Marvel Thompson v. United States ( 2011 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 1, 2011*
Decided November 3, 2011
Before
DIANE P. WOOD, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 11-1063
Appeal from the United States District
MARVEL THOMPSON,
Court for the Northern District of Illinois,
Plaintiff-Appellant, Eastern Division.
v. No. 10 C 4455
UNITED STATES OF AMERICA, Harry D. Leinenweber,
Defendant-Appellee. Judge.
ORDER
When police officers arrested Marvel Thompson in 2004 for his drug activities, they
also seized approximately $320,000. The government did not pursue forfeiture of the funds,
and Thompson sought their return in a separate civil action in the Northern District of
Illinois. The district court ruled that Thompson owned the funds, but allowed the
government to retain possession of them, and we affirmed. Thompson v. United States,
*
After examining the appellant’s brief and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See
FED. R. APP. P. 34(a)(2)(C).
No. 11-1063 Page 2
No. 10-3043, 2011 WL 2938075 (7th Cir. July 22, 2011). We explained that, after Thompson
sought the return of these funds, the IRS learned that Thompson had not filed any tax
returns between 2000 and 2004. Concerned about Thompson’s possible insolvency, the IRS
sent Thompson notices of a jeopardy assessment and jeopardy levy (which launched
expedited proceedings enabling the IRS to secure quickly any past-due tax payments from
available sources, see 26 U.S.C. §§ 6861, 6331(a)), for $218,797.48. Thompson challenged the
jeopardy assessment and levy by filing a complaint in the Western District of Louisiana.
That court transferred the suit to the Northern District of Illinois, where the district court
upheld the jeopardy levy and assessment. Thompson appeals that ruling, arguing that
because the district court did not rule on his complaint within the 20-day period specified
by 26 U.S.C. § 7429(b)(3), the jeopardy levy and assessment must be extinguished. Because
we conclude that the court acted within the scope of its authority, we affirm.
The IRS sent Thompson the notice of a jeopardy assessment and levy in early 2010.
Thompson was then incarcerated in Louisiana, serving a 540-month sentence for his drug
activities. He filed his complaint in the Western District of Louisiana on May 4, 2010. The
next week the court issued summonses on the United States and dispatched the United
States Marshal to serve the United States. In Thompson’s complaint, and in a separate filing
he made three weeks later, Thompson stated that the district court had 20 days from the
date he filed his complaint to rule on the validity of jeopardy assessment and levy, a
reference to 26 U.S.C § 7429(b)(3).
Five weeks after Thompson filed his complaint, the district court still had not ruled,
so he moved for summary judgment to void the assessment and levy on the basis that the
20 days had elapsed. The government responded that, although Thompson had mailed the
complaint to the United States Attorney’s Office, no one had served the United States in the
manner specified in Rule 4(i)(1). See FED.R.CIV.P. 4(i)(1) (providing that the plaintiff must
serve the complaint and summons on the United States Attorney’s Office, the Attorney
General of the United States and the IRS by certified or registered mail). Because of the
insufficiency of service of process, the government argued that the improper service tolled
the 20-day period under 26 U.S.C § 7429(b)(3). The government also argued that, because
Thompson’s last residence before imprisonment was Chicago, the proper venue for
Thompson’s lawsuit was the Northern District of Illinois. On the merits, the government
argued that the jeopardy levy was reasonable because Thompson participated in illegal
activities, failed to file tax returns, and was likely financially insolvent.
The Louisiana district court characterized Thompson’s motion as akin to a request
for a default judgment and found that the record contained no proof of service on the
United States. It also ruled that Thompson “did not inform the court of his entitlement to a
speedy determination of his claim” and that in any case venue was proper only in the
Northern District of Illinois, where it transferred the suit.
Once 20 days elapsed after the transfer of his suit, Thompson moved for summary
judgment in the Illinois district court. He reiterated his belief that he was entitled to
judgment as a matter of law because of the lapsed 20-day period. The government urged
No. 11-1063 Page 3
the court to adopt the ruling of the Louisiana district court rejecting that position. In its
own motion, the government asked for summary judgment on the merits, citing
Thompson’s unfiled returns, illegal drug activities, and probable insolvency. Five days after
the government filed its motion, the district court agreed that the expired 20-day period
did not mandate judgment in Thompson’s favor. At the same time, the court stated that the
government’s explanation for the levy and assessment was sufficient.
In this appeal, Thompson acknowledges that 26 U.S.C. § 7429(f) limits our review to
considering only whether the district court exceeded its authority by ruling on his
complaint more than 20 days after he filed it. Hiley v. United States, 807 F.2d 623, 627–28 (7th
Cir. 1986) (explaining that “although a district court's decision on the merits of the making
and amount of the assessment is unreviewable, an appellate court does have jurisdiction to
determine whether the district court acted within the scope of its statutory authority");
United States v. Doyle, 660 F.2d 277, 279 (7th Cir. 1981). He highlights that under section
7429, “[w]ithin 20 days” of the filing of the complaint, the district court “shall” determine
whether the jeopardy assessment is reasonable and whether the amount assessed is
appropriate. Because the district court did not rule within 20 days, Thompson maintains
that it was required to abate the jeopardy levy, not approve it.
Because the 20-day provision does not specify the consequences for failure to meet
the deadline, we have concluded that it sets out “only a strong admonition for the judiciary
to act expeditiously” rather than “a limitation on the lower courts' jurisdiction. . . .” Hiley,
807 F.2d at 627 n.7. Furthermore, since the deadline is extraordinarily short, we will not
impose the drastic remedy of voiding a levy unless the plaintiff has shown extraordinary
diligence in informing the court that the case is ready for a prompt ruling. Doyle, 660 F.2d at
280. Here, Thompson did not show such diligence. He asserted to the Illinois and Louisiana
district courts only that he was entitled to a ruling 20 days after he filed suit, but he ignored
that the statute tolls the 20-day period if “the court determines that proper service was not
made. . . .” 26 U.S.C. § 7429(b)(3). The Louisiana court found no proof of service. Moreover,
when a plaintiff seeks a default judgment against the United States or its agencies, the
plaintiff must prove a “right to relief by evidence that satisfies the court.” See FED.R.CIV.P.
55(d). And proof of valid service of process is always a prerequisite to judicial relief, Omni
Capital Int'l, Ltd. v. Rudolph Wolff & Co., 484 U.S. 97, 104 (1987), even for pro se plaintiffs
suing the United States, McMasters v. United States, 260 F.3d 814, 818 (7th Cir. 2001). Because
Thompson adduced no evidence of proper service, the Louisiana court correctly
determined that no service was made, and the 20-day limit was tolled. 26 U.S.C.
§ 7429(b)(3). Thus, the district court did not exceed its authority when it issued its
judgment more than 20 days after the commencement of the action.
Thompson also argues that the transfer from Louisiana to Illinois was erroneous. We
have jurisdiction to review an order from a court within our territorial jurisdiction denying
a motion to transfer a suit back to the transferor district. But we do not have jurisdiction to
review a transfer order from a court outside of our territorial jurisdiction. See Posnanski v.
Gibney, 421 F.3d 977, 980 (9th Cir. 2005); Alexander v. Erie Ins. Exch., 982 F.2d 1153, 1156 (7th
Cir. 1993); see also 15 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
No. 11-1063 Page 4
PROCEDURE § 3855 (3d ed. 1986). Thompson did not ask to have his suit transferred back to
Louisiana. Consequently, we lack jurisdiction to review the venue determination.
AFFIRMED.