GREENE v. USA, No. 1:2014cv00123 - Document 39 (Fed. Cl. 2015)
Court Description: REPORTED OPINION and ORDER denying 17 Motion to Stay; denying 22 Motion to Compel; denying 29 Motion for Summary Judgment; and granting 30 Cross Motion. The Clerk is directed to enter judgment. No costs. Signed by Judge Margaret M. Sweeney. (dls) Copy to parties.
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GREENE v. USA Doc. 39 0R96fiffiAfi, llntbt @nftr! $,tstts[,ourtof frlrrsl No. 14-1237 (Filed: December ,f * *,t **'*:i* *** * **** *****r* * 17 ,2015) FILED DEC | 7 2015 U.S. COURT OF FEDERAL CLAIMS ** rr **** **il. ** MICHAEL DON GREENE, Pro Se Plaintiff; Summary Judgment; RCFC 561 3l U.S.C. g 37204; Motion to Compel; Motion to Stay; Illegal Exaction; Offset; Notice; Criminal Fine; Debt; Past Due; Certification Plaintifl THE UNITED STATES, r!:f***,t****{.***.*!*'t @tuimg Defendant. *** ri. * ***** f ;f ,t * **** ** * Michael D. Greene, Sedona, AZ, pro se. Jennifer D. Auchterlonie, united states Department of Justice, washington, DC, for defendant. OPINION AND ORDER SWEENEY, Judge Before the court are the parties' cross-motions for summary judgment pursuant to Rule united states courr of Federal claims C'RCFC'). In addirion, plaintiff, proceeding pro se, moves to stay proceedings and to compel discovery. plaintiff argues that when defendant offset his federal income tax overpayment for the 1995 tax year agiinst a criminal fine owed to defendant, defendant illegally exacted the overpayment by violating procedural requirements under 31 u.s.c. $ 37204. For the reasons set forth below, defendant's motion is granted, and plaintiff s motions are denied. 56 of the Rules of the I. BACKGROUND Plaintiff and his wife, Sandy Greene, filed a joint income tax retum for the I 990 ta year reflecting a tax liability of$8,870 and withholding of$9,803.76. Subsequently, they received a refund of$933.76. The income taxes reflected on theirjoint tax return were assessed to a Joint Master File C'JMF) account. ln 1992, the Intemal Revenue Service ("lRS") began an audit of the Greenes for the 1990 tax year. Subsequently, the IRS's examination work papers reflected unreported income of $888,496.75. The IRS issued to the Greenes a Notice ofDeficiency proposing additional assessments. Specifioally, the IRS assessed against them, jointly: $ I 10,623 in taxes; an accuracy penalty of $1,646 pursuant to 26 U.S.C. g 6662(a); and $90,244.72 in interest. These joint assessments were made to the JMF account. It was later determined that Mrs. Greene was not liable for the entire tax liability resulting from the 1990 audit adjustments. Thus, on March27,l998, an additional $159,207 in income taxes, a fraud penalty or$l1t,e39, Dockets.Justia.com and an accuracy penalty of$1,136 were assessed. These assessments were made to a seDarate Non-Master File ("NMF") account solely under plaintiff s name ('.NMF l";. Mrs' Greene's request for Innocent spouse Relief from the joint tax assessment was thereafter granted. Because the original retum was filed jointly, and the deadline to change the filing status to "Married Filing Separate" had passed, the tax from the JMF account was transfened to an individual NMF account whose balance due was the sole responsibilitv of plaintiff. This second NMF account CNMF 2') was distinct from the first oni. on June 4, 2005, the tax liabilities, penalties, interest, and payments for NMF 2 were transferred to an Individual Master File Separate Assessment account. on september 1,2005, plaintiff was convicted ofevasion of the payment oftaxes and subscribing to a false tax declaration in the United States District Court foi the Northern District of oklahoma. See United States v. Greene, No. 04-or-209. The district court entered ajudgment against plaintiff on March 7,2006, sentencing him to 70 months of imprisonment, and imposrng a $500,000 fine. Three days later, on March 10,2006,the fine was entered into the United states Department of Justice's ("Department of Justice") computerized debt collection system, TALON. on April 3,2006,a Notice of Intent to offsei was generated by the Uniied States Attorney's office via TALoN. Six years later, on septembe; B,2}r2,plaintiff settled a tax refund suit that was distinct from the criminal action. As part of that settlement, he received a $437 tax refund for the 1995 tax year, The govenrment then carried out an offset, '423.50 applying the $437,423.50 tax refund toward the $500,000 fine previously ur."rr"d uguin.t - plaintiff. of the $437,423.50 that was used to offset part of the fine, $170,124 was applied agarnsr the tax liabilities, penalties, and interest for NMF 2', rendering it paid in full. Howlver, as of Aprll4,2014, NMF I had an outstanding balance of $761,101.46. II. PROCEDURAL HISTORY Plaintiff filed suit on February 12,2014, in the United states court of Federal clarms has filed three motions. The first is a motion to stay proceedings pending resolution ofGreene v. United States, No. 08-cv-021, in the United States District Court for the District of Arizona. pl motion is to compel discovery. Finally, plaintiff s third motion is for summary pursuant to RCFC 56. Defendant has iudgment opposed all three motions and filed a cross-motion for summary iudgment. The motions nave been fully briefed, and the court deems oral argument unneoessary. ("courtof Federal claims"). plaintiff III. LEGAL STANDARDS A. RCFC56 Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. RtFc 56(a); celotex co;. ;. catrett, . 477 U'5.317,322 (1986). A fact is material if it "might affect the outcome of the suit under the goveming law." Anderson v. Liberry Lobb).,. Inc. ,477 U.5.242,249 (1986). An issue is genuine if it "may reasonably be resolved in favor ofeither party." Id. at250. The moving party bears the initial burden ofdemonstrating the absence ofany genurne fact. celotex com.,477 tJ.s. at323. The nonmoving party then beari the burden of showing that there are genuine issues ofmaterial fact for triil. Wat324. Both parties may carry their burden by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations. sti-oulations (including those made for purposes of the motion only), admissions, interrogarory un.*".r, o. other materials" or by "showing that the materials cited do not establish the abs"n.. o. pr.r"n". ofa genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." RCFC 56(c)(l). _ issue of material The court must view the inferences to be drawn from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Ind. co. v. Zenitf, Radio com., 475 U.S.574'587(l986).Howev^er,thecourtmuStnot*"ig@offu"t. See Anderson, 477 u.s. at 249 ("[A]r the summary iudgment stage the judge,s function is not himself to weigh the evidence and determine the truih of the matter but to determine whether there is a genuine issue for trial."); contessa Food prods.. Inc. v. conagra. Inc. ,2g2 F .3d, 1370, 1376 (Fed. c.o.2002) ("on summary th. \r"tghrl of the evidence, iudgment, th. q*rti"" tr but instead the presence ofa genuine issui of material fact . . . .,,), abroeateion ""t other grounds by Equrtiarl Goddess. Inc. v. Swisa. Inc., 543 F.3d 665 (Fed. Ci.. ZooS) v. united Srates, 157 F.3d 849, 854 (Fed. cir. 199g) (,.Due to rhe nature of th" p-.""ding, .ou.t, do_notmake findings of fact on summary judgment.',); Mansfield v. united states, zr nei. cr. 687 ,693 (2006) ("trlhe court may neithei mut a.t".,,'rnutio^ n* *"igr, th. " "reaiuitity evidence and seek to determine the truth of the matter. Further, summary judgment"is inappropriate if the factual record is insufficient to allow the Court to deiermiie the salient legal issues."). Entry of summary judgment is mandated against a party who fails to establish,,an element essential to that party's *9 on which th-at party-wili bear the burden of proof at "u-r?,, llial" eeblerlgarp.,477 u.s. at322. However, if neither party meets this burden on the liling for summary judgment, then the deny both motion.. S"*".g., Cuout 9f "l::r:-ot19n: "ou.t -rr*i P'ship v. United States, S7 66 Ct.722,723 (2009); Dick pac./cHEMM. JV v-;_iFd f:{. States, 87 Fed. Cl. 113, 126 (2009). (ilb;tmqrcq B. Tucker Act The ability ofthe Court ofFederal Claims to entertain suits against the United States is limited. "The united States, as sovereign, is immune from suit save is it consents to be sued.,, Untled States v. Sherwood, 312 u.s. 584, 596 (1941). A waiver of immunity ,,cannot be implied 'states m.ust be unequivocarly expressed-" United v. King, 395 u.s. r, 4'(1969). The Tucker lut Act, the principal statute governing thejurisdiction ofthis court, waives sovereign immunity for claims against the united States not sounding in tort that are founded upon the c"onrtituiion, u federal statute or regulation, or an express oiimplied contract with the United States. 2g u.s.c. $ 1491 (2012). However, the Tucker Act is meiely a jurisdictional statute and.,does not creare any substantive right enforceable against the United SLtes for money damages." United States v. Testan,424 u.s. 392,398 (1976). Instead, the substantive right must appear in another source of law, such as a "money-mandating constitutional provision, statute or regulation that has been violated, or an express or implied contract with the united States." Loveladies Harbor. Inc. v. United States, 27 F .3d 1545, 1554 (Fed. Cir. 1994) (en banc). C. Illegal Exaction Claims Based on Offsets pursuant to 3l U.S.C. S 37204 The United States Court ofAppeals for the Federal Circuit has explained that an illegal exaction "involves money that was 'improperly paid, exacted, or taken from the claimant in confavention of the constitution, a statute, or a regulation.',' Norman v. United States 4zg F.3d (Fed. Cir.2005) (quoting Eastporr s.s. corp. v. united statei,372 F2d 1002, 1007 19811]095 (ct. cl. 1967)); see also Figueroa v. United stares, 66 Fed. ct. 12005) (defining illegal exaction claims as "those where the claimant seeks the retum ofall or part of; sum of rioney he has been improperly required to pay by the Government in contravention of the constitution, a statute, or a regulation"), aff d,466 F.3d 1023 (Fed. cir.2006). while,,[t]he prototypical illegal exaction claim is 'a tax refund suit alleging that taxes have been improper\ collect#or withheld bv the government,"'Kipple v. united States, r02 Fed. (2012) (quoting N9*+, 429 F .3d at I 095), a plaintiff may allege an illegal exaction claim thui i, ,rot a tu* refund. As set forth in 26 U.s.c. g 6a02(g), "[njo action-brought against the united states to recove-r the amount ofany such reduction [of a tax refund by an offiet] shall be considered to be a suit for a refund of tax." nsSa ci.lir,ill offsets are described in 31 U.s.c. g 37204. Under g 3720A(a), .,[a]ny Federal agency tfatls_ owe.d,bf a person a past-due, legally enforceable debt... shall . . . i,6ti'4, the Secjary of the.[United states Departmentof_the] Treasury [("Department of the Treasury;)] at least once each year of the amount of such debt." Subsequently, the secretary ,,shalr deieimine whether any amounts, as refunds of Federal taxes paid, are payable to such person. If the secretary ofthe Treasury finds that any such amount is payable, he shalr reduce such refunds by aa amount equar such debt [and] pay the amount of such reduction to such agency .... :f lg lh: "T9y! "f U.S.C. $ 3720A(c). However. " [n]o Federal agency may take [such] action . . . until such agency__ (l). notifies action...; (2) gives the person incuning such debt that such agency proposes to take [such] such person at least 60 days to present evidence that all or part of such debt is not past-due or not legally enforceable; (3) considers any evidence presented by such person and determines that of such debt is past due and legally enforceabli; an amount (4) satisfies such other conditions as the Secretary may prescribe to ensure that the determination made . . . with respect to such debtls vaiid and that the agency has m-ade reasonable efforts (determined on a govemment-wide basis) to ob-tain payment of such debt; and (5) certifies that reasonable efforts have been made by the agency . . . to obtain payment of such debt. rd. s 3720A(b). The Court ofFederal Claims possesses jurisdiction over an illegal exaction claim based u.s.c. $ 3720.4.. In orderto invoke TuckeiAct jurisdiction over an illegal exaction claim, "a claimant must demonstrate that the statute or provision causing the exaction itselfprovides, either expressly or by'necessary implication,' that .the remed/for its violation entails a return of money unlawfully exacted.", Noiman, 42g F.3d at 1095 (quoung cyprus Amax coal co. v. united states, 205 F.3d 1369,1373 (Fed. cir. 2000)). witi respect to offsets, 3l u.s.c. $ 37204 "necessarily impl[ies] a monetary remedy if the Govemment perpetrates an illegal exaction pursuant to [its] authority [because] . . . absent a monetary remedy, a litigant has no recourse to recover wages unlawfully gamished or income tax refunds unlawfully offset." wagstaff v. United States, 105 Fed. cl. 99, it | (2012). Thus, this courr retains jurisdiction over illegal exaction claims based on an offset. rinnte, toz Fed.cLat777 (holding that the court has jurisdiction over an illegal exaction bur"d on an offset pursuant to 31 37204 because "[t]he remedy would be a retum ofthe money."). Further, whereas a q Y I plaintiffcannot invoke this court's jurisdiction over a tax refund claim until the plaintiffhas tirlly on an offset pursuant to 31 c paidthetaxesforthedisputedperiod,Florav.UnitedStates,362u.s.63,Ts(1i60),aplaintiff who alleges an illegal exaction claim based on an offset need not have fully paia tne iax tlaUitity for this court ro have jurisdiction, Ibrahim v. United States, I l2 Fed. cl. 3i3, 336 (2013). IV. DISCUSSION .-- - Il his,complaint, plaintiff notes that the IRS offset his federal income tax overpayment of for the 1995 tirx year against a criminal fine assessed for the 1990 tax year.' plaintiff '423.50 alleges that when the IRS carried out the offset, it failed to follow the procedural requirements set forth in 3l U.S.c' $ 37204- Specifically, plaintiff asserts, the IRS failed: to notifu him of the proposed offset; to allow him sixty dayi to present evidence that that all or part of"the fine was not past due; to certifu the debt; and to make a reasonable effort to obtain payment ofany debt' Thus, plaintiff claims, the offset was an illegal exaction, and he seeks judgment inthe amount of $437,423.50 plus interest. ^ $437 A. plaintiffs Motion to Stay proceedings Plaintiff filed a separate, unrelated suit in the United States District Court for the District of Arizona alleging that he is entitled to a refund ofa portion ofthe 1995 tax ouerpuym"nt, which the IRS applied as an offset against NMF 2 as iart of his 1990 tax liability. ln his motlon to stay proceedings before this court, plaintiff argues ihat because the district court litigation is ongoing, and the courr will determine "if a tax liability. . . exists', for the 1990 tax y"ui, thi, should be stayed pending that determination. pl.'s Mot. to stay r. Defendant responds by "ur" contending that no stay is warranted because the issue of plainiiff s 1990 tax tiabiiity ls nit before this court and does not implicate these proceedings. ^ Defendant is correct. When resolving defendant's motion to dismiss for lack of subject jwisdiction, the district court determined that NMF I and NMF 2 were "sufficiently mafter separate assessments for jurisdictional purposes." Pl.'sNotice, Docket No. 16,Ex. l at8. The court reasoned that because the tax liability "tracked in" NMF t had an unpaid balance of $761,101.46, the court lacked jurisdiction to review plaintifps tax refund claim as to that account. Id. at 2. The court cited Flora, in which the United States Supreme court held that there is "no room for contention'' ofthe "principle" that taxpayersrnuri "puy first and litigare later;' 357 U.S. at 75. Thus, the district court found that it had no jurisdiction to review NMF 1. By contrast, the court also held that because the balance in NMF 2 was paid in full. the court had jurisdiction over plaintiffs tax refund claim concerning that account. Consequently. even ifthe district court ultimately finds that the offset pertaining io NMF 2 was improper, that determination would not affect NMF 1 because that cburt previously detirmined that it lacks jurisdiction to entertain a claim related to NMF 1. If plainiiff were prevail io in the district court with respect to NMF 2, the $761 , 1 0 I .46 outstanding balance in NMF I would remain an outstanding debt owed to the Department of the Treasury. Moreover, this court,s review rs limited to determining whether the offset that already occurred was an illegal exaction, a determination that is not affected by plaintiffs 1990 tax liabiliry. Thus, thls court's finding as to whether theoffset was proper would not be impacted by the district court's conclusions regarding NMF 2 or any findings conceming plaintiff s 1990 tax liability. Accordingly, there is no basis to stay this case pending the outcome ofthe district court litigation, ana ptalitiirs motion is denied. B. plaintifps Motion to Compel Discovery Plaintiff has also filed a motion to compel discovery. Specifically, plaintiff seeks to "compel the deposition ofthe IRS representative regarding the irue and conect amount of 1990 tax liability, if any . . ' ." Pl.'s Mot. to compel 2. In respJnse, defendant argues that this court lacks jurisdiction to review the underlying merit ofplaintiffs 1990 tax liabiiity. Further, defendant the deposition that plaintiff seets is beyond the scope ofiiscovery permitted ^contends, by RCFC 26 because it seeks information that is neither relevant to the issues in this case nor reasonably calculated to lead to the discovery of admissible evidence. that plaintiff has no basis to seek such discovery in this case. plaintiff . notTh9 court finds refund does advance a tax claim here, but, rather, brings an illegal exaction claim,arguing that statutory procedural requirements were not satisfied when the IRS canied out an'offlet. Thr'rs, examining the proper amount of plaintiffs tax liability has no bearing on whether the offset that occurred constitutes an illegal exaction. Seekingihe deposition 6f an IRS representative regarding the merits of plaintiff s 1990 ta.r liability is not,,relevant', to either "party's claim or defense," as RCFC 26(bx1) requires ofdiscovery requests. There is no indication that plaintiffs discovery request is "reievant to the subject matter involved in ths pending action," or that it is "reasonably calculated to lead to the discovery of admissible evidence "r Id. Ultimatery, defendant'i "offer to produce a witness for deposition who can I on December l, 2015, the Federal Rules of civil procedure (.,FRCp',) were amended. Revised FRCP 26(bxl) now provides: explain the IRS records that establish the existence of the unpaid 1990 assessment," which plaintiff has not yet accepted, more than sufficiently accommodates plaintiffs request. Def.'s Response to Pl.'s Mot. to compel 6. Moreover, to permit the discovery that plaintiff seeks would be improper in light ofthis court's lack ofjurisdiction. Even if plaintiff was requesting a tax refund, the court would not have jurisdiction to entertain that requeit because his tax liability has not been fully paid. As mentioned earlier, it is well settled that this court oossesses jurisdiction over a tax refund claim only ifa plaintiffhas fully paid the tax liatilities or penalties challenged. Flora, 357 U.S. at 75. Finally, plaintiff s 1995 tax overpayment was applied to offset a fine levied in a criminal proceeding. To the extent that plaintiff challenges the validity ofthe Oklahoma district court,s determination of his 1990 tax liability and resuliant fine in united states v. Greene, No. 04-cr209, this cout lacks jurisdiction to undertake any such."ui"*. ,,1t1he co,.r.t of r"deral claims does not have jurisdiction to review the decisions of district courts . . . ." Joshua v. united states, 17 F.3d 378, 380 (Fed. cir. 1994). Accordingiy, plaintiff s motion to di*ou.ry i, "*p"l denied. C. The Parties' Cross_Motions for Summary Judgment In his motion for summary judgment, plaintiff contends that when the IRS offset his 1995 tax overpayment of $437,423.50 against the criminal fine assessed for the 1990 tax year, the IRs failed to_follow certain procedural requirements required by 3l u.s.c. g 3720A. plaintiffargues that the IRS did not provide him with notice ofthe proposed offset befoie or after it was carried out. Further, plaintiff asserts that he was not past due on his fine payments. He contends that the IRS did.not give_ him 60 days to present evidence to that effect, denying him ar,,oppornrnity to be heard as to whether the fine was past-due and if it was a legally enforceable debt.', pt.'s tytot. for Summ. J. 5' Plaintiff also asserti that the IRS failed to provide a certification that the debt was past due.- According to plaintiff, the offset was therefoie an illegal exaction, and he requests the retum ofthose funds. .Defendant argues in its cross-motion that it did provide plaintiff with notice of the offset before it occurred. In addition, defendant contends, plaintiff also received notice after the offset Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: parties may obtain discovery regarding any nonpriviieged matter that is relevant to any party' s claim or defense and proportional to thJ needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importaace of the discovery in resolving the issues, and whether the burden or expense ofthe proposed discovery outweighs its likely benefit. Information within this scope ofdiscovery need not be admissibre in evidence to be discoverable. The court ofFederal claims' local rules have not yet been revised to conform with newly FRCP 26(bxl). The divergence in text, iowever, poses no issue in this case because T:"9:9 plaintiff s claim lacks merit and discovery would be futile. occurred by electronic-mail message from the Department ofJustice attomey assigned to his 1995 refund case. Further, defendant asserts, plaintiffls debt was certified. Defendant argues that plaintiff s criminal fine was referred to the Treasury offset program (.'Top') in 2006. 0nder thai program, defendant notes, payments that are made by the Treasury, including tax refunds issued by the IRS, are offset against outstanding debts due to the United States. befendant contends that after plaintiff s fine was referred to the Top, the debt was certified annually by the U.S. Attorney's Oflice. Defendant also notes that the judgment imposing the criminal fine provided that it was due in full immediately, and that if it was not paid immediately, it was payable on a schedule. The judgment set fo(h that notwithstanding the schedule, nothing could prohibit the govemment from executing or levying upon plaintiffls property discovered before or after the judimenr, defendant explains. Defendant thus argues that even if plaintiff could establish that hi complied with the payment schedule, which he has not, entry ofthejudgment against his property allowed the govemment to seize such property to obtain piyment;fthe fine. Finally, defendant contends that even if the govemment erred in its compliance with the statutory requirements that plaintiff identifies, because such purported errors weie procedwal in nature, a retum of the offset funds is_not the proper remedy-and even if a monetary iudgment was entered, the government would be required under 31 u.s.c. 372g, a differenisiatuie, to $ offset that judgment against plaintiffs criminal fine, making entry ofthejudgment futile. Defendant's arguments are correct. The court first tums to plaintiffs argument that he did not receive notice of the offset. As described earlier,3l u.s.c. 37204 re{uires that if an $ individual owes a legally enforceable to a federal agency that is past due, the Secretary of _debt the Treasury may offset the individual's tax refund agaiist the debt, but must provide notice sixty days prior to the offset. Here, plaintiff s criminal fine was entered into ieLoN, tte computerized debt collection system ofthe Department ofJustice's Financial Litigation Unit (.'FLU). Pusuant to the FLU's standard p.o"idu.", plaintiff s address was also Jntered into the system. Decl. of Libbi L. Felty (*Felty Decl.') 5. on April 3,2006,Libbil-. Felty, a paralegal u specialist at the FLU, entered a "Treasury offsei programNotice,' event into TALdN, which caused a notice to be generated and mailed to plaintifi. Id.,lf 6. The April 3,2006 notice informed plaintiffthat his outstanding debt w;s refened by ihe Department of Justice for inclusion in the ToP. Id. The TALON system was later converted to the consolidated Debt Collection System ("CDCS"). Defendant provides electronic records fiom CDCS that indicate that plaintiffs $500,000 fine was_entered into th" ryrt"-. See id., Ex. A at 6. These records, as well as a cDCS report generated by the Debt colleition Management Staff of the Department of Justice regarding the collection_of plaintiff s criminal fine, indlate ..1aln that on April ,, event for [the] ToP 60 Notice Lener [was] created." See Decl. of Jennifer d. Auchterlonrc ("Auchterlonie Decl.'), Ex. B at 13. Although defendant does not possess a copy ofthe notice letter that it contends was mailed to plaintiff, it provides a copy ofthe standard 6orm ,.Notice of Intent to offset" that the Department ofJustice iends when undertaking an offset. rd,, at26. -f It appears that defendant's computer system did indeed generate the standard notice of intent to offset, as indicated by the record of the event in the system, and that the notice was subsequently sent to the address on file for plaintiff. "The likelihood of actual receipt . . . is not the relevant standard" to determine whether defendant met the notice requirement. Kipple v. united states, 105 Fed. cl. 651,656 (2012). Rather, "[b]y sending a notificarion letter to plaintiff at his address on file, the [govemment] satisfied the notice requirements. Relevant regulations provide that notification or a "reasonable attempt to notify should be sent to the taxpayer," and such attempts include sending a letter to an address on file with the IRS. Id.; see 26 C.F.R. $ 301.6402-6(d)( 1) (2000) (stating that sending a notice to the last address that the IRS has on file would be reasonable); 3l c.F.R. S 285.2(dX2XD (2000) (providing that relying on the address currently on file with the agency is reasonable). Further, the notice was sent on April 3, 2006, more than sixty days before the September 13,2}lzoffset. Thus, the IRS satisfied the sixty-day notice requirement set forth in 31 U.S.C. g 37204. In addition, plaintiff s arguments that his criminal fine was not past due, and that it was not properly certified as a past-due debt, are inconect. Plaintiff asserts that he timely made his payments, but does not provide any documentation or other evidence thereof. Further, the judgment imposing the fine provided that it was "due in full immediately,,' and that if it was not paid immediately, it was "payable on a schedule" described therein. Auchterlonie Decl., Ex. A at 8. Thus, because the fine was not paid immediately, it was past due. More saliently, whether plaintiff s criminal fine was past due is ultimately inconsequential here. The judgmenistated that "[n]otwithstanding establishing ofa payment schedule, nothing shall p.ohibil th" unit.d States from executing or levying upon property ofthe defendant diicovered before or after the date of this Judgment." Id. Indeed, lg u.s.c. g 3613(a) provides that,,a judgment imposing a fine may be enforced against all property or rights to proierty ofthe person fined . . . 1,1;,"*""pt in certain circumstances that do not apply her". rnus, the esiablishment of a payment schedule does not preclude the govemment from undertaking collection activity, such as iefenal ofa debt to the ToP for offset. See United stares v. James, 3 l2 F. supp.2d g)i, s06-07 (E.D. va. 2004); u-nited States v. weissenbach, No. 08-cr-172-1,2010 wL zi4anl,at *2 (w.D.N.c. June 2, 2010). The payment schedule is merely one of several means by which thi govemment may obtein payment of a judgment. James,3l2F. Supp.2d at g06-07; United Stites v. Hanharat,353 F' Supp' 2d957'960 (l'J.D. I11.2004). Thus, because plaintiff. fin" notluid ir.rrn"diut"ty, it was considered past due, and notwithstanding that status, his property, including tax refunds, was subject to being used to offset the fine. ** Further, the electronic records that defendant provides indicate that the fine was certified annually by the united states Attomey's office. Speiificalty, the fine was recertified on: March 16, December 7, and December 18,2007; December 1g,200s; andApril g,2009. Auchterlonie Decl., Ex. B at 13. In addition, the criminal debt was certified by the Clerk ofthe United States District court for the Northem District of oklahoma on December l,20ll. Felty Decl., Ex. B at 10. The certification provided that plaintiff s debt was.,valid and legally enforceable."' Consequently, plaintiffs criminal fine was properly certified. The court next turns to plaintiffs contention that he did not receive notice ofthe offset after it was carried out. Under 3l u.s.c. $ 3720A(hX1)(A), ,,[t]he disbursing official of the Department of the Treasury shall notify a taxpayer in writing ofitre o."u.."nI. ofan offset to satisry a past-due legally enforceable nontax debt." Plaintiff received such written notice. In his response to defendant's interrogatories during discovery, plaintiff stated that he received notice of the September 13,2012 offset almost one month later, on October 9,2012. Auchterlonie Decl., Ex. B at 29. Specifically, plaintiff represented that Anne E. Nelson, the attorney assigned to his tax refund case for the 1995 tax year, informed him ofthe offset by electronic-mail message on that date. ld,. at29-30. Further, plaintiff admits the same in his motion. Pl.'s Mot. Summ. J. 3. He also indicates that he called the Financial Management Service at the Department ofthe Treasury on October 11,2012, and was informed that his tax refund "had been released to FLU." Id. Thus, plaintiff received written notice after the offset, in accordance with the statutory requirement thereof. Finally, even if the court were to find that the IRS failed to comply with the notice requirements outlined above, the remedy for any such error would not be a retum ofthe offset funds to plaintiff. The notice requirements are "bereft of any indication that a payee subject to the Treasury Offset Program may obtain money damages from the govemment if the notice given the payee is deficient." Wilburn v. United States, l03Fed. Cl.495,499 (2011). "[T]here is no reasonable basis for inferring that the alleged failure of [Financial Management Service at the Department of the Treasury] to meet all the specifics of the notice requirements. . . entitles a plaintiff to an award of monetary damages for their violation." Id. Moreover, if the court were to determine that plaintiff was entitled to a retum ofthe offset funds and entered a monetary judgment against defendant, the govemment would then be required to apply that judgment toward his criminal fine. See 31 U.S.C. g 3728 (stating that the "Secretary ofthe Treasury shall withhold paying that part of a judgment against the United States Govemmcnt . . . that is equal to a debt the plaintiff owes the Government," and that the "[t]he Secretary shall discharge the debt if the plaintiff agrees to the setoff and discharges a part ofthe judgment equal to the debt; or withhold payment ofan additional amount the Secretary decides will cover legal costs of bringing a civil action for the debt if the plaintiff denies the debt or does not agree to the setoff[] and have a civil action brought if one has not already been brought."). Thus, granting plaintiff the reliefthat he requests here would be futile because the funds would then be offset against his fine, by virtue of a separate statute. Consequently, plaintiff s motion for summary judgment is denied, and defendant's cross-motion is sranted. V. CONCLUSION For the reasons set forth above, the court DENIES plaintiffs motion to stay proceedings, DENIES plaintiff s motion to compel discovery, DENIES plaintiff s motion for summary judgment, and GRANTS defendant's cross-motion for summary judgment. Plaintiff s complaint is DISMISSED. No costs. The clerk is directed to enter judgment accordingly. IT IS SO ORDERED. l0
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