United States of America v. Appelbaum

Filing 68

SCHEDULING ORDER setting out deadlines for resolving remaining issues in these consolidated cases. See image of Order attached for details. Signed by District Judge Richard Voorhees on 3/28/2016. (cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
Civil Action No. 5:12-CV-186 (Lead); 3:14-CV-504 (Consolidated)
UNITED STATES OF AMERICA,
Plaintiff,
v.
ERIC APPELBAUM,
Defendant.
_______________________________________

SCHEDULING ORDER

CLAUDIA APPELBAUM,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

THIS MATTER is before the Court on its own Motion.
On February 17, 2016, the Court and counsel for all parties conducted a status
conference to identify and discuss a schedule resolving the remaining issues in the abovecaptioned consolidated cases: United States v. Eric Appelbaum, 5:12-CV-186
(Lead)(“TFRP Case”) and Claudia Appelbaum v. United States, 3:14-CV-504 (“Wrongful
Levy Case”). At the conclusion of the status conference, the Court ordered the parties to
propose a schedule. The parties jointly submitted a proposed schedule by electronic mail

dated March 14, 2016. The Court accepts and adopts the recommendations in that
schedule, and orders as follows:
1. If the United States files a Notice of Appeal of the final judgment in the TFRP Case
by April 4, 2016, the Court will stay all proceedings in the consolidated cases until
the Fourth Circuit resolves the appeal.
2. If the United States does not file a Notice of Appeal by April 4, 2016, the following
schedule will govern resolution of the remaining issues in the consolidated cases.
a. Resolution of the Appelbaums’ Motion for Costs and Attorney’s Fees (Doc.
No. 66) (“Motion for Costs and Fees”). The United States will file its
response to the Motion for Costs and Fees by April 18, 2016.

The

Appelbaums’ reply in support of their Motion for Costs and Fees will be
due on May 2, 2016.
b. Disposition of the Levied Funds at Issue in the Wrongful Levy Case. The
parties have agreed that, if the United States does not appeal, the United
States must return the funds that are the subject of the Wrongful Levy Case.
The parties will submit a consent judgment regarding return of the funds,
and a related motion to approve, by April 11, 2016.
c. Disposition of Claudia Appelbaum’s Claim Under 26 U.S.C. § 7426(h) for
Damages in the Wrongful Levy Case.

On May 2, 2016, the parties

concurrently will file briefs setting forth their respective positions on the
scope of damages that Mrs. Appelbaum may claim under her § 7426(h)
claim and suggesting a procedure to resolve the § 7426(h) claim. Each party
may file a responsive brief by May 16, 2016.

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d. Eric Appelbaum’s Demand for Return of Wrongfully Withheld or Levied
Social Security Payments and Tax Refund Offset Proceeds.

Eric

Appelbaum seeks return of certain Social Security payments and tax refund
amounts that the Internal Revenue Service applied to the unlawful
assessment that was overturned in the TFRP Case. It is the position of the
United States that Eric Appelbaum is not entitled to the return of those
amounts through these proceedings. On May 2, 2016, the parties will
concurrently submit briefs on the issue of whether Appelbaum is entitled to
a refund of the social security and tax refund amounts through these
proceedings or without further, separate proceedings as a consequence of
the Court’s final disposition of the TFRP Case. Responsive briefs will be
due on May 16, 2016.

Signed: March 28, 2016

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