Logan Volpicelli v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LOGAN R. VOLPICELLI, No. 12-15029

Plaintiff-Appellant,

D.C. No.

v. 3:10-cv-00548-

RCJ-RAM

UNITED STATES OF AMERICA,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, District Judge, Presiding

Argued and Submitted

October 7, 2014—San Francisco, California

Filed January 30, 2015

Before: William A. Fletcher and Paul J. Watford, Circuit

Judges, and Kevin Thomas Duffy, District Judge.*

Opinion by Judge Watford

*

The Honorable Kevin Thomas Duffy, District Judge for the U.S.

District Court for the Southern District of New York, sitting by

designation.

2 VOLPICELLI V. UNITED STATES

SUMMARY**

Tax

Reversing the district court’s dismissal of an action

alleging that the IRS wrongfully levied upon funds that did

not belong to the plaintiff, the panel reaffirmed its prior

holding that the nine-month limitations period set by

26 U.S.C. § 6532(c) is not jurisdictional and may be

equitably tolled.

Because the district court dismissed the action without

determining whether the plaintiff has established grounds for

equitable tolling, the panel left that question for the district

court to resolve on remand.

COUNSEL

Brian P. Goldman (argued) and George G. Wolf, Orrick,

Herrington & Sutcliffe LLP, San Francisco, California; Mark

S. Davies, Orrick, Herrington & Sutcliffe LLP, Washington,

D.C., for Plaintiff-Appellant.

Joan I. Oppenheimer (argued), Attorney; Kathryn Keneally,

Assistant Attorney General; John A. Nolet, Attorney,

Department of Justice, Tax Division, Washington, D.C.;

Daniel G. Bogden (of counsel), United States Attorney for the

District of Nevada, for Defendant-Appellee.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

VOLPICELLI V. UNITED STATES 3

Carlton M. Smith, Director, Benjamin N. Cardozo School of

Law Tax Clinic, New York, New York, for Amicus Curiae.

OPINION

WATFORD, Circuit Judge:

The plaintiff in this case, Logan Volpicelli, sued the

Internal Revenue Service for wrongfully seizing roughly

$13,000 that Volpicelli says belonged to him. The IRS

thought the money belonged to Volpicelli’s father and, upon

seizing it, applied the funds to pay down the father’s tax

debts. At the time of the seizure (known as a levy), Volpicelli

was 10 years old. He alleges that he did not find out about

the levy until after he turned 18. A short time later,

Volpicelli filed this action under 26 U.S.C. § 7426(a)(1),

which provides a cause of action and waives the United

States’ sovereign immunity for claims alleging wrongful

levy.1

1

Section 7426(a)(1) provides:

Wrongful levy.—If a levy has been made on property

or property has been sold pursuant to a levy, any person

(other than the person against whom is assessed the tax

out of which such levy arose) who claims an interest in

or lien on such property and that such property was

wrongfully levied upon may bring a civil action against

the United States in a district court of the United States.

Such action may be brought without regard to whether

such property has been surrendered to or sold by the

Secretary.

4 VOLPICELLI V. UNITED STATES

The problem for Volpicelli: Ordinarily, a suit for

wrongful levy must be brought no later than nine months after

the levy occurs. 26 U.S.C. § 6532(c).2 Volpicelli filed his

action more than eight years after the levy occurred. The

government, as might be expected, moved to dismiss

Volpicelli’s action as untimely. In response, Volpicelli

conceded his failure to meet the statutory filing deadline but

argued that the deadline should be equitably tolled until he

reached the age of majority. (If Volpicelli prevails on this

point, the government agrees that his suit is not time-barred.)

The district court concluded that § 6532(c)’s time limit may

not be equitably tolled and granted the government’s motion

to dismiss.

The only issue on appeal is whether the district court

correctly held that § 6532(c) is not subject to equitable

tolling. As it happens, we decided that very issue almost two

2

Section 6532(c) provides:

Suits by persons other than taxpayers.—

(1) General rule.—Except as provided by paragraph (2),

no suit or proceeding under section 7426 shall be begun

after the expiration of 9 months from the date of the

levy or agreement giving rise to such action.

(2) Period when claim is filed.—If a request is made for

the return of property described in section 6343(b), the

9-month period prescribed in paragraph (1) shall be

extended for a period of 12 months from the date of

filing of such request or for a period of 6 months from

the date of mailing by registered or certified mail by the

Secretary to the person making such request of a notice

of disallowance of the part of the request to which the

action relates, whichever is shorter.

VOLPICELLI V. UNITED STATES 5

decades ago. In 1995, we held that § 6532(c) is subject to

equitable tolling. Supermail Cargo, Inc. v. United States,

68 F.3d 1204, 1206–07 (9th Cir. 1995); Capital Tracing, Inc.

v. United States, 63 F.3d 859, 861–62 (9th Cir. 1995). One

might think that should be that. As a three-judge panel, we

are bound by those decisions unless they’re “clearly

irreconcilable” with intervening higher authority. Miller v.

Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).

The government contends that higher authority has

intervened, and in one sense we agree. When we decided

Supermail Cargo and Capital Tracing, the Supreme Court’s

controlling decision in Irwin v. Department of Veterans

Affairs, 498 U.S. 89 (1990), stood essentially alone. Irwin

rejected the then-prevailing rule, under which time limits set

by Congress for suits against the government were deemed

jurisdictional and therefore not subject to equitable tolling.

See United States v. Kubrick, 444 U.S. 111, 117 (1979);

Soriano v. United States, 352 U.S. 270, 275–76 (1957). Irwin

replaced that rule with a rebuttable presumption that filing

deadlines may be equitably tolled, unless Congress provides

otherwise. 498 U.S. at 95–96. In Supermail Cargo and

Capital Tracing, we applied Irwin’s presumption to § 6532(c)

and, implicitly at least, found nothing in the statute’s text to

rebut the presumption. Supermail Cargo, 68 F.3d at

1206–07; Capital Tracing, 63 F.3d at 861.

As the government correctly points out, Irwin no longer

stands alone: Recent Supreme Court decisions have placed

new limits on the circumstances in which Irwin’s

presumption applies. But that does not mean we are free to

analyze the availability of equitable tolling under § 6532(c)

without regard to what Supermail Cargo and Capital Tracing

previously held. All we may do—and all we undertake to do

6 VOLPICELLI V. UNITED STATES

here—is decide whether the reasoning of our earlier

precedents is “clearly irreconcilable” with the reasoning of

the Supreme Court’s intervening decisions. Miller, 335 F.3d

at 893. The government’s arguments suggest three

independent ways that might be the case.

First, the government notes that, although Irwin suggested

its rebuttable presumption would apply across the board to all

filing deadlines, the Supreme Court has since clarified that

the presumption does not apply to deadlines that are

“jurisdictional.” See Sebelius v. Auburn Reg’l Med. Ctr.,

133 S. Ct. 817, 824–25 (2013). In Supermail Cargo and

Capital Tracing, we held that the filing deadline set by

§ 6532(c) is not jurisdictional. The government argues that

intervening Supreme Court authority has rendered that

conclusion erroneous, and if the government were right, we

would be compelled to treat Supermail Cargo and Capital

Tracing “as having been effectively overruled.” Miller,

335 F.3d at 893.

But the government is not right. The Supreme Court’s

recent cases require a clear statement from Congress before

a procedural rule will be treated as jurisdictional. Auburn,

133 S. Ct. at 824; Henderson ex rel. Henderson v. Shinseki,

131 S. Ct. 1197, 1203 (2011). We find no such clear

statement here. Section 6532(c) does not cast its filing

deadline in “jurisdictional” terms any more than the statute at

issue in Henderson did—a statute the Court held to be non-

jurisdictional. See Henderson, 131 S. Ct. at 1204–05.

Congress signaled the non-jurisdictional nature of § 6532(c)

by placing it in a subtitle of the Internal Revenue Code

labeled “Procedure and Administration,” while at the same

time enacting a separate jurisdiction-conferring provision

(28 U.S.C. § 1346(e)) and placing that provision in a chapter

VOLPICELLI V. UNITED STATES 7

titled “District Courts; Jurisdiction.” Congress’ placement

decision indicates that it viewed § 6532(c)’s limitations

period as a mere “claim-processing rule” rather than a

jurisdictional command. See Henderson, 131 S. Ct. at 1205.

In an attempt to refute this conclusion, the government cites

one relevant Supreme Court case that deemed a limitations

period jurisdictional, but the Court relied primarily upon

considerations of stare decisis specific to the statute at issue

there. John R. Sand & Gravel Co. v. United States, 552 U.S.

130, 137–39 (2008).

The government also contends that § 6532(c)’s filing

deadline must be deemed jurisdictional because Congress

imposed it as a condition on the United States’ waiver of

sovereign immunity. The Supreme Court necessarily rejected

that argument in Irwin. The Court acknowledged that the

statute of limitations at issue there was “a condition to the

waiver of sovereign immunity and thus must be strictly

construed,” but the Court nonetheless found the limitations

period subject to equitable tolling. Irwin, 498 U.S. at 94,

95–96. Consequently, even if § 6532(c)’s limitations period

were a condition on the United States’ waiver of sovereign

immunity, that fact alone would not render it “jurisdictional”

for purposes of deciding whether the Irwin presumption

applies.

Second, the government argues that, even if § 6532(c) is

not jurisdictional, Irwin’s presumption may be applied only

if the claim asserted against the government is analogous to

a claim that could be asserted against a private party. We

held that such a requirement exists in Rouse v. United States

Department of State, 567 F.3d 408, 416 (9th Cir. 2009),

relying in part on dicta in United States v. Brockamp,

519 U.S. 347, 349–50 (1997). Although the government

8 VOLPICELLI V. UNITED STATES

argues otherwise, Rouse is not in tension with the result we

reached in Supermail Cargo and Capital Tracing. The search

for a private-suit analogue is conducted at a “high level of

generality,” Rouse, 567 F.3d at 416 (internal quotation marks

omitted), and here such an analogue is easy to identify.

Volpicelli’s wrongful levy suit seeks the return of money that

he contends the IRS unlawfully took from him. That claim is

akin to the traditional common law torts of conversion and

trespass to chattels, claims that have long been asserted

against private parties. See In re Emery, 317 F.3d 1064, 1069

(9th Cir. 2003); Restatement (Second) of Torts §§ 222, 222A

(1965).

Finally, the government contends that, even if the Irwin

presumption applies to § 6532(c), three Supreme Court

decisions require us to hold that the presumption has been

rebutted, contrary to the conclusion we reached in Supermail

Cargo and Capital Tracing. After carefully reviewing the

cases the government cites, we don’t see anything in them

that would allow us to overrule our prior decisions.

The first and best case for the government is Brockamp.

There, the Court applied Irwin’s presumption in deciding

whether the time limits set by 26 U.S.C. § 6511 for filing tax

refund suits may be equitably tolled. As to that limitations

period, the Court concluded that Irwin’s presumption had

been rebutted, relying on a combination of factors. The Court

stressed that § 6511 sets forth its time limits in “unusually

emphatic form” and in a “highly detailed technical manner,

that, linguistically speaking, cannot easily be read as

containing implicit exceptions.” 519 U.S. at 350. The statute

itself specified at least six exceptions to the filing deadline,

and equitable tolling was not among them. Id. at 351–52.

Section 6511 also reiterated the applicable time limits “in

VOLPICELLI V. UNITED STATES 9

both procedural and substantive forms,” such that granting

equitable tolling would “require tolling, not only procedural

limitations, but also substantive limitations on the amount of

recovery”—a kind of tolling for which the Court could find

no direct precedent. Id. at 352.

Section 6532(c) does not share these characteristics.

True, its limitations period is set forth in emphatic

language—“no suit or proceeding . . . shall be begun after the

expiration of 9 months from the date of the levy”—but that

language does not strike us as “unusually” emphatic. It

seems no more emphatic than the language of the

Antiterrorism and Effective Death Penalty Act’s limitations

period, 28 U.S.C. § 2244(d), which provides that “[a] 1-year

period of limitation shall apply to an application for a writ of

habeas corpus”—language that the Court has said “reads like

an ordinary, run-of-the-mill statute of limitations.” Holland

v. Florida, 560 U.S. 631, 647 (2010). Nor is the language of

§ 6532(c) highly detailed or technical; in fact, it’s just the

opposite. See note 2 above. The limitations period it

establishes is purely procedural and has no substantive impact

on the amount of recovery. And § 6532(c) does not contain

numerous exceptions, as does § 6511. It has just one

exception (if it can even be called that), which extends the

limitations period if the plaintiff seeks administrative review

before filing suit. 26 U.S.C. § 6532(c)(2). Given the stark

differences between § 6511 and § 6532(c), we are not

persuaded that Brockamp has effectively overruled Supermail

Cargo and Capital Tracing.

The government urges us to place overriding weight on

one similarity that § 6511 and § 6532(c) do share: Both are

found in the tax code. The government contends this shared

feature is significant because the Brockamp Court observed,

10 VOLPICELLI V. UNITED STATES

in the course of explaining why Congress did not intend to

allow equitable exceptions to § 6511’s filing deadline, that

“[t]ax law, after all, is not normally characterized by case-

specific exceptions reflecting individualized equities.”

519 U.S. at 352. The Court may in time decide that Congress

did not intend equitable tolling to be available with respect to

any tax-related statute of limitations. But that’s not what the

Court held in Brockamp. It instead engaged in a statute-

specific analysis of the factors that indicated Congress did not

want equitable tolling to be available under § 6511. The

Court later made clear in Holland that the “‘underlying

subject matter’” of § 6511—tax law—was only one of those

factors. 560 U.S. at 646 (quoting Brockamp, 519 U.S. at

352). As we have explained, the other factors on which the

Court relied are not a close enough fit with § 6532(c) to

render Brockamp controlling here.

The government next relies on United States v. Beggerly,

524 U.S. 38 (1998), where the Court held that Irwin’s

presumption was rebutted with respect to the limitations

period set by 28 U.S.C. § 2409a for claims under the Quiet

Title Act. Key to the Court’s analysis of that statute were two

factors absent from § 6532(c). First, the Quiet Title Act’s 12-

year limitations period was “unusually generous.” 524 U.S.

at 48. The same cannot be said of § 6532(c)’s relatively

stingy 9-month limitations period. Second, Congress had

“already effectively allowed for equitable tolling” by

providing that the 12-year limitations period does not begin

to run until the plaintiff “‘knew or should have known of the

claim of the United States.’” Id. (quoting 28 U.S.C.

§ 2409a(g)). Allowing equitable tolling on additional

unenumerated grounds, the Court reasoned, was unwarranted.

Id. at 49. No similar allowance for equitable tolling is built

into the limitations period prescribed by § 6532(c). Thus, we

VOLPICELLI V. UNITED STATES 11

find nothing in Beggerly’s reasoning that has effectively

overruled our decisions in Supermail Cargo and Capital

Tracing.

The government cites Sebelius v. Auburn Regional

Medical Center, 133 S. Ct. 817 (2013), as a third case in

which the Court held that Irwin’s presumption had been

rebutted. We read the case differently. The time limit at

issue there involved “an agency’s internal appeal deadline,”

not a time limit for filing suit in court. Id. at 827. The Court

concluded that “the equitable tolling presumption our Irwin

decision approved for suits brought in court does not

similarly apply to administrative appeals of the kind here

considered.” Id. at 828–29. Instead of holding that Irwin’s

presumption had been rebutted, the Court determined that the

presumption did not apply in the first place. The Court’s

holding does not undermine, much less overrule, our

decisions in Supermail Cargo and Capital Tracing because

§ 6532(c) involves a limitations period to which Irwin’s

presumption does apply.3

In sum, none of the Supreme Court’s intervening

decisions is clearly irreconcilable with our 1995 precedents.

We reaffirm our prior holding that the limitations period set

by 26 U.S.C. § 6532(c) is not jurisdictional and may be

equitably tolled. Supermail Cargo, 68 F.3d at 1206 n.2,

1207. Because the district court dismissed Volpicelli’s suit

3

We recognize that other circuits have held that § 6532(c)’s limitations

period is not subject to equitable tolling. See Becton Dickinson & Co. v.

Wolckenhauer, 215 F.3d 340, 351–52 (3d Cir. 2000) (collecting cases).

Even if we agreed with the reasoning of those circuits (which we don’t),

we would not be free to follow those decisions rather than our own

binding precedent.

12 VOLPICELLI V. UNITED STATES

without determining whether he has established grounds for

equitable tolling, we leave that question for the district court

to resolve in the first instance on remand.

REVERSED AND REMANDED.