William R. Tinnerman v. United States

USCA11 Case: 21-14023 Date Filed: 08/25/2022 Page: 1 of 12

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-14023

Non-Argument Calendar

____________________

WILLIAM R. TINNERMAN,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 3:19-cv-01429-TJC-PDB

____________________

USCA11 Case: 21-14023 Date Filed: 08/25/2022 Page: 2 of 12

2 Opinion of the Court 21-14023

Before BRANCH, LUCK, and LAGOA, Circuit Judges.

PER CURIAM:

William R. Tinnerman, a counseled plaintiff, appeals the

dismissal of his amended complaint against the government in

which he sought judicial review of and relief from a certification

that he had seriously delinquent tax debts for certain years. The

government, in turn, moves to dismiss the appeal in part, and for

summary affirmance in part. It also moves to stay the briefing

schedule. Tinnerman has, in response, filed three motions for

sanctions regarding the motions for partial dismissal, partial

summary affirmance, and the motion to stay the briefing schedule.

Because we agree with the government that two of Tinnerman’s

claims have been mooted by the government’s recent write-off of

his tax liabilities and its reversal of the certification of seriously

delinquent tax debt, we grant the government’s motion to dismiss

those claims. And because we agree that Tinnerman’s last two

claims are barred by sovereign immunity, we summarily affirm the

district court’s decision on those claims as well.

I. Background

In 2019, Tinnerman filed the present counseled action

against the United States in the Middle District of Florida.

Ultimately, Tinnerman alleged that he was entitled to: (1) judicial

review of the actions the IRS took with respect to his liabilities for

tax years 1999 through 2002, and a request that the district court

USCA11 Case: 21-14023 Date Filed: 08/25/2022 Page: 3 of 12

21-14023 Opinion of the Court 3

void or reverse decisions made by, inter alia, the U.S. Tax Court;

(2) a refund of taxes that were allegedly assessed erroneously and

collected by the Internal Revenue Service (“IRS”) for tax years 1999

and 2000; and (3) a determination that the IRS’s Notice of

Certification of Seriously Delinquent Tax Debt to the State

Department was erroneous and reversal of that certification.

Tinnerman raised four claims for relief. In the first

(“Claim I”), he alleged that the IRS violated his due process rights

when officials denied him an appeal hearing for decisions it made

on the 1999–2002 tax years, relied on incorrect filings to determine

that he owed taxable income, and denied him the opportunity to

challenge the incorrect filings before the agency, meaning he had

to challenge them before the tax court.1 In his second (“Claim II”),

Tinnerman alleged that the IRS erroneously certified that his tax

debt was seriously delinquent for the years 1999–2002, as he did not

1

According to court records, the Tax Court case Tinnerman referred to

resolved two petitions he had previously filed concerning certain IRS

determinations for the years 1999–2002. See Tinnerman v. Comm’r of

Internal Revenue, T.C. Memo. 2006-250, 2006 WL 3299074 (November 14,

2006). The Tax Court ultimately issued a decision for the IRS and found that:

(i) he had committed tax fraud for 1999, 2000, and 2001, and was liable for the

deficiencies in his income tax for those years; (ii) he fraudulently intended to

understate his income on his taxes for 1999–2001; (iii) he was liable for

additions to his tax liability (5% of the taxes owed for each month he failed to

pay with a 25% cap) for failure to file an income tax return for 1999 through

2002; and (iv) he was subject to penalties for filing a frivolous petition. Id. at

*4–*7.

USCA11 Case: 21-14023 Date Filed: 08/25/2022 Page: 4 of 12

4 Opinion of the Court 21-14023

have legally enforceable tax debt; the notice of certification of the

delinquency to the State Department 2 was untimely,

unauthorized, and invalid; and the notice violated his due process

rights, especially considering it was issued without statutory

authority. In his third (“Claim III”), Tinnerman alleged that he was

not required to file returns for 1999 or 2000 and was not notified

otherwise, and he erroneously self-assessed $2,449.00 in taxes in

1999, meaning that he did not owe taxes for that year and should

have had that amount refunded. For his fourth claim (“Claim IV”),

Tinnerman alleged that he had made the same mistake in 2000 and

was owed a $2,629.00 refund of the amount he paid.

The government responded by moving to dismiss

Tinnerman’s amended complaint. It argued that the district court

lacked jurisdiction over Counts I, III, and IV based on the Anti-

Injunction Act, 26 U.S.C. § 7421, Declaratory Judgment Act, 28

U.S.C. § 2201 and because Tinnerman had not established that the

government had waived sovereign immunity for tax suits, 29

U.S.C. § 1346(a)(1). Additionally, the government argued that

Count II failed to state a claim upon which relief could be granted

under 26 U.S.C. § 7345 because, even taking his allegations as true,

Tinnerman’s debt to the IRS qualified as “seriously delinquent tax

2

The IRS can certify seriously delinquent tax debt to the State Department so

the Department knows to deny the renewal of or revoke a debtor’s passport.

See IRS, Revocation or Denial of Passport in Case of Certain Unpaid Taxes

(Aug. 22, 2022), https://www.irs.gov/businesses/small-businesses-self-

employed/revocation-or-denial-of-passport-in-case-of-certain-unpaid-taxes

USCA11 Case: 21-14023 Date Filed: 08/25/2022 Page: 5 of 12

21-14023 Opinion of the Court 5

debt” under 26 U.S.C. § 7345. After a series of replies and

responses, the district court agreed with the government,

dismissing all four claims, and denying Timmerman’s request for

leave to file a second amended complaint. Tinnerman timely

appealed.

The government moved to dismiss the appeal for lack of

subject-matter jurisdiction as to Claims I and II, for summary

affirmance as to Claims III and IV, and to stay the briefing schedule.

With regard to Claims I and II, the government contended that the

claims were moot and should be dismissed because, following the

district court’s dismissal, the IRS wrote off Tinnerman’s tax

liabilities for 1999 through 2002 due to the expiration of the

statutory deadlines to collect them. The IRS also reversed the

certification of seriously delinquent tax debt to the State

Department. 3

After responding to the government’s motions, Tinnerman

responded with three separate motions for sanctions.

For ease of reference, we will first address the government’s

motion to dismiss in part, then its motion for summary affirmance

in part or to stay the briefing schedule, and finally Tinnerman’s

motions for sanctions.

3

The government attached the transcripts reflecting these developments to its

motion to dismiss. We exercise our equitable authority to supplement the

record with the transcripts “in aid of making an informed decision.” Schwartz

v. Millon Air, Inc., 341 F.3d 1220, 1225 n.4 (11th Cir. 2003).

USCA11 Case: 21-14023 Date Filed: 08/25/2022 Page: 6 of 12

6 Opinion of the Court 21-14023

I.

For its motion to dismiss the appeal for lack of subject-

matter jurisdiction, as to Claims I and II, the government argues

that the appeal is moot as to those claims. The government asserts

that Claims I and II both relate to Tinnerman’s challenge to his

income tax liabilities for 1999 through 2002, with (a) Claim I

challenging the validity of those liabilities and seeking a declaration

regarding past actions of the IRS and Tax Court and (b) Claim II

challenging the related notice to the State Department regarding

Tinnerman’s certification as an individual having a seriously

delinquent tax debt. Because these liabilities were written off and

the State Department notice reversed, the government argues

these claims are moot and therefore, we lack jurisdiction to

adjudicate those claims. We agree.

While Tinnerman opposes the government’s motion on

various procedural grounds, he does not provide a substantive

response concerning whether his appeal still presents an active case

or controversy as to Claims I and II.

“Article III of the Constitution limits the jurisdiction of the

federal courts to the consideration of ‘Cases’ and ‘Controversies.’”

Al Najjar v. Ashcroft, 273 F.3d 1330, 1335 (11th Cir. 2001) (quoting

U.S. Const. art. III, § 2). “The doctrine of mootness derives directly

from the case-or-controversy limitation because an action that is

moot cannot be characterized as an active case or controversy.” Id.

(quotation omitted). “[A] case is moot when the issues presented

are no longer ‘live’ or the parties lack a legally cognizable interest

USCA11 Case: 21-14023 Date Filed: 08/25/2022 Page: 7 of 12

21-14023 Opinion of the Court 7

in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969).

“Put another way, a case is moot when it no longer presents a live

controversy with respect to which the court can give meaningful

relief.” Fla. Ass’n of Rehab. Facilities, Inc. v. State of Fla. Dep’t of

Health and Rehab., 225 F.3d 1208, 1217 (11th Cir. 2000) (alteration

adopted) (quotation omitted).

“If events that occur subsequent to the filing of a lawsuit or

an appeal deprive the court of the ability to give the plaintiff or

appellant meaningful relief, then the case is moot and must be

dismissed.” Al Najjar, 273 F.3d 1336; see also United States v. Sec’y,

Fla. Dep’t of Corr., 778 F.3d 1223, 1228 (11th Cir. 2015) (“An appeal

is moot ‘when, by virtue of an intervening event, a court of appeals

cannot grant any effectual relief whatever in favor of the

appellant.’” (quoting Calderon v. Moore, 518 U.S. 149, 150 (1996))).

“Indeed, dismissal is required because mootness is jurisdictional.”

Al Najjar, 273 F.3d at 1336.

Here, we grant the government’s motion to dismiss the

appeal in part for lack of subject-matter jurisdiction because the

appeal is moot as to Claims I and II. There is no longer a live

controversy. Count I involves a claim for an appeal of a tax

assessment for the 1999–2002 tax years that the IRS wrote off

because the collection deadline of I.R.C. § 6502(a) expired. Count

II is a request for reversal of a certification that the State

Department has already removed. There is no meaningful relief

we can grant because the relief requested—to appeal to change and

contest a tax assessment and to remove the “seriously delinquent”

USCA11 Case: 21-14023 Date Filed: 08/25/2022 Page: 8 of 12

8 Opinion of the Court 21-14023

classification from Tinnerman’s passport—has already been

granted. Because we lack jurisdiction, dismissal is required.

II.

For its motion for summary affirmance relating to Claims III

and IV, the government argues that the court lacks jurisdiction

because Tinnerman did not meet the requirements to qualify for a

sovereign immunity waiver under 28 U.S.C. § 1346(a)(1) because

Tinnerman had not made full payment of income taxes for the

years 1999 and 2000. 4

Tinnerman opposes the government’s motion on various

procedural grounds. He also argues in his initial brief that Claims

III and IV sought to recover the sums paid for 1999 and 2000 that

were erroneously assessed, and the district court erred by finding

there was no subject-matter jurisdiction, as he was proceeding

under the Administrative Procedure Act (APA) and not under

28 U.S.C. § 1346. He also asserts that rather than dismissing his

case, the district court should have given him the opportunity to

file a second amended complaint.

Summary disposition is appropriate where, among other

things, “the position of one of the parties is clearly right as a matter

of law so that there can be no substantial question as to the

4

Alternatively, the government argues for the first time on appeal that the

district court lacked jurisdiction under 26 U.S.C. § 6512(a). We need not

discuss this alternative grounds for dismissal because we affirm the district

court’s dismissal on sovereign immunity grounds.

USCA11 Case: 21-14023 Date Filed: 08/25/2022 Page: 9 of 12

21-14023 Opinion of the Court 9

outcome of the case, or where, as is more frequently the case, the

appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d

1158, 1162 (5th Cir. 1969). 5

We review de novo a district court’s dismissal of a complaint

for lack of subject-matter jurisdiction. Center v. Sec’y, Dep’t of

Homeland Sec., 895 F.3d 1295, 1299 (11th Cir. 2018). A federal

court is obligated to inquire into subject-matter jurisdiction sua

sponte whenever it may be lacking. Univ. of S. Ala. v. Am.

Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). We review de

novo the district court’s decision to deny leave to amend based on

futility. Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1236 (11th

Cir. 2008).

We grant the government’s motion for summary affirmance

as to the dismissal of Claims III and IV because its position is clearly

correct as a matter of law. “The United States, as sovereign, is

immune from suit save as it consents to be sued.” United States v.

Sherwood, 312 U.S. 584, 586 (1941). “Absent a waiver, sovereign

immunity shields the Federal Government and its agencies from

suit.” JBP Acquisitions, LP v. U.S. ex rel. F.D.I.C., 224 F.3d 1260,

1263 (11th Cir. 2000). In 28 U.S.C. § 1346(a)(1), the government

has expressly waived its sovereign immunity for tax refund suits.

28 U.S.C. § 1346(a)(1) (authorizing “[a]ny civil action against the

5

Fifth Circuit decisions issued prior to October 1, 1981, are binding on the

Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th

Cir. 1981).

USCA11 Case: 21-14023 Date Filed: 08/25/2022 Page: 10 of 12

10 Opinion of the Court 21-14023

United States for the recovery of 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”). However, the

Supreme Court has held that the waiver of sovereign immunity

provided for in § 1346(a)(1) only applies when a taxpayer has paid

to the IRS the full amount of the contested tax liability. See Flora

v. United States, 362 U.S. 145, 150–51, 177 (1960) (“Reargument has

but fortified our view that s 1346(a)(1), correctly construed,

requires full payment of the assessment before an income tax

refund suit can be maintained in a Federal District Court.”).

Tinnerman asserts he was not seeking to recover under

§ 1346 and was instead proceeding under the APA, 5 U.S.C. § 702,

which provides for the right of judicial review of an agency action

and operates as a general waiver of sovereign immunity for suits

against the United States seeking nonmonetary relief, even if the

claim does not arise under the APA. Panola Land Buyers Ass'n v.

Shuman, 762 F.2d 1550, 1555 (11th Cir. 1985) (“The defense of

sovereign immunity is waived in actions against federal

government agencies seeking nonmonetary relief if the agency

conduct is itself subject to judicial review.”).

However, § 702’s waiver did not apply because Tinnerman

sought monetary relief and because § 702 states that “[n]othing

herein . . . confers authority to grant relief if any other statute that

grants consent to suit expressly or impliedly forbids the relief which

USCA11 Case: 21-14023 Date Filed: 08/25/2022 Page: 11 of 12

21-14023 Opinion of the Court 11

is sought.” 5 U.S.C. § 702. Section 1346 authorizes tax refund suits

but only when the plaintiff has paid their tax liability in full, which

Tinnerman had not, and the APA does not create a cause of action

when another “statute that grants consent to suit expressly”—

§ 1346—would bar relief for failure to comply with its jurisdictional

requirements.

Accordingly, because Tinnerman did not pay in full what he

owed before filing a claim for recovery, the district court lacked

subject-matter jurisdiction to hear his claims for recovery and

properly dismissed these claims.

Additionally, the district court did not err in denying

Tinnerman leave to amend his complaint a second time because

doing so would have been futile. Regardless of any amendment he

might make, Claims III and IV (for a refund of monies paid) would

still be barred by sovereign immunity because he did not pay the

total tax liability. Burger King Corp. v. Weaver, 169 F.3d 1310,

1320 (11th Cir. 1999) (“This court has found that denial of leave to

amend is justified by futility when the complaint as amended is still

subject to dismissal.” (quotations omitted)). Thus, the

government’s position is correct as a matter of law, and we grant

the government’s motion for summary affirmance as to Claims III

and IV and deny as moot its motion to stay the briefing schedule.

Groendyke Transp., Inc., 406 F.2d at 1162.

We GRANT the government’s motion to dismiss this appeal

as to Claims I and II. Moreover, because the government’s position

concerning Claims III and IV is clearly correct as a matter of law,

USCA11 Case: 21-14023 Date Filed: 08/25/2022 Page: 12 of 12

12 Opinion of the Court 21-14023

we GRANT the government’s motion for summary affirmance as

to those claims and DENY AS MOOT its motion to stay the

briefing schedule. We also DENY Tinnerman’s motions for

sanctions.6

DISMISSED IN PART AND AFFIRMED IN PART.

6

As noted above, Tinnerman has filed three separate motions for sanctions

relating to the government’s motion to dismiss the appeal, the motion for

summary affirmance, and the motion to stay the briefing schedule. These

motions are frivolous and we deny them.