NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________________

No. 19-1642 _______________________

KENTH ROGERS, Appellant

v.

DIRECTOR INTERNAL REVENUE BUREAU; GOVERNMENT OF THE VIRGIN ISLANDS _______________________

On Appeal from the District Court of the Virgin Islands District Court No. 1-14-cv-00008 District Judge: The Honorable Anne E. Thompson __________________________

Submitted Under Third Circuit L.A.R. 34.1 (a) December 9, 2021

Before: McKEE, RESTREPO, and SMITH Circuit Judges

(Filed: December 21, 2021) __________________________

OPINION* __________________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SMITH, Circuit Judge.

Kenth Rogers—a lawyer proceeding pro se—appeals the District Court’s grant of

summary judgment to the Director of the Virgin Islands Internal Revenue Bureau. Because

Rogers presents no meritorious grounds for reversal, we will affirm.

Rogers failed to file his tax returns on time in 1994, 1995, 1999, 2003, and 2004.

As a result, he owed taxes, and the Virgin Islands put a lien on his house and levied his

bank account. Rogers sued the Government alleging that its actions violated

, 7433. The case originally proceeded before Magistrate Judge George Cannon and

District Judge Wilma Lewis. Eventually, Magistrate Judge Cannon recused himself, and

the case was transferred to District Judge Anne E. Thompson.

On appeal, Rogers argues that: (1) the Court erred in dismissing his claims for

failure to exhaust; (2) the Court erred in crediting certain evidence that demonstrated his

tax liability; (3) the Government perpetrated fraud on the Court; (4) Magistrate Judge

Cannon’s alleged bias violated Rogers’s rights under the Due Process Clause; and (5) the

Court erred when it dismissed older summary judgment motions as moot. We will take

each argument in turn.1

1 The District Court had jurisdiction pursuant to

(a) and

. We have jurisdiction pursuant to

. For all issues, our standard of review is de novo. In re Shenango Grp. Inc.,

, 344–45 (3d Cir. 2007) (holding that plenary review applies to legal questions); Herring v. United States,

, 389–90 (3d Cir. 2005) (fraud); Bixler v. Cent. Pa. Teamsters Health & Welfare Fund,

, 1297 (3d Cir. 1993) (summary judgment). 2 Rogers failed to exhaust his claim. Before suing under § 7432 and § 7433, the

individual must direct an administrative claim to the relevant district director.

.7432–1(f), 301.7433–1(e).2 The claim must include certain information such as the

grounds for the claim and the dollar amount requested. § 301.7432–1(f)(2). Rogers argues

that he was not required to follow that procedure because it is not “on the books” or, in the

alternative, he talked to a tax official about his claim. First, this requirement is “on the

books,” and Rogers fails to explain why these provisions would not apply in the Virgin

Islands. Second, we have consistently construed the exhaustion requirement strictly. See,

e.g., Venen v. United States,

, 103–04 (3d Cir. 1994), abrogated on other

grounds by Hassen v. Gov’t of V.I.,

(3d Cir. 1997) (dismissing claim for

failure to exhaust when individual sent letter to the wrong official). Providing actual notice

to the relevant agency is not sufficient to prove exhaustion. Id. at 103. Because Rogers

did not direct his claim with the relevant information to the correct official, the Court

appropriately held that Rogers’ claim should be dismissed for failure to exhaust.

Even if Rogers had exhausted his claim, the District Court went on to correctly

determine that the undisputed evidence demonstrated that Rogers owed taxes. Rogers

argued that the Court should have shifted the burden to prove his tax liability to the

Government because he produced sufficient evidence demonstrating that he paid his taxes.

Not so. In fact, the evidence presented by Rogers alone demonstrated that he paid less than

2 The Virgin Islands tax code “mirrors” the United States tax code.

; Chase Manhattan Bank, N.A. v. Gov’t of V.I.,

(3d Cir. 2002). The parties do not identify any material differences between the United States code and the Virgin Islands code. 3 what he owed. Rogers quibbles that the District Court cited an unsworn memorandum

from a tax official to determine Rogers’ liability, but that memorandum was just a summary

of a sworn affidavit. As such, it was not improper for the District Court to consider the

memorandum on summary judgment.

Furthermore, there is no evidence of fraud on the Court. Rogers claims that the

memorandum referenced above is fraudulent, but he has presented no evidence that would

meet the “demanding standard” required to prove fraud. See Herring,

. He

also claims that the Government fraudulently asserted that he had to exhaust remedies. But

the Government’s representation was accurate. He did have to exhaust his remedies before

filing suit, and he failed to do so.

The last two issues fail because even if they are errors,3 they are clearly harmless

errors. We will not vacate a judgment for an error that does not affect an individual’s

substantial rights. Gen. Motors Corp. v. New A.C. Chevrolet, Inc.,

, 328–29

(3d Cir. 2001). Rogers states that Magistrate Judge Cannon was biased and denied him an

opportunity for discovery that would have helped his case. But Magistrate Judge Cannon

recused himself and Rogers had the opportunity to conduct discovery for a full year under

the supervision of a new magistrate judge. Additionally, Judge Thompson may have

denied older pending motions for summary judgment, but Rogers did not identify any

3 We do not reach the question as to whether these rulings are erroneous. 4 argument that he could not have raised in the eventually ruled upon motion for summary

judgment.4

Therefore, we will affirm the judgment of the District Court.

4 Appellant’s Motion to Include Administrative Material in the Joint Appendix will be denied. Federal Rules of Appellate Procedure 27 and 30 do not give us the power to compel any further discovery, and the requested documents are not relevant to the proper outcome of this case. 5