Sheila Olivia Davis v. Polk County Sheriff's, 170 F. App'x 598

170 F. App'x 598

11th Cir.

2005

WRUBLESKI v. COMMISSIONER

United States Court of Appeals, Eleventh Circuit

433 F.3d 598

evidence, these arguments were without merit.

To the extent Wrubleski alternatively is claiming that the tax court erred in dismissing his petition because of a settlement agreement that he asserted existed between the parties, “[t]he Secretary may compromise any civil or criminal case arising under the internal revenue laws prior to reference to the Department of Justice for prosecution and defense.” 26 U.S.C. § 7122(a). The only three possible grounds for a compromise of federal tax liabilities are: (1) doubt as to liability; (2) doubt as to collectibility; and (3) the promotion of effective tax administration. Treas. Reg. § 301.7122-1(b). “An offer to compromise has not been accepted until the IRS issues a written notification of acceptance to the taxpayer or the taxpayer‘s representative.” Treas. Reg. § 301.7122-1(e)(1); see also Klein v. C.I.R., 899 F.2d 1149, 1152-53 (11th Cir. 1990) (holding that a binding settlement on a tax liability must follow the requirements of the tax code which include the execution of a closing agreement). The requirements in §§ 7121 and 7122, and the accompanying regulations, are exclusively and strictly construed. Id. at 1153 (citing Botany Worsted Mills v. United States, 278 U.S. 282, 288-89, 49 S.Ct. 129, 131-32, 73 L.Ed. 379 (1929)); see also Creel v. C.I.R., 419 F.3d 1135, 1141 (11th Cir. 2005) (holding that the U.S. Attorney‘s actions would not bind the government, even if he intended to compromise a taxpayer‘s civil tax liability, if the U.S. Attorney did not have authority to reach a compromise).

Even if we were to consider the “Affidavit of Agreement” that Wrubleski attempted to file in the tax court prior to his trial date, this document neither reflects that liability was at issue, nor that Wrubleski intended to pay the assessed amounts. None of the possible grounds for a compromise, therefore, existed in this case. See Treas. Reg. § 301.7122-1(b). More importantly, Wrubleski has not shown that the IRS issued “a written notification of acceptance to the taxpayer or the taxpayer‘s representative,” as required by Treas. Reg. § 301.7122-1(e)(1). Thus, even assuming for purposes of argument that the Commissioner refused tender of payment, declined to provide proof or evidence of a claim, and used Wrubleski‘s “trademark“—conduct that Wrubleski claims demonstrates that the Commissioner implicitly ratified the alleged settlement agreement—this conduct was not sufficient under the tax code to create a “binding settlement.” See Klein, 899 F.2d at 1152.

Accordingly, we conclude that Wrubleski has failed to show that the tax court abused it discretion in granting the Commissioner‘s motion to dismiss his petition for review. We, therefore, affirm.

AFFIRMED.

Sheila Olivia DAVIS, Plaintiff-Appellant, v. POLK COUNTY SHERIFF‘S OFFICE, Defendant-Appellee.

No. 05-10581

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Oct. 31, 2005.

Sheila Olivia Davis, Lakeland, FL, pro se.

Before DUBINA, BLACK and HULL, Circuit Judges.

PER CURIAM:

Sheila Olivia Davis, proceeding pro se, appeals the district court‘s dismissal of her amended complaint alleging discrimination and retaliation based on her race pursuant to Title VII, 42 U.S.C. §§ 2000e-2(a), 2000e-3(a). The district court dismissed Davis‘s amended complaint sua sponte after determining Davis‘s claim was untimely because her EEOC charge was not filed within 300 days of the last discriminatory act, and was therefore frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).¹ Davis asserts the district court abused its discretion when it dismissed her claim because her case was not untimely. She also seeks recusal of the district judge upon remand. We affirm the district court.

We review the dismissal “of an in forma pauperis action as frivolous under § 1915(e)(2)(B)(i) for abuse of discretion.” Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1315 (11th Cir. 2002). An action “is frivolous if it is without arguable merit either in law or fact.” Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001).

As an initial matter, the Polk County Sheriff‘s Office (Sheriff‘s Office) contends Davis‘s appeal is untimely. A notice of appeal in a civil case must be filed “within 30 days after the judgment or order appealed from is entered.” Fed. R. App. P. 4(a)(1)(A). If a separate document is required by Federal Rule of Civil Procedure 58(a)(1), then the order is not entered until either the “judgment or order is set forth on a separate document” or 150 days have passed since the judgment or order was entered in the civil docket. Fed. R. App. P. 4(a)(7)(A)(ii).

The district court‘s order of dismissal with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) required a separate document. Since the order was entered on the docket on August 6, 2004, but not set forth on a separate document, it was not entered for the purposes of filing a notice of appeal until January 3, 2005. Davis‘s notice of appeal, filed either on January 27 or January 28, 2005, is therefore timely to appeal the district court‘s order of dismissal.

Davis‘s notice of appeal does not designate any order being appealed as required by Fed. R. App. P. 3(c)(1)(B). Because the requirements of Rule 3 are jurisdictional, Smith v. Barry, 502 U.S. 244, 248, 112 S.Ct. 678, 682, 116 L.Ed.2d 678 (1992), we are obligated to review sua sponte whether Davis complied with Fed. R. App. P. 3(c)(1)(B). See Finn v. Prudential-Bache Sec., Inc., 821 F.2d 581, 584-85 (11th Cir. 1987). A notice of appeal must “designate the judgment, order, or part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B). Failure to abide by this requirement generally precludes us from reviewing any judgment or order not so specified. McDougald v. Jenson, 786 F.2d 1465, 1474 (11th Cir. 1986). However, we liberally construe this requirement “in favor of the appellant where the intent to appeal an unmentioned or mislabeled ruling is apparent and there is no prejudice to the adverse party.” Campbell v. Wainwright, 726 F.2d 702, 704 (11th Cir. 1984).

Davis‘s notice of appeal reads, “Plaintiff is filing a NOTICE OF APPEAL to the UNITED STATES COURT OF APPEALS, ELEVENTH CIRCUIT, ATLANTA, GEORGIA.” Davis‘s brief challenges the district court‘s finding that her charge was untimely. The Sheriff‘s Office‘s brief addresses the district court‘s order of dismissal, contesting the appeal‘s timeliness as well as briefing the merits of the issue. Davis evidenced an intent to appeal the dismissal of her amended complaint and the Sheriff‘s Office has not been prejudiced. Therefore, we have jurisdiction over Davis‘s appeal of the order dismissing her amended complaint.

A prerequisite to bringing suit under Title VII is the timely filing of a charge of discrimination. Maynard v. Pneumatic Prods. Corp., 256 F.3d 1259, 1262 (11th Cir. 2001). 42 U.S.C. § 2000e-5(e)(1) sets out the amount of time a claimant has to file a charge with the EEOC.

A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ... except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier....

§ 2000e-5(e)(1). Since Florida is a deferral state,² a charge must be filed within 300 days of the last discriminatory act. E.E.O.C. v. Joe‘s Stone Crabs, Inc., 296 F.3d 1265, 1271 (11th Cir. 2002).

Davis alleged the most recent acts of discrimination occurred on or about May 1998, but she did not file charges with the EEOC until May or June 2003. Assuming Davis filed timely charges with the administrative agency, making the longer 300 day period applicable to her case, Davis cannot satisfy the prerequisite of a timely filed charge. Since the district court did not err in concluding that Davis‘s EEOC charge was untimely, it did not abuse its discretion in dismissing her amended complaint. Because we affirm the district court, we do not reach the issue of whether the district court judge should be recused.

AFFIRMED.

Notes

Davis also filed a motion to proceed in forma pauperis in the district court.

Deferral states “prohibit the unlawful employment practice at issue and have established state or local authorities to grant or seek relief for such practice.” .