Petition for Writ of Certiorari — Brad Stephen Francis, et ux., Petitioners v. United States

Supreme Court briefMay 14, 2018

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APPENDIX A

United States Court of Appeals

For the Eighth Circuit

No. 17-2070

Brad Stephen Francis; Christine Carol Francis

Plaintiffs -Appellants

United States of America

Defendant

App ellee

Appeal from United States District Court

for the Western District of Missouri Kansas City

Submitted: December 28, 2017

Filed: January 3, 2018

[Unpublished]

Before BENTON, BOWMAN, and KELLY, Circuit

Judges.

PER CURIAM.

Brad and Christine Francis appeal from the

order of the District Court' dismissing their civil suit

challenging their liability for federal taxes and

penalties under the Internal Revenue Code.

After careful review, we conclude that

dismissal was proper for the reasons explained by

the district court. See LeMay v. U.S. Postal Serv.,

450 F.3d 797, 799 (8th Cir. 2006) (standard of review).

The judgment is affirmed. See 8th Cir. R. 47B.

1 The Honorable Greg Kays, Chief Judge, United States District

Court for the Western District of Missouri.

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

BRAD STEPHEN FRANCIS and )

CHRISTINE CAROL FRANCIS, )

Plaintiffs,

)

) No. 4:16-cv-0672-DGK

)

UNITED STATES OF AMERICA,)

)

Defendant.

)

ORDER GRANTING MOTION TO DISMISS

This lawsuit arises out of pro se Plaintiffs

Brad and Christine Francis' belief that they do not

owe any income taxes or penalties for fiscal years

2010 through 2015. Plaintiffs contend all their

income during this period was exempt from tax and,

therefore, incorrectly reported as income by third

parties. As a remedy, Plaintiffs request the Court

issue injunctive relief requiring the Kansas City

Area Director of the Internal Revenue Service ("IRS")

to issue refunds, withdraw penalties, and refrain

from taking further action against them.

Now before the Court is Defendant United

States of America's motion to dismiss (Doc. 14).

Defendant contends that since early 2014 Plaintiffs

have been attempting to avoid their obligations to

pay federal income taxes. Defendant argues

Plaintiffs' claims are based on "tax protester"

arguments that courts have repeatedly rejected.

Holding that the Court lacks subject matter

jurisdiction to hear Plaintiffs' claims, Defendant's

motion is GRANTED. The Court dismisses all claims

with prejudice.

Background

Plaintiffs First Amended Complaint lists six

counts,' but it contains more than six claims because

some of Plaintiffs' causes of action, such as their

claim(s) brought pursuant to 26 U.S.C. § 7433, are

pled in the "Jurisdictional Allegations" section. See,

e.g., Am. Compl. ¶J13-l5

All of the claims seek injunctive relief (that is,

writs of mandamus), instructing the Kansas City

Area Director of the IRS to issue refunds to

Plaintiffs, and to refrain from imposing tax penalties

on them or otherwise use his authority against them.

Am. Compl. TI 206-07, 253-55, 272-74, 294-96, 33335, 344. Plaintiffs' claims stem from their allegations

that the IRS wrongly rejected Plaintiffs' Forms 1040

and 1040X for multiple years in which Plaintiffs

claimed zero wages, zero compensation, and zero

income from other sources, despite filings from third

Claim One is for "Mala Fides Appeals", Claim Two asserts

"Intrinsic Fraud," Claim Three alleges "Malicious Assessment,"

Claim Four pleads "Assault with Intent," Count Five brings a

claim(s) of "Tampering; Unlawful Use of the Courts," and it is

somewhat unclear what Count Six pleads. It is captioned

"Count Six."

parties indicating Plaintiffs had, in fact, received

such income.

Standard

Defendant moves to dismiss the First

Amended Complaint (Doe. 5) under Federal Rules of

Civil Procedure 12(b)(1) for lack of subject matter

jurisdiction and 12(b)(6) for failure to state a claim

upon which relief can be granted. Because

Defendant's subject matter jurisdiction arguments

are dispositive, the Court need not address the

12(b)(6) arguments.

Dismissal under Rule 12(b)(1) is appropriate

where the court lacks subject matter jurisdiction to

hear the case. There are two types of challenges to

subject matter jurisdiction under Rule 12(b)(1),

"facial" attacks and "factual" attacks. Osborn v.

United States, 918 F.2d 724, 729 n.6 (8thCir. 1990).

A facial attack challenges subject matter jurisdiction

based on the bare allegations in the complaint, and

the Court assumes the allegations in the complaint

are true.

A factual attack considers matters extrinsic to

the pleadings to determine if it has subject matter

jurisdiction.

Discussion

The pending motion is a facial attack because

Defendant argues that even if the First Amended

Complaint's allegations are true, the Court lacks

subject matter jurisdiction because: (1) the Anti

Injunction Act prohibits the requested relief; (2)

writs of mandamus are not available against the

United States; (3) the Court cannot consider

Plaintiffs refund claims because they have not

complied with the jurisdictional prerequisites to

bring a tax refund suit against the United States;

and (4) the Court cannot hear Plaintiffs' purported

claim under 26 U.S.C. § 7433 because it does not

provide jurisdiction for lawsuits challenging tax

assessments, only for damages stemming from

unauthorized tax collections.

Plaintiffs respond that they are seeking

judicial review under 5 U.S.C. § 702 and under 26

U.S.C. § 7433. Suggestions in Opp'n 13-14 (Doc. 18).

They contend the Court has jurisdiction under § 7433

because the First Amended Complaint makes

allegations about collection activities. Id. at 13.

Finally, they contend that writs of mandamus are

their only remedy to stem Defendant's lawlessness

and escalating abuse against them. M.

The Court rules as follows.

First, the Anti-Injunction Act prohibits

Plaintiffs' request for injunctive relief. The AntiInjunction Act provides that, subject to certain

statutory exceptions that Plaintiffs have not argued

are applicable here, "no suit for the purpose of

restraining the assessment or collection of any tax

shall be maintained in any court by any person." 26

U.S.C. § 7421(a); see Judicial Watch, Inc. v. Rossotti,

317 F.3d 401, 405 (4th Cir. 2003) (noting "courts lack

jurisdiction to issue injunctive relief in suits seeking

to restrain the assessment or collection of taxes").

The purpose of 26 U.S.C. § 7421 is to protect the

collection of revenue and minimize pre-collection

judicial intervention with that process. See South

Carolina v. Regan, 465 U.S. 367, 376 (1984). In this

case, Plaintiffs request to enjoin the Kansas City

Area Director of the IRS from imposing tax penalties,

or using his authority against Plaintiffs, would

violate the Anti-Injunction Act. Therefore, these

claims must be dismissed for lack of subject matter

jurisdiction.

Second, Plaintiffs' claims seeking writs of

mandamus must be dismissed because injunctive

relief is available against an officer or employee of

the United States only, not the United States itself.

Granted, the Amended Complaint specifically seeks a

writ enjoining the Kansas City Area Director of the

IRS, an employee of the United States, but this

individual was not named in the lawsuit so the Court

lacks personal jurisdiction over him. The United

States is the only Defendant, and injunctive relief is

not available against it.

Third, the Court lacks jurisdiction to hear any

refund claims because Plaintiffs have failed to

comply with jurisdictional prerequisites before filing

suit. As a threshold matter, Plaintiffs are seeking

refunds: all six enumerated claims seek a "refund"

for different amounts. Am. Compl. ¶j 206, 253, 272,

294, 334, 344. But the statutory authority for

waiving sovereign immunity to sue for a tax refund

provides that taxpayers may not bring refund suits

"until a claim for refund or credit has been duly filed

with the Secretary [of the Treasury], according to the

provisions of law in that regard, and the regulations

of the Secretary." 26 U.S.C. § 7422(a). While a tax

return or amended return can be an administrative

refund claim, 26 C.F.R. § 301.6402-3(a)(5), Plaintiffs

purported tax returns improperly identifying zero

income are not duly filed refund claims. Waitner v.

United States, 679 F.3d 1329, 1333-34 (Fed. Cir.

2012) (collecting cases). Plaintiffs' returns improperly

identified zero income, despite informational returns

from third parties showing such income, as well as

Plaintiffs' own signed returns for the 2010-2012

fiscal tax years attesting to having such income.

Fourth, Plaintiffs' purported § 7433 claims

must be dismissed for lack of subject matter

jurisdiction because the statute allows lawsuits for

damages stemming from unauthorized tax collections

only, not lawsuits such as Plaintiffs' challenging a

tax assessment. Section 7433(a) states, in relevant

part:

If, in connection with any collection of Federal

tax with Respect to a taxpayer, any officer or

employee of the Internal Service recklessly or

intentionally, or by reason of negligence

disregards any provision of this title, or any

regulation promulgated under this title, such

taxpayer may bring a civil action for damages

against the United States in a district court of

the United States.

26 U.S.C. § 7433(a) (emphasis added).. It is a

means for taxpayers to challenge tax collections, not

tax assessments. Kim v. United States, 632 F.3d 713,

716 (D.C. Cu. 2011) ("Section 7433 applies only to

collection- related activities."). The Amended

Complaint asserts the IRS improperly assessed taxes

and penalties against the Plaintiffs. For example,

paragraph 62 alleges Plaintiffs' corrected returns

represent their true liability; and paragraph 64

alleges the IRS erred by ignoring this evidence in

assessing Plaintiffs' tax liabilities. Am. Comp.

1j62,64. Although Plaintiffs argue paragraphs 276

through 293 specifically make allegations regarding

collection activities, a close reading of these

allegations shows that they all rest on claims that

Defendant erred in assessing their taxes and

imposing penalties. See, e.g., Am. Compi. ¶J 276,

278. The Amended Complaint does not allege the IRS

disregarded any Internal Revenue statute or

regulation in connection with any collection activities

against them. Hence, the Court lacks jurisdiction to

hear these claims.

Finally, Plaintiffs assertion that 5 U.S.C. § 702

provides the Court with subject matter jurisdiction is

unavailing. Section 702 entitles any person wronged

by an agency action to judicial review, except where

any other statute expressly or impliedly forbids the

relief sought.2 Here, the statutes Plaintiffs are

invoking to sue provide narrow waivers of sovereign

states:

A person suffering legal wrong because of agency action,

or adversely affected or aggrieved by agency action within the

meaning of a relevant statute, is entitled to judicial review

thereof. An action in a court of the United States seeking relief

other than money damages and stating a claim that an agency

or an officer or employee thereof acted or failed to act in an

official capacity or under color of legal authority shall not be

dismissed nor relief therein be denied on the ground that it is

against the United States or that the United States is an

indispensable party. The United States may be named as a

defendant in any such action, and a judgment or decree may be

entered against the United States: Provided, That any

mandatory or injunctive decree shall specify the Federal officer

or officers (by name or by title), and their successors in office,

personally responsible for compliance. Nothing herein (1)

affects other limitations on relief on any other appropriate legal

or equitable ground; or (2) confers authority to grant reliefif

any other statute that grants consent to suit expressly or

impliedly forbids that relief which is sought.

5 U.S.C. § 702 (emphasis added).

immunity which expressly forbid Plaintiffs from

bringing this type of lawsuit. Consequently, § 702

does not provide subject matter jurisdiction for this

lawsuit.

Conclusion

For the reasons discussed above, Defendant's

motion (Doe. 14) is GRANTED. All claims are

dismissed with prejudice for lack of subject matter

jurisdiction.

IT IS SO ORDERED

Date:May 4, 2017

/sl Greg Kays

GREG KAYS, CHIEF JUDGE

UNITED STATES DISTRICT COURT

lOa

IN THE UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

BRAD STEPHEN FRANCIS and

CHRISTINE CAROL FRANCIS,

Plaintiffs,

No. 4:16-cv-0672-]JGK

UNITED STATES OF AMERICA,

Defendant.

JUDGMENT IN A CIVIL ACTION

Jury Verdict. This action came before the Court

for a trial by jury. The issues have been tried and the

jury has rendered its verdict.

X Decision by Court. This action has been

considered and a decision has been rendered by the

Court.

IT IS ORDERED AND ADJUDGED that all claims

are dismissed with prejudice for lack of subject

matter jurisdiction.

May 4, 2017

Paige Wymore-Wynn

Dated

Clerk of Court

May 4, 2017

Dated

Is! Tracy Strodtman

(by) Deputy Clerk

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 17-2070

Brad Stephen Francis and Christine Carol Francis

Appellants

United States of America

Appellee

Appeal from U.S. District Court for the Western District

of Missouri Kansas City (4: 16-cv-00672DGK)

ORDER

The petition for rehearing en banc is denied.

The petition for rehearing by the panel is also

denied.

February 26, 2018

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

Is! Michael E. Gans

12a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

BRAD STEPHEN FRANCIS and )

CHRISTINE CAROL FRANCIS, )

)

Plaintiffs,

)

) No. 4:16-cv-0672-DGK

)

UNITED STATES OF AMERICA,)

)

Defendant.

)

ORDER DENYING MOTION TO CORRECT

JUDGMENT AN ORDER

This lawsuit arises out of Plaintiffs Brad and

Christine Francis' belief that they do not owe any

income taxes or penalties for fiscal years 2010

through 2015. Plaintiffs contend all their income

during this period was exempt from tax.

On May 4, 2017, the Court granted the United

States of America's motion to dismiss with prejudice.

Plaintiffs appealed. On March 13, 2018, the Eighth

Circuit issued its mandate affirming the Court's

dismissal.

No before the Court is Plaintiffs' "Motion to

Correct Judgment and Order Under Federal Rule of

Civil Procedure 60(b)(4)" (Doc. 36). Plaintiffs contend

13a

that the order and judgment dismissing their case

are void due to violations of the Federal Rules of

Civil Procedure which Plaintiffs contend resulted in

substantive violations of their rights.

Plaintiffs disagree with the Court's decision.

Because the Court has previously stated its reasons

for granting the motion to dismiss and the Eighth

Circuit has affirmed this decision, the Court will not

re-hash its reasoning in another order. The motion is

DENIED.

IT IS SO ORDERED.

Date: March 27, 2018

Is! Greg Kays

GREG KAYS CHIEF JUDGE

UNITED STATES DISTRICT COURT

14a

APPENDIX E

918 F.2d 724 (1990)

Joseph OSBORN and Pamela Osborn, individually

and as father and mother and guardians ad litem of

Shawna Osborn, Appellants,

UNITED STATES of America, Appellees.

No. 89-5349.

United States Court of Appeals, Eighth Circuit.

Submitted May 14, 1990.

Decided November 5, 1990.

725*725 Lembhard G. Howell, Seattle, Wash., for

appellants.

Mary McElroy Leach, Dept. of Justice, Washington,

D.C., for appellees.

Before JOHN R. GIBSON, FAGG and WOLLMAN,

Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Joseph and Pamela Osborn, individually and as

parents and guardians ad litem of their daughter,

Shawna Osborn, appeal from the dismissal of their

federal tort claim action asserting that a United

States Air Force clinic negligently administered a

diphtheria, pertussis, and tetanus (DPT) vaccination,

causing Shawna to develop seizures and neurological

injury. The sole issue in the case is when did the

iSa

Osborns, and more specifically Pamela Osborn, first

have sufficient knowledge of Shawna's injury and its

cause so as to trigger the running of the two-year

statute of limitations, 28 U.S.C. § 2401(b) (1988). The

district court held that Mrs. Osborn had sufficient

knowledge no later than her May 6, 1983,

conversation with Dr. Bruce Oksol and that the

Osborns' claim was therefore time-barred. Osborn v.

United States, 713 F.Supp. 341. 346 (D.N.D.1989).

The Osborns argue that their claims were timely

because they did not have sufficient knowledge until

a conversation with Dr. Dennis Bartholomew on

March 8, 1984. We reverse the judgment of the

district court.

Shawna Osborn was born March 18, 1981, (Osborns'

App. at 77) and was, for the first seventeen months

of her life, an apparently healthy child. (Osborns'

App. at 52, 105, 128.) On June 22, August 24, and

October 28 of 1981, she received her first, second,

and third DPT vaccinations. (Osborns' App. at 95,

102.) A corpsman at the Immunization Clinic of the

Grand Forks Air Force Base Hospital administered

the shots. The clinic provided no oral or written

information about the potential adverse reactions to

the DPT shot, nor did Shawna in fact appear to

suffer any ill effects from any of her first three DPT

vaccinations. (Osborns' App, at 103-04.)

On August 7, 1982, Shawna suffered her first seizure

while sitting in her high chair eating dinner.

(Osborns' App. at 106-07.) She was rushed to the

base's emergency room and was admitted to the

hospital, where she stayed for two days. The doctors

diagnosed her as having had a febrile seizure

(seizure with fever) along with an ear infection.

16a

(Osborns' App. at 23.) Doctors told Mrs. Osborn that

many children under age two have occasional febrile

seizures and that most outgrow them. (Osborns' App.

at 108-110).

On September 14 and November 1, 1982, Shawna

again had febrile seizures and was admitted to the

hospital. (Osborns' App. at 26, 111, 33.) During the

September hospitalization, she had a second seizure

within twenty-four hours, resulting in a diagnosis of

"complex febrile seizures." (Osborns' App. at 28-29.)

In November, doctors diagnosed Shawna as having

"complex seizure disorder." (Osborns' App. at 34.)

They prescribed Phenobarbital to prevent further

seizures. (Osborns' App. at 31.) An

electroencephalogram taken on October 12 showed

normal results. (Govt.'s App., Vol. I at § ii.)

On December 7, 1982, Mrs. Osborn took Shawna to

the immunization clinic for her fourth DPT shot.

Before the shot was administered, Mrs. Osborn

stopped at the 726*726 base's pediatric clinic and

had a brief conversation with Dr. Andrew Schuman,

one of Shawna's pediatricians. (Osborns' App. at

122.) Mrs. Osborn expressed concern that the DPT

could give Shawna a fever that could, in turn, trigger

another seizure. Dr. Schuman assured Mrs. Osborn

that "the shot was perfectly safe" and "not to worry."

(Osborns' App. at 123.) Approximately one hour after

receiving her fourth DPT vaccination, Shawna

experienced her first non-febrile seizure. (Osborns'

App. at 123.) Her mother took her to the family

practice clinic, where she was examined and sent

home. Shortly after returning home, Shawna

suffered a grand mal seizure. (Osborns' App. at 124.)

Her parents took her to the emergency room where

17a

doctors examined her and found nothing wrong. That

evening at home, Shawna had another seizure.

(Osborns' App. at 124.) Her parents took her to the

emergency room, where she had a petit mal seizure.

One of Shawna's pediatricians examined her, then

sent her home. (Osborns' App. at 124.)

Following a referral from the base's family practice

clinic, Dr. Ross Pettit, a pediatric neurologist,

examined Shawna on December 16. (Osborns' App. at

51-53.) He diagnosed her as having a seizure

disorder, but identified no'cause for her problem.

(Osborns' App. at 52.) He did note on his report, a

copy of which he forwarded to the Osborns, that the

December 7 seizures followed DPT and oral polio

vaccinations. (Osborns' App, at 51.) Because of her

adverse reaction to Phenobarbital, Shawna was

switched to another medication, Dilantin. (Osborns'

App. at 56-57.) Mrs. Osborn testified in a deposition

that Dr. Pettit assured her, as had one of Shawna's

pediatricians, that after a minimum of one year on

Dilantin, Shawna would probably be free of seizures.

(Dep. of Pamela Ann Osborn, Osborns' App. at 128.)

According to Dr. Pettit, if she remained seizure-free

for two years after being weaned from Dilantin, then

she probably would have no further problem. Id.

On January 12, 1983, Shawna had another EEG, this

time with abnormal results. (Osborns' App. at 54;

Govt.'s App., Vol. I at § 15.) Over the next several

months, she continued to have seizures and was

hospitalized on several occasions. (Osborns' App. at

39, 43, 44, 62, 65.) On May 6, 1983, Mrs. Osborn had

a conversation with Dr. Bruce Oksol, a physician at

the pediatric clinic, regarding immunizations to

prepare Shawna for preschool. At that time, Dr.

18a

Oksol wrote on Shawna's immunization record:

"Seizure disorder. Not to get any more DPT vaccine

(no pertussis)." (Osborns' App. at 21.) Dr. Oksol also

told Mrs. Osborn that Shawna should not get any

more of the pertussis vaccine. (Osborns' App. at 133.)

Mrs. Osborn concluded that pertussis was the

"disease that gives you the fever so that [stopping

pertussis] was fine with me." (Osborns' App. at 133.)

On September 14, 1983, Dr. Pettit again evaluated

Shawna. (Osborns' App, at 58-59.) His record stated

that he did not know the etiology of Shawna's

seizures. (Osborns' App, at 59.) Shawna's disorder

continued to grow worse, and, in November 1983, she

was sent to Wilford Hall, U.S. Air Force Medical

Center at Lackland Air Force Base, Texas, where she

was evaluated by pediatric neurologists for two

weeks. (Osborns' App, at 47-50.) Drs. John Malstrom

and Richard Tredeau at Wilford Hall told Mrs.

Osborn they did not know the cause of Shawna's

seizures; Dr. Maistrom told Mrs. Osborn that

Shawna would probably outgrow the seizures.

(Osborns' App. at 137-38.)

On March 8, 1984, Shawna suffered multiple

seizures and Mrs. Osborn took her to the emergency

room. (Osborns' App. at 138.) At the emergency room,

Mrs. Osborn spoke with Dr. Dennis Bartholomew.

After taking an extensive medical history, Dr.

Bartholomew told Mrs. Osborn that the DPT

vaccination can cause seizures and that the seizures

Shawna had on December 7, 1982, may have been

precipitated by the DPT shot she had received earlier

that day.111 Dr. Bartholomew further stated

that 727*727 children with "a low threshold" for

seizures, such as Shawna, should not be given the

19a

pertussis vaccine and that it was improper for the

clinic to have administered the fourth DPT shot to

Shawna.11

The Osborns filed a claim with the United States Air

Force on October 15, 1985, alleging negligence in the

December 7, 1982, administration of the DPT

vaccination to Shawna. The Air Force investigated

the claim and denied it on June 19, 1986. On

September 11, 1986, the Osborns filed this action,

claiming that Shawna suffered from a generalized

seizure disorder as a result of the December 1982

vaccination. The Osborns sued the United

States, 728*728 Wyeth Laboratories, Inc., and

Connaught Laboratories, Inc. The court later

dismissed Wyeth Laboratories from the case.

Connaught entered into a settlement with the

Osborns, which was followed by a dismissal. After

substantial discovery, including more than 50

depositions, the United States moved for summary

judgment based on the statute of limitations.

Applying the preponderance of evidence standard,

the district court concluded that the Osborns' claim

accrued on or before May 6, 1983, when Dr. Oksol

told Mrs. Osborn that Shawna should not be given

any more pertussis vaccine. 713 F.Supp. at 346. The

district court outlined a number of facts and

conclusions on which it relied, including: that

Shawna's initial seizures were febrile; that Shawna's

first non-febrile seizures occurred shortly after the

fourth DPT shot; that Shawna's mother observed a

"drastic change" in Shawna's condition starting two

months after the fourth DPT shot; that none of the

physicians "stated an opinion that the seizures were

caused by the DPT shots" and that the statement of

20a

Dr. Bartholomew in March 1984 that Shawna should

receive no more DPT did not provide any additional

information beyond what Dr. Oksol had told Mrs.

Osborn in May 1983. Id. at 345-46. Accordingly, the

district court held that the Osborns had not met

their burden of establishing that their claim was

filed within two years of its accrual, and it was

therefore barred by 28 U.S.C. § 2401(b),I1 Id. at 346.

Compliance with the statute of limitations of 28

U.S.C. § 2401(b) is a jurisdictional prerequisite to

suit under the Federal Tort Claims Act (FTCA), 28

U.S.C. §§ 2671-2680 (1988). Radman v. United

States, 752 F.2d 343, 344 (8th Cir. 1985). Arguing

that the court lacked subject matter jurisdiction, the

government moved for summary judgment under

Fed.R.civ.P. 56 and so captioned its motion. In

supporting exhibits and memoranda, the government

urged that the statute of limitations barred the

Osborns' claim. On appeal the government renewed,

with the Osborns' concurrence, its argument that

summary judgment standards should be applied to

the review of the district court's decision.

The district court rejected the government's

characterization of its motion and explicitly treated

the motion as one to dismiss for lack of subject

matter jurisdiction under Fed.R.Civ.P. 12(b)(1). 11

F.Supp. at 341 n. 2. The court did not restrict itself to

deciding whether or not the jurisdictional issue

presented a question for the trier of fact. Rather, the

court carefully considered the whole record,

consisting of numerous depositions and exhibits,

then decided by a preponderance of the evidence that

21a

the Osborns' claim accrued more than two years

before its filing and therefore failed to satisfy the

jurisdictional requirement.

Because the district court looked to matters outside

the pleadings on a motion that it construed as one for

dismissal under Rule 12(b)(1),L41 two questions arise:

What standard governs the district court's

determination of a motion under Rule 12(b)(1) when

matters outside the pleadings are considered; and,

What is the proper standard of review on

appeal?ll

729*729 The district court was correct in recognizing

the critical differences between Rule 12(b)(1), which

governs challenges to subject matter jurisdiction, and

Rule 56, which governs summary judgment. Rule 12

requires that Rule 56 standards be applied to

motions to dismiss for failure to state a claim under

Rule 12(b)(6) when the court considers matters

outside the pleadings. Fed.R.Civ.P. 12(b) &

(c); Mortensen v. First Fed Say. & Loan Assn, 549

F.2d 884, 891 (3d Cir.1977)(Motion under Rule

12(b)(6) raising matters outside pleadings is

converted to a Rule 56 motion). Rule 12 does not

prescribe, however, summary judgment treatment

for challenges under 12(b)(1) to subject matter

jurisdiction where a factual record is developed.

Nonetheless, some courts have held that Rule 56

governs a 12(b)(1) motion when the court looks

beyond the complaint. In re Swine Flu Immunization

Prod. Liab. Litig., 880 F.2d 1439, 1442-43

(D.C.Cir.1989); In re Swine Flu Prod. Liab.

Liti., 764 F.2d 637, 642 (9th Cir. 1985). We agree,

however, with the majority of circuits that have held

to the contrary. See, e.g., Mortensen,549 F.2d at

22a

891 (disputed issues of material fact will not prevent

trial court from deciding for itself merits of

jurisdictional claims); Mims v. Kemp, 516 F.2d 21, 23

(4th Cir. 1975) (only motion under Rule 12(b) that can

properly be converted to one for summary judgment

is a motion filed under 12(b)(6)); Williamson v.

Tucker, 645 F.2d 404, 413 (5th Cir.) (district court

has power to decide disputed factual issues in a

motion under Rule 12(b)(1)), cert. denied, 454 U.S.

897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981); Crawford

v. United States, 796 F.2d 924, 928 (7th

Cir. 1986)(jurisdictional issue must be resolved before

trial); Wheeler v. Main Hurdman, 825 F.2d 257. 259

(10th Cir.) (as a general rule, 12(b)(1) motion may

not be converted to one for summary judgment), cert.

denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d 501

(1987).

The reason for treating a 12(b)(1) motion differently

than a 12(b)(6) motion, which is governed by Rule 56

when matters outside the pleadings are considered,

"is rooted in the unique nature of the jurisdictional

question." Williamson, 645 F.2d at 413. It is

"elementary," the Fourth Circuit stated, that a

district court has "broader power to decide its own

right to hear the case than it has when the merits of

the case are reached." Id. Jurisdictional issues,

whether they involve questions of law or of fact, are

for the court to decide. Id. Moreover, because

jurisdiction is a threshold question, judicial economy

demands that the issue be decided at the outset

rather than deferring it until trial, as would occur

with denial of a summary judgment motion.

In a thoughtful opinion authored by Judge Posner,

the Seventh Circuit stated:

23a

We are not being nitpickers in insisting on the

difference between a jurisdictional determination

and summary judgment. The purpose of summary

judgment is to determine whether a trial can be

averted. If the party moving for summary judgment

fails to demonstrate that there is no triable issue, the

case proceeds to trial.... But no case can properly go

to trial if the court is not satisfied that it has

jurisdiction. The fact that the summary judgment

proceeding may not resolve a jurisdictional issue

definitively is no ground for assuming jurisdiction

and proceeding to trial. The jurisdictional issue must

be resolved first.

Crawford, 796 F.2d at 928.

In Mortensen, the Third Circuit explained the unique

nature of a factualllchallenge to jurisdiction under

12(b)(1):

730*730 [here the trial court may proceed as it

never could under 12(b)(6) or Fed.R.Civ.P. 56.

Because at issue in a factual 12(b)(1) motion is the

its very power to hear the

trial court's jurisdiction

there is substantial authority that the trial

case

court is free to weigh the evidence and satisfy itself

as to the existence of its power to hear the case. In

short, no presumptive truthfulness attaches to the

plaintiffs allegations, and the existence of disputed

material facts will not preclude the trial court from

evaluating for itself the merits of jurisdictional

claims. Moreover, the plaintiff will have the burden

of proof that jurisdiction does in fact exist.

549 F.2d at 891.

24a

If the defendant thinks the court lacks jurisdiction,

the proper course is to request an evidentiary

hearing on the issue. Crawford, 796 F.2d at 928. The

motion may be supported with affidavits or other

documents. Id. If necessary, the district court can

hold a hearing at which witnesses may testify. Id.

As no statute or rule prescribes a format for

evidentiary hearings on jurisdiction, "any rational

mode of inquiry will do." Id. at 929. Once the

evidence is submitted, the district court must decide

the jurisdictional issue, not simply rule that there is

or is not enough evidence to have a trial on the

issue. Id. The only exception is in instances when the

jurisdictional issue is "so bound up with the merits

that a full trial on the merits may be necessary to

resolve the issue." Id.

In the case before us, the statute of limitations

inquiry is clearly severable from the merits of the

Osborns' claim. The district court correctly rejected

the parties' characterization of the motion as one for

summary judgment and instead decided the

jurisdictional issue. If we were to review the

jurisdictional decision under summary judgment

standards, we would be deciding only whether there

was a factual issue for decision, a question not

presented by the court's order. The final decision of

the district court as to jurisdiction deserves our final

decision as to its correctness.

We therefore turn to the appropriate standard of

review on appeal. In W.illiamson,the court concluded

that when the district court's decision to dismiss for

lack of subject matter jurisdiction is based on the

complaint alone, or on the complaint supplemented

25a

by undisputed facts evidenced in the record, the

appellate court's review is "limited to determining

whether the district court's application of the law is

correct and, if the decision is based on undisputed

facts, whether those facts are indeed

undisputed." 645 F.2d at 413. If the court relied,

however, on its own determination of disputed

factual issues, the appellate court must then review

those findings under the "clearly erroneous"

standard. Id. See also Eaton v. Dorchester

Development, Inc., 692 F.2d 727, 732 (11th

Cir.1982) (the clearly erroneous standard governs

findings of jurisdictional fact).

The material facts are undisputed in the record

before us, so the clearly erroneous rule is therefore

inapplicable. There was no conflicting deposition

testimony concerning Shawna's clinical course or the

content of the critical conversations with Drs. Oksol

and Bartholomew. Moreover, the judge was not

required to and did not make any credibility

evaluations. Because the material facts are

undisputed, the issue boils down to whether the

evidence is sufficient to support the district court's

legal conclusion

namely that Mrs. Osborn

possessed or should have possessed the requisite

knowledge concerning the cause of her daughter's

injury no later than the May 1983 conversation with

Dr. Oksol.

Our approach in considering the sufficiency of the

evidence is similar to the approach used by

the Cra wiord court. In 731*731 Crawford, the

Seventh Circuit concluded that evidence of the

plaintiffs incapacity was not sufficient to toll the

statute of limitations. 796 F.2d at 930.

26a

Although the facts of this case are lengthy, the

jurisdictional issue centers on the limited question of

whether, as the government argues, Mrs. Osborn

possessed or should have possessed the requisite

knowledge following the conversation with Dr. Oksol,

or whether, as the Osborns argue, she did not have

the necessary information until the conversation

with Dr. Bartholomew.

II.

When a claim "accrues" under the FTCA is a matter

of federal law. Brazzell v. United States, 788 F.2d

1352, 1355 (8th Cir.1986) Radman, 752 F.2d at

44; Snyder, 717 F.2d at 1195. The general rule is

that a claim accrues at the time of the plaintiffs

injury. Wehrman v. United States, 830 F.2d 1480,

1483 (8th Cir. 1987). Courts recognize, however, an

exception for medical malpractice cases, Id., in which

the injury and cause are not immediately

known. Woilnian v. Gross, 637 F.2d 544, 547 (8th

Cir.1980), cert. denied, 454 U.S. 893, 102 S.Ct. 389,

70 L.Ed.2d 207 (1981). Under the "discovery rule,"

which this court applies to medical malpractice cases

under the FTCA, the claim accrues when the plaintiff

discovers, or should have discovered the cause of

injury. Brazzell, 788 F.2d at 1355-56. The party who

is "claiming the benefit of [the discovery rule]

bears the burden of showing that he is entitled to

it." Woilman, 637 F.2d at 549.

The district court correctly set out the rule

from United States v. Kubrick,444 U.S. 111, 100

5.Ct. 352, 62 L.Ed.2d 259 (1979), governing the

accrual of medical malpractice claims under 28

U.S.C. § 2401(b). Under Kubrick, the claim does not

27a

accrue until the plaintiff is aware both of the injury

and its cause. Id. at 120-21, 100 S.Ct. at 358-59. The

Court rejected the conclusion of an appeals court

which held that a claim does not accrue until the

plaintiff "knows or should suspect that the doctor

who caused his injury was legally

blameworthy." Id. at 121, 100 S.Ct. at 359. For

statute of limitations purposes, a plaintiffs ignorance

of his legal rights should not be treated the same as

the plaintiffs ignorance of the existence and cause of

his injury. Id. at 122, 100 S.Ct. at 359. The Court

explained:

That he has been injured in fact may be unknown or

unknowable until the injury manifests itself, and the

facts about causation may be in the control of the

putative defendant, unavailable to the plaintiff or at

least very difficult to obtain. The prospect is not so

bleak for a plaintiff in possession of the critical facts

that he has been hurt and who has inflicted the

injury. He is no longer at the mercy of the latter.

There are others who can tell him if he has been

wronged, and he need only ask. If he does ask and if

the defendant has failed to live up to minimum

standards of medical proficiency, the odds are that a

competent doctor will so inform the plaintiff.

Id.

Kubrick focused on the plaintiff's duty, once "armed

with the facts about the harm done to him" to seek

advice regarding the possibility of legal action. Id. at

123, 100 S.Ct. at 360. Whether the advice received is

competent or incompetent makes no difference to the

accrual of his claim. Id. at 124, 100 S.Ct. at

360. Kubrick makes clear that the statute of

28a

limitations begins to run as soon as the plaintiff is

aware of the fact and cause of his injury. Id. at 12225, 100 S.Ct. at 359-61.

Although Kubrick did not address the plaintiffs duty

to attempt to discover the harm in the first place,

this court has held that the proper statute of

limitations question is when the plaintiff "'actually

knew, or in the exercise of reasonable diligence

should have known, the cause and existence of his

injury." Wehrman,830 F.2d at 1483 (quoting Snyder

v. United States, 717 F.2d 1193, 1195 (8th

Cir. 1983)). See also Brazzell, 788 F.2d at 1356 ("we

believe that [the plaintiff] ought to be charged with

knowledge [of the cause of her injuries] as soon as

she could have discovered the vaccination was the

cause 732*732 by asking a doctor"); Reilly v. United

States, 513 F.2d 147. 148 (8th Cir. 1975) ("the claim

'accrues' when the claimant discovers, or in the

exercise of reasonable diligence should have

discovered, the acts constituting the alleged

malpractice....")

Cases in other circuits agree that the plaintiff must

exercise reasonable diligence. In In re Swine Flu

Immunization Products Liability Litigation, the

District of Columbia circuit held that an injured

plaintiff cannot claim the benefit of the discovery

rule simply by waiting passively for the cause of

injury to be revealed. Instead, the "plaintiff has a

duty to inquire into the unknown cause of a known

injury." 880 F.2d at 1443. Similarly, in Chamness v.

United States, 835 F.2d 1350 (11th Cir. 1988), the

court observed: "Medical malpractice suits have been

conditioned by the exercise of due diligence by those

injured." Id. at 1352.

29a

III.

We now turn to the question of whether there is

sufficient evidence to support the district court's

determination that it lacked subject matter

jurisdiction. We do so accepting the facts as set forth

in the district court's opinion.

The issue is what Mrs. Osborn knew or should have

known from December 7, 1982, when the fourth DPT

shot was administered, until October 15, 1983, the

date two years prior to the filing of the Osborns'

claim. The Osborns argue that not only were they

ignorant of the cause of the injury, they were initially

not aware even of the injury itself. Drs. Pettit and

Maistrom, both pediatric neurologists, told Mrs.

Osborn that Shawna probably would outgrow the

seizure disorder.17-' Dr. Pettit also said that things

would be "just flne."l.i The Osborns contend that Mrs.

Osborn persistently tried to discover the cause of

Shawna's disorder, and, that despite her repeated

inquiries, doctors could provide no explanation.

The government counters that Mrs. Osborn

possessed the necessary information no later than

May 1983, pointing to several facts that it argues

gave Mrs. Osborn actual or constructive knowledge

of Shawna's injury and its cause: that Shawna's first

-non-febrile seizures occurred shortly after her fourth

DPT shot; that these seizures were supposedly more

serious and different from her previous seizures that

Shawna started to regress behaviorally within the

next few months; and that Dr. Oksol told Mrs.

Osborn that Shawna should receive no more

pertussis vaccine. The government argues that Mrs.

Osborn should have investigated further by asking

30a

Dr. Oksol whether the pertussis vaccine was

responsible for Shawna's problems.

The record demonstrates that Mrs. Osborn diligently

inquired as to the cause of Shawna's seizures and

that her efforts were unavailing. Doctors, including

one of Shawna's pediatricians, Dr. Schuman,

repeatedly told her they could find no reason for

Shawna's problems. Dr. Pettit, the pediatric

neurologist, stated in a September 1983 report

more than four months after 733*733 the

government contends Mrs. Osborn was aware of the

that he did not "have an etiology"

cause of injury

and Shawna was a "diagnostic and therapeutic

enigma." (Osborns' App. at 59.) In November 1983,

Drs. Maistrom and Tredeau, the pediatric

neurologists at Wilford Hall, also could not identify a

cause for the seizures despite two weeks of

examination and testing. Moreover, their medical

records stated: "there is no relation to [sic] seizures

to immunizations, head trauma, or emotional

triggers." (Osborns' App. at 47.) (emphasis added.)

The government's argument that Mrs. Osborn should

have been alerted by the temporal proximity of the

fourth DPT shot to Shawna's first non-febrile seizure

is unconvincing. Shawna had had three previous

DPT shots and had suffered no apparent ill effects.

She also had already had several seizures, with no

apparent connection to anything except feverproducing illness. Shawna's doctors had given Mrs.

Osborn no written or oral information regarding

possible adverse effects of the vaccine. Moreover, Dr.

Schuman had assured her just before the fourth shot

was given that it was "perfectly safe." In essence, the

government's argument is that Shawna's mother

31a

should have known the cause of Shawna's difficulties

when the doctors, including specialists in pediatrics

and pediatric neurology, had not yet reached a

conclusion. The argument simply answers itself.

Dr. Oksol's statement to Mrs. Osborn that Shawna

was to receive no more pertussis and his written

notation on Shawna's immunization record did not

impart sufficient information to the Osborns so that

they can be charged with actual or constructive

knowledge. Dr. Oksol's statement may have

demonstrated understandable caution and

conservative medical judgment, but it utterly failed

to address the issue of causation, which is the critical

question before us. His statement, even when

considered in conjunction with the temporal

proximity of the fourth DPT shot to the first non

febrile seizure, provides an insufficient basis for

concluding that Mrs. Osborn knew or should have

known in May 1983 what caused Shawna's condition.

This court and several other circuits have held that a

plaintiff is entitled to rely on the advice of his

doctors. In Bra zzell, we held that the plaintiff should

be charged with knowledge of her injuries at the

point when "she could have discovered the

vaccination was the cause by asking a doctor." 788

F.2d at 1356. Similarly, in Reilly, we stated that

while a plaintiff has a duty to exercise reasonable

diligence in bringing suit, the concept of reasonable

diligence does not "ignore the appellant's reliance on

the statements of her doctors that the tracheal

stenosis was a normal occurrence of the treatment

she had received or her faith in their efforts to cure

it." 513 F.2d at 150. The plaintiff can only be charged

with the knowledge that a particular medical

32a

procedure caused his injuries "when by 'inquiry

among doctors with average training and experience

in such matters' the plaintiff could have discovered

the cause." Brazzell, 788 F.2d at

1357 (quoting Kubrick). See also Nicolazzo v. United

States, 786 F.2d 454, 456 (1st Cir. 1986) (the plaintiff

can only be charged with the knowledge that he

could have acquired by making inquiry among

doctors with average training); Rosales v. United

States, 824 F.2d 799, 805 (9th Cir. 1987) ("[p]atients

may reasonably rely on assurances by physicians

that complications are normal and do not indicate

that an actual injury has occurred.")

The Osborns, too, were entitled to rely on the

statements of Shawna's physicians. And, until March

1984, their discussions were devoid of any suggestion

that the fourth DPT shot may have played a role in

the causation of Shawna's seizure disorder.

The government also argues that changes in

Shawna's behavior around the time of her second

birthday should have alerted Mrs. Osborn that the

DPT shot administered three months earlier may

have harmed Shawna. While these changes are

relevant to the issue of Shawna's injuries, they do

not bear strongly on the issue of cause. Moreover,

this court stated in Brazzell that a plaintiffs

"suspicions 734*734 about the cause of her injuries"

were not sufficient to charge her with the kind of

knowledge necessary to start the running of the

statute of limitations. 788 F.2d at 1356. In any event,

Mrs. Osborn testified that at that time, she had. "no

idea" that the DPT shot may have been responsible

for Shawna's regression. (Osborns' App. at 132.)

33a

The district court concluded that Mrs. Osborn's

March 1984 conversation with Dr. Bartholomew

provided no more information than the May 1983

conversation with Dr. Oksol. The evidence is to the

contrary. Dr. Bartholomew not only told Mrs. Osborn

that future DPT shots were inadvisable, he also told

her that Shawna's seizures following the fourth DPT

shot "may have been precipitated by the injection

itself."L91 This statement unequivocally told Mrs.

Osborn far more than the statement of Dr. Oksol.

The import of the two conversations is the central

issue before us. The district court erred in failing to

recognize the significance of Dr. Bartholomew's

statement.

We conclude (1) that the evidence was insufficient to

establish that the conversation with Dr. Oksol

imparted to Mrs. Osborn knowledge of the cause of

Shawna's condition and (2) that the district court

erred in concluding that Dr. Bartholomew imparted

no additional information.

The district court erred in dismissing this case for

lack of jurisdiction. The Osborns' action is not time

barred because they sustained their burden of

demonstrating that they had no knowledge of the

cause of Shawna's condition until the conversation

with Dr. Bartholomew in March 1984.

Jjj Dr. Bartholomew saw Shawna on March 8, 1984

at the emergency room and also on March 9 at the

pediatric clinic. He stated in his deposition that his

recollection of his conversations with Mrs. Osborn

was drawn from both of those visits. (Osborns' App.

at 177- 78.) Dr. Bartholomew testified as follows

34a

[W]hat did Mrs. Osborn tell you about the shot

record as far as what Dr. Oksol had written, do you

recall?

...

A. She just pointed out to me that he had made a

notation on the record that she was not to get DPT or

part of DPT and since I had asked her about

immunizations during this seizure she asked if there

was a relationship and what that relationship was.

Q. What did you tell her?

A. Let's see. I would have told her that for many

children the vaccine may cause a febrile reaction

within twenty-four hours of having it, that in a child

that has a seizure disorder a fever as Mrs. Osborn

well knew may precipitate a seizure. Okay. We, also,

talked about the fact that it had been shown or at

least reported that the DPT vaccine had been

associated rarely with an encephalitic process, which

presummably [sic] could exacerbate an underlying

neurologic condition. Now it was during the course of

I believe it was

this discussion that she started

she that mentioned first the relationship of one of

her DPT shots to a day she had a lot of seizures.

Q. What did she tell you about that that [sic] day?

A. I don't believe she told me anything more than

that, that there was a temporal relationship between

one of her DPT injections and a—some of her

seizures.

35a

What did you say to her about your opinion of

the temporal relationship of the seizures following

the fourth DPT shot?

...

A. I believe I said words to the effect that the

seizures that she had on that day following her

fourth DPT shot may have been precipitated by the

injection itself, by the immunization itself.

Q. Did you tell her at that time your opinion as to

whether or not future DPT shots were unadvisable or

advisable?

A. In my opinion they were not advisable.

Dep. of Dr. Dennis Bartholomew, Osborns' App. at

178-83.

Mrs. Osborn, under questioning by the

government's counsel, testified in a deposition

regarding her meeting with Dr. Bartholomew:

Q. Did Mr. Maistrom or Dr. Trudeau [sic] ever tell

you that the fourth DPT vaccination that was

administered to Shawna was the cause of her seizure

disorder?

A. No.

Q. Did there come a point in time when any

physician told you that?

A. That it directly caused the problem?

36a

Q. That it caused her seizure disorder.

A. No, I was told that it can cause problems.

Q. Who told you that?

A. Dr. Bartholomew.

Q. When?

A. In March of 1984.

Q. Specifically, what did Dr. Bartholomew tell you?

A. He said she had a fever, and she was having

seizures, and she was getting older at this point.

I'm asking him about starting school and

vaccinations. That's when he tells me that she should

not have any more DPT, and I asked him why. He

said pertussis can cause bacterial encephalitis. He

told me it was whooping cough. He told me pertussis

was the drug they used for whooping cough, and then

I said what about the things that have happened, the

shots in the past. He said he didn't know.

Q. I'm not sure I understand what Dr. Bartholomew

was telling you when he says pertussis can cause

A. Encephalitis.

37a

A. He's telling me that children with a low threshold

for seizures, which Shawna exhibited at the time

prior to her fourth vaccination, should not be given

pertussis because they have a low threshhold, [sic]

and it made them more susceptible to problems from

pertussis such as encephalitis.

Q. Did he specifically tell you that it was improper

for the Air Force to have administered DPT vaccine

to Shawna, the fourth DPT vaccination, given her

history of prior febrile seizures?

A. Yes.

Q. Do you recall being told that by anyone else prior

to March of 1984?

A. No.

Dep. of Pamela Ann Osborn, Osborns' App. at 138-40.

.Li 28 U.S.C. § 2401(b) provides:

(b) A tort claim against the United States shall be

forever barred unless it is presented in writing to the

appropriate Federal agency within two years after

such claim accrues or unless action is begun within

six months after the date of mailing, by certified or

registered mail, of notice of final denial of the claim

by the agency to which it was presented.

141 The district court has authority to consider

matters outside the pleadings when subject matter

jurisdiction is challenged under Rule 12(b)(1). Land

38a

v. Dollar, 330 U.S. 731, 735 & n. 4, 67 S.Ct. 1009,

1O11& n. 4, 91 L.Ed. 1209 (1947); Satz v. ITT Fm.

Corm, 619 F.2d 738, 742 (8th Cir. 1980).

jj The Osborns cite Snyder v. United States, 717

F.2d 1193, 1195 (8th Cir. 1983), for the proposition

that summary judgment standards must be applied

to a 12(b)(1) motion when matters outside the

pleadings are considered. We are convinced

that Snyder did not squarely address the issue of

what standards properly apply. See also Heille v.

City of St. Paul, 671 F.2d 1134, 1136 (8th

Cir. 1982); Satz,619 F.2d 738, 742 8th

Cir. 1980). Cf Haley v. Childers, 314 F.2d 610, 613 &

n. 2 (8th Cir.1963). For a helpful discussion of the

proper treatment of motions brought under Rule

12(b)(1), see Western Neb. Resources Council v.

Wyoming Fuel Co., 641 F.Supp. 128, 139-40

(D.Neb. 1986).

11A court deciding a motion under Rule 12(b)(1)

must distinguish between a "facial attack" and a

"factual attack." Menchaca v. CllrTrsler credit

Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied, 449

U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217

(1980); Mortensen, 549 F.2d at 891. In the first

instance, the court restricts itself to the face of the

pleadings, Menchaca, 613 F.2d at

511; Mortensen, 549 F.2d at 891, and the non-moving

party receives the same protections as it would

defending against a motion brought under Rule

12b)6). Adams v. Rain, 697 F.2d 1213, 1219 (4th

Cir. 1982). The general rule is that a complaint

should not be dismissed "unless it appears beyond

doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to

39a

relief." Scheuer v. Rhodes. 416 U.S. 232, 236, 94

S.Ct. 1683, 1686, 40 L.Ed.2d 90

(1974) (quoting Conley v. Gibson. 355 U.S. 41, 45-46,

78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)). In a

factual attack, the court considers matters outside

the pleadings, Menchaca, 613 F.2d at 511, and the

non-moving party does not have the benefit of

12(b)(6) safeguards. Mortensen, 549 F.2d at 891.

121 Mrs. Osborn testified in a deposition:

Q. What else happened as a result or during the visit

with Dr. Pettit? What else did you learn from. him?

A. He told us the same thing that Dr.. Schuman had

said. He thought that he would like her on Dilantin

for a minimum of one year, and most probably she'll

be seizure free, and then we'll begin to wean her off

of it. And if she goes two years after that seizure free,

we'll have no problems.

Q. What happened during the Willford Hail

hospitalization?

A. it was suggested to me about the first week we

were there by Dr. Maistrom that maybe an ear

infection had done .her some harm. Then they got to

the point where he didn't suggest that anymore.

He said it's a seizure disorder, probably she'll

outgrow it.

40a

Dep. of Pamela Ann Osborn, Osborns' App. at 128,

136-37.

J1Mrs. Osborn further testified:

Q. Did you ask Dr. Pettit any of these questions

[regarding developmental delays and possible brain

damage]?

A. Yes, I asked him these questions, and I was put off

by the answer, don't worry, things are just fine.

Dep. of Pamela Ann Osborn, Osborns' App. at 129.

I.1See supra footnote 1.

41a

APPENDIX F

450 F.3d 797 (2006)

Lance LEMAY, on Behalf of Himself and All Others

Similarly Situated, and on Behalf of the General

Public, Appellant,

UNITED STATES POSTAL SERVICE, Appellee.

No. 05-3515.

United States Court of Appeals, Eighth Circuit.

Submitted: March 17, 2006.

Filed: June 16, 2006.

798*798 Sanford Svetcov, argued, San Francisco, CA

(Michael B. Angelovich and Texarkana, TX, Timothy

G. Blood, and Maria V. Morris, San Francisco, CA, on

the brief), for appellant.

Eric P. Koetting, Legal Policy and Ratemaking, U.S.

Postal Service, Washington, DC (Brien M. Reimer of

the same agency, on the brief), for appellee.

Before WOLLMAN and RILEY, Circuit Judges, and

ROSENBAUM,1II District Judge.

ROSENBAUM, District Judge.

Lance LeMay has filed a putative class action. The

district court1l dismissed for lack of subject matter

jurisdiction. LeMay appeals; we affirm.

42a

I. Background

LeMay, purportedly acting on his own behalf and on

behalf of others similarly situated, claims the United

States Postal Service ("Postal Service") entered into

and breached a federal common law contract.

According to Mr. LeMay, the Postal Service contracts

with its patrons to provide preferred handling and

expedited treatment of Priority Mail, but fails to do

so. Mr. LeMay considers the Postal Service's

heightened Priority Mail charges to be contractual

consideration. He claims the Postal Service is in

breach whenever it fails to provide the enhanced

services. LeMay's proposed class definition is

exquisite: he seeks to represent persons living in

designated cities who used and paid for Priority Mail

service, for items weighing up to 13 ounces, directed

to four particular Postal Service Priority Mail Zones,

on or after January 5, 2000. His proposed measure of

class damages is the difference between the Priority

Mail charges paid and the cost of First-Class Mail.

The Postal Service moved to dismiss the complaint

pursuant to Federal Rule of Civil Procedure 12(b)(1)

for lack of subject matter jurisdiction, and Rule

12(b)(6) for failure to state a claim upon which relief

can be granted.

In analyzing the case, the district court initially

found it had subject matter jurisdiction, pursuant to

39 U.S.C. § 409(a) of the Postal Reorganization Act

("PRA"), which gives federal district courts

jurisdiction "over all actions brought by or against

the Postal Service." Having made this determination,

however, the district court ultimately concluded it

lacked jurisdiction. It based this holding on 39 U.S.C.

§ 3662, a later PRA section, finding Congress gave

43a

exclusive jurisdiction over complaints concerning

postal rates and services to the Postal Rate

Commission ("PRC"). The court held that, in enacting

the PRA, Congress did not intend to create a private

right of action for such complaints. The court then

concluded the proposed class members' claims were

"more properly characterized as a complaint about

the postal services they receive or the rates they are

charged." As such, the complaint was dismissed for

lack of subject matter jurisdiction. LeMay v. United

States 799*799 Postal Service, No. 05-CV-4001, slip

op. at 5-6 W.D.Ark. Aug. 4, 2004).

LeMay appeals, claiming the district court erred in

misconstruing his contract claim as a challenge to

the Postal Service's rates and services. In the

alternative, LeMay argues Congres did not enact

section 3662 as an exclusive remedy.

II. Discussion

A district court's dismissal of a complaint for lack of

subject matter jurisdiction is subject to de novo

review. Green Acres Enterprises. Inc. v. United

States, 418 F.3d 852, 856 (8th Cir.2005). Subject

matter jurisdiction refers to the court's power to

decide a certain class of cases. Cont'l Cablevision of

St. Paul. Inc. v. United States Postal Service, 945

F. 2d 1434, 1437 (8th Cir. 1991). We may affirm the

district court's dismissal on any basis supported by

the record. in reK-telIntiSec. Lii,300 F. 3d 881,

889 (8th Cir.2002) (internal quotations and citation

omitted).

Congress enacted the PRA in 1970. In doing so, it

created the modern Postal Service, and defined its

44-a

susceptibility to private suit. It gave the Postal

Service the power to "sue and be sued in its official

name." 39 U.S.C. § 401. Congress also conferred upon

federal district courts the power to hear cases by or

against the Postal Service, saying "[e]xcept as

provided in section 3628 of this title, the United

States district courts shall have original but not

exclusive jurisdiction over all actions brought by or

against the Postal Service."[i 39 U.S.C. § 409(a).

While the PRA gave district courts broad jurisdiction

over Postal Service matters, Congress did not give

them "exclusive jurisdiction" over its disputes. The

jurisdiction seemingly conferred by sections 401 and

409 may be preempted when another, "precisely

drawn, detailed statute" places jurisdiction

elsewhere. See Goodin v. United States Postal

Inspection Service, 444 F.3d 998, 1001 (8th

Cir.2006) (quoting Brown v. Gen. Serv. Ac/win., 425

U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976)).

In this case, Congress removed the district courts'

jurisdiction over claims regarding postal rates and

services. It did so by enacting 39 U.S.C. § 3662,

which provides that:

Interested parties who believe the Postal Service is

charging rates which do not conform to the policies

set out in this title or who believe that they are not

receiving postal service in accordance with the

policies of this title may lodge a complaint with the

Postal Rate Commission in such form and in such

manner as it may prescribe.

LeMay makes much of section 3662's use of "may" in

addressing recourse to the Postal Rate Commission.

45a

He argues that by using the word "may," Congress

intended application to the PRC to be permissive,

opting against using the mandatory "shall." His

argument is interesting, but ultimately

unpersuasive. It fails because we are not analyzing

statutes in general; our focus is on the PRA in

specific.

Certainly, as a general rule of statutory construction,

"may" is permissive, whereas "shall" is

mandatory. Anderson v. Yung kau, 329 U.S. 482, 485,

67 S.Ct. 428, 91 L.Ed. 436 (1947); Braswell v. city of

El Dorado, Ark., 187 F.3d 954, 958-59 (8th Cir.1999).

But this general rule does not close the inquiry.

Courts will infer foreclosure of judicial review "where

congressional intent to preclude judicial review is

'fairly discernible' in the detail of the particular

legislative 800*800 scheme." Ismailov v. Reno, 263

F.3d 851, 854-55 (8th Cir.2001) (quoting Block v.

Cmty. Nutrition Inst;, 467 U.S. 340, 349, 104 S.Ct.

2450, 81 L.Ed.2d 270 (1984)). Evidence of such

congressional intent should be "drawn from the

statutory scheme as a whole." Id. After undertaking

a review of the PRA's legislative history, we hold the

remedy provided by section 3862 is exclusive.

The PRA's legislative history shows that, in crafting

the Act, Congress intended to minimize external

intrusions on the Postal Service's managerial

independence. Buchanan v. United States Postal

Service, 508 F.2d 259, 262 (5th Cir. 1975). Congress

intended to afford postal management the

"unfettered authority and freedom that has been

denied for years to maintain and operate an efficient

service." Sen. Rep. No. 912, 91st Cong., 2d Sess. 2

(1970).

46a

Congress gave meaning to this intention by placing

within the Postal Service the means to redress a

disaffected party's concerns about postal rates and

services. Unhappy postal patrons were given

recourse to the PRC. This is a specific grant of

authority over a defined category of postal rate/postal

service concerns. This specific designation is

contrasted with the District Courts' otherwise

general jurisdiction. Considering the differing

treatment of the varying types of postal disputes, in

light of Congress's stated purpose in enacting the

PRA, it is "fairly discernable" that Congress intended

to remove consideration of postal service complaints

from the courts altogether. See Ismaiov, 263 F.3d at

854-55.

We are not the first Court to consider this question.

While new to the Eighth Circuit, this question has

arisen in the Tenth Circuit. In an unpublished

opinion, that Court reached the same conclusion,

holding "[t]he language of section 3662 makes clear

that a postal customer's remedy for unsatisfactory

service lies with the Postal Rate

Commission." Bovard v. United States Post Office, 47

F.3d 1178, 1995 WL 74678 (10th Cir.) (affirming the

district court's dismissal for lack of subject matter

jurisdiction) 141

We, finally, consider whether the district court

correctly construed LeMay's complaint as a claim of

inadequate postal service. When deciding whether a

matter is properly before it, a court must "look

beyond the facial allegations of the complaint to

determine the true nature of th[e] suit" Sellers V.

Brown, 633 F.2d 106,108 (8th Cir. 1980). LeMay's

complaint is lavishly wrapped in contract clothing,

47a

but a court will not be dazzled by pretty wrappings.

LeMayts alleges the Postal Service had a "contractual

obligation to provide" priority services, (Compi. ¶ 15),

and "[in direct contradiction to [its] promises,

representations and terms and conditions, the Postal

Service does not provide preferential handling or

handling that results in any meaningful expedition

of Priority Mail over that accorded the much less

expensive First Class Mail." (Compi. ¶ 10.) These

claims do not conclude our inquiry.

801*801 The words echo contract, but the issues are

classic questions of postal rates and services. Were

we to decide otherwise, every missed mail delivery

could engender a contract dispute. LeMay cannot

avoid the PRC's exclusive jurisdiction over

commonplace service complaints through artful

pleading.

III. Conclusion

We find the district court, while having initial

jurisdiction over this case, as filed, properly

construed the claims, as pled. After correctly

perceiving the matter was a common dispute over

rates and services, the district court rightly

determined Congress had placed authority over such

matters in the Postal Rate Commission, at which

point the district court was divested of its

jurisdiction.

Perceiving no error, we affirm the judgment of the

district court.

48a

L11 The Honorable James M. Rosenbaum, Chief

Judge, United States District Court for the District

of Minnesota, sitting by designation.

i1 The Honorable Harry F. Barnes, United States

District Judge for the Western District of Arkansas.

J.1 The section 3628 exception is inapplicable here.

The section relates to appellate review of decisions

made by the PRC or its Governors—issues not before

the Court.

Fk1 Other courts are in accord. See Shelby Resources

v. United States Postal Service, 619 F.Supp. 1546,

1549 (S.D.N.Y.1985) (sections 3662 and 3628

"provide the sole remedy for a user of postal services

who is not receiving adequate service."); Azzolina v.

United States Postal Service, 602 F.Supp. 859, 864

(D..N.J. 1985) '("plaintiff does not have a private right

of action to bring service-related complaints in

federal district court"); Tedesco v. United States

Postal Service, 553 F.Supp. 1387, 1389

(W.D.Pa. 1983) ("a close reading of the [PRA] strongly

suggests that Congress intended that complaints

regarding postal service be resolved outside of

court"); Martin v. Sloan, 432 F.Sup). 616, 618

(W.D.N.C. 1977) (postal patrons are remitted to the

complaint procedure established in section .3662).

49a

APPENDIX G

5 U.S.C. § 702 provides:

Right of review

A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute, is

entitled to judicial review thereof. An action in a

court of the United States seeking relief other than

money damages and stating a claim that an agency

or an officer or employee thereof acted or failed to act

in an official capacity or under color of legal

authority shall not be dismissed nor relief therein be

denied on the ground that it is against the United

States or that the United States is an indispensable

party. The United States may be named as a

defendant in any such action, and a judgment or

decree may be entered against the United

States: Provided, That any mandatory or injunctive

decree shall specify the Federal officer or officers (by

name or by title), and their successors in office,

personally responsible for compliance. Nothing

herein (1) affects other limitations on judicial review

or the power or duty of the court to dismiss any

action or deny relief on any other appropriate legal or

equitable ground; or (2) confers authority to grant

relief if any other statute that grants consent to suit

expressly or implied1y forbids the relief which is

sought.

50a

26 U.S.C. § 6331(a) provides:

Levy and distraint

(a) Authority of Secretary

If any person liable to pay any tax neglects or

refuses to pay the same within 10 days after notice

and demand, it shall be lawful for the Secretary to

collect such tax (and such further sum as shall be

sufficient to cover the expenses of the levy) by levy

upon all property and rights to property (except such

property as is exempt under section 6334) belonging

to such person or on which there is a lien provided in

this chapter for the payment of such tax. Levy may

be made upon the accrued salary or wages of any

officer, employee, or elected official, of the United

States, the District of Columbia, or any agency or

instrumentality of the United States or the District

of Columbia, by serving a notice of levy on the

employer (as defined in section 3401(d)) of such

officer, employee, or elected official. If the Secretary

makes a finding that the collection of such tax is in

jeopardy, notice and demand for immediate payment

of such tax may be made by the Secretary and, upon

failure or refusal to pay such tax, collection thereof

by levy shall be lawful without regard to the 10-day

period provided in this section.

* * *

Note: To fully understand the authority

codified at 26 U.S.C. § 6331(a) the underlying

statutory law must be consulted.

51a

Section 6331(a) is derived from section 6331(a)

in the 1954 Internal Revenue Code.

Section 6331(a) in the 1954 Internal Revenue

Code is derived from section 3310(a) and (b) in

the 1939 Internal Revenue Code.

Section 3310(a) and (b) in the 1939 Internal Revenue

Code provides:

Part II—Assessment, Collection, and Refund

SEC. 3310. RETURNS AND PAYMENT OF TAX.

MONTHLY RETURNS.—A11 returns required to

be made monthly by any person liable to tax shall be

made on or before the 10th day of each month, and

the tax assessed or due thereon shall be returned by

the Commissioner to the collector on or before the

last day of each month.

OTHER RETURNS.—All returns for which no

provision is otherwise made shall be made on or

before the 10th day of the month succeeding the time

when the tax is due and liable to be assessed, and the

tax thereon shall be returned as herein provided for

monthly returns, and shall be due and payable on or

before the last day of the month in which the

assessment is so made.

Section 3310(a) and (b) in the 1939 Internal

Revenue Code is derived from section 3185 of

the Revised Statutes.

52a

Section 3185 of the Revised Statutes provides:

Monthly returns and special returns, when to be

made, and when tax payable.

SEC. 3185. All returns required to be made monthly

by any person liable to tax shall be made on or before

the tenth day of each month, and the tax assessed or

due thereon shall be return by the Commissioner of

Internal Revenue to the collector on or before the last

day of each month. All returns for which no provision

is otherwise made shall be made on or before the

tenth day of the month succeeding the time when the

tax is due and liable to be assessed, and the tax

thereon shall be returned as herein provided for

monthly returns, and shall be due and payable on or

before the last day of the month in which the

assessment is made. When the said tax is not paid on

or before the last day of the month as aforesaid, the

collector shall add a penalty of five per centum,

together with interest at the rate of one per centum

per month, upon such tax from the time the same

because due: but no interest for a fraction of a month

shall be demanded: Provided, That notice of the time

when such tax become due and payable is given in

such manner as may be prescribed by the

Commissioner of Internal Revenue. It shall be the

duty of the Collector, in case of non-payment of said

tax on or before the last day of the month, as

aforesaid, to demand payment thereof, with five per

centum per month, as aforesaid, in the manner

prescribed by law; and if said tax, penalty, and

interest, are not paid within ten days after such

demand, it shall be lawful for the collector or his

53a

deputy to make distraint therefor, as provided by

law.

26 U.S.C. § 6702 provides in relevant part:

Frivolous tax submissions

(a) Civil penalty for frivolous tax returns

A person shall pay a penalty of $5,000 if—

(1) such person files what purports to be a return

of a tax imposed by this title but which—

does not contain information on which the

substantial correctness of the self-assessment

may be judged, or

contains information that on its face

indicates that the self-assessment is

substantially incorrect, and

(2) the conduct referred to in paragraph (1)—

is based on a position which the Secretary

has identified as frivolous under subsection (c),

reflects a desire to delay or impede the

administration of Federal tax laws.

(b) Civil penalty for specified frivolous submissions

(1) Imposition of penalty

Except as provided in paragraph (3), any person

who submits a specified frivolous submission shall

pay a penalty of $5,000.

(2) Specified frivolous submission

For purposes of this section—

(A) Specified frivolous submission

54a

The term "specified frivolous submission"

means a specified submission if any portion of

such submission—

(1) is based on a position which the Secretary

has identified as frivolous under subsection (c),

(ii) reflects a desire to delay or impede the

administration of Federal tax laws.

(B) Specified submission

The term "specified submission" means—

(i) a request for a hearing under—

section 6320 (relating to notice and

opportunity for hearing upon filing of notice

of lien), or

section 6330 (relating to notice and

opportunity for hearing before levy), and

(ii) an application under—

(I) section 6159 (relating to agreements for

payment of tax liability in installments),

(IT) section 7122 (relating to

compromises), or

(I II) section 7811 (relating to taxpayer

assistance orders).

* * *

The Secretary shall prescribe (and periodically

revise) a list of positions which the Secretary has

identified as being frivolous for purposes of this

subsection. The Secretary shall not include in such

list any position that the Secretary determines meets

the requirement of section 6662(d) (2)(B) (ii)(II).

55a

* * *

26 U.S.C. § 6703 provides in relevant part:

Rules applicable to penalties under sections 6700,

6701, and 6702

(a) Burden of proof

In any proceeding involving the issue of whether or

not any person is liable for a penalty under section

6700, 6701, or 6702, the burden of proof with respect

to such issue shall be on the Secretary.

* * *

26 U.S.C. § 7422 provides in relevant part:

Civil actions for refund

(a) No suit prior to filing claim for refund

No suit or proceeding shall be maintained in any

court for the recovery of any internal revenue tax

alleged to have been erroneously or illegally assessed

or collected, or of any penalty claimed to have been

collected without authority, or of any sum alleged to

have been excessive or in any manner wrongfully

collected, until a claim for refund or credit has been

duly filed with the Secretary, according to the

provisions of law in that regard, and the regulations

of the Secretary established in pursuance thereof.

* * *

26 U.S.C. § 7433 provides:

56a

Civil damages for certain unauthorized collection

actions

(a) In general

If, in connection with any collection of Federal tax

with respect to a taxpayer, any officer or employee of

the Internal Revenue Service recklessly or

intentionally, or by reason of negligence, disregards

any provision of this title, or any regulation

promulgated under this title, such taxpayer may

bring a civil action for damages against the United

States in a district court of the United States. Except

as provided in section 7432, such civil action shall be

the exclusive remedy for recovering damages

resulting from such actions.

(b) Damages

In any action brought under subsection (a) or

petition filed under subsection (e), upon a finding of

liability on the part of the defendant, the defendant

shall be liable to the plaintiff in an amount equal to

the lesser of $1,000,000 ($100,000, in the case of

negligence) or the sum of—

actual, direct economic damages sustained by

the plaintiff as a proximate result of the reckless or

intentional or negligent actions of the officer or

employee, and

the costs of the action.

Claims pursuant to this section shall be payable

out of funds appropriated under section 1304 of title

31, United States Code.

(d) Limitations

(1) Requirement that administrative remedies be

exhausted

57a

A judgment for damages shall not be awarded

under subsection (b) unless the court determines

that the plaintiff has exhausted the administrative

remedies available to such plaintiff within the

Internal Revenue Service.

Mitigation of damages

The amount of damages awarded under

subsection (b)(l) shall be reduced by the amount of

such damages which could have reasonably been

mitigated by the plaintiff.

Period for bringing action

Notwithstanding any other provision of law, an

action to enforce liability created under this section

may be brought without regard to the amount in

controversy and may be brought only within 2

years after the date the right of action accrues.

(e) Actions for violations of certain bankruptcy

procedures

In general

If, in connection with any collection of Federal

tax with respect to a taxpayer, any officer or

employee of the Internal Revenue Service willfully

violates any provision of section 362 (relating to

automatic stay) or 524 (relating to effect of

discharge) of title 11, United States Code (or any

successor provision), or any regulation

promulgated under such provision, such taxpayer

may petition the bankruptcy court to recover

damages against the United States.

Remedy to be exclusive

(A) In general

Except as provided in subparagraph (B),

notwithstanding section 105 of such title 11,

58a

such petition shall be the exclusive remedy for

recovering damages resulting from such actions.

(B) Certain other actions permitted

Subparagraph (A) shall not apply to an action

under section 362(h) of such title 11 for a

violation of a stay provided by section 362 of

such title; except that—

administrative and litigation costs in

connection with such an action may only be

awarded under section 7430; and

administrative costs may be awarded

only if incurred on or after the date that the

bankruptcy petition is filed..

28 U.S.C. § 2072 provides:

Rules of procedure and evidence; power to prescribe

The Supreme court shall have the power to

prescribe general rules of practice and procedure and

rules of evidence for cases in the United States

district courts (including proceedings before

magistrate judges thereof) and courts of appeals.

Such rules shall not abridge, enlarge or modify

any substantive right. All laws in conflict with such

rules shall be of no further force or effect after such

rules have taken effect.

Such rules may define when a ruling of a

district court is final for the purposes of appeal under

section 1291 of this title.

26 C.F.R. § 301.6203-1 provides:

59a

Method of assessment.

The district director and the director of the regional

service center shall appoint one or more assessment

officers. The district director shall also appoint

assessment officers in a Service Center servicing his

district. The assessment shall be made by an

assessment officer signing the summary record of

assessment. The summary record, through

supporting records, shall provide identification of the

taxpayer, the character of the liability assessed, the

taxable period, if applicable, and the amount of the

assessment. The amount of the assessment shall, in

the case of tax shown on a return by the taxpayer, be

the amount so shown, and in all other cases the

amount of the assessment shall be the amount shown

on the supporting list or record. The date of the

assessment is the date the summary record is signed

by an assessment officer. If the taxpayer requests a

copy of the record of assessment, he shall be

furnished a copy of the pertinent parts of the

assessment which set forth the name of the taxpayer,

the date of assessment, the character of the liability

assessed, the taxable period, if applicable, and the

amounts assessed.

26 C.F.R. § 301.7433-1 provides:

Civil cause of action for certain unauthorized

collection actions.

(a) In general. If, in connection with the collection of

a federal tax with respect to a taxpayer, an officer or

an employee of the Internal Revenue Service

recklessly or intentionally, or by reason of

negligence, disregards any provision of the Internal

Revenue Code or any regulation promulgated under

60a

the Internal Revenue Code, such taxpayer may bring

a civil action for damages against the United States

in federal district court. The taxpayer has a duty to

mitigate damages. The total amount of damages

recoverable is the lesser of $1,000,000 ($100,000 in

the case of negligence), or the sum of: (1) The actual,

direct economic damages sustained as a proximate

result of the reckless or international actions of the

officer or employee; and (2) Costs of the action. An

action for damages filed in federal district court may

not be maintained unless the taxpayer has filed an

administrative claim pursuant to paragraph (e) of

this section, and has waited for the period required

under paragraph (d) of this section. (b) Actual, direct

economic damages— (1) Definition. Actual, direct

economic damages are actual pecuniary damages

sustained by the taxpayer as the proximate result of

the reckless or intentional, or negligent, actions of an

officer or an employee of the Internal Revenue

Service. Injuries such as inconvenience, emotional

distress and loss of reputation are compensable only

to the extent that they result in actual pecuniary

damages. (2) Litigation costs and administrative

costs not recoverable. Litigation costs and

administrative costs are not recoverable as actual,

direct economic damages. Litigation costs may be

recoverable under section 7430 (see paragraph (h) of

this section) or, solely to the extent described in

paragraph (c) of this section, as costs of the action. (i)

Litigation costs. For purposes of this paragraph,

litigation costs are any costs incurred pursuing

litigation for relief from the action taken by the

officer or employee of the Internal Revenue Service,

including costs incurred pursuing a civil action in

federal district court under paragraph (a) of this

section. The term litigation costs includes the

61a

following: (A) Court costs; (B) Expenses of expert

witnesses in connection with a court proceeding; (C)

Cost of any study, analysis, engineering report, test,

or project prepared for a court proceeding; and (D)

Fees paid or incurred for the services of attorneys, or

other individuals authorized to practice before the

court, in connection with a court proceeding. For

purposes of this section, administrative costs are any

costs incurred pursuing administrative relief from

the action taken by an officer or employee of the

Internal Revenue Service, including costs incurred

pursuing an administrative claim for damages under

paragraph (e) of this section. The term

administrative costs includes: (A) Any administrative

fees or similar charges imposed by the Internal

Revenue Service; and (B) Expenses, costs, and fees

described in paragraph (b)(2)(i) of this section

incurred pursuing administrative relief. (c) Costs of

the action. Costs of the action recoverable as

damages under this section are limited to the

following costs: (1) Fees of the clerk and Marshall; (2)

Fees of the court reporter for all or any part of the

stenographic transcript necessarily obtained for use

in the case; (3) Fees and disbursements for printing

and witnesses; (4) Fees for exemplification and copies

of paper necessarily obtained for use in the case; (5)

Docket fees; and (6) Compensation of court appointed

experts and interpreters. (d) No civil action in federal

district court prior to filing an administrative

claim—(1) Except as provided in paragraph (d)(2) of

this section, no action under paragraph (a) of this

section shall be maintained in any federal district

court before the earlier of the following dates: W The

date the decision is rendered on a claim flied in

accordance with paragraph (e) of this section; or (ii)

The date six months after the date an administrative

62a

claim is filed in accordance with paragraph (e) of this

section. (2) If an administrative claim is filed in

accordance with paragraph (e) of this section during

the last six months of the period of limitations

described in paragraph (g) of this section, the

taxpayer may file an action in federal district court

any time after the administrative claim is filed and

before the expiration of the period of limitations. (e)

Procedures for an administrative claim—(1) Manner.

An administrative claim for the lesser of $1,000,000

($100,000 in the case of negligence) or actual, direct

economic damages as defined in paragraph (b) of this

section shall be sent in writing to the Area Director,

Attn: Compliance Technical Support Manager of the

area in which the taxpayer currently resides. (2)

Form. The administrative claim shall include: (i The

name, current address, current home and work

telephone numbers and any convenient times to be

contacted, and taxpayer identification number of the

taxpayer making the claim; (ii) The grounds, in

reasonable detail, for the claim (include copies of any

available substantiating documentation or

correspondence with the Internal Revenue Service);

A description of the injuries incurred by the

taxpayer filing the claim (include copies of any

available substantiating documentation or evidence);

The dollar amount of the claim, including any

damages that have not yet been incurred but which

are reasonably foreseeable (include copies of any

available substantiating documentation or evidence);

and (v) The signature of the taxpayer or duly

authorized representative. For purposes of this

paragraph, a duly authorized representative is any

attorney, certified public accountant, enrolled

actuary, or any other person permitted to represent

the taxpayer before the Internal Revenue Service

63a

who is not disbarred or suspended from practice

before the Internal Revenue Service and who has a

written power of attorney executed by the taxpayer.

(f) No action in federal district court for any sum in

excess of the dollar amount sought in the

administrative claim. No action for actual, direct

economic damages under paragraph (a) of this

section shall be instituted in federal district court for

any sum in excess of the amount (already incurred

and estimated) of the administrative claim filed

under paragraph (e) of this section, except where the

increased amount is based upon newly discovered

evidence not reasonably discoverable at the time the

administrative claim was filed, or upon allegation

and proof of intervening facts relating to the amount

of the claim. (g) Period of limitations—(1) Time for

filing. A civil action under paragraph (a) of this

section must be brought in federal district court

within 2 years after the date the cause of action

accrues. (2) Right of action accrues. A cause of action

under paragraph (a) of this section accrues when the

taxpayer has had a reasonable opportunity to

discover all essential elements of a possible cause of

action. (h) Recovery of costs under section 7430.

Reasonable litigation costs, including attorney's fees,

not recoverable under this section may be

recoverable under section 7430. If following the

Internal Revenue Service's denial of an

administrative claim on the grounds that the

Internal Revenue Service did not violate section

7433(a), a taxpayer brings a civil action for damages

in a district court of the United States, and

establishes entitlement to damages under this

section, substantially prevails with respect to the

amount of damages in controversy and meets the

requirements of section 7430(c)(4)(A)(iii) (relating to

64a

notice and net worth requirements), the taxpayer

will be considered a "prevailing party" for purposes of

section 7430. Such taxpayer, therefore, will generally

be entitled to attorney's fees and other reasonable

litigation costs not recoverable under this section.

For purposes of this paragraph, if the Internal

Revenue Service does not respond on the merits to an

administrative claim for damages within six months

after the claim is filed, the Internal Revenue

Service's failure to respond shall be considered a

denial of the claim on the grounds that the Internal

Revenue Service did not violate section 7433(a).

Administrative costs, including attorney's fees

incurred pursuing an administrative claim under

paragraph (e) of this section, are not recoverable

under section 7430. (i) Effective dates. The portions

of this section relating to reckless or intentional acts

are applicable to actions taken by Internal Revenue

Service officials after July 30, 1996. The portions of

this section relating to negligent acts are applicable

to actions taken by the Internal Revenue Service

officials after July 22, 1998.

10.

Federal Rule of Civil Procedure 12 states in

relevant part

12(b) How to Present Defenses. Every defense to

a claim for relief in any pleading must be

asserted in the responsive pleading if one is

required. But a party may assert the following

defenses by motion:

(1) Lack subject-matter jurisdiction

65a

(6) failure to state a claim upon which relief

can be granted; and

* * *

12(d) Result of Presenting Matters Outside the

Pleadings. If, on a motion under Rule

12(b)(6) or 12(c), matters outside the pleadings

are presented to and not excluded by the court,

the motion must be treated as one for

summary judgment under Rule 56. All parties

must be given a reasonable opportunity to

present all the material that is pertinent to

the motion.

11.

Federal Rule of Civil Procedure 41(b)

provides:

Involuntary Dismissal; Effect.

If the plaintiff fails to prosecute or to comply with

these rules or a court order, a defendant may move to

dismiss the action or any claim against it. Unless the

dismissal order states otherwise, a dismissal under

this subdivision (b) and any dismissal not under this

rule—except one for lack of jurisdiction, improper

venue, or failure to join a party under Rule 19—

operates as an adjudication on the merits.

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12.

Federal Rule of Civil Procedure 56 provides:

Summary Judgment.

MOTION FOR SUMMARY JUDGMENT OR PARTIAL

SUMMARY JUDGMENT. A party may move for

summary judgment, identifying each claim or

or the part of each claim or defense

defense

which summary judgment is sought. The court shall

grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of

law. The court should state on the record the reasons

for granting or denying the motion.

TIME TO FILE A MOTION. Unless a different time is

set by local rule or the court orders otherwise, a

party may file a motion for summary judgment at

any time until 30 days after the close of all discovery.

PROCEDURES.

(1) Supporting Factual Positions. A party

asserting that a fact cannot be or is genuinely

disputed must support the assertion by:

citing to particular parts of materials in

the record, including depositions, documents,

electronically stored information, affidavits or

declarations, stipulations (including those made

for purposes of the motion only), admissions,

interrogatory answers, or other materials; or

showing that the materials cited do not

establish the absence or presence of a genuine

dispute, or that an adverse party cannot produce

admissible evidence to support the fact.

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Objection That a Fact Is Not Supported by

Admissible Evidence. A party may object that the

material cited to support or dispute a fact cannot

be presented in a form that would be admissible in

evidence.

Materials Not Cited. The court need consider

only the cited materials, but it may consider other

materials in the record.

Affidavits or Declarations. An affidavit or

declaration used to support or oppose a motion

must be made on personal knowledge, set out facts

that would be admissible in evidence, and show

that the afflant or declarant is competent to testify

on the matters stated.

(d) WHEN FACTS ARE UNAVAILABLE TO THE

NONMOvANT. If a nonmovant shows by affidavit or

declaration that, for specified reasons, it cannot

present facts essential to justify its opposition, the

court may:

defer considering the motion or deny it;

allow time to obtain affidavits or declarations

or to take discovery or

issue any other appropriate order.

(e) FAILING TO PROPERLY SUPPORT OR ADDRESS A

FACT. If a party fails to properly support an assertion

of fact or fails to properly address another party's

assertion of fact as required by Rule 56(c), the court

may:

(1) give an opportunity to properly support or

address the fact;

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consider the fact undisputed for purposes of

the motion;

grant summary judgment if the motion and

supporting materials

including the facts

show that the movant is

considered undisputed

entitled to it; or

issue any other appropriate order.

(f) JUDGMENT INDEPENDENT OF THE MOTION. After

giving notice and a reasonable time to respond, the

court may:

grant summary judgment for a nonmovant;

grant the motion on grounds not raised by a

partyor

consider summary judgment on its own after

identifying for the parties material facts that may

not be genuinely in dispute.

(g) FAILING TO GRANT ALL THE REQUESTED RELIEF. If

the court does not grant all the relief requested by

the motion, it may enter an order stating any

including an item of damages or

material fact

that is not genuinely in dispute and

other relief

treating the fact as established in the case.

(h) AFFIDAVIT OR DECLARATION SUBMITTED IN BAD

FAITH. If satisfied that an affidavit or declaration

under this rule is submitted in bad faith or solely for

after notice and a reasonable time

delay, the court

to respond

may order the submitting party to pay

the other party the reasonable expenses, including

attorney's fees, it incurred as a result. An offending

party or attorney may also be held in contempt or

subjected to other appropriate sanctions.

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13.

Operating Rule 22.01 of the Missouri Supreme

Court provides:

Supreme Court of Missouri

en bane

September 25, 2000

In re

Adoption of a new Court Operating Rule 22.01,

entitled "Court en bane Review of Division Opinions."

ORDER

It is ordered that Court Operating Rule 22.01 be

and the same is hereby adopted to read as follows:

22.01 Court en bane Review of Division Opinions

Each district of the court of appeals shall establish a

procedure by local court rule requiring en bane

review of a division opinion within the district that

chooses not to follow a previous decision of an

appellate court of this state. The procedure shall

require that such case be reheard by the court en

bane. The procedure also may include as an

alternative to rehearing the case en bane that an

order shall be entered indicating that the district has

reviewed the opinion en bane.

The state courts administrator shall provide

copies of this order to each chief judge and clerk of

each district of the court of appeals and such other

persons as the administrator deems appropriate.

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14.

Federal Rule of Appellate Procedure 47

provides:

Rule 47. Local Rules by Courts of Appeals

(a) LOCAL RULES.

Each court of appeals acting by a majority of

its judges in regular active service may, after

giving appropriate public notice and opportunity

for comment, make and amend rules governing its

practice. A generally applicable direction to parties

or lawyers regarding practice before a court must

be in a local rule rather than an internal operating

procedure or standing order. A local rule must be

consistent with—but not duplicative of—Acts of

Congress and rules adopted under 28 U.S.C.

§2072 and must conform to any uniform

numbering system prescribed by the Judicial

Conference of the United States. Each circuit clerk

must send the Administrative Office of the United

States Courts a copy of each local rule and internal

operating procedure when it is promulgated or

amended.

A local rule imposing a requirement of form

must not be enforced in a manner that causes a

party to lose rights because of a nonwillful failure

to comply with the requirement.

(b) PROCEDURE WHEN THERE Is No CONTROLLING

LAW. A court of appeals may regulate practice in a

particular case in any manner consistent with

federal law, these rules, and local rules of the circuit.

No sanction or other disadvantage may be imposed

for noncompliance with any requirement not in

federal law, federal rules, or the local circuit rules

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unless the alleged violator has been furnished in the

particular case with actual notice of the requirement.

15.

Local 8th Circuit Rule 47B provides:

AFFIRMANCE OR ENFORCEMENT WITHOUT OPINION

A judgment or order appealed may be affirmed or

enforced without opinion if the court determines an

opinion would have no precedential value and any of

the following circumstances disposes of the matter

submitted to the court for decision: (1) a judgment of

the district court is based on findings of fact that are

not clearly erroneous; (2) the evidence in support of a

jury verdict is not insufficient; (3) the order of an

administrative agency is supported by substantial

evidence on the record as a whole; or (4) no error of

law appears. The court in its discretion, with or

without further explanation, may enter either of the

following orders: "AFFIRMED. See 8th Cir. It 47B";

or "ENFORCED. See 8th Cir. R. 47B."

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.