No. 06-19-D
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IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
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Plaintiff-Appellant
v.
UNITED STATES
Defendant-Appellee
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On Appeal From The Judgment of the
for the Northern District of Georgia
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Appellant's Opening Brief
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Patriot T, pro se
16 Court Circle,
April 10, 2006
STATEMENT REGARDING CORPORATE AFFILIATION
Appellant hereby certifies that he is not an officer of a publicly held corporation nor an officer of a parent, subsidiary or affiliate of a publicly held corporation. No publicly held corporation or business has any interest in the outcome of this appeal.
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TABLE OF CONTENTS
Table of Cases, Statutes and Authorities . .1
Statement of Facts Relevant To A Review of the Case ...3
Arguments . ..5-9
I. Technical Defects in Service Did Not Warrant Dismissal 5
II. Appellant Severely Prejudiced By Dismissal 7
Conclusion 9
Statement Regarding Oral Argument 11
Certificate of Compliance ..11
Certificate of Service 12
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TABLE OF CASES, STATUTES AND AUTHORITIES
Cases:
Poulakis v. Amtrak, 139 F.R.D. 107 (N.D.Ill. 1991) 6
Szarejko v. Great Neck School Dist., 795 F.Supp. 81 (E.D.N.Y. 1992). ..6
Clement v. Madigan, 820 F.Supp. 1039 (W.D.Mich. 1992) .6
Zankel v.
Beaudett v. City of
Board of Trustees of Trucking Employees of N. Jersey Welfare Fund, Inc. v. Canny, 876 F.Supp. 14, 16 (N.D.N.Y. 1995) 8
Dourlain v.
Crane v. Battelle, 127 F.R.D. 174, 177 (S.D.Cal. 1989) ..9
United Food and Commercial Workers
Statutes:
IRC § 6330 .1
26 USC 6330 (Notice and
26 CFR 301.6330-1 (Notice and
Authorities:
Constitutional Amendments 4, 5
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STATEMENT OF CASE
1. On Oct. 10, 2004, Plaintiff-Appellant Patriot T (hereinafter 'Patriot') filed with Defendant-Appellee Internal Revenue Service (hereinafter 'IRS') his Request for Collection Due Process Hearing (hereinafter 'CDPH') under 26 USC § 6330 (Exhibit A). The request was timely and accepted by IRS. 26 CFR 301.6330-1(b)(1).Patriot T did not request an "equivalent hearing", 26 CFR 301.6330-1(i), nor a "hearing by phone", 26 CFR 301.6330(d)(2)(A-D7).Patriot T requested a face-to-face hearing so he could view for himself the information that the independent, unbiased hearing officer -- free of agency control -- must have before making a "determination". 26 CFR 301.6330-1(e)(1).
2. On April 6, 2005, the IRS Appeals Division issued its Letter of Determination denying Patriot T the relief he sought in the CDPH. 26 CFR 301.6330-1(d)(2)(A-D7). The reason given for not granting Patriot T the CDPH was that his request was untimely and that he had raised frivolous issues (Exhibit B).
3. On May 9, 2005,Patriot T filed in the United States District Court for the Northern District of Georgia his appeal of said letter of determination under authority of IRC § 6330(d)(1)(a).
4. On Nov. 18, 2005, the Honorable Clarence Cooper, United States District Judge for the Northern District of Georgia, dismissed the appeal for lack of prosecution.
5. Patriot timely filed his Notice of Appeal to the United States Court of Appeals for the Eleventh Circuit on March 3, 2006.
STATEMENT OF THE FACTS
1. On May 9, 2005, Patriot T filed his original complaint, which was an appeal of a CDPH letter of determination. 26 CFR 301.6330-1(f)(1). A deputy clerk accepted the sum of two hundred fifty dollars ($250.00) from Patriot T in filing fees. Patriot T was given blank copies of Form AO-440, Summons in a Civil Action, and oral instructions to bring these forms back when he had proof that copies of the complaint had been delivered to all parties of record via certified mail.
2. When Patriot T again visited clerk on Aug. 19, he was informed
that proof of return of service had not been effected and that the "sequencing" of his actions was wrong. There followed heated discussion as to what had been communicated when Patriot T filed suit on May 9.Patriot T encountered intransigence, hostility and ridicule in response to his good-faith attempts to determine what "sequencing" was required to achieve proper service on all parties.
3. There was an impasse in the discussion during which Patriot T rhetorically asked if he should wait and do nothing until the 120-day timeline to summons opposing parties had lapsed, since any assistance in curing defects in service would apparently not be forthcoming from deputy clerk. The clerk advised against this and told Patriot T to research cases similar to his on a computer terminal located in the office and "see how they had done their cases", or words to that effect. Clerk also suggested Patriot T file a "notice of filing", however the 30-day toll on filing such notice had run out in May. Patriot T was apprehensive about taking this course of action as clerk had previously given Patriot T erroneous instructions on clerical matters, and now was apparently giving Patriot T legal advice. Deputy clerk also made the desultory suggestion that Patriot T contact "Legal Aid", but did not elaborate.
4. Patriot forthwith sent two-sided copies of all green return receipts showing opposing parties had received and signed for his original May 9 complaint together with blank copies of Form AO-440 and a cover letter to the Clerk of Court (Exhibit C), copying the U.S. Attorney for the Northern District of Atlanta.
5. These mailings were received and signed for by both parties on Aug. 31, 2005. These further attempts by Patriot T to amend and effect service of process were later made light of in the
6. On Nov. 4, 2005, the District Court issued an order for both sides to file preliminary reports, disclosure plans and initial disclosures. However, Patriot T never received the courts order. It is notable that the one court document on which the prosecution and advancement of Patriot Ts case depended is the one Patriot T never received.
7. Patriot received the courts Dec. 12 final judgment dismissing Patriot Ts case for want of prosecution. Promptly upon this discovery, Patriot T filed a Motion to Alter Judgment and Request for Extension of Time for Plaintiff To Comply on Dec. 1, 2005 (Exhibit D).
8. On Jan. 6, 2006, the District Court denied Patriot Ts motion (Exhibit E). On March 3, 2006, Patriot T filed his Notice of Appeal.
ARGUMENT
I. Technical Defects in Service Did Not Warrant Dismissal of Complaint
1. The courts have time and again ruled unequivocally that technical defects in service should not obscure the overriding need to judge a suit on its merits, motivated by concerns for substantial justice to be done. F.R.Civ.P. 8(f), 15. This is nowhere more true than with pro se litigants constrained by job and family demands, severely restricted budgets and pitted against an adversary with unlimited manpower, legal expertise, funding and familiarity with the judicial system. In Poulakis v. Amtrak, 139 F.R.D. 107, 107 (N.D.Ill.1991), that court ruled
"Plaintiff's pro se status entitles him to a certain degree of leniency in regard to service of process so as to ensure that his case is justly resolved on its merits rather than on basis of technical difficulties."
Similarly, "Although mailed service
was inadequate,
dismissal was not warranted absent any showing of prejudice."
2. The courts have reviewed the issue of proof of service on government entities and determined that plaintiffs have satisfied "substantial compliance" when their mailings contained only "
a cover letter, or even a summons, with another defendant's name typed on it
Clement v. Madigan, 820 F.Supp. 1039 (W.D.Mich. 1992). Even complaints sent outside the 120-day statutory time limit have been spared summary dismissal and allowed to move forward. Szarejko v.
3. Additionally, on the subject of service on government agencies, the court ruled in Zankel v.
"Rule on serving
4. None of the defects in service in Patriot T's case rise to anywhere near the level of these other cases. Furthermore, the clear face of the record shows that Patriot T has been painstakingly diligent in timely responding to every harassing letter, delaying tactic and procedural abuse by IRS. Patriot T never knowingly or willfully ignored a directive of the District Court, provided he was aware of same. Thus it is not the case, as the District Court said in its Jan. 6 order denying Patriot T's motion, that Patriot T left issues undisputed.
"District Court should give pro se litigant benefit of liberally construed complaint
where subsequent proceedings reveal that ambiguous fragments in complaint represent heart of litigant's concern; where context makes clear litigant's essential grievance, complaint's additional invocation of general legal principles need not detour District Court from resolving that which litigant himself has shown to be his real concern". Beaudett v. City of
II. Appellant Severely Prejudiced By Dismissal
1. Patriot never asked nor expected Clerk of Court's office to give him legal advice or do research in the law for him, only to verify if procedures Patriot T was using, based on his reading of the literal wording of F.R.Civ.P. 4, were correct for serving notice properly, particularly as
2. Patriot has been forced to become what amounts to a lay attorney in order to try to overcome IRS abuses, while weathering the indifference and ridicule of some -- though certainly not all -- deputy clerks, where they have a duty to assist petitioners in rudimentary clerical tasks. The law even provides protection from court clerks' failure to perform certain duties. F.R.Civ.P. 5(e).
3. Citing a benchmark case, Jordan v. U.S., 694 F.2d 833 (D.C.Cir. 1982)(per curiam), in regards notice of service, the Zankel court further opined, "We think that plaintiffs' mistakes are more properly regarded as a technical defect in service " and that "Plaintiffs, on the other hand, suffered extreme prejudice from the dismissal of their complaint ". Similarly, "Rule 4 is a flexible rule which is liberally construed to uphold service as long as defendant receives sufficient notice of the complaint." Crane v. Battelle, 127 F.R.D. 174, 177 (S.D.Cal. 1989) (citing United Food and Commercial Workers Union, Locals 197, et al. v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984).
CONCLUSION
WHEREAS, the IRS has for years been exploiting the inability of ordinary citizens to effectively challenge their routine abuses, in order to avoid the nondiscretionary burdens placed on that agency by the 1998 IRS Restructuring and Reform Act,
WHEREAS, this case should never have reached this stage, since IRS denied Patriot T the most fundamental of administrative remedies in months and years prior,
WHEREAS, IRS has compelled Patriot T to file needless lawsuits and clog the court system, which have caused Patriot T and his family wholly unnecessary expense in time, money, peace of mind and family harmony,
WHEREAS, statutorily prescribed safeguards were ignored in Patriot T's case in the face of his vigorous protests at every juncture,
WHEREAS, Patriot T has shown how the IRS has a Congressional mandate to hold the CDPH when it is timely requested,
WHEREAS, Patriot T contends the reason the CDPH has been so strenuously avoided is that the required documentation doesn't exist, or IRS cannot produce it for Patriot T's inspection, 26 CFR 301.6330(e)(1), and that without this foundation, IRS's entire defense collapses into a vindictive campaign merely to inflict pain, humiliation, terror and discord on Patriot T and his family,
WHEREAS, this Court has actual knowledge that Patriot T has constitutionally protected rights including the right not to be deprived of property without due process of law, and
WHEREAS, this Court has actual knowledge that the United States Constitution provides that Patriot T shall enjoy equal protection of the law,
THEREFORE, this Court should vacate the Jan. 6 judgment of the District Court and remand with instruction to repair Patriot T,
THEREFORE, this Court should order Appellee to compensate Patriot T in the amount of $20,000.00 in actual damages for his lost time, earnings and productivity in bringing these wholly unnecessary lawsuits,
THEREFORE, this Court should sanction IRS for gross violation of Patriot T's rights and for abuse of discretion in ignoring its own procedures and the laws passed by Congress, which ideals of substantial justice and fair play demand.
STATEMENT REGARDING ORAL ARGUMENT
Oral argument would materially assist this Court in its determinations. Although Appellant is not schooled in the law and courtroom procedure, he respects the solemnity of the Court and the gravity of its proceedings, and can lucidly present facts and issues necessary to its deliberations.
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation set forth in F.R.A.P. 32(a)(7)(B). This brief contains 2,431 words.
Prepared and submitted by: ____________________________________
Patriot T
CERTIFICATE OF MAILING
I certify that on this date, I hand-delivered the original plus six copies of this brief to the Clerk to the Court of Appeals for the Eleventh Circuit. I further certify that on this date copies of this brief were sent to opposing counsel via United States mail correctly addressed with sufficient postage pre-paid.
Signed: ________________________________ Dated: ______________
Patriot T