James H. Biestek v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAMES H. BIESTEK,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2023-1467
______________________
Appeal from the United States Court of Federal Claims
in Nos. 1:09-cv-00333-TMD, 1:09-cv-33301-TMD, Judge
Thompson M. Dietz.
-------------------------------------------------
NICHOLAS J. DICICCO, CARL E. MALM, GALE M.
NELSON, ARMAND L. RAVIZZA, JOSEPH A.
VITELLI, LARRY WATTS, PETER SOFMAN,
DONALD L. OWENS, PROCTOR W. LUCIUS, JR.,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
Case: 23-1467 Document: 323 Page: 1 Filed: 10/23/2025

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BIESTEK v. US 2
______________________
2023-1859
______________________
Appeal from the United States Court of Federal Claims
in No. 1:09-cv-33303-TMD, Judge Thompson M. Dietz.
-------------------------------------------------
STANLEY M.ANDERSON, PAUL L. BAILEY,
RONALD L. BLASH, JON R. BOSTON, DENIS A.
DARIDA, VICTOR C. DECOUDREAUX, WILLIAM A.
DUZET, DAVID ALLEN DYER, WESLEY PAUL
FETZER, R. S. GRAMMER, KENNETH N. PAGE,
JAMES B. MOREHEAD, KEVIN L. DILLON, DIANA
RAYMOND, ON BEHALF OF GEORGE G.
RAYMOND, JOHN W. TRAEGER, JR., KATHLEEN
ANN DAVIS, ON BEHALF OF JOHN H. DAVIS,
DONALD R. COBB, WILLIAM T. EADS, ROBERT
HAHN, LARRY HENDERSON, STEPHEN
JAKUBOWSKI, LESLIE KERO, DAVID LEIPPE,
RUSSELL MULLEN, DENNIS RAYFIELD, MAURY
ROSENBERG, DOMINICK RUSCITTI, DONALD
SCHILTZ, RICHARD SLINN, JAMES SORENSEN,
JOHN STARK, JR., WILSON LEGG, GLENN LYONS,
BARBARA MUNYON, ON BEHALF OF DAVID L.
MUNYON, ROBERT TOKLE,
Plaintiffs-Appellants
ROBERT E. LANGEVIN,
Plaintiff
v.
UNITED STATES,
Defendant-Appellee
______________________
Case: 23-1467 Document: 323 Page: 2 Filed: 10/23/2025

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BIESTEK v. US 3
2023-2224
______________________
Appeal from the United States Court of Federal Claims
in No. 1:09-cv-33306-TMD, Judge Thompson M. Dietz.
-------------------------------------------------
SARAH ALLEN, ON BEHALF OF WAYNE E. ALLEN,
JOSEPH E. ARMSTEAD, LAWRENCE C. BECKER,
JOSEPH J. GAREFFA, VIRGINIA R. HAMLEY, ON
BEHALF OF BARRY N. HAMLEY, WILLIAM
PATRICK HANSON, BOB T. OLSEN, JOHN C.
RAINS, JOHN E. STOUT, VICTOR F.
WERTHEIMER, JR., GEORGE W. JOHNSON,
PHILIP R. SIMON, EDWARD N. RIPPER, CHARLES
F. THOM, II,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2023-2225
______________________
Appeal from the United States Court of Federal Claims
in No. 1:09-cv-33304-TMD, Judge Thompson M. Dietz.
-------------------------------------------------
DAVID F. HENDERSON, LARRY S. WALTERS,
WARREN H. NELSON, GLENN T. GOBLE,
Plaintiffs-Appellants
Case: 23-1467 Document: 323 Page: 3 Filed: 10/23/2025

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BIESTEK v. US 4
v.
UNITED STATES,
Defendant-Appellee
______________________
2023-2235
______________________
Appeal from the United States Court of Federal Claims
in No. 1:09-cv-33302-TMD, Judge Thompson M. Dietz.
-------------------------------------------------
CHARLES M. ADAMS, JAMES R. ALLEN, LOUIS C.
ATKINS, WILLIAM C. BARHAM, DONALD A.
BLANCHARD, CURTIS E. CALHOUN, MARTHA L.
CHRISTIANSEN, ON BEHALF OF CARL R.
CHRISTIANSEN, CONSTANCE C. CHURCH, ON
BEHALF OF STEPHEN H. CHURCH, CLARENCE A.
MUMFORD, FREDERICK C. DUBINSKY, DAVID L.
RINGWALT, JUDY A. O'DANIEL, ON BEHALF OF
SAMUEL C. O'DANIEL, CAROL A. HALSTEAD, ON
BEHALF OF JAY A. HALSTEAD, RICHARD E.
SWANSON, GEORGE M. BLEYLE, ON BEHALF OF
GEORGE A. BLEYLE, JR., CLIFFORD KEETON
BARNES, GEORGE E. CLINE, JOHN M. CORRADI,
DAVID J. FAHRENBACK, MICHAEL W. FITCH,
PETER H. FRIEDMAN, WAYNE E. GATE, MILTON
F. GRAY, JAMES L. HOLBROOK, CARL G.
HOUSEHOLDER, ROBERT T. HUGHES, PHILIP E.
JACH, ARTHUR C. JACKSON, PATRICK F.
KEELEY, MICHAEL J. MCBRIDE, LAWRENCE J.
MCCLURE, THOMAS B. MEZGER, JR., JOE C.
MINICK, MOLLY MCGREW, ON BEHALF OF
RICHARD W. MITCHELL, DARRELL A. RADER,
MICHAEL D. REICH, MICHAEL J. SEVERSON,
Case: 23-1467 Document: 323 Page: 4 Filed: 10/23/2025

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BIESTEK v. US 5
ROBERT STABILE,
Plaintiffs-Appellants
ROBERT M. BENZIES,
Plaintiff
v.
UNITED STATES,
Defendant-Appellee
______________________
2023-2269
______________________
Appeal from the United States Court of Federal Claims
in No. 1:09-cv-33305-TMD, Judge Thompson M. Dietz.
-------------------------------------------------
CLIFFORD KEETON BARNES,
Plaintiff
JAMES A. GROSSWILER, PAUL W. NIBUR,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2024-1169
______________________
Appeal from the United States Court of Federal Claims
in No. 1:09-cv-33308-TMD, Judge Thompson M. Dietz.
Case: 23-1467 Document: 323 Page: 5 Filed: 10/23/2025

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BIESTEK v. US 6
______________________
Decided: October 23, 2025
______________________
J AMES H. BIESTEK, Tucson, AZ, pro se.
D AVID F. HENDERSON, Lincoln, CA, pro se.
N ICHOLAS J. D ICICCO, Atherton, CA, pro se.
L ARRY S. WALTERS , Sedalia, CO, pro se.
CARL E. MALM , Bonnery Lake, WA, pro se.
WARREN H. N ELSON, West Chicago, IL, pro se.
G ALE M. N ELSON, Spokane, WA, pro se.
G LENN T. G OBLE, Lynden, WA, pro se.
ARMAND L. RAVIZZA, Dundee, IL, pro se.
J OSEPH A. VITELLI, Walpole, MA, pro se.
L ARRY WATTS , Chesapeake, VA, pro se.
P ETER SOFMAN, Stamford, CT, pro se.
D ONALD L. O WENS , Twisp, WA, pro se.
P ROCTOR W ILLIAM L UCIUS , J R., Carlsbad, CA, pro se.
SARAH ALLEN, Carson City, NV, pro se.
J OSEPH E. ARMSTEAD, Mountain View, CA, pro se.
L AWRENCE C. BECKER , Davie, FL, pro se.
Case: 23-1467 Document: 323 Page: 6 Filed: 10/23/2025

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BIESTEK v. US 7
J OSEPH J. G AREFFA , Williamsburg, VA, pro se.
VIRGINIA RUTH H AMLEY , San Jose, CA, pro se.
WILLIAM P ATRICK HANSON, Longmont, CO, pro se.
BOB T. O LSEN, Avon Lake, OH, pro se.
J OHN C. RAINS , Morristown, VT, pro se.
J OHN E. STOUT , Sycamore, IL, pro se.
VICTOR F. WERTHEIMER, J R., Virginia Beach, VA, pro
se.
G EORGE W. J OHNSON, Seattle, WA, pro se.
P HILIP R. SIMON, San Rafael, CA, pro se.
EDWARD N. RIPPER, Bradenton, FL, pro se.
CHARLES F. T HOM , II, Litchfield Park, AZ, pro se.
CHARLES M. ADAMS , Portola Valley, CA, pro se.
J AMES R. ALLEN, Elverson, PA, pro se.
L OUIS C. ATKINS , Senoia, GA, pro se.
WILLIAM C. BARHAM , Laguna Niguel, CA, pro se.
D ONALD A. BLANCHARD, Fort Collins, CO, pro se.
CURTIS CALHOUN, Bainbridge Island, WA, pro se.
MARTHA L. CHRISTIANSEN, Incline Village, NV, pro se.
CONSTANCE C. CHURCH , Tucson, AZ, pro se.
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BIESTEK v. US 8
CLARENCE A. MUMFORD, Parrish, FL, pro se.
F REDERICK CHARLES D UBINSKY , Hunting Valley, OH,
pro se.
D AVID L EWIS RINGWALT , J R., Westlake, OH, pro se.
J UDY A. O'D ANIEL , Evergreen, CO, pro se.
CAROL A. HALSTEAD, Las Vegas, NV, pro se.
RICHARD ERLAND SWANSON, Bainbridge Island, WA,
pro se.
G EORGE MICHAEL BLEYLE, Philomont, VA, pro se.
CLIFFORD K EETON BARNES , Foley, AL, pro se.
STANLEY M. ANDERSON, Penngrove, CA, pro se.
P AUL L. BAILEY , Port St. Lucie, FL, pro se.
RONALD L. BLASH , Lake Oswgo, OR, pro se.
J ON R. B OSTON, Las Vegas, NV, pro se.
D ENIS A. D ARIDA , Grayslake, IL, pro se.
VICTOR C. D EC OUDREAUX , Oakland, CA, pro se.
WILLIAM A. D UZET , Elgin, IL, pro se.
D AVID ALLEN D YER, White Hills, AZ, pro se.
WESLEY P AUL F ETZER, Fort Myers, FL, pro se.
R. S. G RAMMER , Larkspur, CA, pro se.
Case: 23-1467 Document: 323 Page: 8 Filed: 10/23/2025

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BIESTEK v. US 9
K ENNETH N. P AGE , Montgomery, TX, pro se.
J AMES B. MOREHEAD, Boynton Beach, FL, pro se.
K EVIN L. D ILLON, Fairfax, VA, pro se.
D IANA RAYMOND, Scottsdale, AZ, pro se.
J OHN W. T RAEGER , J R., Bradenton, FL, pro se.
D ONALD R. COBB, Woodinville, WA, pro se.
WILLIAM T. EADS , Mesquite, NV, pro se.
ROBERT H AHN, Satellite Beach, FL, pro se.
L ARRY HENDERSON, Danville, CA, pro se.
STEPHEN J AKUBOWSKI, Grasonville, MD, pro se.
L ESLIE K ERO, Rockton, IL, pro se.
D AVID L EIPPE, Cameron Park, CA, pro se.
RUSSELL MULLEN, Rehoboth Beach, DE, pro se.
D ENNIS RAYFIELD, Charlotte, NC, pro se.
MAURY R OSENBERG, Huntington Beach, CA, pro se.
D OMINICK R USCITTI, Rockford, IL, pro se.
D ONALD S CHILTZ, El Dorado Hills, CA, pro se.
RICHARD SLINN, Tucson, AZ, pro se.
J AMES SORENSEN, Ann, TX, pro se.
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BIESTEK v. US 10
J OHN STARK, J R., Tarpon Spring, FL, pro se.
WILSON E DWARD L EGG, Gettysburg, PA, pro se.
G LENN L YONS , Henderson, NV, pro se.
BARBARA MUNYON , Henderson, NV, pro se.
ROBERT T OKLE, Chandler, AZ, pro se.
J AMES A. G ROSSWILER, Mission Viego, CA, pro se.
G EORGE E. CLINE, Escondido, CA, pro se.
J OHN M. C ORRADI, Rixeyville, VA, pro se.
D AVID J. F AHRENBACK, Tacoma, WA, pro se.
MICHAEL W. F ITCH , Clearville, PA, pro se.
P ETER H. F RIEDMAN, Edgewater, MD, pro se.
WAYNE E. G ATE , Westlake Village, CA, pro se.
MILTON F. G RAY , Poplar Grove, IL, pro se.
J AMES L. HOLBROOK, Gurnee, IL, pro se.
CARL G. HOUSEHOLDER, Portersville, PA, pro se.
ROBERT T. HUGHES , Warner Robins, GA, pro se.
P HILIP E. J ACH , Hudson, OH, pro se.
ARTHUR C. J ACKSON, Sarasota, FL, pro se.
P ATRICK F. K EELEY , Idaho Falls, ID, pro se.
Case: 23-1467 Document: 323 Page: 10 Filed: 10/23/2025

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BIESTEK v. US 11
MICHAEL J. MCBRIDE, Anthem, AZ, pro se.
L AWRENCE J. MCC LURE, Punta Gorda, FL, pro se.
T HOMAS B. MEZGER, J R., Parker, CO, pro se.
J OE C. MINICK, Lake City, FL, pro se.
MOLLY MCG REW , Lake Oswego, OR, pro se.
D ARRELL A. RADER, Concord, NC, pro se.
MICHAEL D. REICH , Tucson, AZ, pro se.
MICHAEL J. SEVERSON, Eastport, NY, pro se.
ROBERT STABILE, Spring Hill, TN, pro se.
P AUL W. N IBUR, Clovis, CA, pro se.
K ATHLEEN ANN D AVIS , Evergreen, CO, pro se.
J ANET A. BRADLEY , Tax Division, United States Depart-
ment of Justice, Washington, DC, for defendant-appellee.
Also represented by BRUCE R. ELLISEN, D AVID A. H UBBERT .
______________________
Before L OURIE, BRYSON, and CHEN, Circuit Judges.
BRYSON, Circuit Judge.
This is a tax refund case. Like two cases previously
before this court, Koopmann v. United States, No. 2021-
1329, 2022 WL 1073340 (Fed. Cir. Apr. 11, 2022), and Roy-
all v. United States, No. 2021-1746, 2022 WL 1073341 (Fed.
Cir. Apr. 11, 2022), and a companion case now pending be-
fore the court, Beavis v. United States, No. 2023-2222, this
litigation was initiated by a number of retired United
Case: 23-1467 Document: 323 Page: 11 Filed: 10/23/2025

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BIESTEK v. US 12
Airlines pilots who have sought refunds of Federal Insur-
ance Contribution Act (“FICA”) taxes. The taxes were paid
at the time each of the pilots retired and began receiving
retirement benefits under United’s nonqualified deferred
compensation plan. Pursuant to the special timing rule of
26 U.S.C. § 3121(v)(2) and the governing regulations prom-
ulgated under that statute, 26 C.F.R. § 31.3121(v)(2)-1, the
tax for each pilot was paid in a lump sum when each pilot
began receiving benefits under the plan. The amount of
the tax paid for each pilot was based on the calculated pre-
sent value of each pilot’s benefit package. See 26 C.F.R.
§ 31.3121(v)(2)-1(c)(2).
After the pilots retired, United entered bankruptcy. At
the conclusion of the bankruptcy proceeding, the pilots’ de-
ferred compensation plan was terminated, and the pilots
stopped receiving benefits under the plan. Because the
plan was terminated, the total amount that each pilot had
received in benefits under the plan was less than the value
of the expected benefits at the time each pilot retired. For
that reason, the amount each pilot paid in FICA taxes was
greater than each would have paid if the FICA tax had been
paid only on benefits actually received.
The pilots individually sought refunds of what they
characterized as overpayments of the FICA taxes. When
those refund claims were denied, the pilots sought relief in
the Court of Federal Claims (“the Claims Court”). How-
ever, they have run into several procedural barriers in
their effort to obtain partial refunds of the FICA taxes paid
at the time of their retirement. As a result, the Claims
Court dismissed all of their claims without reaching the
merits of their requests for refunds. The plaintiffs, all of
whom are proceeding pro se, have appealed to this court.
We affirm.
I
This litigation began in 2009 when William Koopmann,
one of the retired United pilots, filed a pro se complaint in
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BIESTEK v. US 13
the Claims Court seeking a refund of the FICA taxes that
had been withheld by United based on the value of his ben-
efits under the retirement plan. Mr. Koopmann named
more than 160 retired pilots in addition to himself in the
complaint. To manage the litigation, the Claims Court re-
quired each of the pilots to file individual short form com-
plaints, then severed the complaints into nine separate
groups based on their common characteristics. A different
set of pilots, who were named in another tax refund suit,
Sofman v. United States, No. 10-157, Compl. (Fed. Cl. Mar.
12, 2010), were later consolidated into the nine Koopmann
groups.
In the case now on appeal, the Claims Court adjudi-
cated the claims of a number of the retired pilots in several
of the Koopmann groups. In an order entered on December
28, 2022, the court dismissed the complaints of all the pi-
lots except for James A. Grosswiler for lack of jurisdiction
because they failed to file timely refund claims with the In-
ternal Revenue Service, as required by 26 U.S.C.
§§ 7422(a) and 6511(a). Biestek v. United States, No. 09-
33301, 2022 WL 17975973 (Fed. Cl. Dec. 28, 2022). The
court subsequently dismissed Mr. Grosswiler’s complaint
because he failed to file a timely appeal from the adminis-
trative denial of his claim, as required by 26 U.S.C.
§ 6532(a)(1).
The plaintiffs, acting pro se, filed a total of seven sepa-
rate notices of appeal. In several instances, the plaintiff
who filed the notice of appeal named other plaintiffs as ap-
pellants. However, most of the notices of appeal were
signed only by the plaintiff who filed them. The notices of
appeals were assigned the following case numbers: Biestek
(No. 23-1467), signed only by plaintiff James H. Biestek;
DiCicco et al. (No. 23-1859) signed by plaintiff Peter Sof-
man and electronically signed by plaintiffs Nicholas J. DiC-
icco, Carl E. Malm, Gale M. Nelson, Armand L. Ravissa,
Joseph A. Vitelli, Larry Watts, Donald Owens, and Proctor
W. Lucius, Jr.; Anderson et al. (No. 23-2224), signed only
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BIESTEK v. US 14
by plaintiff Wesley Paul Fetzer; Allen et al. (No. 23-2225),
signed only by plaintiff Wayne E. Allen; Henderson et al.
(No. 23-2235), signed by plaintiffs David F. Henderson,
Larry S. Walters, Warren H. Nelson, and Glenn T. Goble;
Adams et al. (No. 23-2269) signed only by plaintiff David L.
Ringwalt; and Grosswiler (No. 24-1169), signed by plaintiff
James A. Grosswiler. By order of this court, No. 23-1467
ECF 166, plaintiff Paul W. Nibur, who initially filed a sep-
arate notice of appeal in No. 23-2269, was added to Mr.
Grosswiler’s appeal in No. 24-1169.
II
A
In its brief, the government points out several proce-
dural problems with the plaintiffs’ appeals. First, the gov-
ernment notes that because all the notices of appeal were
filed by pro se appellants, the notices were legally effective
only with respect to those parties who signed them. Be-
cause the right of self-representation does not give a pro se
party the right to represent others, Baude v. United States,
955 F.3d 1290, 1305–06 (Fed. Cir. 2020), pro se appellants
must personally sign their notices of appeal. See Fed. R.
App. P. 3(c)(2) (a pro se notice of appeal “is considered filed
on behalf of the signer”); see also Chapa v. Kenton Cnty.
Judge Exec., No. 23-5693, 2023 WL 9475628, at *1 (6th Cir.
Nov 2, 2023); Carter v. Comm’r, 784 F.2d 1006, 1008 (9th
Cir. 1986); Lewis v. Lenc-Smith Mfg. Co., 784 F.2d 829, 831
(7th Cir. 1986); Covington v. Allsbrook, 636 F.2d 63, 64 (4th
Cir. 1980); Scarella v. Midwest Fed. Sav. & Loan, 536 F.2d
1207, 1209 (8th Cir. 1976).
The appellants have not disputed the government’s le-
gal position on that issue or how it applies to the various
would-be appellants. For that reason, only the 19 plaintiffs
who actually signed the notices of appeal are clearly proper
parties before this court. Those are plaintiffs Biestek, Sof-
man, DiCicco, Malm, Nelson, Ravizza, Vitelli, Watts,
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BIESTEK v. US 15
Owens, Lucius, Fetzer, Allen, Henderson, Walters, Nelson,
Goble, Ringwalk, Grosswiler, and Nibur.1
The status of a number of other would-be appellants is
less clear. In Becker v. Montgomery, 532 U.S. 757 (2001),
the Supreme Court held that an appellant who filed a no-
tice of appeal, but neglected to sign it within the time for
filing the notice of appeal was not jurisdictionally barred
from curing the defect after the appeal period had expired.
The Court held that the signature requirement, found in
Rule 11(a) of the Federal Rules of Civil Procedure is not
jurisdictional, and that although Rules 3 and 4 of the Fed-
eral Rules of Appellate Procedure, which prescribe the con-
tents and timing of appeals, are “linked to jurisdictional
provisions,” no signature requirement was included in
those rules. For that reason, the Court held that because
Mr. Becker’s notice of appeal was timely and complied with
the requirements of Federal Rules of Appellate Procedure
3 and 4, the omission of his signature from his notice of
appeal was not a jurisdictional defect and could be cor-
rected.
This case differs from Becker, as the notices of appeal
at issue here were all filed by pro se appellants who lacked
1 In similar circumstances, several circuits have held
that pro se parties who have not signed a notice of appeal
that was purportedly filed on their behalf by another pro
se appellant must be given notice and an opportunity to
formally join the appeal before they are barred from partic-
ipating in the appeal. See Gardner v. Wyasket, 197 F. App’x
721, 722 n.1 (10th Cir. 2005); Wash v. Johnson, 343 F.3d
685, 689 (5th Cir. 2003), opinion after reinstatement of ap-
peal, 108 F. App’x 154 (5th Cir. 2004); Casanova v Dubois,
289 F.3d 142, 145 (1st Cir. 2002). This court has not
adopted such a procedure, and the would-be appellants in
this case have not asked us to do so.
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BIESTEK v. US 16
the authority to represent the other parties they named in
the notices of appeal. Those documents, therefore, did not
satisfy the requirements of Rules 3 and 4 of the Federal
Rules of Appellate Procedure. For that reason, later ac-
tions by the would-be appellants who did not sign the no-
tices of appeal were ineffective to accord them the status of
appellants in this case.
In any event, even if the non-signing plaintiffs were
permitted to join the appeal, it would not affect the outcome
of this case, because permitting the non-signing plaintiffs
to be formally joined as appellants in this case would not
alter the disposition of the legal issues before this court.
B
The second procedural problem in this case applies
only to appellant James A. Grosswiler. Mr. Grosswiler
failed to file a timely complaint in the Claims Court, as re-
quired by 26 U.S.C. § 6532(a)(1), and the Claims Court dis-
missed his refund action for that reason. This court has
held that the failure to file a timely complaint deprives the
Claims Court of jurisdiction over the complaint. RHI Hold-
ings v. United States, 142 F.3d 1459, 1461–63 (Fed. Cir.
1998); see also Weston v. United States, No. 2022-1179,
2022 WL 1097361, at *1 (Fed. Cir. Apr. 13, 2022) (citing
cases). Mr. Grosswiler does not challenge the government’s
assertion that his complaint was untimely. Nor does he
contend that the requirement to file a timely complaint is
not jurisdictional. He argues only that his name was omit-
ted from the original Koopmann complaint because of an
administrative error, and that he was included in the Sof-
man complaint several months later.
Because he failed to file a timely complaint in the
Claims Court, Mr. Grosswiler is not eligible for inclusion in
any of the appeals before this court. Mr. Grosswiler has
not pointed to any legal error in the Claims Court’s ruling
dismissing his complaint; the ruling on that issue is there-
fore affirmed.
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BIESTEK v. US 17
C
The third procedural barrier, which is appliable to all
the remaining plaintiffs on appeal, is that each of them
failed to make a timely claim for a refund of the tax that
was paid on their behalf at the time they started receiving
benefits under the plan. As noted, before filing a refund
action in court, a taxpayer must file an administrative
claim with the Internal Revenue Service conforming to the
requirements of 26 U.S.C. § 7422(a), which requires that
the claim be filed within the time limits set out in 26 U.S.C.
§ 6511(a). It is this issue to which the appellants devote
the most attention in their briefs. They make essentially
five arguments at various points in their briefs.
1
The appellants first argue that it was unlawful to tax
them based on the present value of their retirement benefit
packages at the time of their retirements, because they had
not received those benefits at that time. Henderson Br. 10,
12–14, 21–22; Biestek Br. 10, 12–13, 19. This argument is
in essence a challenge to the constitutionality of the special
timing rule of 26 U.S.C. § 3121(v)(2).
The appellants base their constitutional challenge to
the statute on the principles of Commissioner v. Glenshaw
Glass Co., 348 U.S. 426 (1955). That case, however, pro-
vides no support for their argument. The Court in Glen-
shaw Glass construed the Internal Revenue Code of 1939
as imposing income taxes on gross income, defined broadly
in the Code to include, for example, “gains, profits, and in-
come derived from salaries, wages, or compensation for
personal service.” Id. at 428–29 (quoting 26 U.S.C. § 22(a)
(1940)).2 The appellants view Glenshaw Glass as barring
2 The current version of that statute is found at 26
U.S.C. § 61(a), which provides that “gross income means all
income from whatever source derived.”
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BIESTEK v. US 18
Congress from treating the present value of a benefit to be
dispensed later as income for purposes of the imposition of
any tax, including an excise tax such as the FICA tax.3
But Glenshaw Glass is a case construing the statute
that defines gross income for income tax purposes.4 The
statutory term at issue in the FICA statute is “wages.”
Congress is entitled to adopt different ways of defining
wages in different circumstances. In the special timing
rule of section 3121(v)(2), Congress has defined “wages,” for
purposes of nonqualified deferred compensation plans, as
including deferred income and has imposed FICA taxes on
that deferred income based on the “amount deferred.” The
definition of the “amount deferred” in section 3121(v)(2) in-
cludes the receipt of something of value, even though the
value may not be realized at the time of the receipt. Thus,
3 Contrary to the appellants’ contention, the FICA
tax is an excise tax, not an income tax. See United States
v. Fior D’Italia, Inc., 536 U.S. 238, 240 (2002) (“The tax law
imposes, not only on employees, but also ‘on every em-
ployer,” an ‘excise tax,’ i.e., a FICA tax, in an amount equal
to a percentage ‘of the wages . . . paid by him with respect
to employment.’”); United States v. Cleveland Indians
Baseball Co., 532 U.S. 200, 204 (2001) (“The Federal Insur-
ance Contributions Act (FICA) . . . impose[s] excise taxes
on employee wages to fund Social Security . . . .”); Xianli
Zhang v. United States, 640 F.3d 1358, 1366 (Fed. Cir.
2011) (“FICA is unquestionably a law that imposes excise
taxes to support Social Security.”). To the extent the ap-
pellants’ argument is that FICA taxes are income taxes,
and for that reason they cannot be based on the present
value of benefits to be received later, their argument is
without merit.
4 The same is true of Westpac Pacific Food v. Com-
missioner, 451 F.3d 970 (9th Cir. 2006), on which the ap-
pellants rely.
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BIESTEK v. US 19
“wages,” as Congress has defined the term for purposes of
section 3121(v)(2), can be taxed before they are received by
the employees. See Balestra v. United States, 119 Fed. Cl.
109, aff’d, 803 F.3d 1363 (Fed. Cir. 2015).
A retirement benefit plan has value at the time of the
employee’s retirement, even if the employee will receive
payments under the plan that are spaced out over time.
The appellants point to no authority holding that it is im-
permissible for Congress to tax the value of a retirement
plan at the outset rather than at the time of each payment
the employee receives over the period of his retirement.
And this court has construed the special timing rule, as im-
plemented through Internal Revenue Service regulations,
to impose a FICA tax on the present value of benefits from
a nonqualified deferred compensation plan that are to be
received in the future. Balestra, 803 F.3d at 1370–72.5
The appellants argue that it is a violation of due pro-
cess and “an absurdity” (Henderson Br. 16; Biestek Br. 13)
for them not to be allowed a reasonable time to seek a re-
fund of the portion of the tax they paid that was attributa-
ble to years in which they did not receive benefits. That
argument assumes that it was improper for the govern-
ment to retain those sums, and that the appellants would
5 This court’s decision in Balestra was based in part
on the application of the principles of Chevron, U.S.A., Inc.
v. Natural Resources Defense Council, 467 U.S. 837 (1984).
Although the Supreme Court overruled Chevron in Loper
Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), it
stated that “we do not call into question prior cases that
relied on the Chevron framework” and that the holding of
those cases that specific agency actions are lawful “are still
subject to statutory stare decisis despite our change in in-
terpretive methodology.” Id. at 412.
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BIESTEK v. US 20
have been entitled to a refund if they had been allowed to
file refund claims for those years.
The problem with that argument is that the entire
premise of the special timing rule of section 3121(v)(2) is
that in the particular situation covered by that statute,
Congress has converted the tax that ordinarily would be
paid on a year-by-year basis to a one-time obligation that
is paid based on the value of the benefit package received
by the taxpayer at the time of the taxpayer’s retirement.
Because Congress has modified the system for collect-
ing FICA taxes in this situation, the appellants would not
have been entitled to refunds of any portion of the tax paid,
even if there were no limitations period applicable to the
appellants’ right to file a refund claim. The lump sum paid
at the outset covered all the FICA taxes that the pilots
would ever have to pay for their benefits, no matter how
long those benefits continued to be paid.
That method of calculating the value of such retire-
ment benefits does not necessarily work to the detriment of
the employees. In cases involving benefits that last for the
lifetimes of the beneficiaries, for example, the one-time
payment required by section 3121(v)(2) would benefit any
employee who lived longer than the actuarial estimate of
his lifetime, as he would pay less in total FICA taxes than
if he were paying FICA taxes on a yearly basis. The fact
that United Airlines’ bankruptcy meant that many of the
pilots ended up paying more in FICA taxes than they would
have paid if those taxes had been collected on a year-by-
year basis does not mean that Congress’s adoption of a one-
time payment regime and rigid timing requirements for
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BIESTEK v. US 21
refund claims violated due process, much less being “an ab-
surdity.”6
2
The appellants’ second argument is that Congress did
not intend for the time limits on filing administrative
claims to be applied to more than one tax year at a time.
Henderson Br. 15; Biestek Br. 11, 16–17. They contend
that a party seeking a refund of a lump sum payment of
taxes at the outset to cover income to be received over mul-
tiple years should be allowed to file a refund claim for each
year at the time the income is due to be received. While
Congress could have adopted such a measure, it did not.
Section 6511(a) is quite clear that the time limitations for
filing a claim for refund run either from the date the tax is
paid or the date the return relating to that tax is filed, both
of which occurred for each pilot at the time of retirement
when United paid the FICA tax for the pilot’s entire benefit
package.
There is no indication that Congress intended to make
a special exception to the timing requirements of section
6511(a) that would apply to refund claims for taxes paid
pursuant to the special timing rule of section 3121(v)(2).
To the contrary, as the Supreme Court has held, the time
limits of section 6511 “apply to ‘any tax imposed by [the
6 If a party in the appellants’ position sought to chal-
lenge some aspect of the one-time FICA payment—such as
that it was miscalculated—they could do so by filing a re-
fund claim within the limitations periods set forth in sec-
tion 6511(a). What they may not do is to assert, long after
the fact, that the one-time FICA payment, while it may
have represented the proper amount of the FICA obligation
at the time in light of the then-present value of the retire-
ment package, turned out to be greater than it would have
been if the FICA tax were paid on a year-by-year basis.
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BIESTEK v. US 22
Internal Revenue Code].’” United States v. Clintwood
Elkhorn Mining Co., 553 U.S. 1, 7 (2008). That includes
the provisions of the Code that apply to FICA taxes, such
as section 3121(v)(2).
3
The appellants’ next argument is that the timing rule
of section 6511(a) applies only to refund claims by the party
who filed the FICA tax return, which in this case was
United Airlines, not the individual pilots. Henderson Br.
9; Biestek Br. 7. There is no force to that contention.
United Airlines initially paid the tax due on the present
value of the benefit plan for each retired pilot and then de-
ducted the pilot’s share from the payments made to the pi-
lot under the deferred compensation plan. In such cases,
the tax is deemed paid by the employee, and any claim for
refund must be sought by the employee within the limita-
tion periods of section 6511. See Radio Shack Corp. v.
United States, 566 F.3d 1358, 1361–62 (Fed. Cir. 2009).
Thus, the taxes paid by United Airlines on behalf of the
taxpayers are deemed paid by the taxpayers for purposes
of sections 7422(a) and 6511(a) of the Internal Revenue
Code.
4
In their reply brief and their memorandum in lieu of
oral argument, the appellants argue that the two- and
three-year limitations periods set forth in section 6511(a)
do not apply to their claims, because their claims had not
accrued by the time those periods had expired. Biestek Re-
ply Br. 10, 14–15; ECF 317 at 5. Instead, they argue, the
general six-year limitation period for filing actions against
the government in 28 U.S.C. § 2401(a) gave them the right
to file their claims for up to six years after the claims ac-
crued. That argument is forfeited, because it was raised
for the first time in the appellants’ reply brief. See Fell-
hoelter v. Dep’t of Agric., 568 F.3d 965, 975 (Fed. Cir. 2009);
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BIESTEK v. US 23
United States v. Ford Motor Co., 463 F.3d 1267, 1276–77
(Fed. Cir. 2006).
Beyond that, the appellants’ argument fails on the mer-
its. Section 2401(a) provides that “every civil action com-
menced against the United States shall be barred unless
the complaint is filed within six years after the right of ac-
tion first accrues.” That limitations period, however, does
not excuse parties who seek tax refunds from first filing
administrative claims with the Internal Revenue Service
within the period set forth in section 6511(a). See United
States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 9
(2008) (holding that parties bringing a refund action are
subject not only to the six-year statute of limitations in the
Tucker Act, but also the shorter limitations periods in sec-
tion 6511(a): “The refund scheme in the current Code
would have ‘no meaning whatever’ if taxpayers failing to
comply with it were nonetheless allowed to bring suit sub-
ject only to the Tucker Act’s longer time bar.” (internal ci-
tations omitted)); Gordon v. United States, 649 F.2d 837,
844 (Ct. Cl. 1981) (“In seeking a refund of taxes . . . a tax-
payer must ascribe to the period of limitations established
by I.R.C. §§ 6511(a) and 6532(a) rather than the general 6-
year period of 28 U.S.C. §§ 2501 and 2401.”).
5
The appellants’ final contention is that the timing re-
quirement of section 6511(a) should not be applied to their
claims for refunds of the one-time taxes paid under section
3121(v)(2) because the time limits for seeking a refund un-
der section 6511(a) had already run for most of the retired
pilots when the benefit plan was canceled in the bank-
ruptcy proceeding. Henderson Br. 4, 10, 15–19; Biestek Br
10, 13–16. That is, in effect, an argument that this court
should not treat the time limitations of section 6511(a) as
jurisdictional, but should hold that those limitations are
subject to implied equitable exceptions, such as equitable
tolling or the “notice” rule that postpones the running of
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BIESTEK v. US 24
the limitations period until the party has notice of the in-
jury and the need to seek a remedy.7
It is true that the effect of treating the time limitations
of section 6511(a) as jurisdictional has the practical effect
of depriving most of the retired pilots of an opportunity to
file timely refund claims for the FICA taxes paid on income
that they never received. That, however, is a consequence
of holding that the time limitations of section 6511(a) are
jurisdictional and not subject to exceptions such as equita-
ble tolling. And the Claims Court’s ruling that the time
limitations of section 6511(a) are jurisdictional was based
on the Supreme Court’s decision in United States v. Dalm,
494 U.S. 596 (1990).
Dalm is directly applicable precedent. Not only did the
Supreme Court hold that the time limitations of section
6511(a) were jurisdictional and not subject to equitable
tolling, but it did so in a case in which it was not possible
for the taxpayer to meet those time limitations at the time
it became apparent that the taxpayer had overpaid her
taxes.8 See Dalm, 494 U.S. at 598–602. As the Supreme
7 The appellants disclaim that they are arguing for
equitable tolling of the statute (Henderson Br. 13; Biestek
Br. 13), but that is the necessary consequence of their ar-
gument that the limitations period of section 6511(a) can-
not be applied by its terms in this case.
8 The taxpayer in Dalm initially paid a gift tax on
certain funds received from a decedent’s estate. After an
audit, the Internal Revenue Service characterized those
funds as income, a characterization the taxpayer disputed.
The dispute was later settled with the taxpayer paying an
amount of income tax that was less than the Internal Rev-
enue Service had asserted was due. When that issue was
resolved, the taxpayer filed a claim for a refund of the gift
tax she had paid, but her claim was denied on the ground
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BIESTEK v. US 25
Court remarked in Dalm, “That a taxpayer does not learn
until after the limitations period has run that a tax was
paid in error, and that he or she has a ground upon which
to claim a refund does not operate to lift the statutory bar.”
494 U.S. at 609 n.7. Although the appellants cite the Su-
preme Court’s decision in Dalm, they do not attempt to dis-
tinguish it, nor do they argue that it is no longer good law.
We recognize that in the 35 years since Dalm, the Su-
preme Court has decided a number of cases in which the
Court has held that particular limitations periods are not
jurisdictional in nature. That line of cases began with Ir-
win v. Department of Veterans Affairs, 498 U.S. 89 (1990).
The most recent example of such a case is Riley v. Bondi,
145 S. Ct. 2190 (2025), decided in June of this year. In the
intervening years, the Court has devoted a good deal of its
time to cases in which the question presented was whether
a timing limitation was jurisdictional or not. And in most
instances, the Court has concluded that the time limitation
was a claim processing provision, not a jurisdictional limi-
tation on a court’s power to address the dispute presented
to it. See, e.g., Harrow v. Dep’t of Def., 601 U.S. 480 (2024);
Santos-Zacaria v. Garland, 598 U.S. 411 (2023); Wilkins v.
United States, 598 U.S. 152 (2023); Boechler, P.C. v.
Comm’r, 596 U.S. 199 (2022); United States v. Wong, 575
U.S. 402 (2015); Sebelius v. Auburn Reg’l Med. Ctr., 568
U.S. 145 (2013); Henderson ex rel. Henderson v. Shinseki,
562 U.S. 428 (2011); Arbaugh v. Y & H Corp., 546 U.S. 500
(2006).
In many of those cases, the Court has emphasized that
in order for a limitations period to be deemed jurisdictional,
Congress must act with great specificity in making clear
that the limitations period is not merely a claim processing
provision, but that it explicitly prohibits a court from
that it was not filed within the time limits set forth in sec-
tion 6511(a). The Supreme Court upheld the denial.
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BIESTEK v. US 26
exercising jurisdiction over claims falling outside the des-
ignated limitations period. See, e.g., Riley, 145 S. Ct. at
2201–02 (“Because jurisdictional rules have a unique ca-
pacity to disrupt the orderly adjudication of disputes, we
are reluctant to label a rule ‘jurisdictional’ unless Congress
has clearly signaled that the rule is meant to have that sta-
tus . . . . We have said that Congress ‘need not use magic
words in order to speak clearly’ on the question whether a
provision is jurisdictional, . . . but our pattern of recent de-
cisions shows that we will not categorize a provision as ‘ju-
risdictional’ unless the signal is exceedingly strong.”).
Despite that line of cases, it is not a foregone conclusion
that the Supreme Court will overrule Dalm if and when the
Court revisits that case. Cases decided by the Supreme
Court after Irwin and Dalm have distinguished Irwin and
similar cases and have held that certain limitations peri-
ods, including the limitations periods set forth in section
6511(a), are jurisdictional and are not subject to equitable
tolling.
The court did so in its unanimous opinion in United
States v. Brockamp, 519 U.S. 347 (1997). In that case, the
Court noted that section 6511 “sets forth its time limita-
tions in unusually emphatic form” and “in a highly detailed
technical manner, that, linguistically speaking, cannot eas-
ily be read as containing implicit exceptions.” Brockamp,
519 U.S. at 350. The Court added that the statute “reiter-
ates its limitations several times in several different ways”;
that the Tax Code “reemphasizes the point when it says
that refunds that do not comply with these limitations
‘shall be considered erroneous’”; and that section 6511 “sets
forth explicit exceptions to its basic time limits, and those
very specific exceptions do not include ‘equitable tolling.’”
Id. at 350–51. The Court added that “[t]he nature of the
underlying subject matter—tax collection—underscores
the linguistic point,” noting that reading “an ‘equitable toll-
ing’ exception into § 6511 could create serious administra-
tive problems” for the IRS. Id. at 352.
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BIESTEK v. US 27
Subsequently, in United States v. Clintwood Elkhorn
Mining Co., 553 U.S. 1 (2008), the Court, again acting
unanimously, held that the limitations periods in sections
7422(a) and 6511(a) are mandatory. The Court noted that
the time limitations of section 6511 are “set forth in ‘unu-
sually emphatic form’” and stated that “we cannot imagine
what language could more clearly state that taxpayers
seeking refunds of unlawfully assessed taxes must comply
with the Code’s refund scheme before bringing suit, includ-
ing the requirement to file a timely administrative claim.”
Clintwood Elkhorn Mining, 553 U.S. at 7–8 (citations omit-
ted).
Moreover, this court has repeatedly applied Dalm in
holding that the timing requirements of sections 7422(a)
and 6511(a) are jurisdictional and thus are not subject to
any of the equitable principles that could afford relief to
claimants such as the appellants in this case. See, e.g.,
Dixon v. United States, 67 F.4th 1156, 1161 (Fed. Cir.
2023); Brown v. United States, 22 F.4th 1008, 1011 (Fed.
Cir. 2022); Gen. Mills, Inc. v. United States, 957 F.3d 1275,
1283 (Fed. Cir. 2020); Stephens v. United States, 884 F.3d
1151, 1154 (Fed. Cir. 2018); Fed. Nat’l Mortg. Ass’n v.
United States, 469 F.3d 968, 973 (Fed. Cir. 2006); Lovett v.
United States, 81 F.3d 143, 145 (Fed. Cir. 1996) (It is of no
consequence that the “taxpayer does not learn until after
the limitations period has run that a tax was paid in error,
or that he or she has a ground upon which to claim a re-
fund.”).
In light of the more recent decisions from the Supreme
Court post-dating its decisions in Brockamp and Clintwood
Elkhorn Mining, it is possible that the Court may recon-
sider its decision in Dalm and hold that section 6511(a) is
not a jurisdictional requirement or that it is subject to eq-
uitable tolling when the strict application of the timing rule
would have the effect of denying a claimant the ability to
file an administrative claim. But that has not happened
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BIESTEK v. US 28
yet, and for the present we are still bound by the holding
in Dalm.
Even if we were to conclude that it is likely that the
Supreme Court will overrule or somehow limit Dalm at
some point in the future, the Supreme Court has made it
clear that it would be inappropriate for us to assume that
the Court will overrule one of its prior decisions and to de-
cide a case in a manner that flies in the face of a binding
Supreme Court precedent.
As the Court has explained, “If a precedent of this
Court has direct application in a case . . . a lower court
‘should follow the case which directly controls, leaving to
this Court the prerogative of overruling its own decisions.’”
Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 136 (2023)
(quoting Rodriguez de Quijas v. Shearson/Am. Express,
Inc., 490 U.S. 477, 484 (1989)); Hohn v. United States, 524
U.S. 236, 252–53 (1998) (“Our decisions remain binding
precedent until we see fit to reconsider them, regardless of
whether subsequent cases have raised doubts about their
continuing vitality.”); Agostini v. Felton, 521 U.S. 203, 237–
38 (1997) (“We do not acknowledge, and we do not hold,
that other courts should conclude our more recent cases
have, by implication, overruled an earlier precedent . . . .
[The trial court was] correct to recognize that the motion
had to be denied unless and until this Court reinterpreted
the binding precedent.”); State Oil Co. v. Khan, 522 U.S. 3,
20 (1997) (Even if a Supreme Court precedent contains
many “infirmities” and rests upon “wobbly, moth-eaten
foundations,” it remains the “Court’s prerogative alone to
overrule one of its own precedents.”). We have previously
acknowledged and followed that instruction from the
Court. In re Killian, 45 F.4th 1373, 1383 (Fed. Cir. 2022);
Hatter v. United States, 64 F.3d 647, 650 (Fed. Cir. 1995),
aff’d, 519 U.S. 801 (1996); Int’l Bus. Machs. Corp. v. United
States, 59 F.3d 1234, 1239 (Fed. Cir. 1995), aff’d, 517 U.S.
843 (1996). We are obliged to do the same here.
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BIESTEK v. US 29
In a case such as this one, in which the parties have not
requested that we disregard a Supreme Court precedent in
light of later precedents, the case against doing so is even
more compelling. In this case, then, even if we were to con-
clude that the Dalm precedent is on shaky ground, we
would feel compelled to apply it. And applying Dalm to the
facts of this case leads us to the conclusion that section
6511(a) is a jurisdictional statute and that the appellants,
having failed to file their administrative claims within the
period required by section 6511(a), are jurisdictionally
barred from obtaining relief.
The appellants have raised several other arguments di-
rected to the merits of their claims. We have considered
those arguments but find them unpersuasive.
III
Finally, we address the appellants’ contention that two
of the members of this panel should have recused them-
selves from participation in this case based on their prior
participation in the Koopmann case and related litigation,
which involved claims similar to those raised in this case.9
That contention is baseless.
It is quite common for judges to be called on to decide
cases or rule on issues that are similar to those they have
ruled on previously, either in the same case or in other
cases. As the Supreme Court has explained, “opinions
formed by the judge on the basis of facts introduced or
events occurring in the course of the current proceedings,
9 The appellants in this case and in the companion
Beavis case have moved for recusal of members of the panel
on six different occasions. Biestek, No. 23-1467, ECF 71,
180, 187, 312, and 321; Beavis, No. 23-2222, ECF 56. The
court denied the first three requests in this case and the
request in Beavis by order. See No. 23-1467, ECF 76, 201;
No. 23-2222, ECF 58.
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BIESTEK v. US 30
or of prior proceedings, do not constitute the basis for a bias
or partiality motion unless they display a deep-seated fa-
voritism or antagonism that would make fair judgment im-
possible.” Liteky v. United States, 510 U.S. 540, 555 (1994);
see also Kellogg v. Watts Guerra LLP, 41 F.4th 1246, 1256–
57 (10th Cir. 2022); Frey v. Env’t Prot. Agency, 751 F.3d
461, 472 (7th Cir. 2014) (“information a judge has gleaned
from prior judicial proceedings is not considered extrajudi-
cial and simply does not require recusal.”); Wheeler v.
Southland Corp., 875 F.2d 1246, 1251 (6th Cir. 1989)
(recusal not required based on “prior contact with related
cases”); Shaw v. Martin, 733 F.2d 304, 308 (4th Cir. 1984)
(recusal is not required “if the complaint is merely based
upon the judge’s rulings in the instant case or related
cases”); In re Corrugated Container Antitrust Litig. Steer-
ing Comm., 614 F.2d 958, 964 (5th Cir. 1980) (“overwhelm-
ing authority” relieves judges of the need to recuse when
presiding over a case involving the same parties and facts
even after forming pertinent conclusions in prior cases.).
There are no special circumstances presented by this
case that would call for a departure from that well-settled
general rule. Judicial recusal is therefore not required
simply because members of the panel in this case have par-
ticipated in other cases raising similar issues.
No costs.
AFFIRMED
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