United States v. TDC Management Corporation

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 12, 2016 Decided July 8, 2016
No. 15-5030
UNITED STATES OF AMERICA,
APPELLEE
v.
TDC MANAGEMENT CORPORATION, INC., ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:89-cv-01533)
David Brian Hamilton argued the cause for appellants.
With him on the briefs was Robert A. Gaumont.
Darrell C. Valdez, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief was R. Craig
Lawrence, Assistant U.S. Attorney.
Before: SRINIVASAN and WILKINS, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
2
GINSBURG, Senior Circuit Judge: This dispute arises out
of the Government’s efforts to collect a judgment debt of
nearly $1.3 million from T. Conrad Monts. The Government
sought to recover the debt pursuant to the Federal Debt
Collection Procedures Act (FDCPA), 28 U.S.C. § 3001 et
seq., by garnishing funds owed to Washington Development
Group – A.R.D., Inc. (WDG), a company Monts and his wife
owned as tenants by the entireties. The district court held
Monts had a sufficient property interest in WDG’s assets to
permit garnishing them under the FDCPA in satisfaction of
his debts. We reverse the judgment of the district court and
remand the case for that court to evaluate the Government’s
alternative argument that it may garnish WDG’s assets by
piercing the corporate veil between WDG and Monts.
I. Background
In 2001 the district court ruled that Monts and TDC
Management Corporation (TDC), of which Monts was
president, were jointly and severally liable to the United
States for $1,285,198.31 in damages for violations of the
False Claims Act. We affirmed this ruling in 2002, United
States v. TDC Mgmt. Corp., 288 F.3d 421 [hereinafter, TDC
Mgmt. I]; in 2003 TDC was dissolved. The Government
sought to recover Monts’s debt pursuant to the FDCPA,
which requires that, upon application by the United States and
its satisfaction of certain conditions, 28 U.S.C. § 3205(b), the
court
issue a writ of garnishment against property
. . . in which the debtor has a substantial
nonexempt interest and which is in the
possession, custody, or control of a person
other than the debtor, in order to satisfy [a]
judgment against the debtor.
3
Id. § 3205(a), (c)(1).
The Government set its sights on a judgment (in an
unrelated case) in favor of WDG, a company of which Monts
et ux. owned all the shares as tenants by the entireties. In
2004 a jury in D.C. Superior Court had awarded WDG more
than $8 million in damages against the District of Columbia in
a dispute concerning an air-rights lease. Upon the
Government’s application in 2008, the district court issued a
writ of garnishment to the District against the judgment it
owed WDG. Monts died in 2009.
In July 2012 the district court permitted WDG to
intervene in the garnishment proceeding in order to defend its
interest in the $8 million judgment. See FED. R. CIV. P.
24(a)(2). Meanwhile, in the unrelated case regarding a lease
of air-rights, WDG and the District reached a settlement while
their cross-appeals of the $8 million judgment were pending.
Pursuant to that agreement, the District paid WDG the $8
million judgment plus interest, less a sum just over $2 million,
which it held in escrow pending resolution of the garnishment
proceeding. WDG was dissolved in December 2012, but
remained a party to this suit pursuant to D.C. CODE § 29-
312.05(a), which provides that “[a] dissolved corporation
continues its corporate existence . . . to wind up and liquidate
its business and affairs.” See also id. § 29-312.05(b)(6).
The Government moved for a “disposition order”
directing the District to transfer to it the amount of Monts’s
judgment debt (plus interest) from the funds being held in
escrow. See 28 U.S.C. § 3205(c)(7). The Government argued
the settlement funds owed to WDG could be garnished to
satisfy Monts’s debt because (1) as a shareholder and director
of WDG, Monts had a sufficient property interest in the funds,
or alternatively, (2) the company was Monts’s alter ego,
4
wherefore the court should disregard the corporate form and
treat WDG’s assets as Monts’s. The district court refused to
strike an expert declaration of Robert Hersh that the
Government submitted in support of its theories, and granted
the Government’s motion for a disposition order. It held
Monts had a sufficient interest in the settlement funds owed to
WDG to permit their garnishment in satisfaction of Monts’s
judgment debt, and therefore did not “reach the question of
veil piercing.” Upon further briefing, the district court
ordered the District of Columbia to pay to the Government the
$2,100,487.49 then held in escrow in “full satisfaction of the
judgment against defendants,” including interest.
II. Analysis
As a preliminary matter, WDG asserts that an issue on
appeal is whether “this case should be dismissed due to the
death and dissolution” of Monts and TDC, respectively. This
argument is forfeit because WDG does not further develop it
(or even mention it again) after this “single, conclusory
statement.” Bryant v. Gates, 532 F.3d 888, 898 (D.C. Cir.
2008). We therefore turn to WDG’s arguments that the
district court erred in concluding Monts had a property
interest in the settlement funds for purposes of the FDCPA
and abused its discretion by admitting the Hersh Declaration.
A. Monts Has No Property Interest in the Settlement
Funds that Are Owed WDG for Purposes of the
FDCPA
As mentioned above, Monts and his wife owned all
shares of WDG as tenants by the entireties from 1991 until
Monts’s death in 2009. WDG was owed first a judgment debt
and then settlement funds by the District of Columbia. WDG
challenges the district court’s ruling that Monts had a
5
sufficient property interest in the settlement funds due WDG
to permit the Government to garnish them in satisfaction of
Monts’s debt. Because this challenge presents solely an issue
of law, our review is de novo. Williams v. First Gov’t Mortg.
& Inv’rs Corp., 225 F.3d 738, 747 (D.C. Cir. 2000).
The FDCPA permits the Government to garnish
“property . . . in which the debtor has a substantial nonexempt
interest.” 28 U.S.C. § 3205(a). “‘Property’ includes any
present or future interest, whether legal or equitable . . . ,
vested or contingent, . . . and however held.” § 3002(12). As
the Supreme Court held with respect to the analogous statute
governing federal tax liens, 26 U.S.C. § 6321, the FDCPA by
its terms “creates no property rights but merely attaches
consequences, federally defined, to rights created under state
law.” United States v. Craft, 535 U.S. 274, 278 (2002); see
also Export-Import Bank v. Asia Pulp & Paper Co., 609 F.3d
111, 116-17 (2d Cir. 2010). We therefore “look initially to
state law to determine what rights the [judgment debtor] has
in the property.” Craft, 535 U.S. at 278. We then determine
whether, under federal law, the judgment debtor’s “state-
delineated rights,” id., qualify as “property,” 28 U.S.C.
§ 3002(12), and if so, whether the judgment debtor has a
“substantial . . . interest” in that property, § 3205(a). See
Export-Import Bank, 609 F.3d at 117; cf. Craft, 535 U.S. at
278.
Applying D.C. law to determine what rights Monts had in
the settlement funds, see Craft, 535 U.S. at 278, we conclude
he had no interest in the funds that amounts to “property” for
purposes of § 3002(12). “[I]t is well established that because
of the separate legal existence of a corporation, the corporate
property is vested in the corporation itself and not in the
stockholders.” Christacos v. Blackie’s House of Beef, Inc.,
583 A.2d 191, 195 (D.C. 1990) (alteration in original). D.C.
6
law is thus in accord with the “fundamental principle of
corporate law that ‘[t]he owner of the shares of stock in a
company is not the owner of the corporation’s property.’”
Smith v. Wash. Sheraton Corp., 135 F.3d 779, 786 (D.C. Cir.
1998) (alteration in original) (quoting R.I. Hosp. Tr. Co. v.
Doughton, 270 U.S. 69, 81 (1926)).
Therefore, although a shareholder “has essential rights to
share in the profits and in the distribution of assets on
liquidation,” the shareholder has no “specific or aliquot
interest in the assets of the corporation.” Office of People’s
Counsel v. Pub. Serv. Comm’n, 520 A.2d 677, 682 (D.C.
1987). As a shareholder, Monts has no interest in any specific
corporate asset because the corporation may use any asset to
satisfy creditors or engage in other business rather than
distribute that asset as a dividend or upon liquidation. The
Government argues that Monts had a future interest in the
settlement funds for purposes of § 3002(12) based upon his
right to share in WDG’s profits and, upon liquidation, its
assets. The writ of garnishment at issue here, however, was
issued against the settlement funds themselves, not against
Monts’s shares.
The Government nonetheless argues that Monts has a
present interest in the settlement funds because WDG is “a
Sub-Chapter S Corporation,” and shareholders of such
corporations have “immediate or direct access to corporate
assets.” Not so. Subchapter S of chapter 1 of the Internal
Revenue Code permits “shareholders of qualified corporations
to elect a ‘pass-through’ taxation system under which income
is subjected to only one level of taxation.” Gitlitz v. Comm’r
of Internal Revenue, 531 U.S. 206, 209 (2001). To this end,
corporate gains and losses may be treated by shareholders as
their own for income tax purposes, id. (citing 26 U.S.C.
7
§ 1366(a)(1)(A)), but this tax treatment does not permit a
shareholder any “direct access to corporate assets.”
The Government also asserts that Monts, as a
shareholder, had, in the terms of § 3002(12), an “equitable”
interest in the settlement funds owed to WDG. The
Government cites Estate of Raleigh v. Mitchell, 947 A.2d 464(D.C. 2008), for the proposition that shareholders of a
corporation “are equitable owners of the property and assets
of the corporation.” Id. at 470 n.7. We must attend, however,
to “the substance of the rights state law provides, not merely
the labels the State gives these rights.” Craft, 535 U.S. at
279. Although the D.C. Court of Appeals has occasionally
“recognized [the] principle” that shareholders “are equitable
owners” of corporate assets, Raleigh, 947 A.2d at 470 n.7; see
also People’s Counsel, 520 A.2d at 681, it has never accorded
a shareholder any actual property interest in or right to a
corporate asset based upon the shareholder’s “equitable”
ownership, see, e.g., Raleigh, 947 A.2d at 469-70 & n.7
(“[S]uch equitable interest does not alter the fact that title to
corporate property is vested in the corporation”); People’s
Counsel, 520 A.2d at 681-83. D.C. law therefore does not
grant shareholders a property right in corporate assets that
qualifies as an “equitable” interest for purposes of § 3002(12)
of the FDCPA. Accordingly, we reverse the district court’s
holding that Monts had a property interest in the settlement
funds.
B. Piercing the Corporate Veil
Having rejected the Government’s primary argument, we
must remand the case to the district court to consider whether
to pierce the corporate veil and allow the Government to
garnish WDG’s assets in satisfaction of Monts’s debts. See
Lawlor v. District of Columbia, 758 A.2d 964, 975 (D.C.
8
2000) (A court may “disregard the corporate entity” where
“the corporation is . . . an alter ego . . . of the person in
control” (quotation marks omitted)). Whether the corporate
form may be disregarded is ultimately “a question of law,”
Jackson v. Loews Wash. Cinemas, Inc., 944 A.2d 1088, 1095
(D.C. 2008), but it requires an inevitably fact-bound multi-
factor analysis, see id. at 1095-96; see also Lawlor, 758 A.2d
at 975, that the district court did not conduct. See Pollack v.
Hogan, 703 F.3d 117, 121 (D.C. Cir. 2012) (per curiam)
(remanding per “our usual (although hardly universal)
practice of declining to address arguments unaddressed by the
district court”); Janini v. Kuwait Univ., 43 F.3d 1534, 1537
(D.C. Cir. 1995) (remanding because the “district court did
not address . . . primarily factual issues”).
WDG, citing TDC Management I, 288 F.3d at 426-27,
nonetheless claims it is “patently unfair for [it] to have to
litigate this issue following a remand.” In the cited case,
however, we declined to exercise our discretion to entertain
an argument TDC had failed to raise in district court, in part
because doing so would have required us to remand the case
to the district court for trial, and the delay would have caused
“obvious prejudice to the government.” Id. at 425-27. No
comparable consideration obtains in this case, where the issue
being remanded was properly raised in the district court and
hence preserved.
WDG asserted at oral argument that, regardless whether
the district court pierces the corporate veil, Monts’s interest in
the settlement funds is not a “nonexempt interest” subject to
garnishment under § 3205(a). This argument is doubly
forfeit. As the district court pointed out, “[a] judgment debtor
can elect to have certain property exempted” under § 3014(a),
but “[n]o election has been made in this case.” Mem. Op.,
Doc. No. 289, at 6 n.5 in United States v. TDC Mgmt. Corp.,
9
1:89-cv-01533 (Jan. 5, 2015). Furthermore, WDG did not
raise the issue in its appellate briefs. See United States ex rel.
Davis v. District of Columbia, 793 F.3d 120, 127 (D.C. Cir.
2015).
WDG and the Government dispute the effect that D.C.
law governing tenancy by the entireties has upon the
garnishment in this case. See Morrison v. Potter, 764 A.2d
234, 236-37 (D.C. 2000) (holding that “property subject to a
tenancy by the entireties is liable for the spouses’ joint debts”
and, upon the death of one spouse, “for the individual debts of
the surviving co-tenant,” but “is unreachable by creditors of
one but not of both of the tenants”). Inexplicably, neither
party at any point in this litigation cited the proviso in the
FDCPA that “[c]o-owned property shall be subject to
garnishment to the same extent as co-owned property is
subject to garnishment under the law of the State in which
such property is located.” § 3205(a); see also § 3010(a) (“The
remedies available to the United States under this chapter may
be enforced against property which is co-owned by a debtor
and any other person only to the extent allowed by the law of
the State where the property is located”). On remand, the
parties and the district court should consider the implications
of these provisions.
Although WDG asserts that TDC, Monts, and WDG
“appear[] before this Court,” the fact is that no party appealed
the district court’s holding that Monts and TDC had forfeited
any objection to the writ of garnishment. Because that ruling
stands, neither Monts nor TDC is a proper party to this
appeal. It follows, the Government argues, that we must
“disregard any arguments made” by them or on their behalf.
The Government thereby, albeit implicitly, raises “the
doctrine of prudential standing,” which prohibits a litigant
from “enforc[ing] the rights of third parties.” Deutsche Bank
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Nat’l Tr. Co. v. FDIC, 717 F.3d 189, 194 (D.C. Cir. 2013); cf.
Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S.
Ct. 1377, 1387 n.3 (2014) (raising doubt as to whether the
“[t]he limitations on third-party standing” are prudential).
WDG’s claim that a shareholder’s creditors may not garnish
corporate assets in satisfaction of the shareholder’s debts
because D.C. law vests ownership of corporate assets in the
corporation (which we addressed above) and its argument that
the corporate entity should not be set aside on equitable
grounds (which we remand to the district court) both assert
the company’s own rights. We need not now decide whether,
if the district court pierces the corporate veil and treats
WDG’s assets as Monts’s, then WDG may resist garnishment
because the Montses co-owned WDG. We leave this issue,
should it arise, to the district court in the first instance.
C. The District Court’s Evidentiary Rulings and Factual
Findings
WDG challenges the district court’s denial of its motion
to strike the Hersh Declaration. We review the district court’s
evidentiary rulings on expert testimony for abuse of
discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141-43
(1997).
WDG argues the Declaration is not admissible as expert
testimony under Federal Rules of Evidence 702 and 704
because it contains legal conclusions, and it fails to cite facts
or a methodology that would permit us to “assess the
reliability of Hersh’s conclusions.” We see no abuse of
discretion in the district court’s refusal to exclude the Hersh
Declaration in its entirety. The Declaration includes
admissible analyses of relevant facts, which analyses Hersh
conducted by applying his knowledge of “income tax[] and
accounting matters” to the corporate records of WDG and
11
TDC and the tax records of the two corporations and of the
Montses.
Furthermore, the district court said it would disregard
“legal conclusions and other deficiencies,” Mem. Op., Doc.
No. 289, at 3 n.2, and, just so, the court, while relying upon
the Hersh Declaration for some factual analyses, analyzed the
law by reference solely to cases and statutes and not to the
Hersh Declaration, see id. at 6-14. Nor did the district court
rely upon any of the three conclusions1 that, according to
WDG, do not cite facts or methodology. We leave it to the
district court in the first instance to evaluate the admissibility
of these and other portions of the Hersh Declaration insofar as
the court may rely upon them.
WDG also challenges two of the district court’s factual
findings, which we review only for clear error. Highmark
Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S. Ct. 1744, 1748
(2014). First, WDG complains the district court “erroneously
concluded that Mr. Monts was ‘able to compel WDG to
distribute corporate assets to himself and other corporations
that he owned.’” The record, however, supports the court’s
finding: Hersh averred, among other things, that “Monts’
signature on numerous corporate documents, his presiding
over corporate affairs, and his actions on behalf of WDG is
pervasive in the corporate documents”; that WDG’s board
met only seven times in the 24 years of its existence; and that
WDG classified loans from affiliated companies owned by
Monts as “Loans from Shareholder.”
1
They are that (1) “funds of Monts’ other affiliated entities were
mingled with WDG’s funds,” (2) TDC dissipated assets after the
judgment against it and Monts, and (3) WDG “did not display the
characteristics of a viable corporation.”
12
Second, WDG argues the district court erred in saying
WDG did not dispute that Monts “controlled the reins of the
corporation and its assets.” In context, we read the court to
mean WDG and its expert failed meaningfully to rebut
Hersh’s conclusion that Monts effectively controlled WDG
even though WDG’s board met occasionally, and we see no
clear error in that finding.
III. Conclusion
In sum, because the district court erred in concluding
Monts had a substantial property interest in the settlement
funds for purposes of the FDCPA, we remand this case for
further proceedings consistent with this opinion. With regard
to the Government’s argument for piercing the corporate veil,
we commend to the district court’s consideration, if
necessary, the doctrine of third-party standing and 28 U.S.C.
§§ 3205(a) and 3010(a), which refer to state law on co-owned
property.
So ordered.