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Volpicelli v. United States

United States Court of Appeals, Ninth Circuit

January 30, 2015

LOGAN R. VOLPICELLI, Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA, Defendant-Appellee

Argued and Submitted, San Francisco, California: October 7, 2014.

Appeal from the United States District Court for the District of Nevada. No. 3:10-cv-00548-RCJ-RAM. Robert Clive Jones, District Judge, Presiding.

SUMMARY[**]

Brian P. Goldman (argued) and George G. Wolf, Orrick, Herrington & Sutcliffe LLP, San Francisco, California; Mark S. Davies, Orrick, Herrington & Sutcliffe LLP, Washington, D.C., for Plaintiff-Appellant.

Joan I. Oppenheimer (argued), Attorney; Kathryn Keneally, Assistant Attorney General; John A. Nolet, Attorney, Department of Justice, Tax Division, Washington, D.C.; Daniel G. Bogden (of counsel), United States Attorney for the District of Nevada, for Defendant-Appellee.

Carlton M. Smith, Director, Benjamin N. Cardozo School of Law Tax Clinic, New York, New York, for Amicus Curiae.

Before: William A. Fletcher and Paul J. Watford, Circuit Judges, and Kevin Thomas Duffy, District Judge.[*]

OPINION

Page 1043

WATFORD, Circuit Judge:

The plaintiff in this case, Logan Volpicelli, sued the Internal Revenue Service for wrongfully seizing roughly $13,000 that Volpicelli says belonged to him. The IRS thought the money belonged to Volpicelli's father and, upon seizing it, applied the funds to pay down the father's tax debts. At the time of the seizure (known as a levy), Volpicelli was 10 years old. He alleges that he did not find out about the levy until after he turned 18. A short time later, Volpicelli filed this action under 26 U.S.C. § 7426(a)(1), which provides a cause of action and waives the United States' sovereign immunity for claims alleging wrongful levy.[1]

The problem for Volpicelli: Ordinarily, a suit for wrongful levy must be brought no later than nine months after the levy occurs. 26 U.S.C. § 6532(c).[2] Volpicelli filed his action more than eight years after the levy occurred. The government, as might be expected, moved to dismiss Volpicelli's action as untimely. In response, Volpicelli conceded his failure to meet the statutory filing deadline but argued that the deadline should be equitably tolled until he reached the age of majority. (If Volpicelli prevails on this point, the government agrees that his suit is not time-barred.) The district court concluded that § 6532(c)'s time limit may not be equitably tolled and granted the government's motion to dismiss.

The only issue on appeal is whether the district court correctly held that § 6532(c) is not subject to equitable tolling. As it happens, we decided that very issue almost two decades ago. In 1995, we held that § 6532(c) is subject to equitable tolling. Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206-07 (9th Cir. 1995); Capital Tracing, Inc. v. United States, 63 F.3d 859, 861-62 (9th Cir. 1995). One might think that should be that. As a three-judge panel, we are bound by those decisions unless they're " clearly irreconcilable" with intervening higher authority. Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).

Page 1044

The government contends that higher authority has intervened, and in one sense we agree. When we decided Supermail Cargo and Capital Tracing, the Supreme Court's controlling decision in Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), stood essentially alone. Irwin rejected the then-prevailing rule, under which time limits set by Congress for suits against the government were deemed jurisdictional and therefore not subject to equitable tolling. See United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979); Soriano v. United States, 352 U.S. 270, 275-76, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957). Irwin replaced that rule with a rebuttable presumption that filing deadlines may be equitably tolled, unless Congress provides otherwise. 498 U.S. at 95-96. In Supermail Cargo and Capital ...


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