23-1201-cv Beaudry v. Clay Lacy Aviation, Inc.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 28th day of March, two thousand twenty-four.

PRESENT: PIERRE N. LEVAL, SARAH A. L. MERRIAM, MARIA ARAÚJO KAHN, Circuit Judges. __________________________________________

BRIAN R. BEAUDRY,

Plaintiff-Appellant,

v. No. 23-1201-cv

CLAY LACY AVIATION, INC.,

Defendant-Appellee.

__________________________________________

FOR PLAINTIFF-APPELLANT: BRIAN R. BEAUDRY, Fremont, NH. FOR DEFENDANT-APPELLEE: CHRISTY E. JACHIMOWSKI, Lewis Brisbois Bisgaard & Smith LLP, Hartford, CT.

Appeal from a judgment of the United States District Court for the District of

Connecticut (Dooley, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

In 2022, plaintiff-appellant Brian Beaudry, proceeding pro se, sued his employer,

defendant-appellee Clay Lacy Aviation, Inc. (“CLA”), alleging that CLA was unlawfully

withholding income taxes from his compensation. Beaudry sought injunctive relief and

damages. CLA moved to dismiss. The district court granted CLA’s motion to dismiss,

reasoning that Beaudry failed to state a claim because he could not sue his employer for

complying with its obligation under federal law to withhold federal income taxes.

On appeal, Beaudry contends primarily that the district court mischaracterized his

complaint as seeking a tax refund, when his claim was that CLA, which he argues was the

correct defendant, violated the law by continuing to withhold taxes on his compensation

after he sent written notice instructing CLA to stop. He also contends that the district

court should have granted him leave to amend his complaint before dismissal. 1 We

assume the parties’ familiarity with the facts, procedural history, and issues on appeal, to

1 Because Beaudry does not pursue either his claim for injunctive relief or his criminal and constitutional claims on appeal, we consider those claims abandoned. See LoSacco v. City of Middletown,

, 92–93 (2d Cir. 1995) (Issues not addressed in an appellate brief are forfeited, even if appellant is proceeding pro se.).

2 which we refer only as necessary to explain our decision to affirm.

“We review de novo a district court’s dismissal of a complaint pursuant to Rule

12(b)(6),” accepting all factual allegations in the complaint as true and drawing all

reasonable inferences in the plaintiff’s favor. Bruce Katz, M.D., P.C. v. Focus Forward,

LLC,

, 370 (2d Cir. 2022) (per curiam) (citation and quotation marks omitted).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009) (citation and quotation marks omitted).

Accepting Beaudry’s framing of his central claim on appeal, we conclude that it is

without merit. The Internal Revenue Code requires employers to withhold taxes, and

provides that the employer “shall not be liable to any person for the amount of any such

payment.”

; see also Plazzi v. FedEx Ground Package Sys., Inc.,

, 5 (1st Cir. 2022) (“These provisions ensure that an employer is not liable to an employee

for complying with its legal duty to withhold tax . . . .” (citation and quotation marks

omitted)). To the extent Beaudry sought the recovery of income tax withheld, he should

have exhausted his administrative remedies before filing a claim in federal court. See

(a); United States v. Williams,

(1995) (“It is undisputed

that § 7422 requires administrative exhaustion.”).

Moreover, Beaudry’s argument is based on a misreading of the Internal Revenue

Code. The statute upon which he relies,

(p)(3)(A), addresses voluntary

agreements to withhold non-wage income, not the mandatory withholding that applies to

3 wages; the corresponding regulation,

(p)-1(b)(2), provides a process

by which an employee’s previously given consent for voluntary withholding can be

revoked upon signed written notice. Beaudry’s claim that he did not count as an employee

because his employment did not occur within certain enumerated federal enclaves is

“wholly frivolous.” United States v. Cooper,

(7th Cir. 1999); see also

United States v. Drachenberg,

(2d Cir. 2010) (per curiam) (describing

as meritless a similar argument that tax filing requirements do not apply to citizens of New

York State). Furthermore, CLA’s withholding of taxes from Beaudry’s income was based

not on a voluntary agreement, but on federal law. Accordingly, to the extent Beaudry

sought to amend his complaint to plead this theory, amendment would have been futile.

See Cuoco v. Moritsugu,

(2d Cir. 2000).

Beaudry’s remaining arguments are either abandoned or meritless. Accordingly,

we AFFIRM the judgment of the district court. 2

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

2 In its response brief, CLA requests that we sanction Beaudry for filing a frivolous appeal. But a request for sanctions must be made in a “separately filed motion,” not in a response brief. Fed. R. App. P. 38. Accordingly, the request is denied.

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