No. 96-8041, Watts v. USA

The Order Granting Defendant’s Motion to Dismiss attached to the Order and Judgment is not available electronically.* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 11/6/96 TENTH CIRCUIT

_____________________ MARVIN WATTS, Plaintiff-Appellant,
v. MICHAEL S. BIGELOW; TIMOTHY TOWNES, individually; UNITED STATES OF AMERICA, Defendants-Appellees. No. 96-8041 (D.C. No. 95-CV-61-D) (D. Wyoming)

_____________________ ORDER AND JUDGMENT *

_____________________ Before BRORBY, EBEL and HENRY , Circuit Judges.

_____________________ After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Mr. Watts, a pro se litigant, appeals the dismissal of his law suit. We affirm.
The Internal Revenue Service (IRS) levied on Mr. Watts' wages. Mr. Watts then filed this suit challenging the validity of th e procedures employed by the IRS. Mr. Watts named two IRS employees as defendan ts. The gist of his complaint, which was based upon 28 U.S.C. § 1361 (1 994) ("district courts shall have ... jurisdiction of any action in the nature o f mandamus to compel ... an employee of the United States or any agency ... to perform a duty owed to the plaintiff"), was to require the employees to set as ide the levy. Mr. Watts asserted the named defendants improperly executed the notice s of intent to levy and the notice of levy by failing to sign them under penalty of perjury; defendants improperly failed to release the levies; and finall y, he asserted the notices did not contain the required information about the levy pro cess.

Defendants moved to dismiss under Fed. R. Civ. P. 1 2 for lack of subject matter jurisdiction and moved to substitute the Uni ted States as a defendant. The district court substituted the United States as a d efendant and dismissed the case. The trial court concluded the acts of which Mr. Wat ts complained were taken by the individual defendants in their official capacity and opined the United States-3-

was the only proper defendant. The trial court the n concluded the mandamus statute did not provide subject matter jurisdiction for Taxpayer's suit and alternatively concluded that even if jurisdiction d id exist, dismissal for failure to state a claim would be appropriate because of the A nti-Injunction Act, which forbids any "suit for the purpose of restraining th e assessment or collection of any tax." 26 U.S.C. § 7421(a) (1994). The trial court further concluded no mandamus jurisdiction existed because Mr. Watts had failed t o show he had a clear and undisputable right to any relief.
Mr. Watts appeals this judgment asserting, inter al ia, the trial court "appeared to be biased and prejudiced against the appellant and in favor of the government"; as the individual defendants were oper ating outside the scope of their employment, "the Justice Department had no au thority to represent them" (p. 6); the trial court was "apparently convinced ... t he collection of taxes is not based on statutory law, but on discretion"; "most g overnment employees have absolutely no understanding of the laws they are or dered to enforce"; and Mr. Watts basically asserts the trial court ignored the plain meaning of the applicable statutes. Specifically, Mr. Watts criticizes the f ederal courts for "the flagrant disregard and disrespect for the laws of the United States by the judiciary ... a crime against the United States Constitution." He furthermore accuses the courts-4-

of violating the Code of Conduct by failing to pres erve "the integrity and independence of the judiciary."
Mr. Watts misperceives the law. The district courtin its ten-page Order Granting Defendant's Motion to Dismiss patiently an d correctly explained the applicable law to Mr. Watts. Mr. Watts, in his bri ef to this court, offers no authority specifically showing the legal analysis o f the trial court to be incorrect. Mr. Watts answers the trial court's reasoned analys is with emotional and false charges against the trial court. Had Mr. Watts rea d the Supreme Court cases cited by the trial court, possibly he would have realized the trial court was following the law rather than following a dishonest path to e xercise its prejudices against him. Litigants, especially those who lose, often b ecome emotional and convinced dishonesty must exist simply because they have lost . As this case shows, litigants sometimes lose because the law does not favor theirposition.
The judgment of the trial court is AFFIRMED for substantially the same reasons set forth in the Order Granting Defendant's Motion to Dismiss, a copy thereof being attached. Entered for the Court: WADE BRORBY United States Circuit Judge-5-