USCA1 Opinion

November 10, 1994

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________
No. 94-1453
MICHAEL J. HAGGERT,
Plaintiff, Appellant,
v.
PHILIPS MEDICAL SYSTEMS, INC., ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael Ponsor, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
___________
Selya and Cyr, Circuit Judges.

______________
____________________

Michael J. Haggert on brief pro se.

__________________
Loretta C. Arsgett, Assistant Attorney General, Gary R. All
___________________
____________
David English Carmack and S. Robert Lyons, Attorneys, Tax Divisi
______________________
________________
Department of Justice, on brief for appellees Philips Medical Syste
Inc., Heritage Bank for Savings, Ann McDonald, Elaine Dionne
United States of America.
Ann S. Duross, Assistant General Counsel, Robert D. McGillicud
_____________
_____________________
Senior Counsel, and Marta W. Berkley, Counsel, on brief for appel
_________________
Federal Deposit Insurance Corporation As Receiver for Heritage B
for Savings.

____________________
____________________

Per Curiam.
__________

Michael Haggert appeals the

district

court's

grant of

States,

Philips Medical

Savings,

and

summary judgment

two

essentially for

Systems,

of

in

favor of

the United

Inc., Heritage

Heritage's

the reasons given

employees.

Bank
We

by the district

for

affirm
court in

its decisions dated March 24, 1992 and March 24, 1994, adding
only the following comments.
Haggert complains that
address

his

Heritage

allegation

Code

violations.
Service

certain

("Code").

however, since

His

the court

notice

of

levy

provisions of
complaint

sent to

the Internal

is without

did address the

not

merit,

alleged statutory

It correctly concluded that the Internal Revenue

("IRS")

could

accounts at Heritage
levy.

that the

Bank violated

Revenue

the district court did

effect

Bank by

See 26 U.S.C.
___

levy

on

Haggert's

sending the bank

6331(b)

a notice

bank
of

("The term 'levy' as used in

this title includes the power of distraint and seizure by any

means."); IRS Reg.

301.6331-1(a)(1) ("Levy may be made

by

serving a notice of levy on any person in possession of . . .

property subject to levy, including . . .
.

."); see also Schiff

___ ____ ______

210,

212

effected

(2d Cir.

v. Simon & Schuster, Inc., 780 F.2d

_______________________

1985) (levy

by serving a notice

argument that

bank accounts, . .

on

property has

of levy, and

long been

so an employee's

the IRS could not levy on his wages by sending

a notice of levy to his employer was "absolutely meritless").

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The differing
points

language in

-- the

statute permits

delinquent taxpayers
the salaries

See
___

(1959) (

levying

which Haggert

on the

"by levy," but provides

of federal

their employers -cited.

section 6331(a) to

employees

property of

for levying on

by "notice

of levy"

to

is not meaningful in view of the law just

also Sims v.
____ ____

United States,
_____________

359 U.S. 108,

6331(a)'s provision relating to

113

levy upon federal

employees' salaries was enacted specifically to subject those

salaries "to the same

collection procedures as are available

against all other taxpayers").

The district court also considered
claims of procedural irregularity.
that

it

Haggert's

need

not

consider

It essentially determined

those

suit against the bank.

Haggert's other

claims

As the

in

evaluating

court noted, pre-

levy procedural requirements are imposed only on the IRS, and

the IRS had been dismissed from the suit.
the court's reasoning.
Secretary

of the

We see no error in

See, e.g., 26 U.S.C.

_________

Treasury must

6331(a) (the

wait a specified

number of

days

after

providing

outstanding taxes
the taxpayer's
Treasury

may

the

taxpayer

and demand

taxpayer until the

levy

on

notice

for payment before

property); id.
___
not

with

of

levying on

(d)(1) (the Secretary

the

property

taxpayer has been given

of

his

of the

a delinquent

a written notice

____________________
1. Although 26 U.S.C.
6332(c) requires banks to surrender
of intent to levy); id. (d)(4) (describing what information
___
a delinquent taxpayer's property "only after 21 days after
service of levy," Haggert has not claimed that the bank
the notice of intent to levy must contain).1
Moreover, a
failed to wait the full 21 days after receiving the notice of
levy before complying with the notice.
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bank which has

with the
not

IRS notice of

levy must

comply

levy, and has only two defenses -- that the bank is

in possession of the

subject

to a

United States
_____________
722,

received an

property, or that

prior judicial attachment

the property is

or execution.

v. National Bank of Commerce, 472

___________________________

727 (1985); see 26

U.S.C.

6332(a)

See
___

U.S. 713,

("[A]ny person in

___
possession of (or obligated

with respect to) property .

upon which

made shall . .

a levy has been

property . .

. to

such part of

the property . . .

demand,

subject

the Secretary [of

to an

judicial process.").
by

the IRS

excused

Thus,

in serving

the bank

from

notice of

levy, and the

judgment

for

the

. surrender such

the Treasury],

as is, at the time

attachment

or

of

its obligation

without

of such

to

first

any

committed

levy would

not have

comply with

district court could

bank

except

execution under

any procedural errors

the notice

. .

the

grant summary

considering

the

substantive merits of the alleged errors by the IRS.2

Haggert also avers that
its sovereignty, having

the United States has lost

previously declared bankruptcy,

and

so could not be substituted for the individual IRS defendants

originally sued
this

by Haggert.

claim below,

however,

Since
he

has

Haggert did
waived it

not assert
on

appeal.

____________________
2. In passing, we also
error were meritless.

note that Haggert's

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claims of

IRS

United States
______________

v. Ocasio-Rivera,
_____________

991

F.2d 1,

(1st Cir.

1993).
Next,

Haggert says

that

the points

made in

his

"affidavits" were never answered, so that summary judgment in

his favor was warranted.
dispute any
used

material fact in

exclusively

summary

Those affidavits did not attempt to

judgment

to

this case,

argue Haggert's

for

the

however, but

case.

defendants was

Moore's Federal Practice Pt. 2,

_________________________

were

Accordingly,
proper.

See 6
___

56.22[1], at 56-746 to 748

(1993 ed.) ("The affidavit is no place for ultimate facts and

conclusions of law, nor for argument of the party's cause.").
Haggert's
correctly

by

the

remaining
district

claims
court

or

were either
are

in

resolved

any

event

meritless, and so they need not be further discussed here.

Finally,
sanctions of
appeal.

the

United

$1,500 against

In a

States

asks

us

Haggert for filing

previous appeal by Haggert in a

to

award

a frivolous
related case,

we said that Haggert's arguments in support of his claim that

he was
which

not required
are

to pay

reasserted in

this

indeed silly on their face."

slip

op. at

10 (1st

federal income
appeal

tax -- some

-- were

of

"meritless,

See In re Haggert, No. 92-1519,

___ _____________

Cir. Dec.

22, 1992)

(unpublished per

curiam).
Code

Haggert's

provisions

appeal,

claim that the IRS

apparently was

but, as

the district

not

had violated certain

made

in his

previous

that

claim was

court found,

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unavailing against the

the judgment

bank.

Nonetheless, Haggert

appealed

in favor of the bank, yet, on appeal, failed to

describe any error

in that

finding.

grant of

summary judgment for his

Systems,

Inc.,

despite

the

He

also appealed

the

employer, Philips Medical

court's

provisions which expressly immunized

citation

of

Code

Philips from this suit.

Since Haggert should have known that his appeal had no chance
of success, sanctions are
v.

warranted.

See E.H. Ashley & Co.

___ __________________

Wells Fargo Alarm Services, 907 F.2d 1274, 1280 (1st Cir.
__________________________

1990) (it is enough to find an appeal frivolous under Fed. R.

App. P. 38 if the appellant
appeal

had no

chance of

"should have been aware that the

______
success") (emphasis

in original);

Lefebvre v.
________

Commissioner, 830 F.2d 417, 421

____________

(a pro se taxpayer "whose

runs

assertions have been found totally

frivolous

below,

appellate

sanctions [than

the

risk of
double

objectively

frivolous, i.e.,

basis").

In

view

(1st Cir. 1987)

of

substantially

costs] if

without
Haggert's

harsher

the appeal

is

any legal

or factual

present

financial

circumstances, however, we only grant damages of $300.

Affirmed.
Damages of $300 awarded to the United
___________________________________________________
States in addition to ordinary costs.
_____________________________________

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