McNeil v. United States ( 2008 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-5002
JERRY P. MCNEIL,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Jerry P. McNeil, of Owasso, Oklahoma, pro se.
Steven M. Mager, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for defendant-appellee. With
him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director; and Todd M. Hughes, Deputy Director.
Appealed from: United States Court of Federal Claims
Judge Margaret M. Sweeney
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-5002
JERRY P. MCNEIL,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Appeal from the United States Court of Federal Claims in 06-CV-747, Judge Margaret
M. Sweeney.
__________________________
DECIDED: June 5, 2008
__________________________
Before MICHEL, Chief Judge, LINN, Circuit Judge, and ZAGEL, District Judge. *
PER CURIAM.
Plaintiff-Appellant Jerry P. McNeil brought suit in the United States Court of
Federal Claims challenging a levy imposed on his federal retirement annuity to collect
back taxes and penalties. The Court of Federal Claims dismissed McNeil’s action for
lack of subject matter jurisdiction. McNeil v. United States, 78 Fed. Cl. 211, 239 (2007).
We affirm.
*
Honorable James B. Zagel, District Judge, United States District Court for
the Northern District of Illinois, sitting by designation.
I. BACKGROUND
McNeil is a retired federal employee who receives annuity payments from the
Civil Service Retirement and Disability fund. He has refused to pay income tax on those
annuity payments. In 2006, the Internal Revenue Service (“IRS”) served a Notice of
Levy on the Office of Personnel Management (“OPM”) to collect McNeil’s unpaid taxes
for tax years 2002 and 2003, along with penalties from 1999 through 2003. OPM
informed McNeil that it would reduce his retirement annuity payments as required by the
levy, and it explained to McNeil that he must contact the IRS if he intended to challenge
the levy.
McNeil instead brought suit in the Court of Federal Claims. In his pro se
complaint, McNeil objected to the IRS’s assessment of any tax on his retirement
annuity, the IRS’s levy of the annuity, and OPM’s execution of the levy. His complaint
raised numerous constitutional, statutory, and regulatory theories purportedly supporting
these objections. As the Court of Federal Claims correctly explained, “[a]ll of [McNeil’s]
objections are premised on his belief that his retirement annuity is property, and not
income subject to taxation.” McNeil, 78 Fed. Cl. at 215-16.
The government moved to dismiss for lack of subject matter jurisdiction. In a
detailed opinion, the Court of Federal Claims addressed each of McNeil’s asserted
claims and jurisdictional theories, concluded that it lacked subject matter jurisdiction,
and granted the government’s motion. McNeil appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). “We review the
judgment of the Court of Federal Claims to dismiss for lack of jurisdiction de novo.”
Ontario Power Generation, Inc. v. United States, 369 F.3d 1298, 1300 (Fed. Cir. 2004).
2008-5002 2
II. DISCUSSION
“The Court of Federal Claims is a court of limited jurisdiction.” Southfork Sys.,
Inc. v. United States, 141 F.3d 1124, 1132 (Fed. Cir. 1998). “[T]o establish jurisdiction
under the Tucker Act for a suit for money damages, ‘a plaintiff must identify a separate
source of substantive law that creates the right to money damages,’ in other words, ‘that
source must be “money-mandating.”’” Ferreiro v. United States, 501 F.3d 1349, 1351-
52 (Fed. Cir. 2007) (quoting Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir.
2005) (en banc in relevant part)). Liberally construed, McNeil’s brief on appeal raises
four possible sources of substantive law: (1) the Administrative Procedure Act; (2) the
authority of the Court of Federal Claims to adjudicate a tax dispute; (3) the Takings
Clause; and (4) 5 U.S.C. §§ 8346 and 8470. We address each in turn.
First, regardless of whether McNeil could have obtained review in federal district
court under the Administrative Procedure Act, he cannot obtain review under that act in
the Court of Federal Claims. The Court of Federal Claims “lacks the general federal
question jurisdiction of the district courts, which would allow it to review [an] agency’s
actions and to grant relief pursuant to the Administrative Procedure Act.” Crocker v.
United States, 125 F.3d 1475, 1476 (Fed. Cir. 1997)
Second, the Court of Federal Claims has jurisdiction under the Tucker Act for
actions seeking a refund of taxes only when the plaintiff has satisfied the “full payment
rule.” Shore v. United States, 9 F.3d 1524, 1526 (Fed. Cir. 1993) (citing Flora v. United
States, 362 U.S. 145, 150 (1960)). Under the “full payment rule,” a taxpayer must fully
pay disputed taxes and seek a refund from the IRS before filing suit. See id. McNeil
has neither fully paid his taxes nor sought a refund.
2008-5002 3
Third, the Takings Clause does not provide a basis for jurisdiction, because
McNeil has not conceded the validity of the challenged tax, levy, and execution. See
Crocker, 125 F.3d at 1476 (holding that the Tucker Act does not create jurisdiction in
the Court of Federal Claims for a party that challenges the validity of a taking); Tabb
Lakes, Ltd. v. United States, 10 F.3d 796, 802 (Fed. Cir. 1993) (“[The] claimant must
concede the validity of the government action which is the basis of the taking claim to
bring suit under the Tucker Act.”) To the contrary, McNeil has insisted—both in his
complaint and on appeal—that the actions of the IRS and OPM were “wrongful.”
Finally, McNeil cites 5 U.S.C. §§ 8346 and 8470 and claims that the Court of
Federal Claims ignored a binding decision of the Merit Systems Protection Board—by
which he presumably means the original decision to award him a retirement annuity.
Sections 8346 and 8470 both provide that certain retirement benefits are not subject to
levy “except as otherwise may be provided by Federal laws.” Neither section mandates
the payment of money damages, and therefore neither section can be the basis for
Tucker Act jurisdiction.
The Court of Federal Claims therefore properly granted the government’s motion
to dismiss for lack of subject matter jurisdiction. Because the remainder of McNeil’s
arguments on appeal address the merits of his underlying claim rather than the
jurisdiction of the Court of Federal Claims, we need not address them.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the Court of Federal
Claims.
2008-5002 4