6330 Annotations: Judicial Review of Appeals Determinations: Sovereign Immunity- Levy

Notice of Levy and Right to Hearing: Judicial Review of Appeals Determinations: Sovereign Immunity

[2001-2 USTC ¶50,672] Carlin G. Bartschi and Joyce A. Bartschi, Plaintiffs v. Thomas L. Tracy, Settlement Officer, P. Thomas Menaugh, Associate Chief, Appeals, Defendants

U.S. District Court, Dist. Ariz. , CIV00-1548-PHX-SRB, 9/5/2001

[Code Sec. 1 ]

Jurisdiction: IRS employees: Bivens claims.--A pro se married couple's Bivens-type claim against IRS employees in their individual capacities were dismissed. The proper party defendant was the United States , thus, the taxpayers' damage action for alleged violations of their constitutional rights were foreclosed by remedies provided by Congress, specifically the right to sue the government for a refund of taxes.

[Code Secs. 6330 and 7402 ]

Jurisdiction: IRS employees: Sovereign immunity: Administrative Procedure Act.--The contention of a pro se married couple, who were seeking judicial review of a Notice of Determination, that Code Sec. 6330 provided the necessary waiver of sovereign immunity was rejected. The action underlying the taxpayers' complaints of procedural irregularities by individual IRS employees was their income tax liability, thus, the Tax Court, not the district court, held exclusive jurisdiction. In addition, the taxpayers' reliance on the Administrative Procedure Act (APA) for a waiver of sovereign immunity was without merit as the APA did not provide an independent basis for jurisdiction in the district court.
ORDER

BOLTON , District Judge:

Pending before the Court is Defendants' Motion to Dismiss. (Doc. 13-1). The Court now rules on the motion.

I. BACKGROUND

Plaintiffs, Carlin G. Bartschi and Joyce A. Bartschi, proceeding pro se, filed a Complaint against Defendants Thomas L. Tracy, Settlement Officer, and P. Thomas Menaugh, Associate Chief, Appeals, seeking judicial review of the Notice of Determination Concerning Collection Actions issued by the Internal Revenue Service ("IRS"). Plaintiffs raise allegations premised on certain procedural irregularities involved in the issuance of the Notice of Determination.

In 1998, Congress enacted 26 U.S.C. §6330 as part of the IRS Restructuring and Reform Act of 1998, Pub.L. No. 105-206. This statute provides that prior to the issuance of an administrative tax levy, the IRS must provide the taxpayer with notice of an opportunity for a Collection Due Process ("CDP") hearing before the IRS Office of Appeals. 26 U.S.C. §6330(a),(b). A taxpayer must request a hearing within 30 days of the date notice of a right to a hearing is provided. 26 U.S.C. §6330(a)(2),(a)(3)(B).

At the hearing conducted by an appeals officer of the IRS Office of Appeals, the government is required to provide verification that all applicable law and administrative procedure requirements have been met. 26 U.S.C. §6330(c)(1). The taxpayer has the opportunity to raise any relevant issue relating to the unpaid tax or proposed levy. 26 U.S.C. §6330(c)(2)(A). The taxpayer can also raise challenges to the amount of the underlying tax liability if the taxpayer did not receive any statutory notice of deficiency or did not otherwise have an opportunity to dispute such tax liability. 26 U.S.C. §6330(c)(2)(B).

Within 30 days of the issuance of the determination by the appeals officer, the taxpayer may appeal the determination to the United States Tax Court, or if the Tax Court does not have jurisdiction of the underlying tax liability, to a United States district court. 26 U.S.C. §6330(d)(1).

Plaintiffs' Complaint states that they received a Notice of Intent to Levy and notice of their opportunity to request a hearing. The Complaint alleges that Plaintiffs timely requested a CDP hearing but that Defendant Tracy and Plaintiff's were unable to agree upon a date for the hearing and a determination was made in absentia. That determination, entitled Notice of Determination Concerning Collection Actions, issued July 13, 2000 , determined that the proposed levy action to collect certain tax liabilities of the Plaintiffs was appropriate. Plaintiffs allege that this determination was arbitrary and capricious and unsupported by the evidence.

Plaintiffs also allege that the verification provided by the government, verifying that all law and administrative requirements had been met, failed to show that Plaintiffs had been sent a notice of assessment, that the assessment list had been transmitted, or that the assessment officer had executed the summary record of assessment.

II. DISCUSSION

Defendants argue that Plaintiffs' claims against Defendants Tracy and Menaugh should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. In determining whether a complaint states a claim for which relief can be granted, all factual allegations are taken as true and construed in the light most favorable to the nonmoving party. Enesco Corp. v. Price/Costco Inc., 146 F.3d 1083, 1085 (9th Cir. 1998). At this stage of the litigation, "[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

A suit against an IRS employee in his or her official capacity is essentially a suit against the United States . Gilbert v. DaGrossa [85-2 USTC ¶9665], 756 F.2d 1455, 1458 (9th Cir. 1985); Hutchinson v. United States [82-1 USTC ¶9405], 677 F.2d 1322, 1327 (9th Cir. 1982). Plaintiffs' Complaint alleges that Defendants Tracy and Menaugh failed to follow various procedures involved in the issuance of the Notice of Determination. The challenged conduct of each Defendant falls squarely within their official capacities as employees of the IRS and thus provides no basis for the imposition of personal liability.

To the extent Plaintiffs attempt to bring claims under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), against Defendants Tracy and Menaugh for violations of their constitutional rights, such claims must also be dismissed. The Ninth Circuit has refused to recognize a constitutional violation arising from the collection of taxes. Wages v. Internal Revenue Service, 915 F.2d 1230, 1235 (9th Cir. 1990). Furthermore, the remedies provided by Congress, particularly the right to sue the government for a refund of taxes, foreclose a damage action under Bivens. Id. ; McMillen v. United States Department of Treasury, 960 F.2d 187, 190-91 (1st Cir. 1991). Accordingly, Plaintiffs' claims against Defendants Tracy and Menaugh should be dismissed and such claims are properly construed as brought against the United States .

Defendants also move pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure to dismiss the Complaint for lack of subject matter jurisdiction. When considering a motion to dismiss pursuant to Rule 12(b)(1), a district court is not restricted to the face of the pleadings, but may review evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction. Federal Deposit Insurance Corp. v. Nichols, 885 F.2d 633, 635-36 (9th Cir. 1989).

It is well established that the United States as a sovereign is immune from suit unless it has consented to be sued. United States v. Dalm [90-1 USTC ¶50,154; 90-1 USTC ¶60,012], 494 U.S. 596, 608 (1990). A waiver of sovereign immunity must be explicit and is strictly construed in favor of the United States . Id. The party suing the United States bears the burden of demonstrating a waiver of immunity. Cominotto v. United States , 802 F.2d 1127, 1129 (9th Cir. 1986).

Because Plaintiffs' suit is, as noted above, against the United States , the Court lacks jurisdiction unless sovereign immunity has been explicitly waived by statutory consent to jurisdiction. In the Complaint, Plaintiffs invoke jurisdiction under 28 U.S.C. §§1331 and 1340 and allege a waiver of sovereign immunity under 5 U.S.C. §702 and 26 U.S.C. §6330.

As a general grant of jurisdiction, 28 U.S.C. §1331 cannot by itself be construed as constituting a waiver of the government's immunity. Hughes v. United States [92-1 USTC ¶50,086], 953 F.2d 531, 539, n.5 (9th Cir. 1992). Likewise, 28 U.S.C. §1340 is also a general jurisdiction statute which does not waive the government's sovereign immunity. Id.

Plaintiffs rely on 26 U.S.C. §6330 as a basis for the Court's subject matter jurisdiction and as a waiver of sovereign immunity. Because they are not challenging the underlying tax liability, but rather, the procedural regularity of the assessment, Plaintiffs argue that the Court has jurisdiction over this action. Defendants argue that exclusive jurisdiction rests with the United States Tax Court because even though Plaintiffs claim to contest only procedural regularity, they are in essence seeking judicial review of a determination involving their income tax liability.

Title 26 U.S.C. §6330(d)(1) provides that within 30 days of the determination by the appeals office, the taxpayer may seek judicial review of the determination by filing a petition with the Tax Court, or, "if the Tax Court does not have jurisdiction of the underlying tax liability," to the appropriate federal district court.

Here, Plaintiffs challenge the adverse Notice of Determination issued by the Appeals Officer following a CDP hearing, finding that the proposed levy action to collect certain tax liabilities of the Plaintiffs was appropriate. While Plaintiffs' allegations focus on certain procedural irregularities, nonetheless, the underlying action rests on Plaintiffs' income tax liabilities. ¹ Section 6330(d)(1), Treasury Regulations §301.6330-1T(f)(2)Q & A-F3, and the case law make clear that jurisdiction is dependent upon the underlying tax liability, not whether the claims are characterized as procedural or substantive. When the IRS's proposed levy involves an underlying income tax liability, judicial review over a determination made in a CDP hearing lies in the United States Tax Court, not the district court. Johnson v. Commissioner of Internal Revenue [2000-2 USTC ¶50,591], 2000 WL 1041191, *3 (D. Or. 2000); Brown v. Rossotti [2001-2 USTC ¶50,539], 2001 WL 717043, *2-3 (M.D. Tenn. 2001); Sherod v. Commissioner of Internal Revenue [2001-2 USTC ¶50,507], 2001 WL 584305, *2 (D. Utah 2001); Dimartino v. United States [2001-1 USTC ¶50,298], 2001 WL 260042, * 2 (D. Nev. 2001); see also Krugman v. Commissioner [CCH Dec. 53,355], 112 T.C. 230, 236, n. 6 (1999); Treas. Reg. §301.6330-1T(f)(2)Q & A-F-3. Thus, since the tax liabilities at issue are income taxes, the United States Tax Court has exclusive jurisdiction.

Finally, Plaintiffs' reliance on the Administrative Procedure Act ("APA"), 5 U.S.C. §702 in support of a waiver of sovereign immunity is without merit. Section 702 does waive the government's sovereign immunity in certain instances, however, the APA does not provide an independent basis for subject matter jurisdiction in the district courts. Tucson Airport Authority v. General Dynamics Corp., 136 F.3d 641, 645 (9th Cir. 1998). Accordingly, the APA cannot provide this Court with subject matter jurisdiction. See Gallo Cattle Co. v. United States Department of Agriculture, 159 F.3d 1194, 1198 (9th Cir. 1998).

For the reasons discussed above, Plaintiffs' claim for judicial review of the IRS determination is dismissed for lack of subject matter jurisdiction. Pursuant to 26 U.S.C. §6330(d)(1)(B), ² Plaintiffs shall have 30 days from the date of this Order to file their appeal with the United States Tax Court.

IT IS ORDERED granting Defendants' Motion to Dismiss. (Doc. 13-1).

¹ The Declaration of Thomas L. Tracy submitted by Defendants establishes that the type of tax at issue is the Plaintiffs' individual income tax liabilities. Plaintiffs do not dispute this fact.

² 26 U.S.C. §6330(d)(1)(B) provides: If a court determines that the appeal was to an incorrect court, a person shall have 30 days after the court determination to file such appeal with the correct court.

[2003-2 USTC ¶50,630] John T. Helvie, Plaintiff v. Terri Beach, Team Manager, and Frank A. Andreacchi, Appeals Officer (ID Number 58-06765), employees and/or officers of the Internal Revenue Service, General Appeals Programs, Area 4, Defendants.

U.S. District Court, So. Dist. Fla. ; 03-80155-CIV-HURLEY/LYNCH, July 16, 2003 .

[ Code Secs. 6330, 7402 and 7521]

Collection Due Process: Jurisdiction: IRS employees: Sovereign immunity: Administrative Procedure Act: Hearing procedures: Audio recordings. --

An individual's suit against IRS personnel challenging an adverse Collection Due Process (CDP) determination sustaining the assessment of his underlying tax liabilities was dismissed. The IRS officers did not act improperly in refusing to allow him to arrange for an audio or stenographic recording of the CDP hearing or to be represented by an unenrolled return preparer. Moreover, the proper party defendant to the suit was the government, and not the IRS officers. In addition, the taxpayer's reliance on the Administrative Procedure Act (APA) for a waiver of sovereign immunity was without merit because the APA does not provide an independent basis for jurisdiction in the federal district court. Finally, in light of the fact that the taxpayer was seeking judicial review of the determination of his underlying tax liabilities, subject matter jurisdiction lay with the Tax Court, and not with the district court.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION, AND DISMISSING PLAINTIFF'S COMPLAINT

HURLEY, District Judge: THIS CAUSE comes before the court upon the defendants' motion pursuant to Fed. R. Civ. P. 12(b)(1) to dismiss plaintiff's complaint for lack of subject-matter jurisdiction, filed May 12, 2003.

Plaintiff John T. Helvie, pro se, is a resident of Delray Beach , Florida . The Internal Revenue Service, by a series of notices sent in 1994, 1995, 1997, and 1998, pursuant to 26 U.S.C. §6303, informed Mr. Helvie that he owed a tax liability for the calendar years 1991, 1992, 1993, 1994, and 1996. Mr. Helvie neglected or refused to pay the amount demanded. On March 18, 2002, pursuant to 26 U.S.C. §6330(a)(1), the IRS sent Mr. Helvie a letter indicating an intent to levy and stating that he had a right to a collection due process hearing. By letter postmarked April 17, 2002, Mr. Helvie wrote that he desired to have a hearing with the IRS Office of Appeals. The IRS promptly suspended its proceedings to impose a levy.

Mr. Helvie contended that under 26 U.S.C. §7521 and the agency's internal guidelines, he was permitted, after providing notice, to arrange for an audio or stenographic recording of the collection due process hearing. He also requested that Phillip M. Ballard, a Texas resident and unabashed tax protestor, be permitted to represent him at the hearing. On September 23, 2002, Appeals Officer Frank A. Andreacchi mailed a letter to Mr. Helvie scheduling a face-to-face hearing for November 6, 2002. In the letter, Officer Andreacchi denied Mr. Helvie's request to have the hearing recorded, citing an internal memorandum stating that audio and stenographic recordings would no longer be permitted in appeals cases. The officer also denied Mr. Helvie's request to have Mr. Ballard represent him, on the ground that unenrolled return preparers are not allowed to represent taxpayers before the appeals division.

Mr. Ballard wrote to Officer Andreacchi on October 30, 2002, and requested that the officer permit recording of the hearing and allow him to represent Mr. Helvie at the hearing. Mr. Helvie did not attend the hearing scheduled for Nov. 6. By letter dated November 6, 2002, Officer Andreacchi scheduled another hearing for December 4, 2002, and again denied Mr. Helvie's requests. The officer wrote that if Mr. Helvie failed to appear at the hearing in December, the IRS would issue a determination letter and the case would be closed.

On November 25, 2002, Mr. Helvie and Mr. Ballard contacted Terri Beach, Team Manager, General Appeals Programs for IRS in Plantation , Fla. , requesting that Mr. Ballard be permitted to represent Mr. Helvie because Mr. Ballard was supposedly Mr. Helvie's full-time employee. Mr. Helvie did not attend the hearing scheduled for Dec. 4. On December 9, 2002, IRS received Mr. Ballard's letters wherein he again requested that the hearing be recorded and that Mr. Ballard be allowed to represent the taxpayer, and submitted a power of attorney. Mr. Ballard stated that Mr. Helvie would not attend a hearing until the IRS acceded to his requests.

On December 11, 2002, Officer Andreacchi again denied Mr. Ballard's two requests, and scheduled another hearing for December 23, 2002. Mr. Helvie and Mr. Ballard called the IRS offices and repeated their requests, which Officer Andreacchi and Manager Beach again denied. Mr. Helvie did not attend the hearing set for Dec. 23. The IRS, by letter dated January 30, 2003, issued a notice of determination sustaining the assessment of Mr. Helvie's underlying tax liability for the tax years 1991, 1992, 1993, 1994, and 1996. The IRS further rejected Mr. Helvie's arguments that the appeals division was required to allow him to record the collection due process hearing, and reaffirmed its decision prohibiting Mr. Ballard from representing Mr. Helvie at the hearing.

On March 3, 2003, Mr. Helvie, through Mr. Ballard as a so-called "authorized tax representative" or "attorney-in-fact," filed suit in this court, seeking to have this court, pursuant to 28 U.S.C. §1361, issue an order compelling certain employees of IRS to (1) permit him to arrange for stenographic recording of the collection due process hearing, (2) have Mr. Ballard represent him at such a hearing, and (3) produce certified copies of documents he requested. Mr. Helvie also seeks, pursuant to the Administrative Procedure Act, 5 U.S.C. §701-06, and 26 U.S.C. §6330(d)(1)(B), to challenge the IRS's determination of his tax liability.

Section 1361 provides the district courts with jurisdiction to compel an officer of the United States to perform a duty owed to the plaintiff. Mandamus is proper if (1) the plaintiff can show a clear right to the relief sought; (2) the defendants have a clear, non-discretionary duty to act; and (3) no other remedy is available. See Nyaga v. Ashcroft, 323 F.3d 906, 911 (11th Cir. 2003) (citing Heckler v. Ringer, 466 U.S. 602, 617 (1984)). The statute does not require the district court to exercise jurisdiction, but simply leaves the determination whether to issue mandamus to the discretion of the court. See National Wildlife Federation v. United States , 626 F.2d 917, 923 (D.C. Cir. 1980).

Here, plaintiff cannot show that the defendants owed him a clear and unmistakable duty to perform a ministerial act. Rather, the IRS officers appear to have based their decisions on the IRS's interpretations of 26 U.S.C. §7521 and its own internal guidelines. Moreover, plaintiff has a statutory right to appeal the procedures employed in the hearing before the appeals division. Accordingly, mandamus is not proper in this case. Additionally, since the relief plaintiff seeks is for this court to compel the government to perform certain acts, and not a suit against the IRS officers in their individual capacities, it is construed as a suit against the sovereign, the United States . See Gilbert v. DaGrossa [ 85-2 USTC ¶9665], 756 F.2d 1455, 1458 (9th Cir. 1985) ("[A] suit against IRS employees in their official capacity is essentially a suit against the United States."); People of Calif. ex rel. Ervin v. District Director [ 2001-2 USTC ¶50,687], 170 F.Supp.2d 1040, 1045-46 (E.D. Calif. 2001).

Second, the Administrative Procedure Act does not confer subject-matter jurisdiction on this court. The Former Fifth Circuit stated that the APA does not provide an independent source of jurisdiction, and in any case "only applies to a final agency decision where there is no other adequate remedy." Einhorn v. DeWitt [ 80-2 USTC ¶9468], 618 F.2d 347, 350 (5th Cir. 1980) (citing Alabama Rural Fire Ins. Co. v. Navlor, 530 F.2d 1221 (5th Cir. 1976)). See also 5 U.S.C. §702 (stating that APA provision allowing judicial review of agency decisions does not "affect[] other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground"). As such, the APA does not independently provide this court with jurisdiction to review the actions of the IRS officers or the agency's determination on Mr. Helvie's tax liability. Nor does the APA constitute a waiver of the government's sovereign immunity. See Humphreys v. United States [ 95-2 USTC ¶50,483], 62 F.3d 667, 672 (5th Cir. 1995); Lonsdale v. United States [ 90-2 USTC ¶50,581], 919 F.2d 1440, 1444 (10th Cir. 1990).

Third, this court lacks subject-matter jurisdiction over plaintiff's claims. Under 26 U.S.C. §6330(d)(1), a person who receives an adverse determination from the IRS's Office of Appeals may, within 30 days, file an appeal of the determination to the United States Tax Court in Washington, D.C., or to a federal district court if the Tax Court does not have jurisdiction of the underlying tax liability. In this case, the appeals division stated that Mr. Helvie was permitted, in the hearing, to challenge the existence or the amount of the underlying tax liability for certain years. As such, the Tax Court clearly has jurisdiction over plaintiff's claims because plaintiff seeks judicial review of the IRS's assessment of his income tax liability. See 26 U.S.C. §§6330(d)(1) & 7442; McCune v. Commissioner [ CCH Dec. 53,988], 115 T.C. 114 (2000); Danner v. United States [ 2002-1 USTC ¶50,436], 208 F.Supp.2d 1166, 1170 (E.D. Wash. 2002); True v. Commissioner [ 2000-2 USTC ¶50,634], 108 F.Supp.2d 1361, 1364 (M.D. Fla. 2000). Moreover, the Tax Court's jurisdiction extends to both the substantive rulings of the appeals division on the underlying tax liability and the procedural issues that arise in collection due process hearings. See Silver v. Smith [ 2002-2 USTC ¶50,704], No. 01-CV-6193L, 2002 WL 31367926, at *2 ( W.D. N.Y. Sept. 5, 2002). Therefore, this court concludes that it lacks subject-matter jurisdiction over plaintiff's claims alleging procedural irregularities in the collection due process hearing.

Plaintiff's response, filed June 9, 2003, contained in the caption, "Motion for Amendment to Original Complaint." However, plaintiff did not include any substantive argument as to why any amendment should be allowed. In any case, the court concludes that further amendment would be futile, and the motion will be denied.

For the forgoing reasons, it is hereby ORDERED and ADJUDGED as follows:

1. Defendants' motion to dismiss this case [DE # 3] is GRANTED.

2. Plaintiff's motion to amend the complaint [DE # 7] is DENIED.

3. Plaintiff's complaint is DISMISSED. Plaintiff is advised that under the applicable statutes, he has 30 days from entry of an order of dismissal to file an appeal of the Office of Appeals' decision to the correct court, namely, the United States Tax Court, 400 Second Street , N.W., Washington , D.C. 20217 . Failure to timely file an appeal with the Tax Court will result in dismissal.

4. The Clerk of the Court shall enter this case as CLOSED.

DONE and SIGNED.

[2003-2 USTC ¶50,682] Warren R. Follum, Plaintiff-Appellant v. United States of America , Commissioner of Internal Revenue, Defendants-Appellees.

U.S. Court of Appeals, 4th Circuit; 03-1569, 77 FedAppx. 645, October 7, 2003 .

Unpublished opinion affirming, per curiam, a DC N.C. decision, 2003-1 USTC ¶50,430.

[ Code Sec. 6330]

District court: Jurisdiction: Collection Due Process hearing: Sovereign immunity: Preliminary injunction. --

Jurisdiction was lacking over an individual's suit seeking a temporary restraining order and preliminary injunction to prevent the IRS from levying on his wages in connection with his tax deficiencies for four tax years. The government had not waived its sovereign immunity to the taxpayer's suit. He did not request a Collection Due Process hearing with respect to the wage levy and, thus, could not file suit pursuant to Code Sec. 6330(d)(1). The taxpayer's timely appeal of a tax lien did not constitute an appeal as to the levy.

[ Code Sec. 7421]

Anti-Injunction Act: Application of statute: Collection Due Process hearing. --

The Anti-Injunction Act barred an individual's suit seeking a temporary restraining order and preliminary injunction to prevent the IRS from levying on his wages in connection with his deficiencies for four tax years. The taxpayer clearly sought injunctive relief restraining the collection of a tax, and his claim did not fit within an exception to Code Sec. 7421(a). He could not maintain an action related to the tax levy under Code Sec. 6330 because he failed to request a Collection Due Process hearing with respect to the levy. Furthermore, because he was free to pursue the pending due process appeal of a tax lien or pay the tax and sue for a refund pursuant to Code Sec. 7422, the claim did not fall within the judicially-created exceptions to Code Sec. 7421(a).

Warren R. Follum, pro se. Bruce Raleigh Ellisen, Sara Ann Ketchum, Department of Justice, for defendants-appellees.

Before: Wilkinson, Niemeyer and Michael, Circuit Judges.

¬ Caution: The court has designated this opinion as NOT FOR PUBLICATION. Consult the Rules of the Court before citing this case.®

PER CURIAM: Warren R. Follum appeals from the district court's order denying his motion for a preliminary injunction and dismissing his complaint in which he sought to enjoin the Internal Revenue Service from proceeding on a tax levy pending completion of his administrative appeal from the imposition of a tax lien. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Follum v. United States [ 2003-1 USTC ¶50,430], No. CA-02-818-5-BO(3) (E.D. N.C. Apr. 3, 2003 ). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED.