United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided February 8, 2013 

No. 12-5013 

CALVIN KI SUN KIM AND CHUN CHA KIM, 

APPELLANTS

v. 

UNITED STATES OF AMERICA, ET AL., 

APPELLEES

______ 

Appeal from the United States District Court for the District 

of Columbia 

(No. 1:08-cv-01660-CKK) 

______ 

 Calvin K. Kim and Chun C. Kim, pro se, were on the brief 

for appellants. Joseph P. Drennan entered an appearance. 

Kathryn Keneally, Assistant Attorney General, U.S. 

Department of Justice, Ronald C. Machen, Jr., U.S. Attorney, 

and Michael J. Haungs and Gretchen M. Wolfinger, 

Attorneys, were on the brief for appellees. 

 Before: GARLAND and BROWN, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge. 
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Opinion for the Court filed by Senior Circuit Judge

WILLIAMS. 

WILLIAMS, Senior Circuit Judge: Since 2002, Calvin and 

Chun Kim on the one hand and the Internal Revenue Service 

on the other have been in regular correspondence regarding 

the Kims’ alleged failure to file adequate tax returns between 

1998 and 2002. This correspondence culminated in the Kims’ 

filing suit in district court in September 2008. In a previous 

opinion, we discussed the factual and procedural background 

at length. See Kim v. United States, 632 F.3d 713, 714-16 

(D.C. Cir. 2011). 

In Kim, we affirmed the district court’s dismissal of 19 

counts of the Kims’ original 21, but reversed and remanded on 

counts 20 and 21; as to those counts, the district court had 

granted the government’s motion to dismiss on the basis of an 

affirmative defense which the Kims had had no obligation to 

contradict in their complaint. Id. at 719-20. On remand, the 

government moved again to dismiss the case, this time 

arguing that the Kims’ suit was untimely under the applicable 

statute of limitations. See 26 U.S.C. § 7433(d)(3). The 

district court agreed, and dismissed the remaining two counts. 

Kim v. United States, 840 F. Supp. 2d 180 (D.D.C. 2012). 

We understand the Kims’ pro se appeal to contend that 

the government had waived the limitations defense by failing 

to raise it in its first dispositive motion. See Fed. R. Civ. P. 

12(g)(2). The government responds that limitations defenses 

under § 7433 are conditions on a waiver of sovereign 

immunity and therefore jurisdictional and unwaivable. 

We express no opinion on the government’s jurisdictional 

argument and conclude instead that the government has not 

forfeited its limitations defense. Rule 12(g)(2) provides that 

“[e]xcept as provided in Rule 12(h)(2) or (3), a party that 

makes a motion under this rule must not make another motion 

under this rule raising a defense . . . that was available to the 
3

party but omitted from its earlier motion.” Thus the 

government was seemingly barred from raising the limitations 

defense in its second motion to dismiss. But Rule 12(h)(2)(A) 

permits a party to raise a legal defense “in any pleading 

allowed or ordered under Rule 7(a),” which in turn lists a 

number of pleadings including an answer to a complaint. See 

Fed. R. Civ. P. 7(a)(2). The government as yet has filed no 

answer, but could do so if we remanded. Thus we could 

reverse and remand, giving the government an opportunity to 

go through the formality of restating its limitations defense in 

an answer. But “[w]e can conceive of no reason for such 

judicial volleyball.” See Stanton v. DC Court of Appeals, 127 

F.3d 72, 77 (D.C. Cir. 1997). As no forfeiture by the 

government has yet occurred, and resolution of the issue does 

not depend on any facts not in the record, addressing the issue 

here and now in no way prejudices the Kims. See id. at 76-

77. 

The merits of the limitations defense turn on whether the 

right of action underlying counts 20 and 21 accrued within 

two years of the Kims’ filing the complaint in September 

2008. 26 U.S.C. § 7433(d)(3). The Kims’ claim is for certain 

statutorily forbidden types of communications by the IRS in 

connection with the collection of any unpaid tax. See id. 

§§ 6303 (describing the IRS’s notice requirements for liability 

assessments); 6304(b) (prohibiting harassment or abuse “in 

connection with an unpaid tax”); 7433(a) (creating a damages 

remedy). None of the events the Kims allege to have occurred 

within the limitations period, however, is one that could 

trigger IRS liability under § 7433. The government’s only 

communication with the Kims in that two-year period took the 

form of a “Letter 3175C,” which is simply a “letter used . . . to 

respond to [a] frivolous filer who send[s] frivolous 

correspondence to [the] IRS.” Internal Revenue Manual 

§ 4.19.10.1.6 (Feb 24, 2011). The letter here was the 

antithesis of a collection effort: it was a narrow response to 
4

the Kims’ own correspondence, not an assertive effort to 

collect allegedly unpaid taxes—much less an abusive one. 

We have also considered the Kims’ argument that the 

statute of limitations should have been tolled and find it to be 

without merit. We accordingly affirm the district court’s 

dismissal of the Kims’ complaint in its entirety. 

So ordered.