United States v. Charles Weiss ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 21-1592
______
UNITED STATES OF AMERICA
v.
CHARLES J. WEISS,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:19-cv-00502)
District Judge: Honorable Joel H. Slomsky
____________
Argued: May 3, 2022
Before: GREENAWAY, JR., PORTER, and PHIPPS, Circuit
Judges.
(Filed: November 2, 2022)
____________
Michael J. Haungs
John Schumann [ARGUED]
UNITED STATES DEPARTMENT OF JUSTICE
TAX DIVISION
950 Pennsylvania Avenue, N.W.
P.O. Box 502
Washington, DC 20044
Counsel for United States of America
James R. Malone, Jr. [ARGUED]
POST & SCHELL
1600 John F. Kennedy Boulevard
Four Penn Center, 14th Floor
Philadelphia, PA 19103
Counsel for Charles J. Weiss
_______________________
OPINION OF THE COURT
_______________________
PHIPPS, Circuit Judge.
After assessing delinquent taxes, the United States has ten
years to collect them, see 26 U.S.C. § 6502(a)(1), and this case
comes down to a matter of days within that decade.
Importantly, that limitations period does not necessarily run
continuously; it may be tolled for several increments of time,
including for the period during which a specific administrative
hearing before the Internal Revenue Service “and appeals
therein” are pending. Id. § 6330(e)(1). Here, the taxpayer
requested an administrative hearing, and that began tolling the
limitations period. After a series of unfavorable rulings – at
2
the hearing, in the Tax Court, and before the D.C. Circuit – the
taxpayer filed a petition for a writ of certiorari, which the
Supreme Court denied. But the United States waited until after
the denial of that petition to commence this action. By that
time, even with tolling, much, if not all, of the limitations
period had elapsed. Yet in interpreting the statute, petitions for
writs of certiorari are ‘appeals therein,’ and also an appeal
remains ‘pending’ until the time to file such a petition expires.
Due to that additional tolling of the statute of limitations for
those increments, this collection action is timely. Id.
I. FACTUAL BACKGROUND
(UNDISPUTED BY THE PARTIES)
For the six-year period from 1986 through 1991, Charles
Weiss did not pay federal income taxes. In October 1994,
Weiss late-filed his tax returns for those years, self-reporting a
liability of $299,202. Later that month, the Internal Revenue
Service made tax assessments against him for each of those
years.
By assessing those taxes, the IRS triggered a ten-year
limitations period for collecting the unpaid taxes through a
court proceeding or a levy, which is a legal seizure of property
or a right to property. See 26 U.S.C. §§ 6331(b), 6502(a)(1).
Weiss’s subsequent bankruptcies tolled that limitations period
three times between 1994 and 2009, yielding a new expiration
date for the statute of limitations: July 21, 2009.
In anticipation of that deadline, the IRS began the process
of collecting the unpaid taxes through a levy. It mailed a Final
Notice – Notice of Intent to Levy and Notice of Your Right to a
Hearing letter to Weiss on or about February 13, 2009. That
notice, also referred to as a Letter 1058A, informed Weiss that
the IRS intended to levy his unpaid taxes for the years 1986 to
1991, and that he had an opportunity to request a Collection
Due Process hearing. A Collection Due Process hearing is an
administrative proceeding before an appeals officer with the
3
IRS Independent Office of Appeals in which a taxpayer may
raise “any relevant issue relating to the unpaid tax or the
proposed levy.” Id. § 6330(c)(2)(A); see id. § 6330(b); cf. id.
§ 6330(c)(4) (precluding certain previously resolved issues
from being raised at a Collection Due Process hearing). The
notice, although expressing an intent to levy Weiss’s property,
was not sufficient to make a levy – that requires a notice of
seizure – and thus, the statute of limitations continued to run.
See id. § 6502(b) (stating that a levy is considered made on the
date that notice of seizure is given); see also id. § 6335(a)
(providing for notice of seizure).
In response to that notice, Weiss timely requested a
Collection Due Process hearing through a Form 12153. See id.
§ 6330(a)(3)(B); see also Weiss v. Comm’r, 2018 WL
2759389, at *2–3 (D.C. Cir. May 22, 2018) (per curiam)
(concluding that Weiss’s request was timely), cert. denied,
139 S. Ct. 612 (2018). That request suspended the statute of
limitations for the period during which the hearing “and
appeals therein” were “pending.” 26 U.S.C. § 6330(e)(1). On
the date that Weiss requested the hearing, no less than 129 days
remained in the limitations period.
Weiss did not prevail at the hearing or in any of his review-
as-of-right challenges in federal court. The IRS Independent
Office of Appeals ruled against him at the Collection Due
Process hearing. Weiss sought review of that determination by
timely filing a petition with the United States Tax Court. See
id. § 6330(d)(1). Over five years later, the Tax Court affirmed
that determination. See Weiss v. Comm’r, 147 T.C. 179, 181
(2016). Weiss then timely appealed the Tax Court’s ruling to
the United States Court of Appeals for the District of Columbia
Circuit, but he fared no better there. See 26 U.S.C. § 7483.
The D.C. Circuit affirmed the Tax Court’s judgment, and
Weiss petitioned for panel rehearing and rehearing en banc.
See Weiss v. Comm’r, 2018 WL 2759389 (D.C. Cir. May 22,
2018). After denying those petitions, the D.C. Circuit issued a
mandate on August 23, 2018.
4
As a last resort, Weiss timely filed a petition for a writ of
certiorari with the Supreme Court of the United States on
October 24, 2018. See 28 U.S.C. § 1254(1) (allowing for
review of court of appeals decisions by writ of certiorari).
Through an order on December 3, 2018, the Supreme Court
denied that petition. See Weiss v. Comm’r, 139 S. Ct. 612(2018).
At that point, instead of proceeding to levy Weiss’s
property, the government initiated a collection action in the
District Court. See 28 U.S.C. §§ 1340, 1345; see also
26 U.S.C. § 7402(a). Through a complaint filed on February
5, 2019, the government sought to collect from Weiss his
delinquent taxes plus accrued interest, which together totaled
$773,899.84.
II. PROCEDURAL HISTORY
The issue before the District Court was the timeliness of
this action. The parties stipulated to the material facts and
cross-moved for summary judgment. They disagreed as to the
meaning of two terms in the tolling provision of § 6330(e)(1):
whether the phrase ‘appeals therein’ includes petitions for
writs of certiorari and whether a denial of a petition for a writ
of certiorari constitutes a ‘final determination’ in a Collection
Due Process hearing.
The District Court resolved both of those issues in favor of
the government. It concluded that a petition for a writ of
certiorari falls within the ‘appeals therein’ clause. It also held
that the Supreme Court’s denial of such a petition constitutes a
‘final determination’ in a Collection Due Process hearing. On
those grounds, the District Court entered summary judgment
for the government.
Through a timely appeal, Weiss invokes this Court’s
appellate jurisdiction and challenges both bases for the District
5
Court’s finding of timeliness. See 28 U.S.C. § 1291; Fed. R.
App. P. 4(a).
III. DISCUSSION
This case lends itself well to de novo review of the
summary-judgment record. See Fed. R. Civ. P. 56(a); see
Cranbury Brick Yard, LLC v. United States, 943 F.3d 701, 708
(3d Cir. 2019). The material facts are undisputed. After the
D.C. Circuit issued the mandate, no less than 129 days
remained of the ten-year statute of limitations. Weiss filed a
petition for a writ of certiorari 62 days later, and 40 days after
that, the Supreme Court denied his petition. The date on which
government commenced this action was 64 days after the
Supreme Court’s denial of Weiss’s petition for a writ certiorari
and 166 days after the D.C. Circuit’s mandate.
Using those dates, the timeliness of this case turns on
questions of law. If the statute of limitations, which had no
less than 129 days remaining, is tolled for either the time
between the D.C. Circuit’s mandate and Weiss’s petition (62
days) or the time from Weiss’s filing of that petition to its
denial (40 days), then the government’s filing of this case 166
days after the D.C. Circuit’s mandate would be timely. But if
both of those increments associated with Weiss’s petition fail
to suspend the statute of limitations, then the government’s
filing would be too late. As elaborated below, the time
associated with Weiss’s petition (a combined total of 102 days)
tolls the statute of limitations, and that renders this action
timely – without the need to address the applicability of the
‘final determination’ provision relied upon by the District
Court.
Under the statute of limitations, once a tax is assessed, the
government has ten years to collect it “by levy or by a
proceeding in court.” 26 U.S.C. § 6502(a)(1). But
§ 6330(e)(1) operates as a tolling statute by suspending the
6
statute of limitations for the period during which Collection
Due Process hearings and appeals therein are pending:
Except as provided in paragraph (2), if a hearing
is requested under subsection (a)(3)(B), the levy
actions which are the subject of the requested
hearing and the running of any period of
limitations under section 6502 (relating to
collection after assessment), section 6531
(relating to criminal prosecutions), or section
6532 (relating to other suits) shall be suspended
for the period during which such hearing, and
appeals therein, are pending.
Id. § 6330(e)(1) (emphasis added).
In allowing tolling for that period, Congress did not define
two relevant terms – ‘appeals therein’ and ‘pending.’ Without
a controlling statutory definition, those terms take on their
“ordinary, contemporary, common meaning.” Perrin v. United
States, 444 U.S. 37, 42 (1979); see also Wis. Cent. Ltd. v.
United States, 138 S. Ct. 2067, 2070 (2018) (quoting Perrin,
444 U.S. at 42); Crane v. Comm’r, 331 U.S. 1, 6 (1947)
(“[T]he words of statutes – including revenue acts – should be
interpreted where possible in their ordinary, everyday
senses.”); United States v. Jabateh, 974 F.3d 281, 296 (3d Cir.
2020) (“[U]nder the fixed-meaning canon ‘[w]ords must be
given the meaning they had when the text was adopted.’”
(quoting Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 78 (2012)) (alteration in
original)). Yet, from sources near in time to the statute’s
enactment, including contemporaneous dictionaries, 1 both
1
See generally Wis. Cent. Ltd. v. United States, 138 S. Ct.
2067, 2070–71 (2018) (using contemporaneous dictionaries to
ascertain the meaning of an undefined statutory term); see also
Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014) (same);
Delaware Cnty. v. Fed. Hous. Fin. Agency, 747 F.3d 215, 221
7
terms are capable of multiple meanings, and this case depends
on which of those meanings apply to the tolling provision.
A. As Used in the Tolling Statute, the Phrase
‘Appeals Therein’ Includes a Petition for a
Writ of Certiorari.
To interpret the phase ‘appeals therein’ requires an analysis
of its two component words, each of which is capable of
multiple meanings.
The first of those, ‘appeal,’ had two common meanings
when § 6330 was enacted in 1998. Contemporary dictionaries
reveal that it could be used, in a general sense, to mean a
“[r]esort to a superior (i.e. appellate) court to review the
decision of an inferior (i.e. trial) court.” Appeal, Black’s Law
Dictionary (6th ed. 1990). Under that general meaning, the
term ‘appeal’ would include both appeals and petitions – those
filed in court and those filed administratively. See id. But as
evidenced by a number of federal statutes and court rules, the
term ‘appeal’ could also refer to a narrower class within that
larger class: it could mean a method of seeking review of an
order that is distinct from other such methods, such as a
petition. As used more narrowly, appeals are typically initiated
in the court that issued the order, 2 while petitions are often
(3d Cir. 2014) (“When words are left undefined, we have
turned to ‘standard reference works such as legal and general
dictionaries in order to ascertain their ordinary meaning.’”
(quoting Eid v. Thompson, 740 F.3d 118, 123 (3d Cir. 2014))).
2
See, e.g., Sup. Ct. R. 18(1) (1997) (stating that appeals from
three-judge district court panels are commenced by filing a
notice of appeal with the district court clerk); Fed. R. App. P.
3(a) (1994) (stating that appeals as of right from district courts
are taken by filing a notice of appeal with the district court
clerk); Fed. R. App. P. 13(a) (1994) (stating that appeals as of
right from the Tax Court are taken by filing a notice of appeal
with the Tax Court clerk); Tax Ct. R. 190(a) (1994) (same);
8
commenced through a filing with the reviewing body. 3 Cf.
Garland v. Ming Dai, 141 S. Ct. 1669, 1677–78 (2021)
Bankr. R. 8003(a)(1) (1994) (stating that bankruptcy appeals
as of right are taken by filing a notice of appeal with the
bankruptcy clerk); 15 U.S.C. § 1071(a)(1)–(2) (1994) (stating
that appeals from the Trademark Trial and Appeal Board are
taken by filing a notice of appeal in the U.S. Patent and
Trademark Office); 18 U.S.C. § 3742 (1994) (stating that
appeals of sentences imposed by district courts are taken by
filing a notice of appeal in the district court); 26 U.S.C. § 7483(1994) (stating that review of Tax Court decision is taken by
filing a notice of appeal with the Tax Court clerk); 28 U.S.C.
§ 2522 (1994) (stating that review of decisions of the Court of
Federal Claims is taken by filing a notice of appeal with the
clerk of that court); 28 U.S.C. § 2645(c) (1994) (stating that
review of decisions of the Court of International Trade is taken
by filing a notice of appeal with the clerk of that court);
35 U.S.C. § 142 (1994) (stating that patent appeals from Patent
and Trademark Office decisions are taken by filing a notice of
appeal with that office); 38 U.S.C. § 7292(a) (1994) (stating
that review of decisions of the U.S. Court of Appeals for
Veterans Claims is taken by filing a notice of appeal with that
court).
3
See, e.g., Sup. Ct. R. 12 (1997) (stating that review on
certiorari is sought by filing a petition with the Supreme Court
clerk); Fed. R. App. P. 5(a) (1994) (stating that permissive
appeals to the courts of appeals are sought by filing a petition
with the circuit clerk); Fed. R. App. P. 15(a) (1994) (stating
that review of agency orders is commenced by filing a petition
with the circuit clerk); Tax Ct. R. 20 (1994) (stating that a case
in the Tax Court is commenced by filing a petition with that
court); 3 U.S.C. § 425(c)(5) (1997) (stating that persons
aggrieved by decisions of the Occupational Safety and Health
Review Commission or the Secretary of Labor may seek
review by filing a petition with the U.S. Court of Appeals for
the Federal Circuit); 5 U.S.C. § 7703(b)(1) (1994) (stating that
decisions of the Merit Systems Protection Board are reviewed
9
(explaining that appeals typically provide for direct review
while petitions typically allow for collateral review). Also,
under that narrower meaning, appeals tend to be provided as of
right, while petitions more frequently depend on the discretion
of the reviewing body. Compare Sup. Ct. R. 10 (1997)
(explaining that “[r]eview on a writ of certiorari is not a matter
of right, but of judicial discretion” that “will be granted only
for compelling reasons”), and 28 U.S.C. § 1254(1) (1994),
with Sup. Ct. R. 18 (1997) (explaining that a party invokes the
Supreme Court’s appellate jurisdiction “by filing a notice of
appeal”), and 28 U.S.C. § 1253 (1994). 4
by filing a petition in the U.S. Court of Appeals for the Federal
Circuit); 7 U.S.C. § 21(i)(4) (1994) (stating that decisions of
the Commodity Futures Trading Commission are reviewed by
filing a petition in a court of appeals); 8 U.S.C. § 1105(a)(2)
(1994) (stating that review of orders of removal by the Board
of Immigration Appeals is taken by filing a petition in a court
of appeals); 28 U.S.C. § 2344 (1994) (permitting review of
agency orders by filing a petition in a court of appeals);
29 U.S.C. § 660(a) (1994) (permitting review of orders of the
Occupational Safety and Health Review Commission by filing
a petition in a court of appeals); 42 U.S.C. § 4915(a) (1994)
(permitting review of actions of the Administrator of the
Environmental Protection Agency by filing a petition in the
U.S. Court of Appeals for the D.C. Circuit); cf. Fed. R. App. P.
35(b) (1994) (providing for petitions for rehearing en banc to
be filed with the court of appeals); Fed. R. App. P. 40(a) (1994)
(providing for petitions for panel rehearing to be filed with the
court of appeals).
4
Because the general meaning of ‘appeal’ fully encompasses
its narrower meaning, that word is known as an autohyponym.
See Laurence R. Horn, Ambiguity, Negation, and the London
School of Parsimony, 14 N.E. Linguistics Soc’y 108, 110–18
(1984) (discussing a number of common autohyponyms). A
common autohyponym is the word ‘finger,’ which can refer
generally to all the digits on one’s hand, but it can also refer to
only the non-thumb digits. See Anu Koskela, Inclusion
10
At the time of the tolling statute’s enactment, the word
‘therein’ also had two ordinary, common meanings. It could
mean “[i]n that place.” Therein, Black’s Law Dictionary (6th
ed. 1990); see also Webster’s New International Dictionary
(‘Webster’s Third’) 2372 (3d ed. 1993). In context, under that
meaning, the phrase ‘appeals therein’ would refer to appeals
pending in the same place as the Collection Due Process
hearing, which would be within the IRS, not in a federal court.
But under the other definition, ‘therein’ could mean “in such
matter.” Webster’s Third 2372 (defining ‘therein’ as “in that
particular[;] in that respect[;] in such matter”). Under that
meaning, the phrase ‘appeals therein’ in context would refer to
appeals of a Collection Due Process hearing determination.
Because the terms ‘appeals’ and ‘therein’ each had two
meanings, there are four possible combinations for the
meaning of the phrase ‘appeals therein.’ But three of those
combinations would render the expression ‘appeals therein’
meaningless because they reference processes that do not exist,
such as administrative appeals of Collection Due Process
hearings within the IRS. By contrast, the fourth combination
– ‘appeals’ in the general sense and ‘therein’ as ‘in such matter’
– produces a reasonable outcome that is consistent with
multiple canons of construction.
Contrast and Polysemy in Dictionaries: The Relationship
Between Theory, Language Use & Lexiographic Practice,
12:4 Rsch. in Language 319, 320–22 (2014). A common legal
term that is an autohyponym is ‘res judicata’: it has a general
meaning that encompasses both claim preclusion and issue
preclusion, but it also has a narrower meaning that refers only
to claim preclusion. See United States v. 5 Unlabeled Boxes,
572 F.3d 169, 173–74 (3d Cir. 2009); see also Kaspar Wire
Works, Inc. v. Leco Eng’g & Mach., Inc., 575 F.2d 530, 535–
36 (5th Cir. 1978); 18 C. Wright, A. Miller, & E. Cooper,
Federal Practice & Procedure § 4402 (3d ed. Apr. 2022
update).
11
Three combinations of the terms ‘appeals’ and ‘therein’
yield meanings that nullify the phrase’s effect in contravention
of the canon against superfluity, which holds that every word
in a statute should be given effect. See generally Nat’l Ass’n
of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 632 (2018) (“[T]he
Court is ‘obliged to give effect, if possible, to every word
Congress used.’” (quoting Reiter v. Sonotone Corp., 442 U.S.
330, 339 (1979))). First, if the term ‘appeals’ is read narrowly
(to exclude petitions for review) and the term ‘therein’ is used
locationally (to mean only administrative appeals within the
IRS), then the phrase describes nothing. The IRS does not
provide for an administrative appeal process, see 26 U.S.C.
§ 6330(b)–(d); see also 26 C.F.R. § 301.6330-1(b)(2), so if
‘appeals therein’ referred to only administrative appeals within
the IRS, it would be superfluous. Second, for essentially the
same reasons, the broad meaning of the term ‘appeals’ coupled
with the locational definition of ‘therein’ would also render the
combined expression useless: the IRS does not permit
administrative appeals or administrative petitions, see
26 U.S.C. § 6330(b)–(d); see also 26 C.F.R. § 301.6330-
1(b)(2), so again the phrase would have no effect. Third, if
‘appeals’ is read narrowly, and ‘therein’ is read as ‘in such
matter,’ then that too would produce a meaningless result.
Seeking review of a Collection Due Process hearing requires
filing a petition in the Tax Court, not an appeal, see 26 U.S.C.
§ 6330(d)(1); see also 26 C.F.R. § 6330-1(b)(2), (f)(1), and if
the phrase ‘appeals therein’ excludes petitions, then it does no
work.
The fourth combination, however, does not offend the
canon against superfluity. If the term ‘appeals’ receives its
broader meaning (to include petitions) and the word ‘therein’
means ‘in such matter,’ then the phrase ‘appeals therein’ refers
to any appeals or petitions from a Collection Due Process
hearing. That understanding accounts for the entire judicial
review process: the Tax Court reviews petitions from the
Collection Due Process hearing, see 26 U.S.C. § 6330(d)(1);
12
see also 26 C.F.R. § 301.6330-1(b)(2), (f)(1); the appellate
courts review appeals from the Tax Court as well as petitions
for panel rehearing and en banc rehearing, see 26 U.S.C.
§ 7482(a)(1); Fed. R. App. P. 35, 40; and petitions for certiorari
from the appellate courts may be filed with the Supreme Court,
see 28 U.S.C. § 1254(1).
Also, with respect to the meaning of the term ‘appeal,’ the
fourth combination comports with the general-terms canon,
which holds that general terms should be interpreted generally.
See Arizona v. Tohono O’odham Nation, 818 F.3d 549, 557 &
n.4 (9th Cir. 2016) (“General words are to be understood in a
general sense.”); see also Gov’t Emps. Ret. Sys. of V.I. v. Gov’t
of V.I., 995 F.3d 66, 107 (3d Cir. 2021) (Matey, J., concurring
in part) (“[G]eneral terms ‘are to be accorded their full and fair
scope’ and ‘are not to be arbitrarily limited.’” (quoting Scalia
& Garner, supra, at 101)); 3A J.G. Sutherland, Statutes and
Statutory Construction § 66:6 (8th ed. 2018) (“Courts
construing tax collection statutes employ the usual maxims of
construction.”). And here, the tolling statute contains no
suggestion that the term ‘appeals’ should be given its narrow
meaning. See 26 U.S.C. § 6330. Although in other sections of
the tax code, Congress distinguished between notices of appeal
and petitions for certiorari, see, e.g., id. § 7481(a), it did not do
so here. Thus, under the general-terms canon, the term
‘appeals’ as used in § 6330 should receive its general meaning.
Altogether, these considerations remove any uncertainty as
to the meaning of the phrase ‘appeals therein’: it applies to any
appeals and petitions seeking review of a Collection Due
Process hearing, including a petition for a writ of certiorari.
13
B. Under the Tolling Statute, a Collection Due
Process Hearing or Appeal Therein Is
‘Pending’ from Its Commencement Until the
Date When It Can No Longer Be Challenged.
Even with clarity on the meaning of ‘appeals therein,’ the
calculation of the tolling period depends on the term ‘pending.’
Section 6330(e)(1) suspends the statute of limitations “for the
period during which such hearing, and appeals therein, are
pending.” 26 U.S.C. § 6330(e)(1). In this context, the term
‘pending’ functions as a predicate adjective, modifying ‘such
hearing, and appeals therein.’ And when Congress enacted
§ 6330(e)(1), the term ‘pending’ had two common ordinary
meanings as an adjective.
Under one definition, ‘pending’ could mean “[b]egun, but
not yet completed.” Pending, Black’s Law Dictionary (6th ed.
1990); see also Webster’s Third 1669 (defining “pending” as
“not yet decided,” “in continuance,” and “in suspense”). With
that meaning for ‘pending,’ the hearing and the ‘appeals
therein’ would be pending until the agency resolved the
hearing or a court decided the appeal, but after resolution,
neither the hearing nor an ‘appeal therein’ would remain
pending. In the context of § 6330(e)(1), that would result in
intermittent tolling such that the statute of limitations would be
suspended for potentially several distinct periods. Tolling
would occur while the hearing was active, but it would cease
for the interval between resolution of the initial hearing and the
filing of an appeal. Similarly, the statute of limitations would
be suspended while the ‘appeals therein’ were active, but the
tolling would stop for the time between resolution of an appeal
and the filing of any successive appeal permitted by law.
Alternatively, the term ‘pending’ had the common ordinary
meaning of “[a]waiting an occurrence of conclusion of an
action,” such that it described “a period of continuance or
indeterminacy.” Pending, Black’s Law Dictionary (6th ed.
1990); see also Webster’s Third 1669 (defining ‘pending’ as
14
“impending” or “imminent”). Under that meaning, a hearing
or an appeal therein would be pending after its resolution for
the period while the ruling remained indeterminate due to the
possibility of an impending or imminent appeal. Under this
definition, the tolling under § 6330(e)(1) would be continuous
– from the date of the commencement of the hearing through
to the date on which the possibility of future appellate review
expired.
For purposes of § 6330(e)(1), only the second definition
works. The tolling clause identifies a singular ‘period’ of
suspension. The first definition of ‘pending,’ however, would
involve several distinct periods of piecemeal tolling. The
statute of limitations would be suspended for the hearing and
every appeal, but not for the interim periods between resolution
and appeal. If Congress had intended to account for such
intermittent tolling, it could have used the word ‘periods.’ But
by instead using the singular term, ‘period,’ the statute allows
only the second meaning of ‘pending,’ such that it describes a
continuous period inclusive of not only the hearing and
‘appeals therein’ but also any intervening periods of
indeterminacy during which an appeal or petition could be
filed.
Applying the second definition here, the statute of
limitations remained tolled for the 62 days between the D.C.
Circuit’s mandate and Weiss’s petition for a writ of certiorari.
C. This Action Is Timely Because the Statute of
Limitations Tolled for the Time Associated
with Weiss’s Petition for a Writ of Certiorari.
With that understanding, this action is timely. At least 129
days remained on the statute of limitations when the D.C.
Circuit issued its mandate. Due to the meanings of the terms
‘appeals therein’ and ‘pending,’ that period is not reduced
either by the time that Weiss took to file his petition for a writ
of certiorari (62 days) or by the time that the Supreme Court
15
took to deny the petition (40 days). Thus, the government had
129 days after the Supreme Court’s denial of Weiss’s petition
to commence this action, and it did so within 64 days – leaving
at least 65 days of the ten-year statute of limitations to spare.
IV. CONCLUSION
For the foregoing reasons, the District Court’s judgment
will be affirmed.
16