United States Court of Appeals, Fifth Circuit. No. 94-40713. Rhonda K. WILKERSON, d/b/a Forstar Trailers, Plaintiff-Appellee, Cross-Appellant,

v. UNITED STATES of America, Defendant-Appellant, Cross-Appellee. Oct. 23, 1995. Appeals from the Unit e d S t ates District Court for the E astern District of Texas. Before JOLLY, DAVIS and EMILIO M. GARZA, Circuit Judges. EMILIO M. GARZA, Circuit Judge: The government appeals the district court's award of damages for w rongful l e vy and wrongful disclosure flowing from tax collection activities a ime d a t the assets of Plaintiff Rhonda K. Wilkerson. The government also appeals the district court's award of attorney's fees and costs. Wilkerson c r o s s -appeals asserting that the district court improperly denied her Fifth Amendment claims. We affirm in part, reverse in part, vacate in part, and remand for further proceedings. I This suit grows out of the Internal Revenue Service's e fforts to collect Robert D. Forsyth's delinquent income taxes. Based on information r eceived from various sources, t he IRS began to investigate Forsyth's relationship w ith Rhonda Wilkerson. Wilkerson had just started Forstar Trailers ("Forstar"), a t railer manufacturing business of the s ame type t hat F o r s y th had been

1involved in prior to h is relationship w ith W ilkerson. The IRS

suspected that Wilkerson might be sheltering Forsyth's assets and income in her name. After further investigation, the IRS found what it believed to be credible evidence that W ilkerson and F orsyth

were common-law ma r r i e d. B esides sharing a residence, Wilkerson and Forsyth had represented to family members t h a t they were married, and Wilkerson had endorsed several checks made out to "Rhonda Forsyth" by signing that name. Neighbors and acquaintances confirmed that the two were married, and Wilkerson and Forsyth were expecting a child. B ased on t h is evidence, the IRS issued one Notice of Levy on Wilkerso n ' s b ank account, and t hirty-seven Notices of Levy to persons believed to be customers and suppliers of Wil k e r s on's trailer business. 1 A lthough both Forsyth and Wilkerson continued to deny that t hey were married, IRS supervisors felt that they had sufficient evidence to p ursue a portion of Wilkerson's assets. After subsequent communication with the IRS, Wilkerson's bank complied with t he Notice of Levy and forwarded $2,469.39 to the IRS which the IRS applied to Forsyth's tax debt. The IRS collected no other funds from Wilkerson. As a result of the Notices, however,

1 The Notices of Levy identified Robert D. Forsyth as the delinquent taxpayer and asked for payment of $22,033.79. The Notices of Levy also stated:

By virtue of the taxes assessed against Robert D. Forsyth, SSN XXX-XX-2387, this levy covers and attaches to one-half of any funds due and owing to RhondaMcClain Wilkerson, dba Forstar Trailers, SSN XXX-XX5712, EIN 75-2397927, such funds being the community property of Robert Forsyth and Rhonda McClain Wilkerson. 2Wilkerson's business began to falter. Wilkerson's c u stomers and

suppliers were reluctant to continue dealing with Forstar. After Forstar went out of business, Wilkerson filed a dministrative claims with the IRS. T he IRS d enied Wilkerson ' s c l a i m s by l etter, and Wilkerson filed suit in the district court. Wilkerson b rought claims against the IRS for w rongful levy under 26 U.S.C. § 7426 and § 7433 ( f o r reckless or intentionally wrongful collection activities); w rongful d i s closure of her tax return information under 26 U.S.C. § 7431; v iolation of the Privacy Act, 5 U.S.C. § 552(a); violation s o f t h e Federal Tort Claims Act, 2 8 U.S.C. §§ 1346(b), 2671-2680; v iolations of the Administrative Procedure Act, 5 U.S.C. §§ 701-706; and violation of her Fifth Amendment rights. The district court concluded that Wilkerson and F orsyth were not c ommon-law married and that the IRS

was negligent in assuming so. Accordingly, t he district court awarded $2,469.39 in damages for the wrongful levies. The district court also concluded, based on the wrongfulness of t he levies, that the IRS had wrongfully disclosed W ilkerson's tax return information and awarded h er $ 209, 5 4 7.19 for the value of Forstar, and $20,000.00 f or emotional distress. The d istrict court denied recovery on all other grounds, but awarded Wilkerson attorney's fees and costs under 26 U.S.C. § 7430. Neither party appeals the district court's finding that t he levies were wrongful nor the award of $2,469.39 in damages for the levies. The government appeals the district court's award o f damages f or wrongful disclosure, and the district court's award of attorney's fees and

3costs. Wilkerson cross-appeals on her Fifth Amendment claims. II W e review the district court's findings of fact under the clearly erroneous standard. Barrett v. United States, 51 F.3d 475, 478 (5th Cir.1995) (citing Robicheaux v. Radcliff Material, Inc., 697 F.2d 662, 666 ( 5th C ir.1983)). The legal conclusions based upon thos e f a c t s , however, we review de n ovo. Id. Wilkerson's claim o f wrongful disclosure turns o n a pr o p e r interpretation of the Internal Revenue Cod e and as such is a question of law reviewable de novo. Estate of M oore v. Commissioner, 53 F.3d 712, 714 (5th Cir.1995). A claim o f w rongful disclosure under § 7431 requires (1) that the IR S d i s closed confidential tax return information either knowingly or negligently, and ( 2) that this d isclosure was not authorized by § 6103 of the Internal R evenue Code. 26 U.S.C. §§ 6103(a), 7431(a)(1). 2 R ecovery will b e denied however, if the IRS acted on a "good faith but erroneous interpretation" of § 6 103. 26 U.S.C. § 7431(b). There is n o d i s p u t e that t he IRS disclosed

2 Section 7431(a)(1) reads: If any officer or employee of the United States knowingly, or by reason of negligence, discloses any return or return information with respect to a taxpayer in violation of any provision of section 6103, such taxpayer may bring a civil action for damages against the United States in a district court of the United States. 26 U.S.C. § 7431(a)(1). 4Wilkerson's confidential tax return informatio n . 3 The issues

before this c ourt are whether § 6 103(k)(6) authorized the disclosures, and whether the government made t he disclosures based on a good faith interpretation of § 6103. Because we find that § 6103(k)(6) authorize d t h e disclosure of Wilkerson's tax return information, we decline to reach the defense of good faith. The d istrict court, interpreting § 6103 of the I n ternal Revenue Code, concluded that disclosure of Wilkerson's tax return information was unnecessary t o collect Forsyth's delinquent taxes, because in actuality Wilkerson owed no taxes and was not i n f a ct liable for Forsyth's tax debt. As the district c ourt reasoned, because the levies themselves were not authorized by statute, the corresponding disc l o s ures were unnecessary and unauthorized by § 6103(k)(6). Currently a split exists among t he circuits on whether

3 Section 6103 defines "Return Information" to include, a taxpayer's identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments, or tax payments ... or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense ... 26 U.S.C. § 6103(b)(2)(A). The IRS disclosed Wilkerson's social security number, employee identification number, business interests, and amount of alleged tax liability. This information was collected by the IRS "with respect to the determination of the existence, or possible existence, of liability" and thus falls within the statutory definition of return information which is to be kept confidential under § 6103(a). 5the illegality of the underlying collection activity has an effect

on t he legality of the d isclosures f l o w ing out of such activity. 4 The district court followed the Eighth Circuit which has held that "a disclosure in p ursuance of an unlawful levy violates the confidentiality requirements of section 6103(a) and i s not authorized under section 6103(k)(6)." Rorex v. Traynor, 771 F.2d 383, 386 (8th Cir.1985); see Husby v. United States, 672 F.Supp. 442, 445 (N.D.Cal.1987) (f o l lowing Rorex ). The Rorex court determined that allowing the IRS t o avoid liability for its wrongful disclosures by simply including them in a notice of levy would substantially defeat the c onfidentiality requir ement of § 6103. Rorex, 771 F .2d a t 386. Because we feel that this interpretation misreads the provisions in question, we decline to follow R orex. The plain language of the Internal Revenue Code supports the government's conte n t ion that the validity of the underlying collection activity is irrelevant i n determining whether a disclosure is wrongful. Section 6103 sets forth the general rule

4 Compare Rorex v. Traynor, 771 F.2d 383 (8th Cir.1985) (holding that disclosures contained in unlawful levy violate § 6103(k)(6)) with Venen v. United States, 38 F.3d 100 (3d Cir.1994) (declining to consider the validity of the underlying levy in determining whether disclosures violated § 6103(k)(6)); Farr v. United States, 990 F.2d 451 (9th Cir.), c ert. denied, --- U.S. ----, 114 S.Ct. 634, 126 L.Ed.2d 592 (1993) (holding that where disclosures were necessary to the collection procedure, fact that collection procedures may have been defective does not make the disclosures wrongful); Huff v. United States, 10 F.3d 1440 (9th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 2706, 129 L.Ed.2d 834 (1994) (holding that possible procedural lapses in collection process will not render disclosures necessary to collection wrongful). 6that t h e government may only disclose tax return information in

certain narrow instances. 5 Section 6 103(k)(6) prov i d e s for disclosure "in connection with collection a ctivity

... o r with respect to the enforcement of any other provision of this title." 26 U .S.C. § 6103(k)(6). 6 Pursuant to this p rovision, the Secretary of the Treasury promulgated regulations permitting disclosures in applying "the provisions of the Code relating to establishment of liens a gainst [a taxpayer's] assets, o r levy on, or seizure, or sale of, the assets to satisfy any [outstanding ta x ] l i ability." 26 C.F.R. § 301.6103(k)(6)-1(b)(6). At no place i n the Internal Revenue Code does Congress make the propriety of those disclosures conditional upon t he ultimate propriety of the levy. The plain language of these sections authorizes d isclosures to the extent necessary to e ffectuate a l e vy . Venen v. United States, 38 F.3d

5 Section 6103(a) provides, "Returns and return information shall be confidential, and except as authorized by this title ... no officer or employee of the United States ... shall disclose any return or return information." 26 U.S.C. § 6103(a).

6 Section 6103(k)(6) reads: An internal revenue officer or employee may, in connection with his official duties relating to any audit, collection activity or civil or criminal tax investigation or any other offense under the internal revenue laws, disclose return information to the extent that such disclosure is necessary in obtaining information which is not otherwise reasonably available, with respect to the correct determination of tax, liability for tax, or the amount to be collected or with respect to the enforcement of any other provision of this title. Such disclosures shall be made only in such situations and under such conditions as the Secretary may prescribe by regulation. 26 U.S.C. § 6103(k)(6). 7100, 106 (3d Cir.1994).

The statutory scheme further s upports t he g overnment's position. C ongress enacted separate and disti n c t p rovisions concerning c o llection activities and i nformation handling. When the IRS issues a wrongful levy on a taxpayer's pro p e r t y , § 7426 provides damages which a re distinct from t hose allowed under § 7431 for wrongful disclosures. Section 7426 allows recovery o f what the IRS actually received or "seized" from its w rongful levies. 26 U.S.C. § 7426(b)(2). 7 See Three "M" I nvestments, In c . v. United States, 781 F.2d 352, 353 (10th Cir.1986) (noting that s ection 7426(b)(2) was not meant to be compensatory); Hammond Co. v. United States, 568 F.Supp. 309, 313 (S.D.Cal.1983) (same). S ection 7431 coverin g wrongful disclosures, however, allows recovery of compensatory damages. 26 U.S.C. § 7431(c)(1)(B)(I). If Congress had intended to allow recovery of compen s a t o ry damages in the

7 In relevant part § 7426(b)(2) reads: If the court determines that such property has been wrongfully levied upon, the court may— (A) order the return of specific property if the United States is in possession of such property; (B) grant a judgment for the amount of money levied upon; or (C) if such property was sold, grant a judgment for an amount not exceeding the greater of— (i) the amount received by the United States from the sale of such property, or (ii) the fair market value of such property immediately before the levy. 26 U.S.C. § 7426(b)(2). 8ordinary wrongful levy case, they would have so stated in § 7426.

Holding t hat disclosures necessary t o e f fectuate a levy automatically become wrongful upon a finding that the levy was deficient in some way, would effectively read out of the Internal Revenue Code the distinct damage r emedies that Congress provided. 8 The foregoing analysis i ndicates t hat Congress intended collection activities, such as levying, to be distinct from information handling. We see no reason to conflate them. As the Third Circuit noted, "[t]hese two bodies of law must remain distinct." Venen, 38 F.3d a t 1 06. Accordingly, we decline to follow Rorex, and join the Third and N inth Circuits in holding that the validity of the underlying collection activity is not relevant in determining whe t h e r the disclosures of t ax return information were wrongful. 9

8 Further support for the government's position comes from the fact that § 7433 does allow a victim of unreasonable collection activities to recover "actual, direct economic damages," but only if the IRS's conduct was reckless or intentionally wrongful. If we were to hold that disclosures necessary to effectuate levies become wrongful when the levies are adjudged deficient, then this section would essentially become a nullity. S ee Venen, 38 F.3d at 106 (analyzing the interaction between §§ 7431 and 7433).

9 Liability under § 7431(a)(1) requires that the IRS made the disclosures "knowingly, or by reason of negligence." We note that the district court found the disclosures negligent due to the IRS agent's failure to gather sufficient evidence and consult an attorney before concluding that Wilkerson and Forsyth had a common-law marriage. For the reasons stated in this opinion, we believe that the district court misread the requirements of § 7431. The district court's analysis ties the scienter requirement of § 7431 directly to the propriety of the underlying levies. The plain language of the statute states that the disclosures must be done either negligently or knowingly "in violation of any provision of section 6103." 26 U.S.C. § 7431(a)(1). This is an independent inquiry. A finding that the 9Accordingly, we hold that § 6 1 0 3(k)(6) authorized t he IRS's

disclosure of W ilkerson's tax return i nf o rmation, and thus the disclosures we r e n o t wrongful. 1 0 As was the case in Venen, Wilkerson's claim is based on improper levying procedures, not on improper informati o n h a ndling. The IRS issued levies to c ollect Forsyth's delinquent taxes. Pursuant to § 6103(k)(6) and 26 C.F.R. § 301.6103(k)(6)-1(b)(6), the IRS included in the Notices of Levy Wilkerson's social security number, business interests, employee identification number, and alleged tax liability—the information necessary to provide effective notice of the tax liens to persons dealing with Wilkerson. Absent the d isclosures, the N o tices of L e vy would have been wholly ineffective i n collecting money for which t he IRS believed W ilkerson was responsible. T he IRS thus acted reasonably in d etermining that d isclosure of Wilkerson's tax return information was necessary t o e nforce the Internal R evenue Code and obtain the delinquent taxes. 1 1 underlying collection activity was done negligently does not necessarily mean that the disclosures were also done negligently. Cf. Huckaby v. United States Department of Treasury, 794 F.2d 1041, 1050 (5th Cir.1986), (holding IRS liable under § 7431 when the agent should have known that the disclosures were not authorized by the statute).

1 0 T his opinion should not be construed to hold that every claim of wrongful levy will fail to give rise to a claim of wrongful disclosure. We hold only that proof of wrongful levy, absent more, is legally insufficient to support a claim for wrongful disclosure.

1 1 W e distinguish Wilkerson's case from Barrett v. United States, 51 F.3d 475, 478-79 (5th Cir.1995). In Barrett, we held that where disclosure of tax liability was contained in letters sent solely to obtain information, disclosure was unnecessary if the information sought was "otherwise reasonably available." Unlike the information sought in Barrett, there is no effective 10III

The district court denied W ilkerson's Fifth Amendment claims

on t he grounds that she had failed to show that the IRS acted with sufficient malice or intent to harass to afford her recovery under either the due process or takings clause of t he Fifth Amendment. Wilkerson argues that the court erred in requiring malice or intent to harass before allowing recovery under the Fifth Amendment. See Rutherford v. United S tates, 702 F.2d 580, 5 8 3

- 84 (5th Cir.1983) (holding that a party may be entitled t o Bivens recovery under Fifth Amendment for malicious acts o f the IRS which g o so f ar as to infringe taxpayer's Fifth Amendment l iberty interest). We d ecline to determine t he scope of Rutherford b ecause we find that the district c o u rt lacked jurisdiction t o decide W ilkerson's Fifth Amendment claims. The United S tates is immune f rom suit except as it waives its sovereign immunity. FDIC v. Meyer, --- U.S. ----, ----, 114 S.Ct. 996, 1000, 127 L .Ed.2d 308 (1994); United States v. Sherwood, 312 U.S. 584, 586-87, 61 S.Ct. 767, 7 69-70, 85 L.Ed. 1 058 ( 1941). Congress sets forth the terms of those waivers and courts may not exercise subject matter jurisdiction over a claim against the federal government except as Congress a llows. United States v. Orleans, 425 U.S. 807, 814, 9 6 S.Ct. 1971, 1976, 4 8 L . E d

. 2d 390 ( 1 976); Drake v. Panama Canal Comm'n, 907 F.2d 532, 5 3 4 ( 5 t h Cir.1990); Ware v . U nited States, 626 F.2d 1278, 1286 (5th

way to design Notices of Levy without disclosing tax return information. 11Cir.1980). Waivers of sovereign immunity must b e s t rictly

construed. Sherwood, 312 U.S. at 590, 61 S.Ct. at 771. The Tucker Act, 28 U.S.C. §§ 1346(a)(2) an d 1491(a), vests concurrent j urisdiction in the United S tates C ourt of F ederal Claims ("Court of C laims") and the federal district courts over any "claim against the United States, not exceeding $10,000 in amount founded either upon the Constitution, or any Act o f Congress, or any regulation of an executive department, or upon any express or implied contract with the United States." 2 8 U.S.C. § 1346(a)(2). For claims that exceed $10,000, the Tucker A ct g rants exclusive jurisdiction to the Court of Claims. 28 U.S.C. § 1491(a); Amoco Production Co. v. Hodel, 815 F.2d 352, 358 (5th Cir.1987), cert. denied, 487 U.S. 1234, 108 S.Ct. 2898, 101 L.Ed.2d 932 (1988). We have consistently refused t o allow d istrict courts to adjudicate issues which b elong solely to the Court of Claims, even though some other statute conferring jurisdiction would o therwise a llow the district court to hear the case. Amoco Production, 8 15 F.2d at 358 (citi n g Gra h am v. H enegar, 6 4 0 F.2d 732, 7 34-35 & n. 6 (5th Cir.1981)). As we have stated, "The law of this circuit is clear: the Court of Claims has exclusive jurisdiction of a Tucker Act claim in excess of $10,000." Ware, 626 F.2d at 1287. Wilkerson claims t hat either the government engaged in a taking of her property without just compensation, or deprived her of her property and liberty interests without due process of law. Wilkerson seeks $1,146,006. 0 0 a s recompense for these a lleged wrongs. Because Wilkerson's claims are against the United S tates,

12based on the Constitution, and f or money damages in excess of

$10,000, the Tucker act does not allow the district court to hear this case. 1 2 Indeed, we can find no s tatute allowing Wilkerson to bring her claims in d istrict court. 1 3 Pursuant to t he Tucker Act, Wilkerson should have brought her F ifth Amendment c l aims in the Court of Claims. Amoco Production, 815 F.3d a t 368; Ware, 626 F.2d at 1287.

1 2 W ilkerson also argues that 28 U.S.C. § 1346(a)(1) provides the district court with jurisdiction over her Fifth Amendment claims. Section 1346(a)(1), however, only allows the district court to hear suits to recover "any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws." 28 U.S.C. § 1346(a)(1). This language applies only to suits to recover money wrongfully paid to the IRS. Here Wilkerson seeks damages under the Fifth Amendment for the constructive taking of her business, a claim outside the scope of § 1346(a)(1). See United States v. Williams, --- U.S. ----, ----, 115 S.Ct. 1611, 1618, 131 L.Ed.2d 608 (1995) (holding that § 1346(a)(1) allows a person from whom taxes were wrongfully collected to sue for a refund of those taxes).

1 3 W ilkerson argues in the alternative that 28 U.S.C. § 1367(a) allows the court to hear her Fifth Amendment claims on the basis of supplemental jurisdiction—as part of the same case or controversy as her tax claims. Section 1367(a), however, deals only with the federal courts' power to exercise subject matter jurisdiction over certain claims and does not operate as a waiver of the United States sovereign immunity. Sovereign immunity and subject matter jurisdiction are distinct doctrines. Section 1367(a) essentially codified the common law doctrine of pendant jurisdiction; Baker v. Farmers Elec. Co-Op, Inc., 34 F.3d 274 (5th Cir.1994); which allows litigants in federal court to join state claims with their federal claims where the claims are so related that they "form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). As we have previously held, the doctrine of pendant jurisdiction cannot be used to waive the United States' sovereign immunity unless Congress specifically allows it. Ware, 626 F.2d at 1286 (quoting Sanborn v. United States, 453 F.Supp. 651, 655 & n. 5 (E.D.Cal.1977)). Here there is no waiver except to have the claims heard in the Court of Claims. 13IV

Section 7430 authorizes t he award of attorney's fees and costs to p revailing parties i n tax litigation. S ection 7430(c)(4)(A) defines "prevailing p arty" a s any party who (1) establishes that the position of the Un i t ed S tates was not "substantially justified," and (2) "substantially prevails" as to the amount in controversy or as to the "most significant issue or set of issues presented." 28 U.S.C. § 7430(c)(4)(A); Heasley v. Commissioner, 9 67 F.2d 1 16, 122 (5th Cir.1992). The district court found t hat the IRS's position in this litigation was not substantially justified and that Wilkerson had prevailed on the most significant issues in the case—wrongful levy and wr o n g ful disclosure. W e review the district court's grant of attorney's fees under § 7430 for abuse of discretion. Heasley, 9 67 F.2d at 120, 123. We can only reverse "if w e h av e a d efinite and firm conviction that an error of judgment was committed." Lennox v. Commissioner, 998 F.2d 244, 248 (5th Cir.1993). Substantially justified means "justified to a degree that could satisfy a reasonable person." Id.; Nalle v. Commissioner, 55 F.3d 189, 191 ( 5th Cir. 1 9 95). To meet this standard, the government's position must have a reasonable b asis both in law and fact. Bouterie v. Commissioner, 36 F .3d 1361, 1367 (5th Cir.1994); Hanson v. Commissioner, 975 F.2d 1150, 1153 (5th Cir.1992). In essence, the inquiry f ocuses o n the reasonableness o f the government's position prior to the onset of litigation. Nalle, 55 F.3d at 191-92.

14The district court concluded that the IRS had based its

assumption of c ommon-law marriage on unreliable i nformation. Further, the district court found that the IRS agents lacked any knowledge c oncerning T exas marriage law, and acted without ever consulting an attorney on t he subject. At the time the IRS made the levies, the only definite information t he agents had consisted of uncorroborated testimony from w i t n e s ses who the IRS knew were inimical to Forsyth or Wilkerson, or who stood to gain from their being married, such as Forsyth's ex-wife who share d i n Forsyth's tax li a b ility. In addition, the i nvestigating agent did not consult an attorney until after issuing the Notices of Levy, and admitted t h a t h e had n o knowledge concerning Texas marriage law. After careful review of the record, we cannot say that we have a definite and firm conviction that the district court erred in its finding. Accordingly, we affirm t h e d istrict court's conclusion that the IRS's position on the levies was not substantially justified. 1 4 See Portillo v. Commissioner, 988 F .2d 27, 28-29 (5th Cir.1993) (holding IRS's position not substantially justified where they relied solely on unsupported information); Nalle, 55 F.3d at 1 92 & n. 5 (citing c ase law which holds that the IR S i s n o t substantially justified where proper application of s tate law would have indicated the incorrectness of the government's position). T he second requirement under § 7 430(c)(4)(A) i nvolves whether

1 4 F or the reasons stated in Part II of this opinion, we find that the IRS's position on the disclosure of Wilkerson's tax information was substantially justified, and therefore Wilkerson is not entitled to attorney's fees for that portion of the case. 15Wilkerson has substantially prevailed as to the amount in

controversy or as to the "most significant issue or set of issues pr e s e n ted." 28 U.S.C. § 7430(c)(4)(A). To determine if a party has substantially prevailed, "we look to the final outcome of the case, whether by judgment or settlement." H easley, 967 F.2d at 122. A victory o n the primary issue w ill suffice, and neither the amount of damages received nor numbe r of claims won is determinative. Id.; s ee Huckaby v. United S tates Department of Treasury, 804 F.2d 297, 299-300 ( 5th Cir.1986) (holding party a "prevailing party" despite victory on o nly one claim out of several). Wilkerson has prevailed on her claim of w ron g f ul levy, but failed o n a ll her other claims, including w rongful disclosure. Although she sou g h t a greater amount of damages f or the disclosures, that fact a lone does n o t make the d isclosure issue most significant. S ee Huckaby, 804 F.2d at 299-300 (holding that a party was a "prevailing party" despite award of only $1,000 out of p ossible $28,000 in damages). In order to determine which issue is most significant, we must determine which issue is primary or most nearly central to the case. See id. a t 3 00 (holding an issue most significant because it was "the primary issue"). Looking at the gr av amen of Wilkerson's complaint, the primary issue was whether the levies on Wilkerson's p roperty were wrongful. The bulk of Wilkerson's c laims were in s ome w a y d e rived from the wrongfulness of the levies. For example, Wilkerson's argues that she is entitled t o recover under the Fifth Amendment because the

16levies c aused h er to lose her business without due process or just

compensation. Likewise, Wilkerson based h e r claim of wrongful disclosure on a theory that the wrongfulness of the levies made the disclosures wrongf ul. Although we reject this position, Wilkerson's complaint indicates the centrality of the levy issue. Accordingly, we hold that the wrongful levy issue was the most nearly central t o her case. Having prevailed on the wrongful levy issue, W ilkerson has prevailed as to the most significant issue in the case. Wilkerson is t hus entitled to an award o f attorney's fees and

co s t s as a prevailing party under § 7430 o f the Internal R evenue Code. However, since Wilkerson has failed to prevail on any other issue, she is not e ntitled to attorn e y ' s fees and costs attributable to those issues. See, e.g., Powers v. Commissioner, 51 F.3d 34, 35 (5th Cir.1995) (apportioning attorney's fees under § 7430 b ased o n number o f issues won on appeal); Heasley, 967 F.2d at 123-25 (holding that the burden i s on the preva i l i n g party to establish number o f attorney hours e xpended, and that s uch h o u r s

were reasonable). Accordingly , w e vacate the district c ourt's award of attorney's fees and costs and remand for a determination of the amount of fees and costs to which she is entitled. V For the f oregoing reasons we AFFIRM the district c ourt's finding of wrongful levy. We REVERSE the district court's ruling

on wrongful disclosure and d eny Wilkerson recovery based upon that claim. On Wilkerson's Fif t h Amendment claims, we VACATE the

17district court's denial of r ecovery, and remand for a determination

of whether "in the interests of justice" they s hould be transferred to t h e C o urt of Claims under 28 U .S.C. § 1 406(a). We VACATE the district court's award of attorney's fees and costs and r emand for

a determination of the amount of fees and costs to which she is entitled.

18