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United States v. Bevans: TAX | APPELLATE PROCEEDURE - order regarding writ of entry not final appealable decision

1The Honorable Jerry W. Cavaneau, United States Magistrate Judge for the
Eastern District of Arkansas.
United States Court of Appeals
No. 06-2849
United States of America, *
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Jane K. Bevans, *
Appellant. *
Submitted: September 28, 2007
Filed: November 13, 2007
Before COLLOTON, ARNOLD, and GRUENDER, Circuit Judges.
This case arises from a writ of entry issued on April 17, 2006, by a United
States Magistrate Judge1 to revenue officer Robert Brown of the Internal Revenue
Service. The writ authorized Brown to enter the residence of Jane K. Bevans to seize
property in satisfaction of unpaid federal taxes. Based on that writ, revenue agents
entered the Bevans home and seized numerous pieces of property.
The application for the writ of entry, the writ, and the revenue officers report
of property that was seized were filed in the district court as a miscellaneous case.
Shortly after the seizure of the property, Bevans filed a motion in that same
miscellaneous case, seeking copies of the relevant tax assessments and requesting an
opportunity to pay the amount due in order to gain release of the seized property. See
26 U.S.C. 6337 (Any person whose property has been levied upon shall have the
right to pay the amount due . . . at any time prior to the sale thereof, and upon such
payment the Secretary shall restore such property to him . . . .). The magistrate judge
entered an order on June 14, 2006, stating that the miscellaneous case was opened
solely for the purpose of considering whether probable cause existed for issuing a
warrant of execution, and declaring that it was not the appropriate forum for
raising the issues discussed by Bevans in her motion. The magistrate judge also
concluded that Bevans sought injunctive relief, and that a magistrate judge did not
have jurisdiction to grant that type of relief. The IRS then sold Bevanss property at
a public auction on June 18.
Bevans responded to the magistrate judges order by filing a document
captioned, Motion For Determination of the Basis for Jurisdiction of this Matter by
the Magistrate, For a Determination of the Forum, and the Basis for Declaring that the
Relief Sought Cannot Be Had in a Miscellaneous Action. This motion essentially
asked the magistrate judge to provide an explanation of the jurisdictional basis for
granting the writ of execution and for declining to assert jurisdiction to grant Bevanss
request for injunctive relief. The magistrate judge entered another order, dated July
12, 2006, explaining that the governments application for the writ of entry set forth
the courts authority to grant the writ, that the responsibility of the magistrate judge
was to determine whether probable cause exists such that a writ should issue, and that
the relevant statutes and rules do not grant a magistrate judge authority to enter
injunctive relief of the sort requested by Bevans without the consent of the parties.
Bevans sought no further relief in the district court, and she now seeks to appeal
the magistrate judges order of July 12, 2006, and also to challenge the authority of
the magistrate judge to grant the writ of entry on April 17, 2006. Our appellate
jurisdiction is limited by statute, and the courts of appeals have jurisdiction of appeals
from final decisions of the district courts of the United States. 28 U.S.C. 1291.
Except where the parties have consented to entry of judgment by a magistrate judge
in a civil case, see 28 U.S.C. 636(c)(3), an order of a magistrate judge is not a final
decision of a district court that may be appealed to this court. United States v. Haley,
541 F.2d 678, 678 (8th Cir. 1974); accord United States v. Cline, 566 F.2d 1220, 1221
(5th Cir. 1978); United States v. Reeds, 552 F.2d 170, 171 (7th Cir. 1977) (per
curiam). Accordingly, we lack jurisdiction to consider this appeal, and the case is


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