* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10238

Summary Calendar

GARY D BROWN

Plaintiff - Appellant

v.

UNITED STATES OF AMERICA; TERESA HARLEY, Individually and in

her capacity as Operations Manager, Collection, for the Internal Revenue

Service; CATHY BENSON, Individually and in her capacity as Settlement

Officer for the Internal Revenue Service

Defendants - Appellees

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 4:07-CV-67

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

The Internal Revenue Service determined that Gary D. Brown owed

income taxes for the years 2000 and 2002. The IRS assessed the taxes due, and

it prepared to collect those taxes by sending Brown a notice of federal tax-lien

filing and a final notice of tax levy. Brown challenged the IRS’s actions by

United States Court of Appeals

Fifth Circuit

F I L E D

October 31, 2008

Charles R. Fulbruge III

Clerk
No. 08-10238

2

initiating a civil action in the U.S. District Court for the Northern District of

Texas. The district court dismissed the action for lack of subject-matter

jurisdiction. See Brown v. United States, No. 4:06-CV-691-Y, slip op. at 2 (N.D.

Tex. Dec. 27, 2006). Brown did not appeal. Instead, Brown filed a second action

in the same district court challenging the same IRS actions. The district court

dismissed Brown’s complaint, and Brown now appeals. The government argues

that Brown’s appeal is frivolous, and it seeks to sanction Brown $8,000 for

persisting in the appeal. 

We have carefully reviewed the record on appeal, as well as the record

from Brown’s prior proceeding in civil action 4:06-CV-691-Y. Our review

satisfies us that Brown’s arguments on appeal are not only wholly without merit

but are so baseless in law as to be frivolous. See FDIC v. Meyer, 510 U.S. 471,

475 (1994); 26 U.S.C. § 6330(d)(1); id. §§ 6213(a), 7442. This conclusion does not

change in the light of the authorities upon which Brown relies. See Beall v.

United States, 336 F.3d 419, 422 (5th Cir. 2003), abrogated on other grounds by

Hinck v. United States, 127 S.Ct. 2011, 2016 (2007); Shaw v. United States, 20

F.3d 182, 184 (5th Cir. 1994). Although Brown also raises several new

arguments on appeal, “[i]t is well settled that we do not consider issues raised

for the first time on appeal.” Wagstaff v. U.S. Dep’t of Educ., 509 F.3d 661, 664

n.2 (5th Cir. 2007) (per curiam) (quoting Turner v. Baylor Richardson Med. Ctr.,

476 F.3d 337, 344 n.3 (5th Cir. 2007)). This is so irrespective of whether the

litigant proceeds pro se. See, e.g., id. 

With respectto the motion for sanctions,the government requests a lumpsum sanction of $8,000 in lieu of calculating the costs and attorney’s fees it

incurred in responding to Brown’s appeal. We agree this appeal is frivolous and

thus grant the motion for sanctions even though Brown proceeds pro se. See

FED. R. APP. P. 38; Stearman v. Comm’r, 436 F.3d 533, 538 (5th Cir. 2006);
No. 08-10238

3

Wallis v. Commissioner of I.R.S., 203 Fed.Appx. 591 (5th Cir. Oct. 24, 2006);

Clark v. Green, 814 F.2d 221, 223 (5th Cir. 1987). 

We DISMISS this appeal and GRANT the motion for sanctions in the

amount of $8,000 for persisting in this frivolous appeal. All costs of these

proceedings are to be assessed against Brown.