# Jorge Byron Alegria v. United States > Court of Appeals for the Eleventh Circuit · October 30, 1991 · 945 F.2d 1523 URL: https://www.frixlaw.com/law-library/cases/9482140 ## Case - **Full name:** Jorge Byron ALEGRIA, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee - **Court:** Court of Appeals for the Eleventh Circuit - **Decided:** October 30, 1991 - **Citations:** 945 F.2d 1523; 68 A.F.T.R.2d (RIA) 5876; 1991 U.S. App. LEXIS 25402; 1991 WL 205248 - **Precedential status:** Published - **Opinion:** Concurring in part by Fay - **Judges:** Fay, Johnson, Merhige, Per Curiam - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9482140 ## Opinion text FAY, Circuit Judge, concurring in part, dissenting in part: I join in that portion of the court’s opinion holding that the proper venue provision for this action is § 1402(a)(1). However, I must respectfully dissent from the court’s conclusion that Congress cannot constitutionally provide different procedures for judicial review of jeopardy assessments to non-resident aliens than it provides United States citizens and resident aliens. I would affirm the district court’s dismissal of this action. First, I am not convinced that non-resident aliens have constitutionally protected due process and equal protection rights in this context. The United States Supreme Court recently noted that “aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” United States v. Verdugo-Urquidez, 494 U.S. 259 , 110 S.Ct. 1056, 1064 , 108 L.Ed.2d 222 (1990) (citing, among other cases, Plyler v. Doe, 457 U.S. 202 , 102 S.Ct. 2382 , 72 L.Ed.2d 786 (1982)); cf. Jean v. Nelson, 727 F.2d 957, 968 (11th Cir.1984) (noting in immigration context that “[wjhile resident aliens, regardless of their legal status, are ... entitled to at least limited due process rights,” for nonresident aliens “ ‘the decisions of executive or administrative officers, acting within powers expressly conferred by congress, are due process of law.' ” (quoting Nishimura Ekiu v. United States, 142 U.S. 651, 660 , 12 S.Ct. 336, 338 , 35 L.Ed. 1146 (1892)), aff'd on other grounds, 472 U.S. 846 , 105 S.Ct. 2992 , 86 L.Ed.2d 664 (1985). If nonresident aliens do not enjoy such protections, any discussion about whether the *1529 procedures established by Congress comport with due process and equal protection is purely academic. Assuming, however, that non-resident aliens do have these rights, I believe the constitutional requirements have been met in this case. First, there is no denial of due process by not providing expedited review of a jeopardy assessment in district court. Anyone subject to a jeopardy assessment may seek relief through administrative remedies or file an action in the Tax or Claims Court. Cf. Commissioner v. Shapiro, 424 U.S. 614 , 630 n. 12, 96 S.Ct. 1062 , 1072 n. 12, 47 L.Ed.2d 278 (1976) (stating that while due process requires “a prompt post-seizure inquiry” into the basis for the assessment, “[njothing we hold today ... would prevent the Government from providing an administrative or other forum outside the Art. Ill judicial system for whatever preliminary inquiry is to be made as to the basis for a jeopardy assessment and levy”). Moreover, legislation violates equal protection only if the classifications established by Congress are not rationally related to a legitimate government interest. See, e.g., In re Wood, 866 F.2d 1367 , 1370 (11th Cir.1989). “Under the ‘rational relationship’ test, a court reviewing the constitutionality of a classification only may strike down the classification if the classification is without any reasonable justification.” Id. The jeopardy assessment provisions at issue in this case were designed to prevent tax evasion by the transfer of property beyond the reach of federal authorities. In my opinion, Congress could reasonably believe that non-resident aliens are in a better position to escape taxation in this manner, and should be treated differently from citizens or resident aliens. See Bigio v. United States, 710 F.Supp. 790, 791-92 (S.D.Fla.1988). There are two other very troubling aspects of this case. First, it appears to me that this matter is moot. The appellant filed a suit in Tax Court and we have been advised that a settlement has been reached resolving totally the tax consequences of this jeopardy assessment and the government apparently stands ready to release the excess over and above the taxes due. In these circumstances, I would decline to issue what is essentially an advisory opinion and dismiss this appeal as moot. Lastly, it seems to me extraordinary that the government apparently is about to make or has already made a payment of a substantial sum of money to the appellant when he has never established that these funds are his or that he even has any claim to them. Appellant’s brief suggests that these funds belong to an organization, the MRA, that was fighting the Sandanistas. The funds were seized from the possession of a third party allegedly engaged in illegal drug activity. Although a jury has determined that these funds were not drug related, no one has sufficiently explained why Alegría himself is entitled to receive them or why he has standing as to this case or the Tax Court matter. I will always wonder about the government’s actions if it gives the remaining one-half million dollars involved to a person who has failed to establish any interest or claim to it. I can only guess that there are political concerns involved about which the judicial branch knows nothing. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9482140. Public record. Not legal advice.