Nancy Kovacs v. DOJ
Filing
Filed opinion of the court by Judge Wood. AFFIRMED. Diane P. Wood, Chief Judge; William J. Bauer, Circuit Judge and Joel M. Flaum, Circuit Judge. [6543927-1] [6543927] [12-3263]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐3263
NANCY ELLEN KOVACS,
Plaintiff‐Appellant,
v.
UNITED STATES OF AMERICA,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 11‐C‐1140 — Lynn Adelman, Judge.
____________________
ARGUED SEPTEMBER 20, 2013 — DECIDED JANUARY 10, 2014
____________________
Before WOOD, Chief Judge, and BAUER and FLAUM, Circuit
Judges.
WOOD, Chief Judge. This appeal marks the tenth
installment of the struggle between taxpayer Nancy Kovacs
and the Internal Revenue Service. At its root, the case
concerns the IRS’s attempts to collect tax debts that arose in
tax years 1990–95. Because those debts had been discharged
in bankruptcy, the Service’s efforts violated 11 U.S.C.
§ 524(a). Kovacs would like to be compensated for her efforts
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in resisting the IRS’s demands. But because most of the
unlawful collection activities occurred outside the applicable
two‐year limitations period, the bankruptcy court (affirmed
by the district court) awarded her only $3,750 in attorneys’
fees. Kovacs contends that she is entitled to more. We
conclude, however, that the bankruptcy court correctly
applied our instructions in Kovacs v. United States, 614 F.3d
666 (7th Cir. 2010), and that its judgment should be affirmed.
I
Kovacs filed for bankruptcy in July 2001 and received a
discharge of her debts in October 2001. Later that year, the
IRS notified her that it had applied part of her 2000 tax re‐
fund against her outstanding tax debts from tax years 1990
to 1995. Over the following year, Kovacs’s attorneys and the
IRS went back and forth about the status of those debts, with
the IRS claiming that Kovacs still owed over $150,000 and
Kovacs denying the obligation. Finally, in August 2003 IRS
Appeals Officer Teresa Mulcahy sent Kovacs a letter, in
which Mulcahy confirmed that Kovacs’s liabilities for the tax
years in question had been discharged through her bank‐
ruptcy proceeding. Mulcahy also informed Kovacs that the
2000 refund would now be applied against her non‐
discharged 1999 tax debt.
Apparently the right hand at the IRS did not know what
the left hand was doing. Despite Mulcahy’s representations,
in September 2003 the IRS sent Kovacs two letters labeled
“Statement of Adjustment to Your Account.” Each of these
letters erroneously stated that Kovacs still owed over $13,000
for debts from tax years 1990–1995; in fact, Mulcahy correct‐
ly had reported that those debts were discharged. Kovacs
and her attorneys apparently spotted the mistake easily. One
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of Kovacs’s attorneys testified later: “It was a bit of a clean‐
up; I wasn’t alarmed by it in any great fashion.” In response
to the question “although you may have found [the corre‐
spondence] confusing, it [the IRS] wasn’t trying to collect
taxes for the [tax years in question]?” the lawyer responded,
“I don’t believe it was, no.” After reviewing the two Septem‐
ber letters, Kovacs’s attorneys did not even bother to contact
the IRS insolvency unit to express concern. They did, how‐
ever, write a brief note clarifying the status of the discharged
debt in later correspondence about Kovacs’s non‐discharged
1999 tax debt.
About 18 months later, in January 2005, Kovacs filed an
administrative claim against the IRS, as required by 26
U.S.C. § 7430(b)(1) as a predicate to a lawsuit. When the IRS
did not respond to her administrative claim, Kovacs filed an
adversary complaint in bankruptcy court in August 2005
(Kovacs I). Her petition initially sought just under $12,000 in
pre‐litigation damages; she later reduced that demand to
$8,622, and she also sought over $106,000 in litigation costs.
At trial, the IRS admitted its fault but argued that the two‐
year statute of limitations barred the action. Kovacs conced‐
ed that the only losses she could claim were attorneys’ fees
and costs. She prevailed, but her victory was disappointing.
She recovered only a small part of the nearly $115,000 in to‐
tal damages she sought. The court cut the amounts back to
$6,450 in pre‐litigation damages and $18,550 in litigation
costs because Kovacs had failed to mitigate damages and
protracted the litigation.
On appeal, the district court remanded for reconsidera‐
tion of the government’s statute‐of‐limitations defense (Ko‐
vacs II). Taking another look at the case, the bankruptcy court
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found for the government, because Kovacs had filed more
than two years after the IRS’s last collection action (Kovacs
III). The district court affirmed (Kovacs IV), and Kovacs ap‐
pealed. We affirmed in part, but reversed with respect to the
two letters that the IRS sent in September 2003, less than two
years prior to Kovacs’s lawsuit (Kovacs V, 614 F.3d 666). We
remanded to the bankruptcy court for determination of the
damages and litigation costs attributable to those two letters.
On remand again, the bankruptcy court determined that
Kovacs was entitled to $3,750 for the two letters (Kovacs VI).
The court recounted the testimony of Kovacs’s lawyers re‐
flecting their lack of concern about the two letters and con‐
cluded that “whatever damages were incurred as a result of
the two September 2003 letters were minimal.” It generously
estimated that “reasonable legal services performed by Ko‐
vacs’[s] attorneys in relation to the two September 2003 let‐
ters consumed approximately 25 hours.” Applying the statu‐
tory fee rate, the court found Kovacs entitled to $3,750 (that
is, 25 hours at $150 per hour). Neither party takes issue with
the court’s calculation of the time spent responding to the
two letters.
Even then, the case was not over. Kovacs appealed again
to the district court (Kovacs VII), which sent the case back
once more to the bankruptcy court to determine whether, in
light of Kovacs V, Kovacs was still the prevailing party and
the government’s position was still not substantially justi‐
fied, so that Kovacs could recover under the statute. That
court found in Kovacs’s favor (Kovacs VIII); the district court
upheld the $3,750 award and declared that the award was
premised on litigation costs, not actual damages (Kovacs IX);
and Kovacs has now returned to this court for Round 10.
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II
We apply the same standards of review as the district
court when we review bankruptcy court decisions. In re
Smith, 582 F.3d 767, 777 (7th Cir. 2009). Questions of law are
considered de novo, and factual findings receive clear‐error
scrutiny. Mungo v. Taylor, 355 F.3d 969, 974 (7th Cir. 2004).
Kovacs’s arguments on appeal seek to turn the clock back
to earlier stages in this litigation. She urges first that the
bankruptcy court’s determination in Kovacs I that actual
damages include attorneys’ fees was law of the case and thus
should not have been disturbed. Next, she contends that the
bankruptcy court’s award was for actual damages and thus
not subject to the statutory fee limitation on litigation costs.
Finally, she asserts that she is the prevailing party and there‐
fore entitled to litigation fees and costs for the entirety of the
litigation. We address these points in turn.
1. Law of the Case; Mandate Rule
The Internal Revenue Code, 26 U.S.C. § 7433, authorizes
a plaintiff to recover damages for unauthorized tax collec‐
tion activities (§ 7433 damages), but it also specifies that liti‐
gation costs in such actions are compensable only under a
different Code provision, 26 U.S.C. § 7430 (§ 7430 litigation
costs). In contrast to general § 7433 damages, § 7430 litiga‐
tion costs are limited by a presumptive maximum hourly fee
provided in the statute. Id. § 7430(c)(1)(B)(iii).
In Kovacs I, the bankruptcy court awarded $6,450 in pre‐
litigation attorneys’ fees without specifying the statutory
provision under which the award was made. Although the
court measured Kovacs’s pre‐litigation attorneys’ fees ac‐
cording to § 7430’s hourly fee rate, Kovacs argues that the
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bankruptcy court determined that the pre‐litigation fees
were compensable as § 7433 damages, rather than § 7430 lit‐
igation costs. This, she continues, must stand as law of the
case because the government did not appeal that aspect of
the bankruptcy court’s original decision. Kovacs, however,
misunderstands the law‐of‐the‐case doctrine and ignores the
significance of the fact that Kovacs I was vacated by our deci‐
sion in Kovacs V.
The law‐of‐the‐case doctrine “posits that when a court
decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages in the same
case.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,
816 (1988), quoting from Arizona v. California, 460 U.S. 605,
618 (1983). This principle is closely related to the mandate
rule, which “requires a lower court to adhere to the com‐
mands of a higher court on remand.” United States v. Polland,
56 F.3d 776, 777 (7th Cir. 1995). Both rules have a role to play
in this case, since it involves rulings from a higher court as
well as seriatim decisions of courts at the trial level. A court
to which a case has been remanded may address only the
issue or issues remanded, issues arising for the first time on
remand, and issues that were timely raised but which re‐
main undecided. United States v. Morris, 259 F.3d 894, 898
(7th Cir. 2001). The lower court is bound, through the man‐
date rule, to the resolution of any points that the higher
court has addressed. Id.; see also United States v. Husband, 312
F.3d 247, 250 (7th Cir. 2002) (“[T]his court does not remand
issues … when those issues have been waived or decided.”).
In Kovacs V, we held that Kovacs’s suit “as a whole” was
not timely, because almost all of the IRS’s unlawful collection
activities occurred more than two years before she filed her
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lawsuit. 614 F.3d at 677; see also United States v. Parker, 101
F.3d 527, 528 (7th Cir. 1996) (“[T]he scope of the remand is
determined not by formula, but by inference from the opin‐
ion as a whole.”). This was an important ruling, since Kovacs
may pursue this suit only insofar as her action falls within a
proper waiver of sovereign immunity. For some laws, the
applicable statute of limitations determines the temporal
scope of the government’s waiver of sovereign immunity in a
particularly forceful way. In such cases, the statute of limita‐
tions serves a weighty enough policy that a court must con‐
sider it even if the government has waived the point. John R.
Sand & Gravel Co. v. United States, 552 U.S. 130, 133–34 (2008).
For this kind of statute, the Court noted, “[a]s convenient
shorthand … [it] has sometimes referred to the time limits …
as ‘jurisdictional.’” Id. at 134. Compare Sebelius v. Auburn
Reg. Med. Ctr., 133 S. Ct. 817, 824 (2013) (deadline for ex‐
hausting administrative remedies in Medicare suits against
the United States is not jurisdictional). Here, however, be‐
cause the government has raised its limitations defense
throughout the litigation, it makes little difference whether
we call the defense quasi‐jurisdictional. The only part of Ko‐
vacs’s suit that survived our earlier decision relates to the
two September 2003 letters, which appear to have been sent
within the two‐year limitations period. Kovacs V, 614 F.3d at
677. We remanded for determination of the damages that
could be attributed exclusively to those letters. Id.
On remand, the bankruptcy court properly addressed
this issue. It calculated the number of hours that Kovacs’s
attorneys spent responding to the two letters, then multi‐
plied that figure by the statutory fee of $150 per hour. Alt‐
hough the court did not make clear whether its new award
reflected § 7433 damages or § 7430 litigation costs, its use of
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the statutory fee from § 7430—as in its earlier decision—
indicates that the award was based on § 7430. The bankrupt‐
cy court’s determination in Kovacs I has no further force be‐
cause we specifically vacated that order. (In fact, though we
do not need to belabor the point, a look at the Kovacs I opin‐
ion reveals that all pre‐litigation damages awarded there
were associated with time‐barred collection activities.)
2. § 7433 Damages Versus § 7430 Litigation Costs
Kovacs next argues that, regardless of law of the case, the
award at issue here was for damages recoverable under
§ 7433, and therefore it was not subject to the statutory fee
limitation on § 7430 litigation costs. In her view, because all
legal services related to the two letters occurred before the
commencement of litigation, by definition they could not be
litigation costs. But there is no rule that litigation costs can
accrue only after the litigation commences. See Webb v. Bd. of
Educ. of Dyer Cnty, Tenn., 471 U.S. 234, 243 (1985) (“Of course,
some of the services performed before a lawsuit is formally
commenced by the filing of a complaint are performed ‘on
the litigation.’”) (interpreting 42 U.S.C. § 1988). To be com‐
pensable under a fee‐shifting statute, “the work done by
counsel must be ‘useful and of a type ordinarily necessary’
to secure the final result obtained from the litigation.” Penn‐
sylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S.
546, 561 (1986) (quoting Webb, 471 U.S. at 243). “Application
of this standard is left to the discretion of the district court.”
Id.
There is no reason to apply a different analysis to the de‐
termination of reasonable litigation fees under 26 U.S.C.
§ 7430. That statute allows the prevailing party to collect
“reasonable litigation costs incurred in connection with [a]
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court proceeding,” 26 U.S.C. § 7430(a)(2), and defines rea‐
sonable litigation costs to include “reasonable fees paid or
incurred for the services of attorneys in connection with the
court proceeding,” id. § 7430(c)(1)(B)(iii). The key question is
which services occur “in connection with” a court proceed‐
ing. We cannot say that the bankruptcy court in this case
abused its discretion when it decided that the legal services
performed for Kovacs occurred in connection with the litiga‐
tion.
The distinction between § 7430 litigation costs and § 7433
damages is important because of the statutory fee cap that
applies to the former. Section 7430 spells out detailed rules
for which litigation costs are recoverable. Notably, it limits
recoverable attorneys’ fees, absent special circumstances, at a
cost‐of‐living‐adjusted rate that was $150 per hour at the
time of this case. See § 7430(c)(1)(B)(iii). Section 7433 does
not include any such language; it authorizes the recovery of
“actual, direct economic damages,” plus costs. Id. § 7433(b).
For actions relating to the effect of a discharge, § 7433 per‐
mits an action for damages, but it notes that “administrative
and litigation costs in connection with such an action may
only be awarded under section 7430.” 26 U.S.C. §§ 7433(e)(1),
(2)(B)(i).
In context, it is clear that the bankruptcy court based its
award on § 7430. Looking to Exhibit 37, which contained en‐
tries of the legal services performed by Kovacs’s attorneys,
the court “estimate[d] a total of 10 hours of these entries
were in connection with the two September 2003 letters.” But
the court did not stop with Exhibit 37. Overall, it concluded
that “the reasonable legal services performed by Kovacs’[s]
attorneys in relation to the two September 2003 letters con‐
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sumed approximately 25 hours.” Frankly, even this seems
generous to us, but neither party asks us to review this as‐
pect of the case. The bankruptcy court acted well within its
discretion when it found no § 7433 damages and only 25
hours of § 7430 litigation costs.
3. Fees for the Entire Litigation
Finally, Kovacs argues that she is entitled to her attor‐
neys’ fees and costs for the entirety of the litigation because
she was the prevailing party. See 26 U.S.C. § 7430(a). In sup‐
port of this argument, Kovacs makes a few points: (1) the
bankruptcy court erred by failing to analyze § 7430 litigation
costs and § 7433 damages separately; (2) Kovacs’s award
should not be reduced for failure to mitigate damages; and
(3) Kovacs’s reasonable litigation costs should not be cali‐
brated to her monetary recovery or require victory on all
claims. None of these arguments, however, acknowledges
the elephant in the room: the statute of limitations.
We have already explained why the only fair reading of
the bankruptcy court’s opinion reveals that it concluded
(correctly) that any award for Kovacs had to be based on
§ 7430. Moreover, the result in Kovacs V was largely unfavor‐
able to Kovacs. The court was entitled to take this into ac‐
count when it considered whether Kovacs was entitled to
litigation costs for the entirety of the litigation. Kovacs tries
to avoid this result by arguing that some attorneys’ fees
should be compensable as damages rather than litigation
costs. She points out that a plaintiff who prevails against the
IRS seldom has additional damages beyond her attorneys’
fees. But this argument proves too much. Notwithstanding
that reality, Congress chose to impose a statute of limita‐
tions. There is no support for the idea that Congress intend‐
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ed to set aside the statute of limitations for the most likely
form of loss associated with these claims.
We have little to say about Kovacs’s argument that her
award should not have been reduced for failure to mitigate
damages, for the simple reason that the award was not re‐
duced for any such reason. Kovacs is apparently referring to
the bankruptcy court’s opinion in Kovacs I, in which the
court cut her recovery because it found that she failed to mit‐
igate damages and unreasonably protracted the litigation.
As we have noted several times in this opinion, Kovacs I is
history. It is true that the bankruptcy court remarked in Ko‐
vacs VI that “this case has been vastly over‐lawyered, over‐
staffed, and over‐pleaded by Kovacs’ attorneys,” but that
view did not influence the court’s award. As we already
have noted, the court calculated the hours spent responding
to the two September letters and applied the statutory hour‐
ly fee. Because the award at issue here was not reduced for
failure to mitigate, there is nothing to this argument.
Finally, Kovacs protests that the Supreme Court has held
that prevailing‐party fee awards in public interest cases
should not be a function of the monetary sums at stake and
that a plaintiff need not prevail on all claims in such cases to
be entitled to full fees. E.g., Hensley v. Eckerhart, 461 U.S. 424,
440 (1983). That is true, as far as it goes. Public‐rights suits
often vindicate interests that cannot be quantified in money.
See City of Riverside v. Rivera, 477 U.S. 561, 575 (1986) (“Be‐
cause damages awards do not reflect fully the public benefit
advanced by civil rights litigation, Congress did not intend
for fees in civil rights cases … to depend on obtaining sub‐
stantial monetary relief.”).
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Fee‐shifting in tax cases, as authorized by 26 U.S.C.
§ 7430, also serves an important public‐interest function; we
find it unhelpful to wonder whether that interest is as
weighty as those served by the civil rights statute. Cf. Perdue
v. Kenny A. ex rel. Winn, 559 U.S. 542, 559 (2010) (explaining
that fee shifting in “Section 1988 serves an important public
purpose by making it possible for persons without means to
bring suit to vindicate their rights”). The difficulty for Ko‐
vacs is not with the strength of the analogy between § 7430
and § 1988; it is with the impact of the statute of limitations
on her case.
In this appeal, Kovacs is trying to erase the consequences
of Kovacs V and to avoid the fact that only a small remnant of
her case remains. She would like us to rule that, notwith‐
standing that fact, she may recover all the litigation costs she
accrued throughout this saga. That, however, would flatly
contradict our holding in Kovacs V that “[e]ach of the IRS’s
attempts to collect taxes from Kovacs was a discrete act ra‐
ther than a continuing violation or part of the original viola‐
tion.” 614 F.3d at 676. Although we sympathize with Ko‐
vacs’s frustration at the IRS’s initial errors, the statute of lim‐
itations stands in the way of broader relief. The bankruptcy
court, affirmed by the district court, correctly held that Ko‐
vacs may recover only $3,750 in litigation costs.
AFFIRMED.
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