Case: 20-1020 Document: 36 Page: 1 Filed: 08/30/2022
`
`
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`BAHIG F. BISHAY,
`Plaintiff-Appellant
`
`v.
`
`UNITED STATES,
`Defendant-Appellee
`______________________
`
`2020-1020
`______________________
`
`Appeal from the United States Court of Federal Claims
`in No. 1:18-cv-01665-EDK, Judge Elaine Kaplan.
`______________________
`
`Decided: August 30, 2022
`______________________
`
`BAHIG F. BISHAY, Norwood, MA, pro se.
`
`
` JULIE CIAMPORCERO AVETTA, Tax Division, United
`States Department of Justice, Washington, DC, for defend-
`ant-appellee.
` Also
`represented by JACOB EARL
`CHRISTENSEN, RICHARD E. ZUCKERMAN.
` ______________________
`
`Before NEWMAN, LOURIE, and CHEN, Circuit Judges.
`Opinion for the Court filed by Circuit Judge CHEN.
`
`

`

`Case: 20-1020 Document: 36 Page: 2 Filed: 08/30/2022
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`2
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`BISHAY v. UNITED STATES
`
`Dissenting opinion filed by Circuit Judge NEWMAN.
`CHEN, Circuit Judge.
`Mr. Bahig Bishay appeals two decisions of the United
`States Court of Federal Claims (Claims Court), the first
`dismissing his tax refund, declaratory judgment, and in-
`junctive relief claims for lack of subject matter jurisdiction;
`and the second denying his request for an order of default.
`On appeal, Mr. Bishay challenges the Claims Court’s dis-
`missal of his tax refund claim and its denial of his request
`for a default order. Because we agree with the Claims
`Court that Mr. Bishay has not satisfied the minimum pay-
`ment required for his tax refund action, we affirm the
`Claims Court’s dismissal for lack of subject matter jurisdic-
`tion. We also affirm the Claims Court’s denial of Mr.
`Bishay’s request for a default order because, at the time of
`the request, the government had not yet been served with
`the complaint due to a docketing error.
`I
`In February 2007, the Internal Revenue Service (IRS)
`assessed a penalty of $41,612.40 against Mr. Bishay pur-
`suant to 26 U.S.C. § 6672 for failure to pay taxes for two
`quarters in 2002. Bishay v. United States, No. 18-1665C,
`2019 WL 4415143, at *1 (Fed. Cl. Sept. 16, 2019). In Au-
`gust 2013, the IRS recorded a lien to recover the still un-
`paid penalty. Id.; see also id. at *1 n.3. Mr. Bishay then
`unsuccessfully litigated the assessment of the penalty be-
`fore the United States Tax Court (Tax Court). In its sum-
`mary denial of Mr. Bishay’s claim, the Tax Court noted that
`a taxpayer “can make a small ‘token’ payment towards the
`section 6672 penalty, file a refund claim with the IRS, and,
`if the refund claim is denied, file a refund suit in Federal
`District Court or the Court of Federal Claims.” Bishay v.
`Comm’r, T.C.M. 2015-105, 2015 WL 3505310, at *6 n.9
`(June 4, 2015), aff’d Bishay v. Comm’r, No. 15-2040, 2017
`WL 11453028 (1st Cir. Oct. 11, 2017).
`
`

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`Case: 20-1020 Document: 36 Page: 3 Filed: 08/30/2022
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`BISHAY v. UNITED STATES
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`3
`
`On October 17, 2018, Mr. Bishay filed the complaint at
`issue in this appeal. Appx. 27–32.1 He sought “declara-
`tory, injunctive, and monetary relief” based on allegations
`that the IRS “arbitrarily, maliciously, and unjustly rec-
`orded a Federal Tax Lien against [him],” “falsely claim[ed]”
`that he owed payroll taxes, and “unlawfully claimed” that
`he was responsible for the payment of penalties under
`§ 6672 for failure to pay the same taxes. Appx. 27. The
`complaint alleged, among other things, that Mr. Bishay
`sent the IRS “a ‘token’ payment pursuant to the federal au-
`thority explained in Weber v. Commissioner, 138 T.C. 348,
`363 n.12 (2012).” Appx. 28. The cited authority explains
`that to litigate a tax refund claim, a taxpayer generally
`must show that he satisfied the “full payment rule” by re-
`mitting “the prior full payment of the liability.” Weber, 138
`T.C. at 363 & n.12. The § 6672 penalty, however, “is di-
`visible, so that a taxpayer may litigate the penalty after
`having paid an amount corresponding to the tax withheld
`from a single employee.” Id. at 363 n.12 (citing Davis v.
`United States, 961 F.2d 867, 870 n.2 (9th Cir. 1992); Bland
`v. Comm’r, T.C.M. 2012-84, 2012 WL 967651, at *25 n.13
`(Mar. 22, 2012)); see also Barnhill v. Comm’r, 155 T.C. 1,
`15 n.7 (2020).
`On January 8, 2019, Mr. Bishay filed an application for
`an order of default after he did not receive a response to his
`complaint by the deadline, leading to the realization that
`the complaint had never been served on the government.
`Appx. 1, 5. The Claims Court subsequently served a copy
`of the complaint on the government. Appx. 1. On January
`11, 2019, the Claims Court denied Mr. Bishay’s application
`for a default order since the complaint had not been
`properly served. Appx. 1–2. On January 22, 2019, Mr.
`Bishay moved for reconsideration and the Claims Court
`
`
`“Appx.” citations are to the appendix filed concur-
`1
`rently with Appellant’s brief.
`
`

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`BISHAY v. UNITED STATES
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`denied the motion, again finding that “a default judgment
`was not warranted given that the United States did not re-
`ceive the complaint until after the deadline for filing an an-
`swer had passed.” Appx. 5.
`On May 24, 2019, the government moved for a more
`definite statement, asking the Claims Court to require Mr.
`Bishay to show that he paid the equivalent of the tax due
`for one employee for one quarter of liability. Bishay, 2019
`WL 4415143, at *1. Although IRS records indicate that Mr.
`Bishay paid $100 towards the § 6672 penalty, the govern-
`ment argued that payroll records attached to his complaint
`“cast doubt” on whether his payment met the requirements
`set forth in Weber. Id.; see also Appx. 79–81. The Claims
`Court denied the motion for a more definite statement, but
`noted that Mr. Bishay would, in fact, be required to produce
`evidence that the $100 payment was sufficient. Bishay,
`2019 WL 4415143, at *2. The government subsequently
`moved to dismiss Mr. Bishay’s claims for lack of subject
`matter jurisdiction and the Claims Court granted the mo-
`tion. Id.
`Regarding Mr. Bishay’s tax refund claims, the Claims
`Court found that it did not have subject matter jurisdiction
`because his $100 token payment was less than the smallest
`withholding for one employee for one quarter, which was
`$135.53. Id. at *3. The Claims Court also concluded it did
`not have jurisdiction over Mr. Bishay’s declaratory judg-
`ment claims because it “may not grant declaratory relief if
`such relief is the primary focus of the plaintiff’s suit.” Id.
`at *4 (quoting Rice v. United States, 31 Fed. Cl. 156, 164
`(1994), aff’d, 48 F.3d 1236 (Fed. Cir. 1995)). For Mr.
`Bishay’s claims related to the validity of the tax lien, the
`Claims Court found that “Congress reserved tax lien chal-
`lenges for federal district and state courts” and that there
`was no money-mandating substantive source of law that
`would provide it with jurisdiction. Id. Finally, the Claims
`Court concluded that the Anti-Injunction Act prevents it
`
`

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`BISHAY v. UNITED STATES
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`5
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`from adjudicating requests for injunctive relief regarding
`IRS collection proceedings. Id.
`Mr. Bishay appealed, challenging the Claims Court’s
`determination that it lacked jurisdiction over Mr. Bishay’s
`tax refund claim and arguing the merits of the underlying
`action. Mr. Bishay also appealed the Claims Court’s denial
`of his application for an order of default in a separate deci-
`sion. We have jurisdiction pursuant to 28 U.S.C.
`§ 1295(a)(3).
`
`II
`We review the Claims Court’s legal conclusions de novo
`and its factual findings for clear error. Casitas Mun. Water
`Dist. v. United States, 708 F.3d 1340, 1351 (Fed. Cir. 2013)
`(citing Est. of Hage v. United States, 687 F.3d 1281, 1285
`(Fed. Cir. 2012)). The Claims Court’s dismissal of an action
`for lack of subject matter jurisdiction is a legal conclusion
`we review de novo. Diversified Grp. Inc. v. United States,
`841 F.3d 975, 980 (Fed. Cir. 2016). The plaintiff bears the
`burden of establishing jurisdiction by a preponderance of
`the evidence and we “accept as true all undisputed facts
`asserted in the plaintiff’s complaint and draw all reasona-
`ble inferences in favor of the plaintiff.” Id. (quoting Trusted
`Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed.
`Cir. 2011)).
`The subject matter jurisdiction of the Claims Court is
`limited by statute and includes tax refund claims. 28
`U.S.C. § 1346(a)(1). To establish Claims Court jurisdiction
`over a tax refund action pursuant to the Tucker Act, the
`plaintiff must satisfy the “full payment rule,” which “re-
`quires that a person seeking a refund for a tax or penalty
`pay in full before filing suit.” Diversified Grp., 841 F.3d at
`979 (citing Flora v. United States, 362 U.S. 145, 177
`(1960)). The “full payment rule” is subject to the “divisibil-
`ity exception,” whereby “[i]f an assessment or penalty is
`merely the sum of several independent assessments trig-
`gered by separate transactions, it is considered divisible
`
`

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`BISHAY v. UNITED STATES
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`such that the taxpayer may pay the full amount on one
`transaction, sue for a refund for that transaction, and have
`the outcome of this suit determine his liability for all the
`other, similar transactions.” Id. at 981–82 (emphases, in-
`ternal quotations, and internal citations omitted). One im-
`plementation of the divisibility exception is that a taxpayer
`assessed under § 6672 need only pay the portion of the pen-
`alty attributable to a single employee’s withholding.
`Boynton v. United States, 566 F.2d 50, 52 (9th Cir. 1977);
`see also Cencast Servs., LP v. United States, 729 F.3d 1352,
`1357 (Fed. Cir. 2013); Vir v. United States, 125 Fed. Cl. 293,
`300 (2016) (“Under this exception, ‘a taxpayer assessed un-
`der section 6672 need only pay the divisible amount of the
`penalty assessment attributable to a single individual’s
`withholding before instituting a refund action.’” (quoting
`Boynton, 566 F.2d at 52)).2
`Analyzing Mr. Bishay’s allegations and arguments un-
`der the divisibility exception framework, the Claims Court
`found that, even accepting all of Mr. Bishay’s allegations
`as true, he did not establish that his $100 payment was
`sufficient to satisfy the full payment requirement for
`Claims Court jurisdiction. Bishay, 2019 WL 4415143,
`at *3. Before the Claims Court, Mr. Bishay only alleged
`(without support) that he himself was the lowest paid em-
`ployee, “having received $0 [] per hour from September
`1999 through June 2002,” rendering his $100 payment
`“equivalent to more than his withholding for at least one
`quarter.” Id. This could not be correct, the Claims Court
`concluded, because $0 could not serve as a divisible amount
`of the penalty. Id. That calculation, the Claims Court
`
`
`2 The Claims Court and the district courts have con-
`current jurisdiction over tax refund claims, including tax
`refund claims based on § 6672 penalties. Accordingly, re-
`gional circuits, in addition to our court, have addressed
`these issues.
`
`

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`BISHAY v. UNITED STATES
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`7
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`explained, relies on “the penalty assessment attributable
`to a single individual’s withholding” and having no income
`would not result in any withholding. Id. (emphasis in orig-
`inal). Additionally, we note that a $0 payment would be
`inconsistent with the nature of a tax refund action.
`The Claims Court also found that Mr. Bishay offered
`no facts or argument challenging the government’s calcu-
`lation that the minimum required payment is $135.53. Id.
`Mr. Bishay’s appeal does not dispute the government’s cal-
`culation. We therefore agree with the Claims Court’s ulti-
`mate conclusion that Mr. Bishay did not establish subject
`matter jurisdiction over his tax refund action.
`We also conclude that Mr. Bishay has not identified
`any other statute that confers power on the Claims Court
`to grant his desired relief. For example, Mr. Bishay’s brief
`refers to 26 U.S.C. §§ 7426, 7432, and 7433, but those pro-
`visions of the Internal Revenue Code clearly authorize a
`lawsuit against the United States “in a district court of the
`United States,” not in the Claims Court. Brown v. United
`States, 36 Fed. Cl. 290, 298 (1996), aff’d 217 F.3d 858 (Fed.
`Cir. 1999) (“the United States District Courts have exclu-
`sive jurisdiction over claims of monetary damages related
`to the failure of IRS personnel to release a federal tax lien”
`(citing 26 U.S.C. § 7432)); Ledford v. United States, 297
`F.3d 1378, 1382 (Fed. Cir. 2002) (“Congress has provided
`that claims for damages such as [for unlawful collection ac-
`tivities of the IRS] must be brought exclusively before a
`district court of the United States. The Court of Federal
`Claims is not a district court of the United States, and
`therefore it lacks subject matter jurisdiction over [tax-
`payer]’s damages claims.”); see also 28 U.S.C. § 2410(a)
`(“the United States may be named a party in any civil ac-
`tion or suit in any district court, or in any State court hav-
`ing jurisdiction of the subject matter . . . to quiet title to . . .
`real or personal property on which the United States has
`or claims a mortgage or other lien.”); 28 U.S.C. § 1346(a)(1)
`
`

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`BISHAY v. UNITED STATES
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`(providing the Claims Court with jurisdiction over only tax
`and penalty refund actions).
`Finally, we disagree with the dissent’s alternative ap-
`proach supplying a new calculation for the minimum pay-
`ment. On appeal, Mr. Bishay does not provide an
`alternative calculation nor any reason that the Claims
`Court clearly erred in adopting the government’s uncontro-
`verted calculation. Mr. Bishay instead argues that the
`Claims Court should have found jurisdiction because: (1)
`he “needed not pay the United States any money—much
`less a ‘token payment’ . . . —to confer subject matter juris-
`diction”; and (2) the full payment rule “has no support in
`law or in fact, and is nothing but subterfuge intended to
`side-step and obfuscate” the lower court’s duty to review
`“the United States’ unlawful activities.” Appellant’s Br. 4,
`7 (emphasis added); see also id. at 12–13, 41–42.
`Regardless, our case law, as well as the case law of re-
`gional circuits addressing the same question, establishes
`that penalties are divisible on a transaction-by-transaction
`basis, dividing assessments based on a single individual’s
`withholding (the calculation performed by the government)
`and not type of tax (the calculation performed by the dis-
`sent). Diversified Grp., 841 F.3d at 981–82; Boynton, 566
`F.2d at 52 (“a taxpayer assessed under section 6672 need
`only pay the divisible amount of the penalty assessment
`attributable to a single individual's withholding before in-
`stituting a refund action”); Cencast Servs., 729 F.3d at 1357
`(“where a tax is divisible, the taxpayer may pay the full
`amount on one transaction” (citation and internal quota-
`tions omitted)); Korobkin v. United States, 988 F.2d 975,
`976 (9th Cir. 1993) (“payroll taxes can also be divisible be-
`cause they’re assessed separately for each employee”); see
`also Vir, 125 Fed. Cl. at 300; Gaynor v. United States, 150
`Fed. Cl. 519, 533 (2020) (explaining that “payroll taxes paid
`by employers . . . are considered divisible because they are
`assessed separately for each employee”). Here, the “trans-
`action” or
`“assessment”
`for a single
`individual’s
`
`

`

`Case: 20-1020 Document: 36 Page: 9 Filed: 08/30/2022
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`BISHAY v. UNITED STATES
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`9
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`withholding is that individual’s total federal withholding,
`which includes the individual’s income tax and FICA tax
`withholding, as calculated by the government. Appx. 154–
`55, 160; see Godfrey v. United States, 748 F.2d 1568, 1573
`(Fed. Cir. 1984) (noting that the United States Claims
`Court had allowed the case to proceed after each plaintiff
`paid “the amount in excess of income and FICA taxes with-
`held from one employee”). We disagree that payment of a
`single employee’s FICA tax alone would be sufficient to
`render the Claims Court with jurisdiction. An otherwise
`singular penalty does not become divisible just because it
`“involves summing multiple figures,” such as the income
`tax and FICA tax components of the § 6672 penalty relied
`on by the dissent. Diversified Grp., 841 F.3d at 982.
`III
`We also affirm the Claims Court’s decision denying Mr.
`Bishay’s application for an order of default. Under Rule 55
`of the Rules of the United States Court of Federal Claims
`(RCFC), “[w]hen a party against whom a judgment for af-
`firmative relief is sought has failed to plead or otherwise
`defend, and that failure is shown by affidavit or otherwise,
`the clerk must enter the party’s default.” RCFC 55(a).
`Here, the circumstances leading to the application for an
`order of default arise from failure of service of the com-
`plaint, not failure of the government to plead or otherwise
`defend. RCFC 4(a). Following eventual service of the com-
`plaint, the government moved forward promptly, request-
`ing a stay pending resolution of the government shutdown
`and ultimately moving to dismiss within the deadline.
`Appx. 2. Accordingly, we also affirm the Claims Court’s
`denial of Mr. Bishay’s request for an order of default.
`CONCLUSION
`We have considered Mr. Bishay’s remaining arguments
`and do not find them persuasive. For the foregoing rea-
`sons, we affirm the Claim Court’s dismissal and the Claims
`
`

`

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`BISHAY v. UNITED STATES
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`Court’s denial of Mr. Bishay’s request for an order of de-
`fault.
`
`AFFIRMED
`
`
`
`

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`Case: 20-1020 Document: 36 Page: 11 Filed: 08/30/2022
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`
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`BAHIG F. BISHAY,
`Plaintiff-Appellant
`
`v.
`
`UNITED STATES,
`Defendant-Appellee
`______________________
`
`2020-1020
`______________________
`
`Appeal from the United States Court of Federal Claims
`in No. 1:18-cv-01665-EDK, Judge Elaine Kaplan.
`______________________
`
`NEWMAN, Circuit Judge, dissenting.
`The court today expels Mr. Bahig Bishay from the
`fourth court in which he has sought review of a lien that
`the IRS placed on his property in 2013. The lien was in
`collection of a penalty the IRS assessed on Mr. Bishay per-
`sonally, for non-payment to the IRS of employee withhold-
`ing taxes. These taxes accrued during the first two
`quarters of the bankruptcy of the Commonwealth Automo-
`bile Company in 2002. 26 U.S.C. § 6672 authorizes a pen-
`alty for willful, untruthful, and purposefully tax-evasive
`failure to withhold and pay to the IRS certain employee
`taxes. The penalty provision provides:
`
`

`

`Case: 20-1020 Document: 36 Page: 12 Filed: 08/30/2022
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`BISHAY v. UNITED STATES
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`26 U.S.C. § 6672. Failure to collect and pay over
`tax, or attempt to evade or defeat tax
`(a) General rule. Any person required to collect,
`truthfully account for, and pay over any tax im-
`posed by this title who willfully fails to collect such
`tax, or truthfully account for and pay over such tax,
`or willfully attempts in any manner to evade or de-
`feat any such tax or the payment thereof, shall, in
`addition to other penalties provided by law, be lia-
`ble to a penalty equal to the total amount of the tax
`evaded, or not collected, or not accounted for and
`paid over.
`Mr. Bishay states that these culpable conditions did not ex-
`ist, that the Company was in bankruptcy and the IRS filed
`a claim for these taxes in the bankruptcy proceeding, and
`that the statute of limitations had run. The Federal Circuit
`is the fourth court that has declined to review the merits of
`this penalty assessment, starting with the Tax Court in
`2015. I respectfully dissent from the majority’s affirmance
`of the dismissal by the Court of Federal Claims, and from
`our failure to consider aspects that could resolve the issue.
`DISCUSSION
`Mr. Bishay was the president and owner of Common-
`wealth Automobile Company. The company initiated
`bankruptcy proceedings under Chapter 11 on January 2,
`2002, and all operations ceased under Chapter 7 in May
`2002. The record contains W-2 forms showing withholding
`of employee income tax and FICA (Social Security and
`Medicare) taxes totaling $41,612.40 during the first two
`quarters of 2002. The record states that this withholding
`was not paid over to the IRS.
`The record contains copies of communications among
`the IRS, the trustee in bankruptcy, and various Common-
`wealth representatives, and in 2003 the IRS filed a claim
`for these taxes with the bankruptcy court. In 2005 the
`
`

`

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`BISHAY v. UNITED STATES
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`3
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`bankruptcy estate was closed; the IRS claim was not paid
`due to lack of funds. On December 22, 2006, the IRS noti-
`fied Mr. Bishay that “assessment will be made” of the
`“Trust fund recovery penalty,” unless he paid the
`$41,612.40 by the stated date. This was followed by an As-
`sessment notice dated February 5, 2007.
`On August 29, 2013, the IRS filed a Notice of Federal
`Tax Lien with the Registry of Deeds in Dedham, Massa-
`chusetts, for the penalty amount of $41,612.40. The Notice
`states:
`This Notice of Federal Tax Lien gives public notice
`that the government has a lien on all your property
`(such as your house or car), all your rights to prop-
`erty (such as money owed to you) and to property
`you acquire after this notice is filed.
`Appx72–73. The Notice stated he could bring a “collection-
`due-process appeal.” The Tax Court described this proceed-
`ing as affirming the assessment because “Mr. Bishay’s re-
`ceipt of Letter 1153 and his subsequent Appeals conference
`was, for purposes of section 6330(c)(2)(B), a prior ‘oppor-
`tunity to dispute’ his liability for the trust fund recovery
`penalties. Therefore, Appeals did not err by precluding Mr.
`Bishay from re-raising that argument at his CDP hearing.”
`Bishay v. Comm’r, 109 T.C.M. (CCH) 1543, 2015 WL
`3505310 at *7 (June 4, 2015).
`The Tax Court stated that “[t]he lack of opportunity for
`judicial review after the Letter 1153 proceeding does not
`severely prejudice the taxpayer because, as we have previ-
`ously noted, ‘the section 6672 penalty is divisible, so that a
`taxpayer may litigate the penalty after having paid an
`amount corresponding to the tax withheld from a single
`employee.’” Id. at *6 n.9. “[T]he taxpayer . . . can make a
`small ‘token’ payment towards the section 6672 penalty . . .
`[and] file a refund suit in Federal District Court or the
`Court of Federal Claims.” Id.
`
`

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`BISHAY v. UNITED STATES
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`Mr. Bishay appealed to the First Circuit Court of Ap-
`peals, and that court affirmed the Tax Court as acting
`within its discretion. Bishay v. Comm’r, 2017 WL
`11453028 (1st Cir. Oct. 11, 2017) (per curiam).
`Neither of these courts mentioned Mr. Bishay’s juris-
`dictional issue of the statute of limitations, or his challenge
`to his personal liability and the applicability of the penalty
`provisions of § 6672, although the Tax Court recited that
`“[i]n 2002 Commonwealth filed . . . a petition under the
`Bankruptcy Code” and “Mr. Bishay was removed and re-
`placed by a chapter 7 bankruptcy trustee.” T.C.M. at *2.
`Mr. Bishay then paid a $100 “token” to the IRS, filed
`the IRS forms for refund, and then filed a claim in the
`Court of Federal Claims. The government moved to dis-
`miss for lack of subject matter jurisdiction, on the ground
`that Mr. Bishay’s payment of $100 was insufficient. The
`government argued that Mr. Bishay should have paid at
`least $135.53, based on the formula for divisible tax-refund
`claims developed in Lucia v. United States, 474 F.2d 565,
`576 (5th Cir. 1973). The Federal Circuit has applied this
`formula, e.g., in Cencast Servs., L.P. v. United States, 729
`F.3d 1352 (Fed. Cir. 2013), explaining:
`When a taxpayer sues for a refund based on a di-
`visible refund claim, it is meant to “test the validity
`of the entire assessment.”
`Id. at 1366. However, Mr. Bishay is not disputing the
`amount of any Commonwealth Automobile Company tax
`obligation; and the trustee in bankruptcy did not dispute
`this withholding obligation. Mr. Bishay is challenging the
`penalty levied against him personally under § 6672. He
`seeks judicial review of the government’s penalty action; he
`has yet to achieve such review.
`
`The Court of Federal Claims and the Federal Circuit
`are successors to the original Court of Claims and continue
`the prior court’s Tucker Act jurisdiction of the defined
`
`

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`Case: 20-1020 Document: 36 Page: 15 Filed: 08/30/2022
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`BISHAY v. UNITED STATES
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`5
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`claims against the United States. See Pocono Pines Assem-
`bly Hotels Co. v. United States, 73 Ct. Cl. 447 (1932):
`To remove [cases against the United States] from a
`legislative to a judicial forum was the especial pur-
`pose of the Tucker Act. What Congress desired was
`a judicial determination of liability in the same
`manner as suits between individuals so that a jus-
`ticiable claim against the United States, if estab-
`lished, under judicial procedure would determine
`the respective rights of the parties.
`Id. at 486.
`For tax appeals specifically directed to employer/em-
`ployee obligations, the courts created a protocol whereby,
`when a tax issue concerns several employees or pay peri-
`ods, it suffices for Tucker Act jurisdiction to prepay the dis-
`puted tax for one employee and one pay period. For
`example, in Michaud v. United States, 40 Fed. Cl. 1 (1997),
`the plaintiffs prepaid “amounts represent[ing] the FICA
`taxes withheld from the compensation of two . . . employ-
`ees,” although income tax as well as the FICA taxes were
`at issue. The Court of Federal Claims accepted that the
`remittance measured by the FICA taxes served to establish
`Tucker Act jurisdiction. See id. at 28 (accepting jurisdic-
`tion based solely on FICA (Social Security and Medicare)
`prepayment). The same situation is present here, for Mr.
`Bishay’s $100 more than suffices to meet the prepayment
`protocol for the FICA withholding.
`As precedent explains, income tax withholding and
`FICA tax withholding are separate provisions of the tax
`code. See, e.g., Jenkins v. United States, 101 Fed. Cl. 122,
`130 (2011), aff’d, 484 F. App’x 511 (Fed. Cir. 2012). These
`withholdings are measured separately, see CSX Corp. v.
`United States, 518 F.3d 1328, 1338, 1343 (Fed. Cir. 2008)
`(finding the different purposes behind the FICA taxes for
`Social Security and Medicare, and income tax, justified
`treating the base measures of wages differently). These
`
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`Case: 20-1020 Document: 36 Page: 16 Filed: 08/30/2022
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`6
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`BISHAY v. UNITED STATES
`
`taxes are listed separately on each employee’s W-2 form.
`See Appx177–184 (W-2 forms for 2002 for fourteen Com-
`monwealth Auto employees, where Box 1 states wages for
`income tax purposes and the amount withheld appears in
`Box 2; Box 3 states wages subject to Social Security with
`the amount withheld in Box 4; and Box 5 states Medicare
`wages with the amount withheld in Box 6). The withhold-
`ings for all three categories are separate assessments at
`different rates. As in Michaud, there is no reason why the
`FICA taxes are unable to represent the “one transaction”
`that precedent endorses for Tucker Act jurisdictional pur-
`poses.
`Applying this formula to the record, the withholding for
`the lowest paid Commonwealth employee shown in W-2
`forms in the Appendix is $128.25 for Social Security and
`$29.99 for Medicare, for a total of $158.24 for three quar-
`ters. Appx178. Dividing by three, see Fed. Cl. Op. at *3,1
`the required pre-payment is $52.75. Mr. Bishay’s $100
`thus established jurisdiction under the formula shown in
`precedent. Although the panel majority criticizes this cal-
`culation, I agree with the Court of Federal Claims that it
`“is not inclined to prevent [a plaintiff] from challenging [a]
`full assessment in this forum simply because the repre-
`sentative amount he paid might not be representative
`enough.” Kaplan v. United States, 115 Fed. Cl. 491, 494
`(2014).
`Nonetheless, the Court of Federal Claims and now the
`panel majority endorse the government’s argument that
`Mr. Bishay’s $100 is inadequate and therefore that there is
`no jurisdiction of his appeal. Mr. Bishay instead presented
`the argument that since the lowest paid employee (himself)
`was paid no wages, no pre-payment at all was required.
`Whatever one’s view of this argument, it suffices to
`
` Bishay v. United States, 2019 WL 4415143 (Fed.
`1
`Cl. Sept. 16, 2019).
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`Case: 20-1020 Document: 36 Page: 17 Filed: 08/30/2022
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`BISHAY v. UNITED STATES
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`7
`
`conclude any pre-payment requirement was met by the
`$100 that was paid.
`The judicial obligation is to apply the correct law and
`to apply it correctly, whether or not the parties do so. As
`reiterated in Kamen v. Kemper Fin. Servs., Inc., 500 U.S.
`90 (1991):
`[T]he court is not limited to the particular legal the-
`ories advanced by the parties, but rather retains
`the independent power to identify and apply the
`proper construction of governing law.
`Id. at 99.
`The panel majority notes that in Diversified Grp Inc. v.
`United States, 841 F.3d 975 (Fed. Cir. 2016), this court held
`that a tax obligation does not become divisible by “in-
`volv[ing] summing multiple figures.” Id. at 982. However,
`in Diversified the court held taxes are divisible when they
`are their “own assessments.” Id. at 981. An assessment is
`the “[d]etermination of the rate or amount of something.”
`Assessment, Black’s Law Dictionary (11th ed. 2019). The
`FICA Social Security and Medicare taxes are distinct as-
`sessments, rates, and amounts, and they support Tucker
`Act jurisdiction under existing rules.
`The panel majority also asserts that this theory cannot
`be considered because Mr. Bishay did not argue this theory
`of adequacy of his $100 payment. However, jurisdiction
`must be correctly decided. See J.R. Sand & Gravel Co. v.
`United States, 552 U.S. 130, 132 (2008) (“The question pre-
`sented is whether a court must raise on its own the timeli-
`ness of a lawsuit filed in the Court of Federal Claims,
`despite the Government’s waiver of the issue. We hold that
`the special statute of limitations governing the Court of
`Federal Claims requires that sua sponte consideration.”).
`Jurisdictional issues are “open at any stage of the liti-
`gation, whether or not the parties have raised them.” UST,
`Inc. v. United States, 831 F.2d 1028, 1031 (Fed. Cir.
`
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`Case: 20-1020 Document: 36 Page: 18 Filed: 08/30/2022
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`8
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`BISHAY v. UNITED STATES
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`1987). Appellate jurisdiction extends not just to the correc-
`tion of the specific error appealed, but also to the power to
`dispose of the case “as justice requires.” Patterson v. Ala-
`bama, 294 U.S. 600, 607 (1935). On this appeal, although
`Mr. Bishay states several times that the statute of limita-
`tions has run, the government does not respond. This as-
`pect should have been resolved at the threshold.
`Mr. Bishay was denied the forum of the Tax Court and
`the regional circuit, where those courts relied on the avail-
`ability of the forum of the Court of Federal Claims. In Co-
`hens v. Virginia, 19 U.S. 264 (1821), the Court stated the
`principles of jurisdiction in terms of judicial responsibility:
`It is most true that this Court will not take juris-
`diction if it should not: but it is equally true, that it
`must take jurisdiction if it should. The judiciary
`cannot, as the legislature may, avoid a measure be-
`cause it approaches the confines of the constitution.
`We cannot pass it by because it is doubtful. With
`whatever doubts, with whatever difficulties, a case
`may be attended, we must decide it, if it be brought
`before us. We have no more right to decline the ex-
`ercise of jurisdiction which is given, than to usurp
`that which is not given. The one or the other would
`be treason to the constitution.
`Id. at 404. See also Hyde v. Stone, 61 U.S. 170, 175 (1857)
`(“But the courts of the