 28 U.S.C. § 1357 (1994). None of these
statutes assists Berman. General jurisdictional statutes such
as 28 U.S.C. § 1331 and 28 U.S.C. § 1340 do not waive sovereign
immunity and therefore cannot be the basis for jurisdiction over
a civil action against the federal government. Lonsdale v.
United States, 919 F.2d 1440, 1444 (10th Cir. 1990); cf.
Coggeshall Dev. Corp. v. Diamond, 884 F.2d 1, 3-4 (1st Cir.
1989).
Although the APA, 5 U.S.C. § 702, and the Little Tucker
Act, 28 U.S.C. § 1346(a)(2), do create limited waivers of
sovereign immunity, neither statute is applicable to Berman's
claim. The Little Tucker Act waives sovereign immunity for non-
tort claims against the United States "founded either upon the
Constitution, or any Act of Congress, or any regulation of an
executive department, or upon any express or implied contract
with the United States." 28 U.S.C. § 1346(a)(2). The
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jurisdiction of the district courts is limited to claims for
money damages "not exceeding $10,000 in amount." Id. The
Little Tucker Act does not authorize claims that seek primarily
equitable relief. Richardson v. Morris, 409 U.S. 464, 465
(1973); Bobula v. U.S. Dep't of Justice, 970 F.2d 854, 858-59
(Fed. Cir. 1992).
Claims for non-monetary relief can be raised under
section 702 of the APA, but this section too is inapplicable to
Berman's petition. Section 702 waives the government's
sovereign immunity from claims for non-monetary relief from
administrative agency action. But section 702 specifically
limits the government's waiver of sovereign immunity by denying
the courts any "authority to grant relief if any other statute
that grants consent to suit expressly or impliedly forbids the
relief which is sought." 5 U.S.C. § 702. Section 7609(b)(2)(A)
is such an "other statute," and it "expressly forbids" any
relief if the petition is not timely filed. See Block v. North
Dakota, 461 U.S. 273, 286 n.22 (1983).
The remaining statute invoked by Berman, 28 U.S.C. §
1357, gives the district courts original jurisdiction over any
claim for money damages brought by an individual to recover for
any injury to his person or property on account of any act done
by him while enforcing any federal statute either for the
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collection or protection of the revenues or to enforce the right
to vote. This provision is plainly inapplicable to Berman's
petition.
The order of the district court is affirmed.
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