### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-10513 Summary Calendar

HERBERT FLETCHER, Plaintiff-Appellant
v. UNITED STATES OF AMERICA, Defendant-Appellee

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:10-CV-2018

Before KING, JOLLY, and GRAVES, Circuit Judges. PER CURIAM: * On June 14, 2010, the Intern al Reve nu e S ervic e i s s u e d Pl aintiff–Appellant Herbert Fletcher a notice of deficiency regarding his 2007 income taxes. Fletcher responded by filing a pro se suit in Texas s t a t e c ourt seeking an injunction to prevent Defendant–Appellee Un i t e d States of America from collecting the taxes and a declaratory judgment that he was not required to pay his 2007 income taxes. The United States removed to district court and moved U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Decem ber 6 , 20 11 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-10513 Document: 00511686297 Page: 1 Date Filed: 12/06/2011No. 11-10513

to dismiss. The district court dismissed Fletcher’s suit for failing to comply with the requirements of the Internal Revenue Code’s Anti-Injunction Act, as well as the Declaratory Judgment Act. Fletcher now appeals the removal o f his case from state court and its dismissal. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND On June 14, 2010, the Internal Revenue Service (“IRS”) issued a notice of deficiency (the “Notice”) to Herbert Fletcher (“Fletcher” o r “Ap pellant”) for his 2007 income taxes in the amount of $15,111.00. The Notice included additions of $3,399.98 for failing to file a timely tax return under 26 U.S.C. § 6651(a)(1), $687.75 for failing to pay his estimated taxes under 26 U.S.C. § 6654(a), and $1,813.52 for failing to pay his taxes under 26 U.S.C. § 6651(a)(2). The Notice made clear that Fletcher could contest this determination in advance of making any payments by filing a petition in the United States Tax Court within 90 days of receipt of the Notice, giving Fletcher until September 13, 2010, to contest the IRS’s d e t ermination. The Notice also stated that if Fletcher did not file a petition within 90 days or waive his right to petition, then the IRS would assess the deficiency and begin to bill him. On September 8, 2010, Fletcher filed a pro se action in the Judicial District Court of Kaufman County, Texas, against the United States a n d the United States of America (on appeal, “the Unite d S t a t e s ” or “Appellee”). In his complaint, Fletcher argued that becaus e “ ‘ t axpayer’ means ‘fiduciary’” and he

never entered into a trust agreement with the federal government, he could not be taxed. As relief, Fletcher sought an injunction against the United States to
preven t c o l l e ction of his 2007 income taxes, as well as a declaratory judgment that “Fletcher owes nothing in response to th e [ I R S]’ claims.” Fletcher also 1

Me anw hile, sin ce Fletc her had not fil ed a pet itio n in the Tax Court within the 90 day 1 per iod for cont es ting tax def icie ncie s, the IRS pr oce ede d ass es se d his def icie ncy at $23, 849. 46, inclu ding inte res t, as w ell as fai lure -t o-p ay penalt ies for all thr ee of his violat ions

. Fle tch er 2 Case: 11-10513 Document: 00511686297 Page: 2 Date Filed: 12/06/2011No. 11-10513

argued that this case was governed by the law of trusts, and because trust law i s a n issue of state law, there was no federal jurisdiction over his case makin g removal to federal district court impermissible. On October 6, 2010, the United States removed Fletcher’s case from state court to the United S t a t e s D i s trict Court for the Northern District of Texas,
p u r s u a n t to 28 U.S.C. §§ 1441, 1442, and 1446. After removing, the Unite d States filed a motion to extend its time to r e s p o n d t o Fletcher, which was granted by the assigned magistrate judge. On October 27, 2010, Fletcher filed three motions simultaneously seeking to remand the case to state court, strike the United State’ motion to extend, and to prevent the use of a magistrate judge. On November 1, 2010, the district court unfiled these motions for failing to comply with Federal Rule of Civil P r o c e dure 11(a), as Fletcher had failed to properly sign them. See F E D

. R. C IV

. P. 11(a) (“Every

. . . written motion

. . . must be signed

. . . by a party personally if the party is unrepresented.”). The district court also “admonish[ed] [Fletcher], that after further revi ew of hi s m otio ns, they appear[ed] to be devoid of merit and [were] frivolous,” warning Fletcher that if “he cho[se] to re-file them, he could subject himself to sanctions.” Undeterred by th e di strict court’s warning, Fletcher would re-file two of these motions, this ti m e with proper signatures, along with a new third motion, on January 20, 2011. Prior to this, however, on December 14, 2010, the United States moved to dismiss Fletcher’s complaint for w ant of s ubj e ct m atter jurisdiction, arguing that Fletcher’s suit sought an injunction in violation of the Anti-Injunction Act of the

fil ed for a tem por ary injunct ion to pr eclu de ass es sm ent of the def icie ncy in the Unit ed Sta tes Di stric t Courtfor theNorthern D ist ric t of Texas , arguing thathewas not a taxpayerand so any colle cti on agains t himwoul d be illegal

. The dis tri ct court deni ed Fletcher ’s mo tio n for a tem por ary injunct ion on ground s that he did not me et any of the pr ere quis ite s for that reli ef. Fletc her appeal ed to this cour t, but we dis mis se d his app eal for wa nt of pros ecut ion on Apri l 27, 2011. Fletc her’ s sub se quent pet itio n for a wr it of certio r a r i w a s d enied by the Sup rem e CourtonO cto ber 3, 2011. 3 Case: 11-10513 Document: 00511686297 Page: 3 Date Filed: 12/06/2011No. 11-10513

I nt e rnal Revenue Code, 26 U.S.C. § 7421(a), and a declaratory judgm e n t i n 2

violation of the Declaratory Judgment Act, 28 U.S.C. § 2201(a). The Unite d 3 States contended, in essence, that sovereign immunity barred Fletcher’s suit, as Fletcher had not met the prerequisites required for filing a refund action, the sole procedure by which the U n i t e d S t a t es has consented to be sued for the repayment of improperly assessed taxes. Fletcher moved again for a default judgment in response, arguing that the United States’ motion to dismiss was untimely because he did not consent to use of “non-judicial decision-makers” and thus the magistrate judge could not grant the United States’ motion to extend its time to filed. Fletcher also filed a further motion to strike the United States’ motion to dismiss, again arguing that he did not consent to the use of a magistrate judge. Along with this motion, Fletcher submitted a draft order to the court in which he implied that the government had engaged in “criminal violations” agai n s t him and that the district court judge and magistrate judge had colluded in “harrass[ing] [and] intimidat[ing]” him. The United States responded to Fletcher’s motions as being frivolous and

r e qu e s t ed that the district court grant it relief from having to respond t o Fletcher’s repeated motions.

Thes tat ute pr ovide s, inr elevantp ort ion, t hat: 2 No sui t or pr oce edi ng s hall be mai ntain ed in any c ourtf or the rec overy of any i n t e rnal revenu e tax allege d to have been err oneo usl y or illegal ly ass es se d o r coll ect ed, or of any pena lty clai me d to have been coll ect ed withou t autho rit y, or of any sum allege d to have been e xces sive or in any man ner wr ongfully coll ect ed, until a clai m f o r ref und or cre dit has been duly fil ed wi th the Sec ret ary, acc ording to the pr ovis ions of law in that regar d, and the regulatio ns of the Sec ret ary es tabl ish ed in pur sua nce ther eof

. 26 U .S .C. § 7422( a).
The st atut e pr ovide s that : “In a cas e of act ual cont rover sy w ithi n its juris dic tio n, 3
exc ep t with resp ect to Federaltaxes. . . , any courtof the Unit ed Sta tes , upont he fil ing o f an app rop riat e ple adin g, may dec lare the right s and othe r legal rela tio ns of any inte res ted party se ek ing suc h dec larat ion, wh ethe r or not further reli ef is or coul d be so ught. ” 28 U. S. C. § 2 201( a) (em phas is add ed)

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Fletcher continued to file more motions, however. On January 20, 2011, Fl e t c h e r r e-filed two of the motions that had been unfiled by the district court in late October, along with a new third motion. First, Fletcher filed still another motion to strike the United States’ motion to dismiss, renewing his standing objection to the use of “non-judicial decision

- makers” and arguing, it appears, that either the United States itself or the Department of Jus t i c e l a c ked “signature authority” to issue the mot i o ns filed against him. Second, Fletcher filed a motion to remand his case to state court on grounds th a t th ere was no federal jurisdicti on over his case, as “‘[f]ederal tax law’ is trust law [and] trust law is state law.’” (emphasis omitted). Third, Fletcher filed a motion contesting the United States’ re qu e st to be excused from responding to Fletcher’s pleadings, describing the United States’ motion as being “facially nuts.” Fl e t c h e r a l so contended that the Ant i

- I nj u n c t ion Act did not apply to him as he is not a “taxpayer,” describing its requirement that he pursue his tax claims through a refund suit as “nuts on its face.” The United States replied to all three motions, reasserting that removal jurisdiction was proper and that Fletcher’s filings were frivolous and procedurally improper. The district court granted the United States’ motion to dismiss on March 22, 2011. The court found that the United States had consented to suit for improperly assessed taxes, but only under the particular condi t i o ns outlined under 26 U.S.C. § 7422. The district court observed that Fletcher had failed to meet these prerequisites and so the court was without power to hear his claims. The court likewise rejected federal question jurisdiction under 28 U.S.C. § 1331,

as § 1331 does not constitute a waiver of the United States’ sovereign immunity. The court also declined to exercise subject matter j u risdiction based upon Fl e t cher’s request for equitable, non-monetary relief because such jurisdiction is barred by the Internal Revenue Code’s Anti-Injunction Act and Declaratory

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Judgment Act. The district court also denied all of Fletcher’s outstanding motions, include the three motions submitted on January 20, 2011. On May 18, 2011, Fletcher timely appealed the district court’s dismissal. While Fletcher’s brief contains a r a n g e of interrelated challenges and claims, they can be reduced to two fundamental assertions. First, Fletcher argues that the district court improperly rejected his motion to remand his case to state court b e cause removal of his case to federal court was improper. Second, Fletcher contends that the district court’s dismissal of his case was incorrect. II. DISCUSSION A. Fletcher’s Motion to Remand We first address whether the district court’s denial of Fletcher’s motion to remand was proper. “[A] district court’s denial of [a] motion to r e m a n d , the propriety of removal under the various governing statutes [including 28 U.S.C. § 1442], and the existence of subject-matter jurisdiction

. . . are all interrelated questions of law subject to de novo review.” Oviedo v. Hallbauer , 655 F.3d 419, 422 (5th Cir. 2011). We construe the briefs of pro se litigants like Fletcher more liberally than those of litigants re p r e s ented by counsel and afford them “all reasonable inferences which can be drawn from them.” Williams v. Valenti , 432 F. App’x 298, 303 (5th Cir. 2011) (internal quotations and citation omitted). Under 28 U.S.C. § 1442(a)(1), “[t]he United States or any agency thereof

. . . sued in an official or individual capacity f o r a ny a c t under color of such office or on account of any ri ght, title or authority claimed under any Act of Congress for

. . . the collection of the reven u e” may remove a civil action commenced in state court to the proper dis t ri c t c ourt. See Arizona v. Manypenny , 451 U.S. 232, 242 (1981) (“[T]his Cou rt has held that the right of removal is absolute for conduct performed under color of federal office, and has insisted that the policy favoring removal ‘should not be frustrated by a narrow, grudging interp retation of § 1442(a)(1).’” (quoting Willingham v. Morgan , 395

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U.S. 402, 407 (1969))). This language is straightf o rw a r d : Where the United States is sued in state court for an act under the color of its office involving the collection of revenues, it may remove the suit to federal district court. Fletcher’s response to this seemingly unambiguous language is to assert that he is only nominally the plaintiff in this suit. Accordingly to Fletcher, it is the United States who is actually the de facto plaintiff as it is the “debt collector” seeking to assess his tax deficiencies. Unfortunately for Fletcher, it was he who initially filed a state court action complaint seeking injunctive and declaratory relief against the United States. See Cavallini v. State Farm Mut. Auto Ins. Co. , 44 F.3d 256, 264 (5th Cir. 1995) (removal jurisdiction is determined on the basis of the claims in the state court complaint at the time of removal). Thus, Fletcher’s contrary notions aside, he was the plaintiff in his state court suit and the United States, as the defendant, had the power to remove the case from Texas court to federal court under § 1442(a)(1). We affirm the district court’s 4 denial of Fletcher’s motion to remand. B. Dismissal of Fletcher’s Suit We now turn to the dismissal of Fletcher’s suit. This Court reviews claims of sovereign immunity de novo . See Jacobs v. Nat’l Drug Intelligence Ctr. , 548 F.3d 375, 377 (5th Cir. 2008). “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit. Sovereign immunity is jurisdictional in nature. Indeed, the ‘terms of [the United States’] consent to be sued in any court define that court’s jurisdiction to entertain the suit.’” F.D.I.C.

v. Meyer , 510 U.S. 471, 475 (1994) (quoting United States v. Sherwood , 312 U.S. 584, 586 (1941)) (citations omitted, alteration in original). A “guiding principle is that waivers of sovereign immunity should be narrowly construed in favor of

Fletc her als o cont ends that ther e is no fed eral ques tio n or diver sit y juris dic tio n. Sinc e 4
we find that ther e wa s rem oval juris dic tio n unde r § 1442, we do not addres s thes e additio nal iss ues . 7 Case: 11-10513 Document: 00511686297 Page: 7 Date Filed: 12/06/2011No. 11-10513

the United States.” In re Supreme Beef Processors, Inc. , 468 F.3d 248, 253 (5th Cir. 2006); see also U nited States v. Nordic Vill. Inc. , 503 U.S. 30, 34 (1992) (noting “the traditional principle that the Government’s consent to be sued must be construed strictly in favor of the sovereign

. . . and not enlarge[d]

. . . beyond what the language [of the statute] requires”) (internal quotations and citations omitted). The district courts have jurisdiction over “[a]ny c ivil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claime d t o h ave been collected without authority or any sum alleged to have been excessive or in any mann e r wrongfully collected under the internal-revenue laws,” under 28 U.S.C. § 1346(a)(1). However, this waiver of the Uni t ed States’ sovereign immunity is subject to additional conditions set forth in Internal Revenue Code’s Anti-Injunction Act, 26 U

. S

. C. § 7422(a). See United States v. Dalm , 494 U.S. 596, 601 (1990) (“Despite its spacious term s , § 1 3 46(a)(1) must be read in conformity with other s t a t u t ory provisions which qualify a taxpayer’s right to bring a refund suit upon compliance with certain conditions. Th e first is § 7422(a), which

. . . limits a taxpayer’s right to bring a ref u n d s u i t

. . . . ” ); see also 26 U.S.C. § 6532(a) (imposing additional conditions on suits brought under § 7422(a)). The Supreme Court has “interp r e t e d the principal purpose of [§ 7422(a)] to be the protection of the Government’s need to assess a n d collect taxes as expeditiously as possible with a minimum of preenforcement judicial interference, ‘and to require that the l e g a l ri gh t to the disputed sums be determined in a suit for refund.’” Bob Jones Univ. v. Simon , 416 U.S. 725 736–737 (1974) (quoting Enochs v. Williams Packing & Navigation Co. , 370 U.S. 1, 7 (1962)). Under § 7422(a), before a taxpayer can bring a refund suit, he or she must first fully pay the assessed tax, file an administrative claim for refund

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with the IRS, and wait until either the IRS denies the claim or six months have expired since filing the administrative claim. See 26 U.S.C. §§ 6532(a), 7422(a). Fletcher has not pleaded or provid e d any evidence that he has complied with § 7422(a)’s prerequisites, and there is no indication in the re c o r d th a t h e has fully paid the deficiency assessed on him or even filed an administrative clai m f o r a refund. Indeed, in his motions before the district court, Fletcher repeat e dl y declared that he had no intention of complying with the refund system, a “booby-trapped” forum, as he styles it. Accordingly, the district court held correctly that because Fletcher has failed to meet the prerequisites of the Anti-Injunction Act, his claims for injunctive relief must be dismissed. 5 S i m i l arly, the Declaratory Judgment Act, 28 U.S.C. § 2201(a), deni e s jurisdiction to the district courts to grant declaratory re li e f w i th respect to federal taxes. 28 U.S.C. § 2201(a) (“In a case o f a c t ual controversy within its j u risdiction, except with respect to Federal taxes

. . . , any court of th e U n i t e d States

. . . may declare the rights and other legal relations of any interested party

. . . .”); see also Bob Jones Univ. , 416 U. S

. at 732 n .7 (“The congressional antipathy for premature interference w i th the assessment or collection of any federal ta x also extends to declaratory judgments.”). This bars federal jurisdiction over any declaratory relief that Fletcher seeks. Consequently, the district court had no jurisdiction over any of Fletcher’s claims and so we affirm its decision to dismiss. C. Remaining Issues

In Wil li am s Pack ing, the Sup rem e Court cra ft ed a narr ow excep tio n to the An t i

5 Injuncti on Act’ s pr ere quis ite s for fil ing a ref und sui t for plai ntif

fs w h o c o u l d sho w (1) irr epa rable injury and the othe r elem ents nece ss ary for injunct ive reli ef, and (2) certaint y of suc ces s on the me rit s of the clai m. See Wil li am s Pack ing , 370 U. S. at 6–7; see also Bob Jones Uni v. , 416 U. S. at 737. With out addres si n g t h e f i rs t fac tor , it is clear that Fletc her fai ls to me et the se cond

. Hi s law sui t boils dow n to an generalized att ack on the legitim acy of the tax sys tem and Fletc her now h e r e dem ons tra tes the pos sib ilit y of, muc h les s certain, suc ces s on the me rit s of this c laim

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Fl etcher raises two final issues, both without merit. First, Fletcher objects to the district co u rt’s denial of his motion for a default judgment against the United States since he did not consent to the use of “non-judicial decision makers” and a magistrate judge granted the United States’ motion to extend its time to file its answer. A motion to extend time falls within the plain language of Federal Rule of Civil Procedure 72(a), which provides that “a pretrial matter not dispositive of a party’s claim or defense” may be heard by a magistrate judge. F E D

. R. C IV

. P. 72(a); see Tucker v. Uni t e d S tates Dep’t of Army , 56 F.3d 1384, 1995 WL 337670, at *2 (5th Cir. May 16, 1999) (per curiam) (holding that motion for default judgment was properly denied by the district co u rt b ecause magist r a t e j u dge had authority under Rule 72(a) to grant party’s motion to extend time). Accordingly, the magistrate judge could grant the United States’

m o t ion to extend time and so the district court properly rejected Fletcher’s motion for a default judgment. Fletcher also argues that the district court improperly unfiled his three October 27, 2010, motions with any notice or opportunity to cure. This is flatly wrong. Fletcher was given notice of the defects in his motions and later re-filed two of the three motions properly. His decision to not re-file the third unsigned motion does not affect our conclusion that he had pro p e r n otice and the opportunity to correct his motions. His claim is without merit. III. CONCLUSION For all of the foregoing reasons, we AFFIRM the judgment of the district court.

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