MEMORANDUM OPINION AND ORDER
Introduction
This matter comes before the Court as an appeal of an adversary proceeding liti
Background
The Beginning of the Chapter 13 Case and This Adversary Proceeding
On May 1,1998, Appellant Andrea Harc-har and her then-husband Kenneth Harc-har filed a petition for relief under Chapter 13 of the United States Bankruptcy Code. 1 Appellee United States of America (“Government”) was a creditor in the case because of a pre-petition tax arrearage owed by the Harchars. In August 1998, the plan of reorganization proposed by the Harchars was confirmed by the bankruptcy court. In their plan, the Harchars proposed to pay in full priority tax claims held by the Government, and to pay five cents on the dollar over 43 months for unsecured, nonpriority claims held by the Government and similarly situated creditors.
The Harchars filed an adversary proceeding against the Government for alleged injury caused by the implementation in the main Chapter 13 bankruptcy case of the Government’s practice of “freezing” computer-automated refunding of tax over-payments to Chapter 13 debtors, and instead processing refund claims manually. The Adversary Complaint also targeted the Government’s initial refusal to issue a manual refund for the Harchar’s 1999 return until after the bankruptcy court resolved a Government motion to modify the Chapter 13 plan to include the refund in plan-funding. The Government withdrew this motion after the Harchars amended their schedules, indicating their disposable income had shrunk since the bankruptcy petition.
Amendments to the Adversary Complaint and the Government’s First Appeal
The Adversary Complaint was filed in June 2000, but was not served until August. The refund for tax year 1999 was issued in July 2000, and included interest for the delay. The Harchars then filed their first Amended Complaint, alleging that the freeze and the delay of the manual refund each constituted a willful violation of the automatic stay under Section 362(a) of the Bankruptcy Code, entitling them to actual damages under Section 362(h). 2 This Amended Complaint also alleged violations of due process, Section 525(a) of the Bankruptcy Code, and the plan confirmation order, and sought injunctive and declaratory relief on behalf of all Chapter 13 debtors to prevent further automatic refund freezes by the Government.
In late 2001, the Harchars were granted leave to again amend their complaint, this time to seek damages for emotional distress. The Government appealed this in-
On remand, the bankruptcy court granted a motion to supplement the complaint in order for the Harchars to claim additional damages attributable to the computer freeze of the Harchars’ overpayments for their 2000 income tax return. This newly minted complaint alleged that an audit of Kenneth’s 2000-year return reflected retaliation by Government counsel. At that point, discovery on the 1999 issues was nearly concluded, but it was reopened for the 2000-year issues.
The Government’s Motion to Dismiss and the Second Appeal
The Government moved to dismiss the action under Federal Civil Rule 12(b)(6). The motion was denied as to the stay-violation claims, and granted as to all other legal theories, including the alleged violations of due process, Section 525, and the plan confirmation order.
In re Harchar,
Summary Judgment
On remand, after reassignment of the matter to Judge Richard Speer, the parties agreed to bifurcate the proceedings and first address the 1999-year issues. At this point, the Government ordered transcripts of two of the three depositions of IRS officials taken years earlier by Harc-hars’ counsel. After ordering the transcripts, the Government asked for leave to move for summary judgment, and Harc-hars’ counsel agreed that simultaneous cross-motions for summary judgment would be appropriate.
Judge Speer granted summary judgment to the Government, concluding that the IRS had not violated the automatic stay either in freezing computer-automated refunding of tax overpayments or in withholding a manual refund of the 1999-year tax overpayment, while the Government sought to modify the confirmed Chapter 13 plan to include the refund in plan-funding.
In re Harchar,
The End of the Case Below
Counsel for all parties then agreed in principle on a stipulation that would dismiss all remaining claims
(ie.
the 2000-year refunds of both Andrea and Kenneth), enable an appeal from the summary judgment decision, set the amount of costs to be awarded to the Government, and stay the collection of costs pending an appeal by the Harchars. Counsel for the Harchars sought signatures from both Andrea and Kenneth, but ultimately filed the stipulation signed only by Andrea. Counsel for the Harchars reported that Kenneth failed to return phone calls or respond to letters from counsel. The
The Order allowing Kenneth’s counsel to withdraw, entered November 20, 2008, required Kenneth to file a response by January 5, 2009, “setting forth the measures that will be taken to further prosecute this action,” without which his claims would be subject to dismissal with prejudice and without further notice or hearing. Kenneth failed to respond to this Order, and was therefore dismissed for failure to prosecute on January 14, 2009.
On February 2, 2009, the bankruptcy court sua sponte entered an Order containing two paragraphs, the first of which began with “[t]he record in this case shows as follows” and proceeded to recite aspects of the procedural history. The second paragraph read “[biased on this procedural posture, it appears that there are no forthcoming matters necessary for adjudication in this Court” (Bankr.Doc. No. 213).
On February 10, 2009, Andrea filed her notice of appeal-within ten days of the February 2 Order, but more than ten days after the January 14 Order dismissing Kenneth. On February 11, 2009, the Government filed a motion for final judgment, suggesting that the February 2 Order was mistaken in indicating that there was nothing left to do in the case (Bankr.Doc. No. 218). The Government believed the October 16, 2008 stipulation was not self-effectuating, and so Andrea’s claims relating to her 2000-year refund were still outstanding. The motion also asked that the stipulation regarding costs be implemented as a judgment.
On February 13, 2009, the bankruptcy court denied the motion for judgment (Bankr.Doc. No. 220). The court first stated that “while the stipulation is binding upon the Parties, the Court is not under any duty to approve the stipulation” (Bankr.Doc. No. 220, p. 2). The court also stated that it “continues not to be inclined to approve the agreement, particularly those terms of the stipulations regarding ‘finality’ which is an issue plainly within the purview of an appellate court,” citing 28 U.S.C. § 158 (provision granting this Court appellate jurisdiction). The Order further stated that Andrea had filed a “timely notice of appeal” from the February 2 Order because “there did not remain any further matters for adjudication,” adding that the Order “expressly took into account that the Parties had entered into a stipulation regarding the Defendant’s costs and Plaintiffs’ 2000 year tax refund, and that this [Bankruptcy] Court had entered a decision and Order regarding the Plaintiffs’ 1999 year tax refund” (Bankr.Doc. No. 220, p. 3). The bankruptcy court concluded that Andrea’s February 10 appeal had deprived it of jurisdiction over the Government’s February 11 motion for a final judgment because, although it would have jurisdiction over a valid motion to alter or amend a judgment (under Bankruptcy Rule 9023 and Federal Civil Rule 59(e)), “no such motion, however, exists with respect to the Parties’ stipulation regarding the Plaintiffs 1999 tax refund.” In other words, no one had moved to alter or amend the items that together disposed of all claims on the merits — the stipulation and the earlier decision granting summary judgment.
The bankruptcy court nevertheless held that the motion was a valid Rule 9023 motion with respect to the issue of costs (which can be addressed separately and not deprive a merits judgment of finality), denied it stating that the matter was one of discretion, and explained that “given the
Jurisdiction
The bankruptcy court had jurisdiction over the Chapter 13 case, pursuant to 28 U.S.C. § 1334(a) and 28 U.S.C. § 157(a), and also had jurisdiction over the complaint to recover damages, pursuant to 28 U.S.C. § 1334(b) and 28 U.S.C. § 157(b)(1).
Generally, this Court has jurisdiction over appeals from the bankruptcy court pursuant to 28 U.S.C. § 158. However, whether this Court has jurisdiction over Andrea’s appeal is a close question. If the stipulation between Andrea and the Government was self-effectuating (ie., did not require a further court entry to take effect and dismiss Andrea’s remaining claims), then Andrea filed her notice of appeal late, thereby denying this Court of jurisdiction over her appeal.
A stipulation of dismissal is effective to dismiss claims without a court order when it has been “signed by all parties who have appeared.” Federal Civil Rule 41 (a)(1)(A)(ii);
see also
Bankruptcy Rule 7041 (applying Federal Civil Rule 41 to adversary proceedings in bankruptcy). The Sixth Circuit has recently interpreted this signature requirement “to include all entities who have appeared in the action as parties,” whether or not the entity or person in question is still a party to the action.
Anderson-Tully Co. v. Fed. Ins. Co.,
Having concluded the stipulation was not self-effectuating, the next issue is to determine what constituted the final ap-pealable order in this case. The only possible options are the Order dismissing Kenneth for failure to prosecute (Bankr. Doc. No. 211), the February 2 Order declaring “there are no forthcoming matters necessary for adjudication in this court” (Bankr.Doc. No. 213), or the February 13 Order (Bankr.Doc. No. 220) in response to the Government’s “Motion for Final Judgment” (Bankr.Doc. No. 218).
The Order dismissing Kenneth only addresses Kenneth and his claims, without mentioning Andrea. There is nothing to suggest that this Order implemented the stipulation of dismissal with regard to Andrea, or otherwise dealt with her claims at all. The February 2 Order is more promising: after describing the procedural history of the case, including the stipulation of dismissal between Andrea and the Government, the bankruptcy court concluded that “[bjased on this procedural posture, it appears that there are no forthcoming
Having concluded the February 2 Order was the final appealable order addressing the merits of this case, Andrea’s February 10 notice of appeal was timely and this Court has jurisdiction over her appeal. The Government also timely filed its notice of appeal, filing it within ten days of the bankruptcy court’s Order denying costs.
Standard of Review
A district court reviewing a bankruptcy court’s decision on matters of law must apply a
de novo
standard of review.
Lutz v. Chitwood,
Analysis
Andrea appeals three decisions of the bankruptcy court: (1) dismissing the claim that the freeze violated the terms of the confirmed Chapter 13 plan for failure to state a claim upon which relief may be granted, (2) granting the Government summary judgment on the claim that the freeze of the 1999-year refund, and the Government’s actions relating to that refund, violated the automatic stay, and (3) dismissing for lack of jurisdiction the claim that the freeze violated due process. The Government cross appeals the bankruptcy court’s denial of costs, contrary to the stipulation between Andrea and the Government.
Andrea’s Appeal
Violation of the Plan
Andrea first argues for a reversal of the dismissal of her claim alleging the freeze and the Government’s initial refusal to issue a refund violated the terms of the confirmed plan. The bankruptcy court dismissed this claim because the complaint “does not identify any provisions of the plan or confirmation order that the IRS allegedly violated.”
In re Harchar,
When deciding a motion to dismiss under Federal Civil Rule 12(b)(6), the function of the court is to test the legal sufficiency of the complaint. In scrutinizing a complaint, the court is required to accept the allegations stated in the complaint as true,
Hishon v. King & Spalding,
The bankruptcy court dismissed the plan violation claim because “[although the complaint broadly asserts that the IRS violated the debtors’ confirmed plan, it does not identify any provisions of the plan or confirmation order that the IRS allegedly violated. As a result, the complaint fails to state a claim that the IRS violated the confirmed plan.”
In re Harchar,
The confirmed reorganization plan here provided that the pre-petition tax claim would receive trustee distributions, projected to total five cents on the dollar, from disposable future income. The schedule of income and expenses at the time of the plan did not address tax refunds in the calculation of disposable income. It is not uncommon for Chapter 13 plans to include tax refunds in planfund-ing,
see, e.g., In re Laroche,
Tax refunds can be disposable income.
See In re Freeman,
Andrea next argues for a reversal of the bankruptcy court’s summary judgment decision on whether the freeze violated the automatic stay under 11 U.S.C. §§ 362(a)(3) and 362(a)(6). Section 362(a)(3) prohibits “any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate,” while Section 362(a)(6) prohibits “any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under [the Bankruptcy Code].”
Pursuant to Federal Civil Rule 56(c), summary judgment is appropriate where there is “no genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of law.”
Id.
When considering a motion for summary judgment, the court must draw all inferences from the record in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
Bankruptcy Judge Speer issued a very thorough opinion addressing whether the stay was violated, holding that neither the institution of the freeze nor the actions of the IRS in connection with the freeze constituted a violation of 11 U.S.C. § 362(a)(3) or 362(a)(6).
In re Harchar,
Procedural Due Process & Sovereign Immunity
Andrea’s final argument on appeal is for reversal of the bankruptcy court’s dismissal of Harchars’ claim that the IRS violated their due process rights, based on the defense of sovereign immunity.
The decision first observes that Section 106(a) of the Bankruptcy Code waives sovereign immunity only as to claims arising under the Bankruptcy Code, and not for due process claims.
In re Harchar,
Furthermore, Andrea would not be able to succeed on the merits of her due process claim. While a right to a tax refund may be property for bankruptcy purposes,
U.S. v. Harchar,
United States’ Appeal
The Government argues the bankruptcy court erred by refusing to issue an order implementing the stipulation of the parties that Andrea is liable to the Government for certain litigation costs.
The procedural history at the close of the adversary proceeding is not a model of clarity. Andrea and the Government entered into a stipulation which stated: “[t]he Court may enter a final appealable judgment against the debtors and in favor of the United States of America, including a judgment for the recovery of the United States’ costs from the debtors (jointly and severally) in the amount of $5,623.00.” As discussed in the jurisdiction analysis above, this stipulation was not self-effectuating, and was implemented by the bankruptcy court with the later Order of February 2. After the February 2 Order, and in response to a motion by the Government seeking an explicit order for costs pursuant to the stipulation, the bankruptcy court refused to grant costs, explaining that its power to assess costs is discretionary “and given the procedural posturing of the Parties throughout the course of this proceeding, an award of costs in the Defendant’s favor would not be equitable.” (Bankr.Doc. No. 220, p. 4).
The stipulation left costs to the discretion of the bankruptcy court. The stipulation stated that the court may include costs for the Government. The stipulation was not self-effectuating, instead requiring further court action to implement any or all of its terms (see jurisdiction discussion above). See Federal Civil Rule 41(a)(2) (because the stipulation was not self-effectuating, Andrea’s claims “may be dismissed ... only by court order, on terms that the court considers proper.”) (emphasis added); see also Bankruptcy Rule 7054(b) (“The court may allow costs to the prevailing party when a statute of the United States or these rules otherwise provides.”) (emphasis added). The determination of costs was therefore left to the sound discretion of the bankruptcy court; the issue then is whether that discretion was abused.
Abuse of discretion is defined as “a definite and firm conviction that the ... court [below] committed a clear error of judgment.” Amernational
Indus. v. Action-Tungsram, Inc.,
CONCLUSION
For the foregoing reasons, this Court affirms the bankruptcy court’s decisions to dismiss the plan violation and due process claims, and the decision to grant the Government summary judgment and deny summary judgment to the Harchars. This Court also affirms the decision to deny costs to the Government.
IT IS SO ORDERED.
Notes
. Andrea and Kenneth have separated since the filing of their bankruptcy case. Andrea now goes by the surname “Peticca.” For ease of reference, this Opinion will refer to them individually as "Andrea” and “Kenneth,” and collectively as "the Harchars.”
. The amendments to the Bankruptcy Code in 2005 renumbered Section 362 to 362(k)(l). Because the Harchars filed their case before 2005, this Opinion will use the pre-amendment numbering to be consistent with the other opinions filed in this case.
. “Bankr.Doc. No.” refers to a docket entry found on the bankruptcy court docket for the adversary proceeding (Case. No. 07-03184-rls, formerly Case No. 00-01184), not the docket for the main Chapter 13 case.
. Further evidence that the stipulation was not self-effectuating is the language used in the stipulation itself. For example, the parties agreed that the 2000-year tax refund claims "may be dismissed without prejudice,” and that with regard to the 1999-year tax refund claims "the Court may enter a final appealable judgment against the debtors” (Bankr.Doc. No. 205, p. 2) (emphasis added).
See Anderson-Tully Co.,
. Judge Speer certainly thought this was what he did, as evidenced by his final Order, which noted that no motion to alter or amend judgment had been filed with regard to the dismissal of the 1999-year and 2000-year refund claims, and therefore refused to address any of the Government’s arguments on these claims. Such a rationale would only make sense if there were already an order dismissing Andrea's 2000-year claim, and the only possibility for such an order would be the February 2 Order.