BANKRUPTCY ADVERSARY COMPLAINTS DISMISSED.

                    UNITED STATES DISTRICT COURT

[2] Following the appeal of CV-S-99-912 to the Ninth Circuit, the remaining four appeals, to-wit:

     CV-S-00-0742 DWH, CV-S-00-0743 DWH, CV-S-00744 LDG, and

[3] The general rule is that filing a notice of appeal transfers jurisdiction from the district court to the court of appeals with respect to all mailers involved in the appeal. See Doyle v. United States, 721 F.2d 1195 (9th Cir. 1983). The rule however is not absolute. Doyle and other cases have held that the rule does not prevent consideration of matters not involved in the appeal and that the rule should not be applied in a way which will promote piecemeal litigation or result in multiple appeals. See Masalosalo v. Stonewall Insurance Co., 718 F.2d 955 (9th Cir. 1983). It should be apparent that if this Court delays resolution of the pending (pre- consolidation) motions until there is a ruling from the Ninth Circuit, serial appeals will follow dispositions in the remaining cases. Any substantive issues raised in the pending appeals have already been decided by this Court in case CV-S-99-912. Moreover, because the issues and parties are virtually the same for all of the cases, there is no reason to delay resolution of the pending motions. Prompt resolution will permit all cases and issues to be addressed together in the Ninth Circuit. Although Appellant argues in Case No. CV-S-1600-0744, (Petition for Clarification (#14)) that the district court has lost jurisdiction to "order any consolidation with the case on appeal to the Ninth Circuit", he has continued to file motions and request determinations by the district court notwithstanding the pendency of the appeal.

BACKGROUND

[4] On August 23, 1995, Appellant filed his bankruptcy petition under Chapter 13 of the Bankruptcy Act. The Internal Revenue Service (hereinafter Government), on March 20, 1996, filed a Second Amended Proof of Claim in the amount of $101,302.70 for back taxes. On March 12, 1997, Appellant filed his objection to the proof of claim filed by the Government. After holding a hearing on May 15, 1997, the bankruptcy court orally denied the objection and allowed the proof of claim. On May 27, 1997, Appellant filed an objection (Second Objection) to the oral order. On July 1, 1997. the Bankruptcy Court entered a written order denying Appellant's objection and allowing the Second Amended Proof of Claim. Appellant did not appeal that order. At a hearing on August 6, 1997, the Bankruptcy Court denied Appellant's second objection and amended the July 1 ruling by incorporating oral findings made at the August hearing. Appellant did not appeal that order.

[5] Appellant filed his first adversary complaint on November 19, 1998. The adversary complaint was subsequently amended. The adversary complaint sought to disallow the Second Amended Proof of Claim. On June 8, 1999, the Bankruptcy Court entered an order granting summary judgment on the amended adversary complaint in favor of the Government on grounds of res judicata, finding that the adversary complaint was an attempt to relitigate Appellant's objection to the Government's claim. As previously stated, Appellant appealed that dismissal to this Court and this Court affirmed the decision of the Bankruptcy Court. See Merdado Morales v. United States No. CV-S-15 99-0912-JBR (D. Nev. 2000), App. pending (9th Cir.). Appellant also filed a motion for reconsideration with the Bankruptcy Court. That motion was denied.

[6] Concurrently with the filing of the motion for reconsideration of the dismissal of the first adversary complaint, Appellant moved to reconsider the Court's 1997 denial of his objection to the Government's claim. The Bankruptcy Court granted the Appellant's motion only with respect to a 1982 income tax liability. Subsequently, the Government again amended the proof of claim, removed the 1982 tax liability and reclassified a 1983 income tax liability as a secured claim. On November 29, 1999 Appellant filed a second adversary complaint, No. 99-2368, contesting the third amended proof of claim. On December 13, 1999, the government amended the claim for the fourth time and reclassified the 1983 income tax liability as an unsecured general claim.

[7] On December 14, 1999, Appellant filed a third adversary complaint, No. 99-2381, contesting the liabilities on the government's fourth amended proof of claim. On December 20, 1999, Appellant filed a fourth adversary complaint, No. 99-2388, contesting the denial of his objection and refusal of injunctive relief. On January 7, 2000, Appellant filed his fifth adversary complaint, No. 00-2006, contesting denial of his objection to the denial of his objection.

[8] At a hearing held on March 15, 2000, the Bankruptcy Court found that the various amendments to claims had not created new claims, only reduced secured claims to adversary complaints. The order of dismissal was entered by the Bankruptcy Court on March 27, 2000. Defendant has appealed those dismissals.

PENDING APPEALS FROM BANKRUPTCY COURT

[9] Presently before this Court are the following cases and motions filed by Appellant in pursuit of his appeals:

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[11] The Government argues that the instant appeals (from dismissal of his remaining adversary actions) are a further attempt to relitigate the Bankruptcy Court's order denying Appellant's objection to the government's proof of claim. The government states that such relitigation is barred by principles of res judicata. Because all of the cases involve the same parties and arise from approval of the same (although repeatedly amended) tax claim, the Court, in the interest of furthering the purposes and intent of the orders of consolidation, will dispose of the remaining issues and pre-consolidation motions which are still pending.

THE BAR OF RES JUDICATA

[12] The issues raised in the appeals of the consolidated cases are barred by principles of res judicata. Bankruptcy Court Rule 8002 provides a ten day period for appeal of any final judgment, order or decree. A final order has been defined as "a decision which finally determines the rights of the parties . In Re: Merle's, Inc., v. Tonkoff, 481 F.2d 1016, 1018 (9th Cir. 1973). In Siegel v. Fed. Home Loan Mortgage Corp., 143 F.3d 525, 529 (9th Cir. 1998), the Court held that the allowance of a claim in bankruptcy is binding and conclusive on all parties or their privies and, being in the nature of a final judgment, furnishes a basis for a plea of res judicata.

[13] The Bankruptcy Court's order overruling Appellant's objection and allowing the Government's claim was a final order. Appellant did not appeal within ten days. Instead, he filed repeated adversary actions adding government agencies and employees as defendants, but not in their individual capacities. Agencies of the United States, such as the Internal Revenue Service, cannot be sued unless such suits are specifically authorized by Congress. See Blackmar v. Guerre, 342 US 512, 514-15 (1952). The Ninth Circuit has also held that agencies and employees of the United States, when sued in their official capacities, are protected by sovereign immunity. See Pereira v. United States Postal Service, 964 F.2d 873, 876-77 (9th Cir. 1992). The Bankruptcy Court correctly construed Appellant's suit against the Internal Revenue Service and the District Director as one against the United States. Appellants arguments regarding proper parties are without merit. Appellant's argument that Rule 15 of the Federal Rules of Civil Procedure applies to amendment of proofs of claim is also without merit.

[14] The Bankruptcy Court order denying Appellant's objection and approving the Government's claim constitutes res judicata thereby precluding the adversary actions. Appellant's objection involved the same essential parties as the adversary proceeding and the claims in the objection and adversary proceedings are the same. The objection and the adversary proceeding arise out of the same transactional nucleus of facts. The claims in the adversary proceeding could have been brought in the objection and that alone would be sufficient to find that the adversary actions are barred by the rulings on Appellant's objection to the Government's proof of claim. See Int'l Union of Operating Eng'rs-Employers Constr. Indus. Pension Welfare & Training Trust Funds v. Karr, 994 F.2d 1426, 1429-30 (9th Cir. 1993).

MOTION TO SET BRIEFING SCHEDULE

[15] The respective Motions to Set Briefing Schedule are rendered moot by the granting of the United States Motion for Stay of Briefing Schedule (e.g. Case No. CV-S-00-0743, #9). These motions are also rendered moot by the pendency of the appeal in the Ninth Circuit Court of Appeals. If the District Court decision is affirmed in that case, the same controlling legal principle of res judicata will apply to bar the Debtors claims in the consolidated cases. Although Appellant argues in his petition for clarification (CV-S-00-0744, #14), that the issues are not the same because he has added an application for injunction that is not present in CV-S-99-0912, that additional feature would not have any impact on whether dismissal of the case on principles of res judicata is affirmed. Any appeal of the denial of preliminary injunction would be moot because the Bankruptcy Court reached the merits of the claim and the District Court affirmed after de novo review.

MOTIONS TO STRIKE AND FOR FINDING

[16] The Court having ordered that the Motions to Consolidate are granted and that the Government's Motion for Stay of Briefing Schedule is granted, Appellant's Motions to Strike and Motions for Finding that Appellants Have Failed To Follow Briefing Schedule are rendered moot.

[17] IT IS THEREFORE ORDERED that each of Appellant's pending motions is denied as follows:

     CV-S-00-742: #12, #14, #15, #17.

[19] DATED this 29th day of December, 2000.

                                   Kent J. Dawson