Justia › US Law › Case Law › Federal Courts › District Courts › Pennsylvania › Middle District of Pennsylvania › 2004 › Gomez v. BUREAU OF IMMIGRATION AND CUSTOMS ENFORC.
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT'S INTERIM FIELD OFFICE DIRECTOR FOR DETENTION AND REMOVAL FOR THE PHILADELPHIA DISTRICT, Respondent.
*631 *632 George R. Barron, Wilkes-Barre, PA, for Petitioner.
Daryl Ford Bloom, Harrisburg, PA, for Respondent.
Before the court is Petitioner Luis Gomez's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner, who is currently detained in Pike County, Pennsylvania, challenges the lawfulness of his final order of removal from the United States and asserts that his removal is not appropriate because he is a national under 8 U.S.C. 1101(a) (22). Because the court concludes that Petitioner is not a national, the court will deny his habeas petition.
I, __________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.
On July 10, 1979, Petitioner was convicted of manslaughter and received a 10-year sentence. (Id.) While incarcerated, Petitioner was discharged from the Marine Corps by reason of physical disability with severance pay effective April 15, 1986. (Id.) Petitioner also took college-level courses during his incarceration and married Belkis Gomez, with whom he has two sons, Jose and David. (Id. at 4.) Petitioner was released from prison in February 1988.
On December 4, 2003, Petitioner was released from prison. (Am. Pet. for Writ of Habeas Corpus at 4.) Upon release, he was detained by ICE, and he remains in its custody. (Id.) Petitioner filed a petition for writ of habeas corpus on February 10, 2004. The parties have briefed the issues, and the matter is ripe for disposition.
Under 28 U.S.C. § 2241(c) (3), a writ of habeas corpus may extend to any person "in custody in violation of the Constitution or laws or treaties of the United States." See also Zadvydas v. Davis, 533 U.S. 678, 687, 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001). Recently, the Supreme Court established that despite comprehensive amendments to judicial review of immigration decisions through the Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, federal district courts have jurisdiction to decide habeas corpus petitions filed under 28 U.S.C. § 2241 by aliens subject to deportation. INS v. St. Cyr, 533 U.S. 289, 314, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001); see also Chong v. Dist. Dir., INS, 264 F.3d 378, 382 (3d Cir. 2001). However, a district court's review of administrative immigration decisions under § 2241 is limited. First, a district court reviews only the opinion of the Board and does not review both the Board's and the Immigration Judge's opinions. Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.2001). Second, the standard of review is restricted to purely legal questions. Bakhtriger v. Elwood, 360 F.3d 414, 424 (3d Cir.2004); Sol v. INS, 274 F.3d 648, 651 (2d Cir.2001); Bowrin v. INS, 194 F.3d 483, 490 (4th Cir.1999). Specifically, a district court may review statutory and constitutional claims as well as claims asserting the erroneous application of legal principles to undisputed facts. Bakhtriger, 360 F.3d at 424-25; Ogbudimkpa v. Ashcroft, 342 F.3d 207, 222 (3d Cir.2003). However, federal jurisdiction over § 2241 petitions does not extend to review of discretionary determinations made by the Board. Bakhtriger, 360 F.3d at 420; Sol, 274 F.3d at 651.
Petitioner contends that his habeas petition should be granted because only aliens may be removed from the United States. Because Petitioner qualifies as a national, his argument goes, he is excluded from the statutory definition of "alien." In response, the Government contends that the court lacks jurisdiction to hear Petitioner's claims and that, in the alternative, Petitioner is not a national as that term is defined in the United States Code and Third Circuit precedent. Because the court finds the Government's second argument *634 persuasive, the court will deny Petitioner's habeas petition.
A. The court has jurisdiction over Petitioner's habeas petition.
(A) Court determination if no issue of fact. If the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner's nationality is presented, the court shall decide the nationality claim.
The Government interprets this statute as requiring district courts to transfer habeas petitions regarding nationality to the relevant court of appeals.
The court rejects the Government's argument. It is well-established that district courts retain jurisdiction over habeas corpus petitions under 28 U.S.C. § 2241. See INS v. St. Cyr, 533 U.S. 289, 314, 121 S. Ct. 2271 (2001); Sandoval v. Reno, 166 F.3d 225, 231 (3d Cir.1999). In INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271 (2001), the Supreme court analyzed 8 U.S.C. § 1252(b) (9). Although the Court found the statute's purpose was to consolidate judicial review into one action at the appellate court level, the Court determined that the statute applied only to review of an order of removal and not to habeas petitions. Id. at 313, 121 S. Ct. 2271. The Court also concluded that in the absence of a "clear, unambiguous, and express statement of congressional intent to preclude judicial consideration of habeas petitions," preventing district courts from retaining jurisdiction over habeas petitions would raise serious constitutional questions. Id. at 314, 121 S. Ct. 2271. Finally, the Court noted that judicial review and habeas corpus petitions are historically distinct legal concepts. Id. at 313, 121 S. Ct. 2271.
Like the statute in St. Cyr, § 1252(b) (5) does not contain a "clear, unambiguous, and express statement of congressional intent" to divest district courts from jurisdiction over habeas petitions. Thus, following the Supreme Court's reasoning in St. Cyr, to divest district courts of jurisdiction in habeas petitions would raise serious questions of constitutionality. Additionally, § 1252(b) (5) only relates to judicial review of orders of removal. See 8 U.S.C. § 1252(b) (setting forth the requirements for review of orders of removal). In St. Cyr, the Supreme Court acknowledged that judicial review is legally distinct from a habeas petition. Therefore, § 1252(b) (5) cannot be said to preclude the district court's jurisdiction over a petition for writ of habeas corpus.
The Government relies on Salim v. Ashcroft, 350 F.3d 307 (3d Cir.2003) for the proposition that the Third Circuit has recognized that jurisdiction over nationality claims lies only with the appellate court. In Salim, the Third Circuit, in relying on § 1252(b) (5), concluded that it had "jurisdiction to determine jurisdictional issues; that is to say, we are empowered to decide whether Salim is an alien." Id. at 308. The Third Circuit did not, however, hold that § 1252(b) (5) divested district courts of *635 jurisdiction over habeas petitions regarding nationality claims. In fact, the Salim court did not even address the issue. Further, the Third Circuit examined the Salim case under a petition for judicial review, not an appeal of a habeas decision from the district court. As previously stated, a petition for judicial review is historically distinct from a petition for writ of habeas corpus.St. Cyr, 533 U.S. at 313, 121 S. Ct. 2271. In sum, Salim does not hold that § 1252(b) (5) divests the district court's jurisdiction in habeas petitions where nationality is at issue.
The Government also relies on several cases from other jurisdictions that hold that § 1252(b) (5) requires district courts to transfer habeas petitions raising nationality allegations to the relevant court of appeals. See Baeta v. Sonchik, 273 F.3d 1261, 1264 (9th Cir.2001); Rodriguez v. Ashcroft, No. 02-Civ.-1188, 2003 WL 42018, at *4 (S.D.N.Y. Jan. 6, 2003). Because the court finds that the plain language of the statute does not preclude the district court from deciding habeas petitions, the court is not persuaded by this line of cases. Further, the Third Circuit has not directly addressed the issue. In short, following the rationale of the Supreme Court in St. Cyr, the court concludes that it has jurisdiction over habeas petitions regarding nationality.
B. Petitioner is not a national of the United States.
Petitioner alleges that he cannot be deported because he is a national of the United States under 8 U.S.C. § 1101(a) (22). Petitioner claims that the Oath of Enlistment he was required to take when he joined the Marine Corps is objective proof that he owes a permanent allegiance to the United States.
A national is defined as "(A) a citizen of the United States, or (B) a person who, though not a citizen of the United states, owes a permanent allegiance to the United States." 8 U.S.C. § 1101(a) (22). The Third Circuit has held that when a petitioner is a citizen of another country, "nothing less than [United States] citizenship will show `permanent allegiance to the United States.'" Salim, 350 F.3d at 310 (quoting 8 U.S.C. § 1101(a) (22)). In reaching this conclusion, the court relied on the Ninth Circuit's decision in Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 969 (9th Cir.2003), which held that "one may become a `national of the United States' only through birth or by completing the process of becoming a naturalized citizen." The Salim court, therefore, reasoned that an application for citizenship was insufficient *636 to show that one owes a permanent allegiance to the United States. Id. Further, the court was not persuaded that a petitioner who resided in the United States for thirty years, was married to a U.S. citizen, and had two naturalized U.S. children owed a permanent allegiance to the United States. Id. The petitioner in Salim argued that he owed a permanent allegiance to the United States because he had filed a naturalization application and had registered with the Selective Service. Id. at 309. Despite this, the court remarked that "[t]his country has not conferred any status on him that would cause him to `owe' his allegiance to the United States." Id. at 310.
Because Petitioner is a citizen of another country, the reasoning in Salim instructs that he must be a United States citizen in order to show that he owes a permanent allegiance to the United States. That is, Petitioner must demonstrate that he was born in the United States or completed the process of naturalization. The Marine Corps' Oath of Enlistment does not confer citizenship; therefore, it is insufficient to show that Petitioner owes a permanent allegiance to the United States. Further, Petitioner does not even allege that he ever even applied for citizenship to the United States. Petitioner has merely declared his subjective intent to owe a permanent allegiance to the United States. Proof of permanent allegiance, however, must be shown objectively. See Salim, 350 F.3d at 310 ("Although [the petitioner] may subjectively declare an allegiance to the United States, that is not sufficient.").
In accordance with the foregoing discussion, the court determines that it has jurisdiction over Petitioner's habeas petition because the plain language of 8 U.S.C. § 1252(b) (5) does not foreclose jurisdiction of habeas claims and only applies to judicial review, which is a distinct legal issue. Further, foreclosing jurisdiction in habeas claims raises serious constitutional issues. Nevertheless, the court will deny Petitioner's habeas petition because Petitioner failed to demonstrate that he is a national of the United States. An appropriate order will issue.
1) Petitioner Luis Gomez's petition for writ of habeas corpus is DENIED.
2) The Clerk of Court shall close the case file.
 Petitioner concedes that his offenses are "aggravated felonies" that would subject an alien to removal.
 Petitioner did not file a reply brief as permitted by Middle District Local Rule 7.7.
 It should be noted that the determination of whether a petitioner is a national is well within a district court's scope of review under § 2241 as long as there are no factual disputes. As stated above, the scope of review under a § 2241 habeas petition is restricted to purely legal questions, but includes an assessment of whether legal principles were erroneously applied to undisputed facts. Bakhtriger v. Elwood, 360 F.3d 414, 424-25 (3d Cir.2004). In the instant matter, the parties do not contest the facts. Rather, Petitioner simply asks the court to make a legal determination as to whether those facts demonstrate that he is a national under 8 U.S.C. § 1101(a) (22).
 Even though the Third Circuit has not directly addressed whether § 1252(b) (5) strips district courts of jurisdiction over habeas petitions dealing with nationality claims, in the past the Third Circuit has steadfastly adhered to the reasoning this court applies to the issue. See Liang v. INS, 206 F.3d 308, 321 (3d Cir.2000) (rejecting the Eleventh and Fifth Circuits' interpretation that 8 U.S.C. § 1252(b) (9) eradicated district courts' jurisdiction over § 2241 habeas petitions and noting that "[w]e continue to believe that had Congress intended to eliminate all habeas jurisdiction under § 2241, it would have done so by making its intent explicit in the language of the statute").


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Robin P. PETERSEN, Plaintiff–Appellant, v. BOEING COMPANY, a Delaware corporation; Boeing International Support Systems Company, Saudi Arabia Limited, a corporation or other business entity or division of the Boeing Company, Defendants–Appellees.
Robin P. Petersen, pro se, Warner Robins, GA, for Plaintiff–Appellant. Geoffrey M.T. Sturr, Thomas L. Hudson, and Kathleen Brody O'Meara, Osborn Maledon, P.A., Phoenix, AZ, for Defendants–Appellees.
Appeal from the United States District Court for the District of Arizona, Roslyn O. Silver, Chief District Judge, Presiding. D.C. No. 2:10–cv–00999–ROS.
Before: HARRY PREGERSON, STEPHEN REINHARDT, and WILLIAM A. FLETCHER, Circuit Judges.
Plaintiff Robin P. Petersen, who appears pro se and in forma pauperis on appeal, is a former Navy pilot with the rank of Commander who was recruited to work in Saudi Arabia as a flight instructor for Boeing International Support Services (“BISS”), a wholly-owned subsidiary of The Boeing Corporation (“Boeing”). Except as otherwise indicated, the following account describes the facts as alleged in the Complaint.
Prior to departing for Saudi Arabia, Petersen was required to sign a preliminary employment agreement. That agreement did not contain a forum selection clause. On arrival in Saudi Arabia, however, he was forced to sign a second employment agreement—which he was not given time to read and which he was told he must sign or else return immediately to the United States at his own expense. This agreement contained a forum selection clause requiring any contractual disputes to be resolved in the Labor Courts of Saudi Arabia. Petersen signed the second agreement without reading it, as he was instructed to do by his employer.
Petersen's passport was then confiscated; he was effectively imprisoned in his housing compound under miserable living conditions; and his work environment was marked by rampant safety and ethics violations. When he attempted to resign and return to the United States, his employer refused to return his passport for a period of nearly three months. During his time in Saudi Arabia, Petersen contracted an upper respiratory infection as a result of his living conditions and was permanently maimed as a result of receiving inadequate surgical treatment for an Achilles tendon tear, which he would have had treated in the United States had he been permitted to leave Saudi Arabia.
When he finally returned to the United States (after the intervention of the United States Consulate in Jeddah), Petersen brought suit against Boeing and BISS alleging breach of contract as well as several statutory and common law claims. In addition to his Complaint, his submissions to the district court included a sworn affidavit claiming that (1) he was not financially capable of traveling to Saudi Arabia in order to institute proceedings against his employer; (2) he would be subjected to harsh conditions and internal travel restrictions if he were somehow able to return to Saudi Arabia; and (3) the forum selection clause was foisted on him through fraud and undue pressure. He also submitted a report from the United States Department of State tending to demonstrate that (1) he would not be legally permitted to travel to Saudi Arabia; (2) he would not in any event be able to obtain a fair trial in Saudi Arabia; and (3) his employer could detain him in Saudi Arabia for the entire duration of any legal proceedings. The district court nonetheless dismissed the entire lawsuit without a hearing under Federal Rule of Civil Procedure 12(b)(3) for improper venue, holding that the forum selection clause was enforceable, relying largely on our opinion in Spradlin v. Lear Siegler Mgmt. Servs. Co., 926 F.2d 865 (9th Cir.1991). The district court then denied Petersen leave to amend his Complaint in order to address some of the supposed shortfalls identified by the district court.
We review a district court's decision to enforce a forum selection clause under Rule 12(b)(3) for abuse of discretion. Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133, 1137 (9th Cir.2004) (as amended). In doing so, however, we “must draw all reasonable inferences in favor of the non-moving party and resolve all factual conflicts in favor of the nonmoving party.” Id. at 1138. The non-moving party's pleadings need not be accepted as true, however, and we may consider facts outside the pleadings. Id. at 1137.
BISS argues that the district court did not have personal jurisdiction. That question is fact-intensive and may depend on the relationship between BISS and the individuals who recruited Petersen while he was residing in Arizona. See Ochoa v. J.B. Martin & Sons Farms, Inc., 287 F.3d 1182, 1187–93 (9th Cir.2002) (holding that an Arizona district court had personal jurisdiction over a New York farm being sued by laborers from Arizona for breach of contract and statutory violations where the only contacts between the farm and Arizona were the efforts directed at Arizona by the labor contractor who, on the facts of the case, acted as the farm's agent under Arizona law when recruiting the laborers). Because this issue may benefit from further factual development, we remand it to the district court for its initial consideration.
As to the district court's refusal to grant leave to amend, “[d]ismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.” Moss v. United States Secret Service, 572 F.3d 962, 972 (9th Cir.2009) (internal quotation marks omitted).
The enforceability of forum selection clauses is governed by federal law. Manetti–Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 513 (9th Cir.1988). The applicable federal law was first announced in M/S Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), and later refined in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). Under Bremen, there are three reasons a forum selection clause may be unenforceable: “(1) ‘if the inclusion of the clause in the agreement was the product of fraud or overreaching’; (2) ‘if the party wishing to repudiate the clause would effectively be deprived of his day in court were the clause enforced’; and (3) ‘if enforcement would contravene a strong public policy of the forum in which suit is brought.’ ” Murphy, 362 F.3d at 1140 (quoting Richards v. Lloyd's of London, 135 F.3d 1289, 1294 (9th Cir.1998)). Both the second and first Bremen exceptions are at issue here, and we address them in that order.
In Spradlin, we indicated that we were “troubled” by an employer's “standard inclusion of a Saudi Arabian forum selection clause in employment contracts when it is highly foreseeable that terminated American employees will be required to return to the United States and will thus face considerable obstacles in bringing wrongful termination actions.” 926 F.2d at 869. Nonetheless, we reluctantly enforced the forum selection clause in Spradlin in light of the plaintiff's failure “to come forward ... with anything beyond the most general and conclusory allegations of fraud and inconvenience.” Id. at 868 (emphasis added). In particular, we noted that Spradlin had not “brought to the district court's attention” any facts “that would have militated against enforcing the forum selection clause,” in particular where relevant witnesses were located, whether Spradlin was unable to return to Saudi Arabia, and any facts about the costs of litigating in Saudi Arabia, the availability of counsel there, and his financial ability to bear the costs of Saudi litigation. Id. at 869. We therefore were “compelled to affirm” the enforcement of the Saudi forum selection clause. Id. at 868.
By contrast, in Murphy, we applied Spradlin and held that an employee was entitled to an evidentiary hearing as to the enforceability of a forum selection clause in his employment contract where he established that litigating in the forum mandated by the clause might “effectively preclude [his] day in court.” 362 F.3d at 1142.Murphy established his nonconclusory case by submitting an affidavit averring that his financial situation did not permit him to travel to Wisconsin (the forum indicated in the employment contract) by air and that he was unable to drive to Wisconsin on account of a disability. 362 F.3d at 1142. Although there was conflicting evidence suggesting that Murphy could, in fact, litigate in Wisconsin, the existence of a “factual contest” as to whether enforcement of the forum selection clause would “wholly ... foreclose” Murphy's ability to litigate his claim required an evidentiary hearing. Id. at 1142, 1143.
Here, Petersen did precisely what we held that the employee in Spradlin needed to have done, and what the employee in Murphy did do: he provided specific evidence sufficient to demonstrate that he would be wholly foreclosed from litigating his claims against Boeing and BISS in a Saudi forum. His sworn affidavit states that he lacked the resources to litigate in Saudi Arabia and that he was concerned about returning to Saudi Arabia (even if possible) in light of having been held as a “virtual prisoner” there. Evidence submitted by Petersen corroborated his concerns: the United States Department of State's 2009 Human Rights Report on Saudi Arabia states that “[i]n practice, the judiciary was not independent” and that “the judiciary was subject to influence” by powerful individuals within the executive or legislative branch. Furthermore, “judges may discount the testimony of ... persons of other [non-Muslim] religions.” Most important, employers “involved in a commercial or labor dispute with foreign employees may ask authorities to prohibit the employees from departing the country until the dispute is resolved,” often with the intent to “force the employee to accept a disadvantageous settlement or risk deportation without any settlement.” See Murphy, 362 F.3d at 1142–43;cf. Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 327 (9th Cir.1996) (enforcing a forum selection clause but noting that “this would be a very different case” if the plaintiff had submitted admissible evidence to support his claim that he would be denied his day in court in the selected forum).
Petersen's affidavit accompanying his motion for permission to proceed in forma pauperis before this court states that his monthly income is $1613—$1 more than his monthly expenses—and that he has $66 in liquid assets.
Petersen's proposed First Amended Complaint alleged additional facts that should have dispelled any lingering doubt the district court might have had as to whether an evidentiary hearing, at the least, was needed. Just as we indicated that Spradlin could have alleged additional facts, but did not, Spradlin, 926 F.2d at 869, Petersen's proposed amended complaint alleged that he would need to travel to Saudi Arabia to litigate his claim, but that he would be unable to do so because he would not be eligible for a visa. This allegation is confirmed by the State Department's public travel advisory regarding travel to Saudi Arabia, of which we take judicial notice. The advisory states that visas are available for Americans to visit Saudi Arabia only for “business and work, to visit close relatives, and for transit and religious visits by Muslims” and “all visas require a sponsor....” U.S. Department of State, Saudi Arabia: Country Specific Information, available at http:// travel. state. gov/ travel/ cis_ pa_ tw/ cis/ cis_ 1012. html# (last visited Apr. 18, 2013). Even assuming that Petersen could somehow enter Saudi Arabia, the same report confirms his fears that he would be trapped there again: “Persons involved in legal cases are not permitted to leave the Kingdom until the case has been resolved or abandoned,” which “generally takes several months.” Id. Also, unlike Spradlin, Petersen plausibly alleged that the majority of his witnesses would be American. He named at least 16 such witnesses, including other Boeing/BISS employees who experienced similar conditions during their time in Saudi Arabia and United States-based recruiters working for Boeing/BISS. Finally, Petersen plausibly alleged that he was warned by Boeing/BISS managers—presumably the same individuals responsible for detaining him in Saudi Arabia against his will—that Boeing, which provides training to the Saudi air force under the program in which Petersen was participating, enjoys a “very close relationship” with the Saudi government.
The only evidence that Boeing and BISS presented that addressed Petersen's ability to litigate in Saudi courts was an affidavit from a Saudi attorney stating that the Saudi Labor Courts have jurisdiction over this dispute. Notably, that affidavit does not rebut any of the concerns expressed by Petersen. It does not state that Petersen could receive a fair trial against an employer with ties to the Saudi military. It does not state that Petersen would be permitted to enter Saudi Arabia to participate in the litigation or that he could somehow do so without traveling to Saudi Arabia, nor does it rebut Petersen's fears, confirmed by the State Department, that he would be forced to remain in Saudi Arabia until his litigation terminated.
In light of the fact that leave to amend “should be granted with ‘extreme liberality,’ ” we hold that the district court abused its discretion in denying Petersen leave to amend to include these additional allegations. Moss, 572 F.3d at 972 (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir.2001)). Furthermore, even without the additional allegations, we hold that the district court erred by not—at the very least—conducting an evidentiary hearing to determine whether enforcement of the forum selection clause at issue here would “effectively preclude [Petersen's] day in court,” Murphy, 362 F.3d at 1142, based on the admissible evidence Petersen presented.
Because we remand for the district court to conduct an evidentiary hearing, our approach is consistent with Carnival Cruise Lines, 499 U.S. at 594, 111 S.Ct. 1522. In that case, the Supreme Court held that we erred when we declined to enforce a forum selection clause based in part on the fact that some evidence showed that the plaintiff would experience difficulty litigating in the selected forum. Id. The Supreme Court held that we impermissibly engaged in fact finding because “the District Court [had] made no finding regarding the physical and financial impediments to the [plaintiffs'] pursuing their case in [the selected forum].” Id. We therefore follow the approach we announced in Murphy and remand to the district court for factual findings. We also note that here, unlike the passengers in Carnival Cruise Lines, Petersen introduced evidence and allegations that he “lack[ed] notice of the forum selection clause,” that the clause would further Boeing/BISS's “bad-faith motive” of “discouraging [Petersen] from pursuing legitimate claims,” and that Petersen did not have the option of “rejecting the contract with impunity.” Id. at 595, 111 S.Ct. 1522.
In addition, Petersen argues that the forum selection clause should not be enforced under the first Bremen exception because he was induced to agree to the clause only through fraud or overreaching. To establish the invalidity of a forum selection clause on the basis of fraud or overreaching, the party resisting enforcement must “show that ‘the inclusion of that clause in the contract was the product of fraud or coercion.’ ” Richards, 135 F.3d at 1297 (emphasis in original) (quoting Scherk v. Alberto–Culver Co., 417 U.S. 506, 519 n. 14, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974)).
Boeing and BISS argue that Petersen waived his Bremen-based fraud argument because he did not raise it before the district court. We agree that the argument was not squarely presented to the district court. However, the district court expressly held that Petersen could not invalidate the forum selection clause on the basis of fraud or overreaching. Our waiver rules do not apply where, as here, “the district court nevertheless addressed the merits of the issue not explicitly raised by the party.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1260 n. 8 (9th Cir.2010) (internal quotation marks omitted).
Petersen has done just that. His sworn affidavit states that the initial employment contract he signed in the United States made no mention of a Saudi forum selection clause, but that he was required to sign a new employment contract containingsuch a clause upon his arrival in Saudi Arabia. His new supervisor, however, did not permit him time to read the agreement and told him that failure to sign it would result in his being forced to return immediately to the United States at his own expense. These specific facts, contained in an admissible affidavit, are sufficient, if true, to demonstrate that the forum selection clause's inclusion in the employment agreement was obtained via fraud or overreaching by taking undue advantage of Petersen's vulnerable position as a newly-arrived employee in Saudi Arabia. Cf. Murphy, 362 F.3d at 1141 (finding no overreaching or fraud where employee voluntarily renewed his employment agreement for four consecutive years under no undue influence aside from the need to find a new job if he refused to sign). Therefore, the district court abused its discretion by dismissing on the basis of the forum selection clause without at the very least holding an evidentiary hearing as to whether Petersen was induced to assent to the forum selection clause through fraud or overreaching.
In their briefs, Boeing and BISS take the position that Petersen was presented with a full copy of the employment agreement he signed in Saudi Arabia prior to arriving there. We recognize that some evidence in the record might be consistent with this account. Because Petersen's sworn testimony is to the contrary, however, he created a triable issue of fact as to any potential fraud. The question cannot, therefore, be resolved against him absent an evidentiary hearing. See Murphy, 362 F.3d at 1143 (“It does not matter at the Rule 12(b)(3) motion stage that there are contrary facts submitted by the moving party. Absent an evidentiary hearing to resolve the factual contest, the Rule 12(b)(3) motion should have been denied.”).
We hold that the evidence submitted and the allegations made by Petersen were more than sufficient to create a triable issue of fact as to whether the forum selection clause at issue here is enforceable under Bremen. The district court therefore abused its discretion by granting BISS's motion to dismiss without convening an evidentiary hearing. It also abused its discretion in denying Petersen leave to amend his pleadings. On remand, if the district court still determines after an evidentiary hearing that the forum selection clause is enforceable, it should separately analyze whether the clause also requires dismissal of Petersen's non-contract claims. We do not reach the alternate, fact-intensive bases for affirming urged by Boeing and BISS on appeal and leave those to be resolved in due course by the district court. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1141 (9th Cir.2009).
The district court did not mention this issue when it dismissed all of Petersen's claims on the basis of the forum selection clause. It is true that in some circumstances, a contractual forum selection clause may also apply to related non-contract claims. See Manetti–Farrow, 858 F.2d at 514. This is so, however, only when “resolution of the [tort] claims relates to interpretation of the contract.” Id.
We do, however, grant Boeing's and BISS's joint motion to strike the portions of Petersen's reply brief that include new evidence or allege new facts not in the record before the district court. We have not relied on any of those additional facts or evidence, although we observe that it may be prudent for Petersen to submit this additional evidence and allege these additional facts on remand.
REVERSED and REMANDED; Motion to Strike GRANTED.

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ES Gallon and Associates is the oldest workers’ compensation law firm in the Miami Valley area.
Joe Ebenger’s personal commitment to helping injured workers stems from a dangerous workplace accident that nearly took the life of Joe’s father when Joe was just a boy.
Member: Dayton, Ohio State and American Bar Associations; The Association of Trial Lawyers of America; Miami Valley Trial Lawyers Association.
Reported Cases: Thomas v. Conrad, 81 Ohio St.3d 475 (1998); Douglas v. Ohio Bureau of Worker’s Compensation, 105 Ohio App.3d 454 (1995); Frazier v. Mayfield, 64 Ohio App.3d 605, 582 N.E.2d 620 (Montgomery, 1989); Schmidt v. Mayfield, 39 Ohio App.3d 157, 530 N.E.2d 1331 (1987); Wilbur McDonald v. James Mayfield, Administrator (Court of Appeals, Montgomery County, California 9469).
Practice Areas: Workers Compensation Law.
Member: Ohio State (past member of Specialization Committee) and Dayton and Bar Associations (member/past chair of Certified Grievance Committee; member/past chair of Workers’ Compensation/Social Security Committee; past member of Committee of Understanding with Physicians), Ohio Association for Justice, Miami Valley Trial Lawyers Association..
Member of Epiphany Lutheran Church.
I am married to Allan, who works in a pawn shop. We have one son.
My hobbies include reading, music, photography and scrapbooking. I love animals, and currently one cat, Sampson, owns me.
Reported Cases: Bostic v. Bob’s Truck Service, 1985 Ohio App. Lexis 5598 (Court of Appeals, Lucas County, 2/1/85); Broyles v. Conrad, 2005 Ohio 2233, 2005 Ohio App. Lexis 2146 (Court of Appeals, Montgomery County, 5/6/05).
Member: Dayton (Past Chairman, Workers’ Compensation/Social Security Committee, 1996-1997) and Ohio State (Member, Workers’ Compensation Committee) Bar Associations; Ohio Academy of Trial Lawyers; Miami Valley Trial Lawyers Association.
Reported Cases: State Ex. Reel. Gassman v. Indus. Comm., 41 Ohio St.2d 64, 322 N.E.2d 660 (1975); State Ex. Rel. General Motors Corp. v. Indus. Comm., 42 Ohio St.2d 278, 328 N.E.2d 387 (1975); State Ex. Rel. Geauga Industries v. Indus. Comm., 60 Ohio St. 2d 109, 397 N.E.2d 1202 (1979); Price v. Daugherty, 5 Ohio App.3d 157, 450 N.E. 2d 296 (1982); Alcorn v. Spaulding & Evenflo Corp., 79 Ohio App. 3d561, 607 N.E. 2d 904 (1992); Henry v. Mayfield, 62 Ohio App. 3d 814, 577 N.E.2d 689 (1989); Lewis v. Trimble, 79 Ohio St. 3d 231 (1997).
Practice Areas: Domestic Relations (50%); Probate (15%); Driving While Intoxicated (10%); Traffic Violations (10%); Civil Litigation (15%).
Biography: Instructor, Criminal Law, University of Dayton, 1978-1980.
Practice Areas: Personal Injury Law; Defective Product Liability.
Member: Dayton and Ohio State Bar Associations; Miami Valley Trial Lawyers Association; Ohio Academy of Trial Lawyers; ATLA; Carl D. Kessler Inn of Court.
Biography: Recipient, American Jurisprudence Award, Criminal Procedure.
Reported Cases: Atkins vs. General Motors Corp., 1999 Ohio App. 3d 556.


In Kenseth v. Dean Health Plan, Inc., 610 F.3d 452, 49 EB Cases 1652 (7th Cir.2010), an ERISA claims administrator (empowered with discretionary authority) for a fully insured ERISA health care benefits plan (membership in the Dean Health HMO)refused to pay $78,000 in medical expenses related to plan participant Deborah Kenseth’s surgery, even though the HMO plan admitted that it had pre-authorized her treatment.After exhausting her internal appeals, Ms. Kenseth sued Dean Health Plan in federal court. Ms. Kenseth asserted three claims in her complaint, for breach of fiduciary duty under ERISA § 502(a)(3), for equitable estoppel under ERISA common law, and a claim for violation of a state insurance law that provided a time limit on exclusions for preexisting conditions. Conspicuous by its absence, the complaint did not include a §502(a)(1)(B) claim to recover benefits due under the plan.
ERISA’s breach of fiduciary duty remedy under § 502(a)(3) limits a plan participant to the recovery of equitable relief—money damages (the classic example of legal relief) for breach of contract arguably are not available under § 502(a)(3). See Great-West Life & Annuity Ins. Co., v Knudsen, 534 U.S. 204, 27 EB Cases 1065 (2002). The Seventh Circuit suggested in Kenseth that the plaintiff may have chosen to bring a breach of fiduciary duty action under ERISA § 502(a)(3), rather than a claim to recover benefits due under the terms of her ERISA plan, because she wanted to avoid the court-invented deferential standard of review applicable when plan participants challenge a discretion-empowered plan administrator’s claim denial under ERISA § 502(a)(1)(B). See Kenseth, 610 F.3d at 476. However, by making the choice to pursue a breach of fiduciary duty claim under (a)(3), and not a breach of contract claim under (a)(1)(B), the plaintiff put herself at risk for winning the battle (prevailing on the breach of fiduciary duty claim), but losing the war (on remand, the trial court may classify her requests for injunctive relief as really just an attempt to obtain money damages, which is likely unavailable relief under (a)(3)).
There are many underlying issues lurking in Kenseth that must go unaddressed in this short manuscript;5 for our immediate purposes, we address first, the remedies that may be available to Ms. Kenseth under her breach of fiduciary duty claim filed pursuant to ERISA § 502(a)(3); second, whether Dean Health Plan’s breach of fiduciary duty could provide the basis of a claim to recover benefits due under ERISA § 502(a)(1)(B), while avoiding deferential review; and third, whether the same facts that establish Dean Health’s breach of fiduciary duty also amount to a violation of an insurer’s duty of good faith and fair dealing, which could then provide the “rule of decision” and dictate the result of an ERISA § 502(a)(1)(B) claim for benefits due under the rationale of UNUM Life Ins. Co. v. Ward, 526 U.S. 358, 377, 22 EB Cases 2745 (1999). We first detail the Kenseth facts and holding, and then discuss these three remedies issues.
*Professor of Law, University of Oklahoma College of Law: donbogan@ou.edu.
1 Pub. L. No. 93-406, 88 Stat. 829 (1974) (codified as amended at 29 U.S.C. §§ 1001-1461, and in scattered sections of the Internal Revenue Code, 26 U.S.C.).
2 See, e.g., Catherine L. Fisk, The Last Article About the Language of ERISA Preemption? A Case Study ofthe Failure of Textualism, 33 HARVARD J. ON LEGIS. 35, 38 (1006)(“It is ironic that ERISA, which was heralded at its enactment as significant federal protective legislation, has through its preemption provision been the basis for invalidating scores of progressive state laws.”).
3 See Firestone Tire & Rubber Co v. Bruch, 489 U.S. 101, 113-14, 10 EB Cases 1873 (1989)(rejecting theplan sponsor’s argument that courts should apply a deferential standard of review in ERISA benefit casesbecause to do so would make plan participant’s worse off under ERISA then they had been prior to thelaw’s enactment, contrary to Congress’s purposes)(citing ERISA §2. Findings and declaration of policy, 29U.S.C § 1001).
4 See Metropolitan Life Ins. Co., v. Glenn, 554 U.S. 105, 43 EB Cases 2921 (2008); Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 10 EB Cases 1873 (1989). In Varity Corp. v. Howe, 516 U.S. 489, 19 EB Cases 2761 (1996), the Supreme Court ruled that a plan participant could not obtain separate recoveries under both ERISA § 502(a)(3) and § 502(a)(1)(B). Dicta in the Firestone opinion, of course, has lead to the widespread application of deferential court review in § 502(a)(1)(B) claims.
5 For example, Kenseth could be utilized to critique the legal foundation for applying a deferential review standard based upon dicta in Firestone and to ask whether Congress really intended donative trust law principles to govern claims for breach of contract presented under ERISA § 502(a)(1)(B); or to ask whether negligence in the course of advising an ERISA plan participant should establish a per se breach of fiduciary duty under ERISA, given that a fiduciary owes a higher standard of care than a mere negligence standard under the fiduciary’s duty of loyalty to act “solely in the interest of the participants and beneficiaries and for the exclusive purpose of providing benefits to participants and their beneficiaries, see Kenseth, 610 F.3d at 465-66 (citing ERISA § 404(a)(1)); or whether the implied preemption of state law remedies inferred from ERISA’s civil enforcement scheme should trump the express exception to preemption in ERISA § 514 for state laws, including state remedies law, that regulate insurance. See Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 377, 27 EB 2921 Cases (2002)(“Although we have yet to encounter a forced choice between the congressional policies of exclusively federal remedies and the ‘reservation of the business of insurance to the States,’ we have anticipated such a conflict, with the state insurance regulation losing out if it allows plan participants ‘to obtain remedies . . . that Congress rejected in ERISA.’”)(citations omitted).


text:
692 F.2d 1107 (7th Cir. 1982), 81-2693, Rosquist v. Soo Line R.R.
Party Name: Edward Nils ROSQUIST, Administrator of the Estate of Norie Rosquist, Deceased, Plaintiffs-Appellees, v. The SOO LINE RAILROAD, Defendant, Robert Willrett, Intervenor-Appellee. Appeal of WILLIAM D. MADDUX & ASSOCIATES, Appellant.
Appeal of WILLIAM D. MADDUX & ASSOCIATES, Appellant.
William D. Maddux, Chicago, Ill., for appellant.
Charles M. May, Waukegan, Ill., for plaintiffs-appellees.
Before CUMMINGS, Chief Judge, and DAVIS, [*] and PELL, Circuit Judges.
This consolidated appeal challenges the District Court's award of attorneys' fees in an accident case tried in that court under its diversity jurisdiction. In October 1975 Norie Rosquist and her two children, Nina and Edward, Jr., were in an automobile as it was struck by a Soo Line Railroad train. Norie Rosquist was killed, Nina was very seriously injured, and Edward, Jr. sustained lesser injuries. Edward Rosquist, Sr., the surviving husband and father, initially retained Milton Zacksman and James A. Dooley to represent the interests of himself, Norie's estate, and the children in suit against the Railroad. Later, William D. Maddux and Associates, the appellant here, succeeded as plaintiffs' counsel. The retainer agreement provided that the attorneys were to receive one-third of the award (less costs) in the event they won or settled the case.
After suit was filed, it was removed from the Circuit Court of Cook County to the District Court for the Northern District of Illinois, Eastern Division. Following some preliminary motions, depositions, and discovery, counsel presented in January 1979 for the district court's approval a dismissal order and settlement agreement. Under the proposed "structured settlement," Nina and Edward, Jr. were to receive a small lump sum initially and periodic payments for quite some time thereafter. Edward, Sr. was to receive nothing. 1 The total present value to the plaintiffs of the proposed settlement was (according to appellant's expert) approximately $304,874. The agreement provided that attorney's fees were to be paid separately by the Railroad, but did not specify an amount. Upon inquiry, the judge learned that the fee was to be $250,000, payable in five yearly $50,000 installments. The 1979 present-value of that fee (according to the same source) was $223,006.
Judge Grady rejected the settlement, stating that it was unclear in what circumstances the payments to Nina would continue until her death, it was uncertain whether payments to Nina would cover her future medical needs, and it was unlikely that the attorney's fees and trusteeship provisions would adequately protect Nina's interests. The court appointed a guardian ad litem to investigate the case and advise the court on Nina's behalf.
The case subsequently went to trial, and the jury awarded plaintiffs a total of $628,000:--$350,000 for Nina, $10,000 for Edward, Jr., $260,000 to Norie's estate, and $8,000 to Edward, Sr. for funeral expenses. The district court entered judgment on the verdict, 2 and ordered the guardian ad litem and plaintiffs' counsel to submit petitions for fees and expenses. 3 Judgment creditors of Edward Rosquist, Sr. were allowed to intervene. Plaintiffs' counsel, William D. Maddux & Associates (Maddux), filed a petition for $209,333--one-third out of the total recovery (less claimed costs). The court redetermined that fee and awarded $90,950 (somewhat less than 15% of the total judgment), reaffirming its determination on a petition to alter or amend that award. Counsel 4 then appealed from both the decision setting fees at $90,950 and the order denying the petition to amend that decision. (Those appeals were consolidated in this court).
reasonable and should have been upheld. 5 We reject those contentions and affirm.
Article III of the United States Constitution requires a case or controversy as a prerequisite to the exercise of federal judicial power. Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 239, 57 S.Ct. 461, 463, 81 L.Ed. 617 (1937). Maddux does not challenge the district court's jurisdiction over this diversity case as a whole or that there was a controversy between the Rosquists and the Railroad. But we are told that because neither party to the fee-contract (Rosquist, Sr. and the attorneys) challenges its validity or amount, no "case or controversy" is presented as to the subject of attorneys' fees. That proposition is simply incorrect in this case which was and is still quite alive with respect to the disposition of the fund before the district court. The special guardian appointed by the court had not yet been discharged; in fact, he defended this appeal on behalf of the children. Cf. Hoffert v. General Motors Corp., 656 F.2d 161, 164 (5th Cir.1981) (federal jurisdiction upheld partly because of appointment of guardian). Moreover, the court retained control of the fund provided by the defendant Railroad (pursuant to the judgment for plaintiffs) and the disposition of that fund was yet unsettled. Judgment creditors (from a previous action) of Edward Rosquist, Sr. had intervened to protect their interest in the fund and Maddux asserted a right to a portion of the fund for its fee. "[O]nce invoked, the equitable jurisdiction of the court was not exhausted until all claims against the funds in the registry of the court were adjudicated." Cappel v. Adams, 434 F.2d 1278, 1281 (5th Cir.1970). See Garrett v. McRee, 201 F.2d 250, 253 (10th Cir.1953).
Appellant cites Brown v. Watkins Motor Lines, Inc., 596 F.2d 129 (5th Cir.1979), to show that no case or controversy could exist. Brown is easily distinguishable because that case was actually over; no live controversy was then before the trial court. All that remained was for the court to release the judgment fund to the plaintiff. Id. at 132. In the present situation, in contrast, the district court had much more than pro forma ministerial tasks yet to perform, and the presence of the special guardian showed that the interests of minors were affirmatively to be protected. There was still a litigation which was fully alive, including the subject of proper legal fees. In these circumstances, it made no difference to the existence of a "case or controversy" that the adult parties to the contractual fee-arrangement (the older Rosquist and the attorneys) may have been satisfied with that agreement, or that the District Court itself raised and pursued the subject of the amount of the fee-award. 6 See, also, Part II, infra.

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On May 20, 2016, through an unpublished order in Adams v Commissioner, the Fourth Circuit dismissed for lack of jurisdiction an untimely appeal from a Tax Court deficiency case. Adams presents a veritable law school exam question of how not to file a timely appeal. The pro se taxpayers in the case tried multiple ways to file a timely appeal, but to no avail. This case provides a convenient review of what you can and cannot do to file a timely appeal from the Tax Court. But, in this post, I also raise the question whether the Fourth Circuit was correct in dismissing the untimely appeal from the Tax Court for lack of jurisdiction; I think the dismissal should have been on the merits, though there was little practical difference in this case either way.
Substantively, the Adams case was not likely to prevail on the merits, anyway. The Adamses had omitted from their 2010 income tax return part of the qualified plan distributions that the husband took after he was discharged from his Defense Department job and could not find replacement work. So, the IRS sent the Adamses a notice of deficiency seeking income tax on the underreported distributions, as well as a § 72(t) 10% penalty for early withdrawal and a 20% accuracy-related penalty on the deficiency. In response, the Adamses timely filed a pro se Tax Court petition.
On August 17, 2015, the Tax Court issued its opinion at T.C. Memo. 2015-162, holding that it could not exempt the taxpayers from taxation on the distributions under some undefined equitable exception that the taxpayers sought on the ground that the husband’s discharge was discriminatory. At trial, the Adamses were afforded an opportunity, at least, to substantiate any medical expenses that might have reduced the 10% penalty, but the taxpayers did not do so, contending that the receipts were too voluminous to produce and too expensive to photocopy. So, the court sustained the § 72(t) penalty in full. The court also found a substantial understatement of tax as to which there was no reasonable cause and good faith, so it sustained the accuracy-related penalty in full.
On August 26, 2015, the Tax Court entered its decision consistent with the opinion.
On September 2, 2015, the taxpayers tried to electronically file in the Tax Court a notice of appeal, but since there is no tab on the court’s electronic filing system for a notice of appeal, they filed the notice of appeal under the “memorandum” tab.
On September 4, 2015, the Tax Court issued an order striking the attempted filing and pointing out to the taxpayers that a notice of appeal is one of the documents that must be filed with the Tax Court on paper, not electronically. The court’s order also noted that, under Tax Court Rules 161 and 162, respectively, unless otherwise permitted by the court, a motion for reconsideration of an opinion had to be filed within 30 days of the service of the opinion, and a motion to vacate a decision had to be filed within 30 days of the entry of the decision.
On September 16, 2015, the taxpayers filed a timely motion for reconsideration of the opinion under Rule 161 – again arguing for an equitable exception to taxation of the distributions. In an order dated September 29, 2015, but served on September 30, 2015, the Tax Court denied the motion.
On October 12, 2015, the taxpayers filed a motion for a new trial that was stamped denied on October 16, 2015.
On November 23, 2015, the taxpayers again tried to file a notice of appeal electronically in the Tax Court under the memorandum tab. On November 24, 2015, the Tax Court issued an order striking the attempted filing and again pointing out to the taxpayers that a notice of appeal is one of the documents that must be filed with the Tax Court on paper.
On November 24, 2015, December 11, 2015, and December 19, 2015, the taxpayers again electronically filed various papers under the memorandum tab. On January 5, 2016, the Tax Court issued an order striking the attempted filings and again pointing out to the taxpayers that a notice of appeal is one of the documents that must be filed with the Tax Court on paper.
According to a DOJ filing on November 30, 2015, the taxpayer attempted to file a paper notice of appeal with the Fourth Circuit, but no case was set up. An appeals court is the wrong court in which to file a notice of appeal from the Tax Court. The notice of appeal must be filed with the Tax Court.
On January 12, 2016, the taxpayer finally filed with the Tax Court a paper notice of appeal to the Fourth Circuit. As a result of this filing, the Fourth Circuit established a docket for the appeal, Docket No. 16-1043.
First, the normal rule is that an appeal is timely filed if it is filed on paper with the Tax Court within 90 days of entry of the decision. § 7483, FRAP Rule 13(a)(1)(A); Tax Court Rule 190(a). Ninety days from the entry of decision was November 24, 2015, yet the notice of appeal was filed with the Tax Court on paper only on January 12, 2016. Therefore, absent something that extended the period, the filing was untimely.
Second, the timely filing of a motion to vacate under Tax Court Rule 162 could have extended the time to appeal. Under FRAP Rule 13(a)(1)(B), the 90-day time to appeal would commence anew on the date an order was entered by the Tax Court denying such motion. However, the taxpayers never filed such a motion to vacate the decision.
Third, there is a bit of disagreement among the Circuit courts as to whether the filing of a timely motion to reconsider an opinion under Tax Court Rule 161 can serve to extend the time period to appeal. FRAP Rule 13(a)(1)(B) does not expressly provide for tolling in that situation. The Ninth Circuit in Nordvik v. Commissioner, 67 F.3d 1489, 1493 (9th Cir. 1995), has held that a timely Tax Court Rule 161 motion tolls the appeal period. The Tenth Circuit reached the opposite conclusion in Mitchell v. Commissioner, 283 Fed. Appx. 641, 644 (10th Cir. 2008), observing that it “has never given tolling effect in a tax appeal to a motion for reconsideration, which is not mentioned in Rule 13.” In Spencer Med. Assocs. v. Commissioner, 155 F.3d 268, 269-271 (4th Cir. 1998), the Fourth Circuit declined to address the issue whether a timely Tax Court Rule 161 motion for reconsideration tolls the appeal period, since the motion for reconsideration there was untimely and thus would not have tolled the appeal period in any event.
The DOJ argued in Adams that the better view was that a motion for reconsideration does not extend the time to appeal from the Tax Court. However, even though the motion in this case was timely filed, it was denied on September 29, 2015. Ninety days after that date was December 28, 2015. Yet the appeal was only properly filed on January 12, 2016, so the notice of appeal would have been late, even if the motion for reconsideration’s denial restarted a 90-day appeal period.
Fourth, FRAP Rule 4(d) states: “If a notice of appeal in either a civil or a criminal case is mistakenly filed in the court of appeals, the clerk of that court must note on the notice the date when it was received and send it to the district clerk. The notice is then considered filed in the district court on the date so noted.” However, the mistaken filing in the Fourth Circuit by the taxpayers here on November 30, 2015, was not with respect to an appeal from a district court. So, FRAP Rule 4(d) did not apply, and there was no comparable rule for appeals from the Tax Court. In any case, even if one could file a notice of appeal from a Tax Court decision in a Court of Appeal under a rule similar to FRAP Rule 4(d), the November 30, 2015 filing was 6 days late – i.e., 6 days beyond the 90-day period starting from the date of the Tax Court decision herein (August 26, 2015).
Finally, the DOJ argued that the 90-day period in section 7483 in which to file an appeal from the Tax Court is jurisdictional. Therefore, it cannot be extended for equitable reasons – i.e., it cannot be equitably tolled, even if the taxpayers could prove the necessary facts for tolling. Timely filing an appeal in the wrong forum is often a ground for equitable tolling of nonjurisdictional filing periods. See Mannella v. Commissioner, 631 F.3d 115, 125 (3d Cir. 2011). The DOJ did not want the taxpayer to be able to argue that timely filing the notice of appeal in the Tax Court by the wrong method (electronically) could be excused under equitable tolling.
A notice of appeal from a decision of the tax court must be filed within ninety days after the decision is entered. 26 U.S.C. section 7483 (2012); Spenser Med. Assocs. v. Comm’r, 155 F.3d 268, 269 (4th Cir. 1998). The timely filing of a notice of appeal is a jurisdictional requirement. Bowles v. Russell, 551 U.S. 205, 213-14 (2007).
The tax court’s order was entered on the docket on August 26, 2015. The notice of appeal was filed on January 12, 2016. Because taxpayers failed to file a timely notice of appeal, and because this jurisdictional appeal period is not subject to equitable tolling, see Bowles, 551 U.S. at 214, we dismiss the appeal.
On these facts, the court clearly made the right decision to dismiss the appeal, but I question whether the appeal should have been dismissed for lack of jurisdiction. I believe that it should have been dismissed on the merits. This wouldn’t make a material difference in this case, but it could have in a different case where, say, a taxpayer filed a timely notice of appeal in the Circuit court (the wrong place) and so wanted to argue for equitable tolling.
As you know from prior posts here, here, and here, Keith and I are in the midst of litigating test cases in the Tax Court and the Ninth Circuit in which we argue that the time periods in which to file Tax Court petitions in Collection Due Process cases under § 6330(d)(1) and in stand-alone innocent spouse cases under § 6015(e)(1)(A) are not jurisdictional and are subject to equitable tolling under recent, non-tax Supreme Court case law. We are seeking to overturn existing Tax Court precedent, which has not considered the recent Supreme Court case law. Under that case law, such as Musacchio v. United States, 136 S. Ct. 709 (2016); United States v. Wong, 135 S. Ct. 1625 (2015); Sebelius v. Auburn Regional Med. Cntr., 133 S. Ct. 817 (2013); and Henderson v. Shinseki, 562 U.S. 428 (2011), time periods to file in court are no longer considered jurisdictional unless Congress has clearly stated a preference that the time period be jurisdictional. The Court has noted, under the current rule, “the rarity of jurisdictional time limits”; Wong, supra, at 1632; and stated, “This Court has often explained that Congress’s separation of a filing deadline from a jurisdictional grant indicates that the time bar is not jurisdictional.” Id. at 1633. The only exception to this rule is that, so as not to overturn the expectations of Congress, for stare decisis reasons, the Supreme Court will ignore its current case law if there exists a string of Supreme Court authority on the exact statutory time period going back 100 years or more holding the time period jurisdictional.
The current Supreme Court jurisdictional rules show that the 90-day period under § 7483 to file an appeal from the Tax Court is not jurisdictional. Congress has not clearly stated in § 7483 that the period is jurisdictional. For example, there is no provision in § 7483 that speaks to the jurisdiction of the appeals courts. Indeed, the jurisdictional grant to Circuit courts to hear appeals is elsewhere, at § 7482(a)(1), and contains no references to a time period in which to file.
Then, what of the Fourth Circuit’s citation of Bowles v. Russell, 551 U.S. 205 (2007), in support of its Adams holding that the time in which to file an appeal from the Tax Court is jurisdictional? In Bowles, the question was whether the 30- and 60-day periods under 28 U.S.C. § 2107(a) and (b) in which to file appeals from the district courts in civil cases were jurisdictional. 28 U.S.C. § 2107(c) allows the district court to extend the time to file an appeal for up to 14 days in certain circumstances. In the case, a district court accidentally issued an order extending the time to file an appeal by 17 days, and the appellant relied on that order to his detriment. Only because the Court has for over 100 year had held the § 2107 appeal period jurisdictional did the Court stick with that holding. Since I can locate no Supreme Court opinion holding that the § 7483 period in which to file appeals from the Tax Court is jurisdictional, there is no stare decisis exception available to the current case law that generally makes filing deadlines nonjurisdictional.
The § 7483 time period is also likely subject to equitable tolling, since it is more akin to the simple 1-year period under 28 U.S.C. § 2244(d) to file for death penalty habeas review in district court that was held subject to equitable tolling in Holland v. Florida, 560 U.S. 631 (2010), than it is like the complex, multi-exception time periods under § 6511 to file tax refund claims that was held not subject to equitable tolling in United States v. Brockamp, 519 U.S. 347 (1997).
Precedential case law from various Circuits, including the Fourth Circuit, that has held the Tax Court appeals period to be jurisdictional generally predates and always lacks discussion of current Supreme Court case law on jurisdiction and equitable tolling. Such case law as Spencer Med. Assocs. v. Commissioner, 155 F.3d 268, 269 (4th Cir. 1998); Okon v. Commissioner, 26 F.3d 1025 (10th Cir. 1994), and Davies v. Commissioner, 715 F.2d 435 (9th Cir. 1983), is ripe for overruling.