Gary S. Christensen, MD PC v. United States

MEMORANDUM **

Gary S. Christensen, M.D. P.C. (“Christensen”), an Arizona corporation, filed suit alleging that the Internal Revenue Service failed to provide it due process prior to determining that Christensen owed the United States for unpaid income taxes. The government filed a motion for summary judgment and, in the alternative, a motion to dismiss Christensen’s complaint. After Christensen failed to oppose either motion, the district court granted summary judgment and denied the government’s motion to dismiss as moot. Christensen moved the district court to reconsider its summary judgment order, and the court denied the motion. Christensen appeals from the summary judgment and the denial of its motion for reconsideration. We affirm.

As a preliminary matter, we do not have jurisdiction to review the district court’s underlying summary judgment order. Under Federal Rule of Appellate Procedure 4(a)(1)(B), a notice of appeal from a case in which the United States is a party must be made within sixty days of the judgment being entered, unless the deadline is tolled by the timely filing of a post-judgment motion. Fed. RApp. P. 4(a)(4)(A).

Summary judgment was entered on December…

concurring in part and dissenting in part:

I agree that we do not have jurisdiction to review the district court’s summary judgment. However, because I conclude that Christensen does not appeal from the district court’s denial of the motion to reconsider, I would dismiss.

Christensen’s notice of appeal states that he “appeals to the United States Court of Appeals for the Ninth Circuit from the Judgment entered on January 27, 2005.” The date of judgment was December 13, 2004.

Arguably, there is some ambiguity because the district court denied Christensen’s motion to reconsider on January 27, 2005. This ambiguity is resolved, however, by Christensen’s opening brief. The brief states that we need only decide one issue: “[wjhether the District Court erred in granting the United State’s [sic] unopposed motion for summary judgment.” In addition, the brief requests as relief only that we reverse the district court’s judgment. I am therefore satisfied that Christensen does not appeal from the district court’s denial of the motion to reconsider.